The State needs to understand that public employment is not a bounty in (its) hands which can be distributed by it arbitrarily and at its whims and caprice.
JAMMU The High Court on Wednesday came down heavily on successive government for backdoor appoint of handpicked candidates in the Jammu and Kashmir for cheap political motives and playing fraud with constitution.
During the last few decades, we have witnessed a unique modus operandi adopted by the successive Governments to play fraud on the Constitution. The equality of opportunity in the matter of employment which is guaranteed to the citizens as a fundamental right has been violated flagrantly with impunity, said a bench of Justice Sanjeev Kumar. The modus operandi adopted by the successive Governments for achieving cheap political motives is to first recruit handpicked candidates on account of their political affiliations and proximities and then engage them on ad hoc, contractual, temporary and daily wage basis on the pretext that such arrangements are required to be made to meet the exigencies and the emergent situations.
These persons, the court said, are thereafter continued from time to time and till the Government comes up with a policy of regularization of the services of such persons.
These persons are regularized in Government service either by issuing executive orders, statutory rules, or even by legislative enactments. Whatever be the mode adopted by the Government to regularize these temporary, ad hoc, contractual and daily wage employees, picked up arbitrarily other than by holding a fair process of selection and providing fair opportunity to the eligible candidates, is nothing short of fraud on the Constitution, the court said, adding that by such action and inaction, the State has virtually rendered the provisions of Articles 14 and 16 redundant and dead letter in the document known as Constitution of India.
The court made the observations while dismissing a petition by some candidates who were engaged as Weighmen/Chowkidars in the pay scale of Rs.2550-3200 on stop gap basis for 89 days in Consumer Affairs and Public Distribution Department.
Since I have found the appointment of the petitioners illegal and a fraud on the Constitution, there is no scope for any misplaced sympathy and leniency in the matter. The Court cannot become a party to perpetuation of fraud on the Constitution.
Referring to judgment by the Supreme Court in the case of R.Vishwanatha Pillai vs State of Karnataka (2004), the court said that apex court held that any appointment obtained by fraud and deceit is void from its inception and the beneficiary of such appointment cannot claim the protection of Article 311 of the Constitution of India. There should be no doubt in the mind of any person that such persons, who come by backdoor, should go through the same door. As noticed above, the appointment of the petitioners were made in the teeth of the settled legal position adumbrated by the Supreme Court in a number of judgments and allowing such appointments to continue on the basis of misplaced sympathy would be tantamount to putting premium for unconstitutional acts of the State and its officers.
The court added: Sooner than later, the State needs to understand that public employment is not a bounty in the hands of the State which can be distributed by it arbitrarily and at its whims and caprice. To sustain rule of law and ensure protection of fundamental rights of the citizens, the court said it was incumbent upon the State to refrain from acting in a manner which is not countenanced by law. Devising ways and means to overcome the constitutional mandate, sometimes by issuing statutory rules and sometimes by coming up with legislative enactments, is nothing but a calculated fraud on the Constitution. The State should appreciate the constitutional mandate before coming up with statutory rules, executive orders and the legislative enactments providing for regularization of services of the backdoor appointees. Less said the better, the court said.
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