Employees Appointed In Violation Of Articles 14 & 16 Can Be Disengaged Without Hearing: J&K High Court

In upholding the disengagement of employees appointed by various Municipal Committee without issuing any advertisement notice Justice Javed Iqbal Wani observed,

“.. Had the respondents issued a notice to the petitioners or affording them opportunity of hearing before disengaging them the issuance of such notice or affording them an opportunity of hearing to the petitioners on account of the aforesaid admitted facts would not have changed the admitted position obtaining in the matter being that the petitioners indisputably have had been appointed against the mandate of Article 14 & 16 of the Constitution”

Background:

The petitioners, Shameem Ahmad Shah and others, were appointed to various posts, including Death & Birth Reporter, Computer Assistant, Works Supervisor, and others, in the Municipal Committees of Hajin, Sumbal, and Bandipora. Their appointments, dating back to 2005-2009, were made by the President of the Municipal Committees against clear vacancies in the pay scale of Rs. 2250-3200 with other usual allowances.

In 2014, the petitioners approached the Court after facing the threat of replacement and salary withholding by the respondents. The Court initially directed the release of their salaries in 2015. Despite the directive, the respondents continued to withhold salaries snd ultimately issued their Disengagement order in 2017

The petitioners argued that their disengagement in 2017 was illegal as it was done without notice or an opportunity to be heard, violating principles of natural justice. They also claimed discrimination, asserting that other similarly situated employees were not disengaged.

The respondents, represented by Deputy Advocate General Mr. Raies-ud-Din Ganie, contended that the petitioners' appointments were against the law, as they were made without a proper selection process. He argued that providing an opportunity to be heard was unnecessary since the appointments were fundamentally flawed.

Court Observations:

After considering the rival contentions Justice Wani noted that it was not in dispute that the petitioners came to be appointed against their respective posts by the then President of the respective Municipal Committees without issuing any advertisement notice thereof or subjectingthe petitioners of any process of selection.

Justice Wani observed that since the petitioners were appointed without following the constitutional mandates of Articles 14 and 16, which require transparent and fair selection processes the court reasoned,

“.. affording them an opportunity of hearing to the petitioners on account of the aforesaid admitted facts would not have changed the admitted position”

The Court cited the Supreme Court's rulings in State of Orissa and Another vs. Mamata Mohanty and Basudeo Tiwari vs. Sido Kanhu University and Others to reitrate that appointments made without proper selection procedures cannot confer any right to the appointees.

Concluding that issuing a notice or affording an opportunity to the petitioners would not alter the fundamental fact that their appointments were illegal, Justice Wani noted that Article 14 does not envisage negative equality, meaning that just because other employees were mistakenly retained, it does not justify retaining the petitioners.

In light of these observations the court dismissed the petition.

Case Title: Shameem Ahmad Shah Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 185

Click Here To Read/Download Judgment