HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 161 OF2014AND LPASW No. 162 OF20141Hafizullaha Mir; age 41 years S/o Sh. Feroz Din Mir R/o Jathji, Doda. 2 Rajeev Singh Kotwal; age 46 years S/o Sh. Trilok Singh Kotwal, R/o 456-Ambphalla, Jammu. 3 Suresh Chander; age 42 years S/o Sh. Rattan Singh R/o Kuthyara, Assar, Doda Petitioners 1 State of Jammu and Kashmir Through Chief Secretary Jammu and Kashmir Government Civil Secretariat Jammu.
2. Commissioner/Secretary to Government Agriculture Production Department Jammu and Kashmir Government Civil Secretariat, Jammu.
3. Director Agriculture Department Talab Tillo, Jammu Respondent !Mr. S. K. Shukla, Advocate in LPASW no. 161/2014. Mr. R. K. Jain, Advocate in LPASW no.162/2014 ^Mr. H. A. Siddiqui, AAG for R-1 to 3 Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Bansi Lal Bhat, Judge Date:
02. 03.2015 :
JUDGMENT
:
1. Hafizullaha Mir; age 41 years S/o Sh. Feroz Din Mir R/o Jathji, Doda.
2. Rajeev Singh Kotwal; age 46 years S/o Sh. Trilok Singh Kotwal, R/o 456-Ambphalla, Jammu.
3. Suresh Chander; age 42 years S/o Sh. Rattan Singh R/o Kuthyara, Assar, Doda.
4. Ajaz Ahmad Salaria; age 41 years S/o Sh. Khursheed Ahmed Salaria, R/o Assar, Doda. Appellants Vs.
1. State of Jammu and Kashmir Through Chief Secretary Jammu and Kashmir Government Civil Secretariat Jammu.
2. Commissioner/Secretary to Government Agriculture Production Department Jammu and Kashmir Government Civil Secretariat, Jammu.
3. Director Agriculture Department Talab Tillo, Jammu. Respondents LPASW No.162/2014 1. Vishal S/o Sh. Kewal Krishan R/o Near J&K Bank, Sidhra, Jammu, age 39 years.
2. Iftikhar Ahmed S/o Sh. Mohd Younus R/o 24, Gujjar Nagar, Jammu age 39 years.
3. Sarfraz Wani S/o Late Sh. Abdul Latif R/o Thana Mandi, Rajouri, age 42 years.
4. Azhar Hussain S/o Sh. Gulam Rasool R/o Mohallah Sarafa, Bhaderwah, age 41 years. Appellants.. Vs.
1. State of Jammu and Kashmir through its Chief Secretary, Civil Secretariat Jammu.
2. Commissioner/Secretary to Government, Agriculture Production Department, Civil Secretariat, Jammu.
3. Director, Agriculture Production Department, Talab Tillo, Jammu.
4. Nasreen Rather W/o Ehtsham Rather R/o Mohalla Shanali, Doda, age 39 years. Respondents. N. Paul Vasanthakumar, CJ1 These LPASWs are directed against the common order dated 14.10.2014 made in SWP No.2729 of 2013 and SWP.No.498 of 2014 respectively, wherein the learned Single Judge dismissed the writ petitions filed by the appellants challenging the order of the Government in G.O.No.378 Agri. of 2013, dated 28.11.2013 with further prayer to regularize the Rehbar-e-Zirat (REZs) strictly as per the year of obtaining degree, in the first phase.
2. Though the common order dated 14.10.2014 is passed in SWP nos. 2729/2013, 1760/2014, 1211/2014, 498/2014, 174/2014, 14/2014 and 2846/2014, LPASW nos. 161 and 162 of 2014 preferred against SWP no.2729/2013 and SWP no. 498/2014 above are before us for hearing. Though caveats are filed in some other SWPs, as the issue involved is common, learned counsel for the caveators are allowed to argue.
3. The brief facts necessary for disposal of the writ appeal as per the pleadings are as follows: (a) Appellants are unemployed agricultural graduates. In the year 2006, the State Government formulated a policy to engage all unemployed agricultural graduates in the State, who have completed B.Sc. (Agri) upto October 2006, who are unemployed as on October, 2006, as Rehbar-e-Zirat (REZs) (as Village Agricultural Extension Assistants) by Cabinet decision No.248/2014 dated 23.10.2006. (b) Pursuant to the said Cabinet decision, the Principal Secretary to the Government, Agriculture Production Department issued an order in G.O.No.20 Agri of 2007, dated 6.2.2007 stating that sanction is accorded to engage all agricultural graduates who are unemployed till October, 2006 under REZ scheme under monthly stipend of Rs.1,500/- with effect from April, 2007 on the following terms and conditions: (i) All the unemployed Agriculture Graduates will register themselves with the Chief Agriculture Officers of their concerned district. (ii) Candidates shall execute an agreement with Chief Agriculture Officer stating that they are not performing any government service whether on contract basis or adhoc. (iii) This engagement shall not confer any right to claim a regular appointment. (c) An Officers? meeting was held on 15.3.2007 under the Chairmanship of the Principal Secretary, Agriculture Production Department and a record note dated 20.3.2007 was produced by the appellants wherein it is stated that 1809 applications were received in Jammu region and 1331 applications were received in Kashmir region for REZ engagement and some of the candidates attained the upper age limit of 37 years and in the said minutes it is recorded among other things as follows: In case these candidates at some stages would come to be regularized in the Government service, the year of obtaining degrees would be considered and seniority maintained accordingly. (d) It is the case of the appellants that pursuant to the Cabinet decision and the Government order dated 6.2.2007 all the unemployed agricultural graduates are engaged as REZs with monthly stipend of Rs.1,500/-, which was subsequently enhanced to Rs.3,000/- per month, followed by Rs.4,500/- per month and finally to Rs.10,000/- per month. In the year 2011, the Government formulated a policy for regularizing all the 2642 REZs, who are in engagement and they were ordered to be designated as Village Agriculture Extension Assistants against equal number of posts to be created by the State Government and a Cabinet decision was taken in Decision No.139/18/2011, dated 4.8.2011, consequent to which the Government Order No.235 Agri of 2011, dated 10.8.2011 was issued. The said order reads as follows: Government Order No.235-Agri of 2011 Dated 10.08.2011 Sanction is accorded to the: (i) Adoption of the policy formulated by the Agriculture Production Department for the regularization of Rehbar-e-Zirat? candidates, placed as annexure to this Government Order. (ii) Creation of 2642 posts of Village Agriculture Extension Assistance by the Agriculture Production Department in the pay band of Rs.9300-34800, with the applicable grade pay of Rs.4200, 881 in the first phase, 881 in the second and 880 in the third and final phase. However, these posts shall be utilized for the regularization of the eligible/selected Rehbar-e-Zirat? candidates with effect from 1st April, 2014 (phase-I), 1st April, 2015 (phase-II) and 1st April, 2015 (phase-III). The regularization process shall be implemented only after proper physical verification of the Rehbar-e-Zirat? candidates, presently engaged in the department. This would also include the verification of their degree certificates obtained from various universities/institutions. The Planning & Development Department shall provide funds for the initial two years in respect of each phase of regularization to meet the expenditure on account of salaries. By order of Government of Jammu and Kashmir. Sd/- xxxxxxxxxxx Principal Secretary to Government, Agriculture Production Department. (e) As per the above regularization Scheme, 2642 REZs, who are engaged in Agriculture Production Department were ordered to be regularized in three phases viz., 881 candidates w.e.f. 1.4.2014; 881 candidates w.e.f. 1.4.2015; and 880 candidates w.e.f. 1.4.2016. The mode of regularization was also stated and Clause 4 deals with eligibility, whereas Clause 5 lays out the selection process and constitution of selection committees for selection of candidates. Clause 5.4 is relevant for consideration wherein it is stated that the Selection Committee shall evaluate the candidates on the basis of qualifications for which weightage restricted to 100 points as indicated viz., (a) B.Sc. (Agriculture) .. 75 points; (b) Post Graduation .. 15 points; (c) Super Speciality .. 10 points. In case more than one candidate obtain the same points, the candidate higher in age would be preferred. (f) According to the appellants, before the Selection Committees were constituted, the Agriculture Production Department seems to have sought the advice of the Law Department for giving weightage to higher qualification and the Law Department opined to explore the possibility of giving some advantage to preferential treatment to the candidates, who have passed the qualifying examination earlier, when compared to the candidates, who passed at later stage by either determining the merit interse of particular batch, or award certain weightage points depending upon the year of passing the qualifying examination. (g) The Government thereafter issued G.O.No.378 Agri of 2013 dated 28.11.2013 and constituted Divisional level Selection Committees for finalizing the list of REZs to be regularized in three phases. The terms of reference are, 1. The lists shall be prepared on the basis of weightage to qualification obtained on or before cut-off date i.e. 31.10.2006 on pro rata basis in the descending order of merit of the Rehbar-e-Zirat?s who have seven years of continuous and satisfactory service from the date of registration, which is to be certified in writing by the concerned CAO?s under whose Charge these Rehbar-i-Zirats are presentaly deployed with, due attestation of Director concerned.
2. The period spent on study/project shall not be counted while arriving at 7 years of service to make the candidates eligible for regularization irrespective of nature permission in this regard.
3. The Committee shall verify the Rehbar-i-Zirats? degree certificate obtained from various universities/institution, along with their recognition status.
4. The Committees shall furnish the final list within one month. (h) Appellants having not possessed of any higher qualification, Post Graduation or Super Specialisation, and the year of passing graduation having not been given any weightage, they feel aggrieved by the said process of selection. Hence they challenged the said order of the Government dated 28.11.2013 to the extent of item No.1 of the terms of reference, which provides for giving weightage to higher qualification and also prayed for issuing direction to comply with the decision taken by the officers meeting held on 15.3.2007 and make regularization on the basis of the year of obtaining B.Sc. (Agri) degree and accord regularization.
4. The learned single Judge considered the contentions raised by the appellants and dismissed the writ petitions, against which this writ appeal is preferred.
5. The principal contention of Mr. S. K. Shukla and Mr.R.K.Jain, learned counsels appearing for the appellants is that the engagement of the appellants and others was ordered by the Director of Agriculture in his order dated 24.3.2007, wherein it is stated that copy of the record note meeting held on 15.3.2007 is enclosed as a guideline issued by the administration department and in the said guidelines a promise was made for regularization of REZs engaged under the scheme, in case in future if Government decides to regularize, the year of obtaining B.Sc. (Agri) degree was ordered to be preferred and such promise having been made, the appellants were made to believe that if the Government decides to grant regularization of REZ persons engaged, year of passing B.Sc (Agri) will be the basis for regularization and not in any other mode. Learned counsels further contended that an assurance, which is reflected in the Officers note decision dated 15.3.2007 is implemented, the appellants are in a position to get regularization in the first phase itself i.e., in April, 2014, while absorbing 881 REZs, and by virtue of the new norms now announced, the promise given to the appellants and others were violated and therefore the action of the respondents is hit by the principles of promissory estoppel and legitimate expectation. The learned counsels further argued that the appellants are aged persons than the persons who are placed above them after conducting the selection procedure now applied, and they may not be in a position to get any promotion in future as most of their juniors name find a place above them in the regularization order. Therefore, the appellants have approached this Court by filing the SWP and the learned single Judge dismissed the writ petitions. Learned counsels argued that the appellants have made out a case to allow these writ appeals.
6. Mr. H. A. Siddiqui, learned counsel appearing for respondent No. 1 to 3 and M/S D. C. Raina, Senior Advocate, Rajesh Bhushan and Nitin Bhasin, learned counsel appearing for the caveators, on the other hand submitted that REZs were engaged to give relief to the unemployed agricultural graduates who languished due to unemployment and they were nothing but Agricultural Village Volunteers. The Cabinet decision dated 23.10.2006, which is the basis for engaging the REZs, nowhere stipulated a condition that they will be absorbed/regularized on the basis of their year of passing B.Sc.(Agri). The note put up by the department (Officers note) in the officers meeting held on 15.3.2007 is only a suggestion, and the same having not been approved by the Cabinet, which is the policy making body, the appellants are not justified in clinching on the said note/recommendation to sustain their arguments of legitimate expectation and promissory estoppel. The learned counsels also submitted that the agricultural graduates, who registered upto the year 2006 were shown a concession for their engagement as REZ on a stipendary basis at the rate of Rs.1,500/- per month with a specific condition that they will not have any right to seek regularisation. It is also contended on behalf of the respondents that considering the long number of years of engagement of REZs, i.e, for seven years, the Government again shown concession to regularize them in the newly created post so as to accommodate 2642 candidates, and total number of posts having not been created at once the same are to be created in phased manner, considering the financial implications. The Cabinet thought fit to create the posts in three years i.e. 881 in 2014, 881 in 2015 and 880 in 2016, and the modalities were also decided by the Government through Cabinet decision that is giving regularization on giving preference to meritorious candidates, possessing PG degrees and Super Speciality degrees. The learned counsels also argued that giving preference to meritorious candidates is just and reasonable and no candidate, who are in engagement as REZ will be denied of regularization and by 1.4.2016 all the persons would be regularized and the learned Single Judge also noticed the said facts and dismissed the writ petition. The learned counsels also submitted that based on the said policy/guideline issued by the Government through Cabinet decision, merit of all the candidates numbering 2642 were assessed by the Selection Committees and all were placed in the appropriate place based on merit assessed uniformly. It is also contended that number of persons, who were placed above the appellants were not impleaded as respondents and without their presence no order affecting their regularization can be issued, and as such the appeal is liable to be dismissed for non-joinder of necessary and proper parties. The learned counsel finally argued that the officers note or Law department?s advise will not bind the Government and the Cabinet decision can be arrived at according to the business rules and prayed for dismissing the writ appeals. The learned counsels also cited certain decisions in support of their contentions.
7. In reply, the learned counsels for the appellants submitted that this Court in an earlier decision dealt with condition No.5(5) incorporated in G.O.No.235.Agri of 2011 dated 10.8.2011 and Condition No.2 incorporated in G.O.No.379.Agri of 2013 dated 28.11.2013 stating that the candidates initially engaged as REZ, who are found to have spent whole or part of the period of their engagement on study/project would be denied regularization and the period on study/project would not be counted while computing the period of service rendered in the department, and set aside the conditions taking note of the grant of permission to undergo higher study/project on the ground that the said clause was unreasonable, in violation of legitimate expectation, and opposed to Article 14 and 16 of the Constitution of India and applying the said reason, the challenge made by the appellants deserves acceptance.
8. The learned counsels appearing for the respondents distinguished the said order and submitted that there is no nexus between the issue raised in these LPAs and the said SWP.
9. We have considered the rival submissions made by the respective parties, perused the Cabinet Decisions, Officer?s Note, Law Departments advice and the decisions relied on by the respective counsels.
10. The point arises for consideration in these letters patent appeals is as to whether the appellants are justified in claiming regularization on the basis of year of passing B.Sc (Agri) by relying on the recommendation/note put up by the Principal Secretary, Agriculture Production Department, dated 20.3.2007.
11. It is an admitted case that the appellants were unemployed agricultural graduates as on October, 2006. The Government of Jammu & Kashmir, to remove the unemployment menace from among the agricultural graduates, took a Cabinet policy decision bearing Decision No.248/2014 dated 23.10.2006 and resolved to engage all agricultural unemployed graduates as on October, 2006 under the REZ scheme and implementation order was also issued by the Government through G.O.No.20 Agri of 2007 dated 6.2.2007. In the said order it is stated that the unemployed agricultural graduates till October, 2006 are to be engaged on monthly stipend of Rs.1,500/- w.e.f. 1st April, 2007 on specific condition that the said engagement shall not confer any right to claim regular appointment.
12. It is true that an officers? meeting was held on 15.3.2007 under the Chairmanship of the Principal Secretary, Agriculture Production Department and a note was submitted on 20.3.2007, wherein it was suggested that in case the candidates (REZs) at some stage would come to be regularized in the Government Department, the year of obtaining degree should be considered and seniority maintained accordingly. The said minutes of meeting was never approved by he Cabinet, which is the policy making body of the Government and the note also suggested to consider the year of obtaining degree. In the order of engagement of the appellants it was unequivocably stated that their engagement shall not confer any right to seek regular employment and the same is not in dispute.
13. It is an admitted fact that there was no post available to engage REZs and only with a view to remove the hardships faced by the unemployed agricultural graduates the scheme was conceived by the Government which culminated into a Cabinet decision and the said engagement having been allowed to continue for several years, the Government (Cabinet) again thought of regularizing the persons already engaged and ordered to create 2642 posts of Village Agricultural Extension Assistants by the Agriculture Production Department in the pay band of Rs.9300-34800 with applicable Grade Pay of Rs.4200/- in a phased manner viz., 881 candidates in the first phase as on 1.4.2014; 881 candidates in the second phase as on 1.4.2015; and 880 candidates in the third and final phase as on 1.4.2016, and those posts were ordered to be utilized for regularizing all eligible/selected REZ candidates w.e.f.1.4.2014 (Phase-I), 1.4.2015 (Phase-II), and 1.4.2016 (Phase-III). The modalities of selection were also announced by Government Order No.378 Agri of 2013 dated 28.11.2013, wherein selection committees were ordered to be constituted and the list was directed to be prepared on the basis of weightage to qualification obtained on or before 21.10.2006 on pro-rata basis in descending order of merit. As per the guidelines/selection norms persons possessing B.Sc (Agri) qualification were given 75 points and post graduation degree holders are given 15 more points and candidates having super specialization are awarded 10 more points. Preferring better qualified person than the minimum qualified person for regularization and for giving seniority cannot be treated as unreasonable when number of candidates are more than the number of vacancies available for 2014 and 2015 years. All the persons including the appellants, who are Agricultural Graduates, who are ordered to continue in their engagement, whose regularization process will complete in any event by 1st April, 2016.Thus no one will be denied of regularization.
14. The contention of the appellants that they were promised to give absorption/regularization based on the year of passing the qualifying examination cannot be countenanced in view of the fact that the said suggestion was only put by the Administrative Department and Law Department for consideration, which was never approved by the Cabinet. It is a well settled proposition of law that merely because some recommendations/suggestions were made, unless the same is accepted by the competent authority and intimated to the party concerned, and if the party alters his position due to the said promise or assurance, then only the principles of promissory estoppel and legitimate expectation is completed.
15. In the decision reported in 2011 (8) Supreme 56 (State of Uttaranchal v. Sunil Kumar Vaish), the scope of noting or suggestions made by the Officers was considered and held that the said notings or suggestions can never be treated as decision of the Government as it lacks sanction of the Government, and the decision or noting can always be reviewed/reversed/overruled/ overturned by the Government.
16. In this case, no such promise was made by the competent authority viz., the Government and in fact regularization itself was not promised at the time of engaging REZs including the appellant. The concession viz., to grant regularization considering the plight of REZs due to their over age and continuous seven years of engagement of REZs, cannot be further allowed to be enlarged at the instance of the appellants, who are having no other vested right to claim for regularization as a matter of right under any rule or statute. Hence the arguments of the appellants that their legitimate expectation is very much affected by the action of the Government in following the selection procedure for regularizing the REZs cannot be accepted and there is no merit in the said contention.
17. The decision relied on by the learned counsel for the appellants viz., 2010 (9) SCC52(State of U.P. v. Santosh Kumar Mishra) has no application to the facts in this case. In the said case, the service rules mandated to appoint Diploma holders of Pharmacy against vacancies became available in each recruitment year by first appointing those who had obtained their diploma earlier. Hence the Hon?ble Supreme Court upheld the direction issued by the High Court to appoint Pharmacists, who were denied appointment by following the Rule. In this case, there is no rule available to lay the hand by the appellants to sustain their submission.
18. The decision relied on by the learned counsel for the appellants viz., SWP.No.2468 of 2013 dated 31.12.2014 was rendered by taking note of the permission granted to undergo higher studies/research projects to REZ persons and after granting permission to advance their knowledge denying to count the period for their eligibility was found to be illegal on the principle of Legitimate expectation and Promissory Estoppel. In this case, none of the appellant by accepting the engagement as REZ altered their position by resigning their earlier adhoc/permanent job. The scheme itself was conceived only to give benefit to unemployed agricultural graduates and unless the appellants were unemployed agricultural graduates, they are not entitled to get employment as REZ. Thus, the principle of Promissory Estoppel and Legitimate Expectation has no application to the facts of the case.
19. The Hon?ble Supreme Court in the decision reported in (2012) 11 SCC1(Monnet Ispat & Energy Ltd. V. Union of India) while considering the principle of Promissory Estoppel, held thus, 182.4 For invocation of the doctrine of promissory estoppel, it is necessary for the promise to show that by acting on promise made by the other party, he altered his position. The alteration of position by the promise is a sine qua non for the applicability of the doctrine. However, it is not necessary for him to prove any damage, detriment or prejudice because of alteration of such promise. 182.5 In no case, the doctrine of promissory estoppel can be pressed into aid to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. No promise can be enforced which is statutorily prohibited or is against public policy. For claiming legitimate expectation, it must be proved that mere anticipation and expectation is sufficient without any concrete promise made by the competent authority.
20. The Supreme Court in (2012) 4 SCC441(Collector, District Gwalior v. Cine Exhibitors (P) Ltd.) in categorical terms held that promissory estoppel cannot be invoked if the person making the promise is devoid of authority to make such a promise and if made, cannot be enforced. In this case, the no affirmative action of the Cabinet is admittedly available to rely upon the alleged promise said to have been given in the Office note.
21. The learned counsel for the respondents are also justified in contending that the selection Committee finalized the selection based on the assessment made in terms of the norms/guidelines as early as on 16.2.2014 and admittedly number of persons are placed above the appellants, whose rights will definitely be jeopardised if the contention of the appellants is accepted. The said persons are not shown as party respondents in these writ appeals. As rightly contended by the respective counsel for the respondents, the parties who are likely to be affected if the relief as sought for is granted, must be impleaded as party respondents and in the absence of impleading them as parties, no order could be issued even assuming that there is any right available to the appellants to agitate. Hence on this ground also the writ appeals cannot be entertained apart from not establishing any merit in the contention to allow the writ appeals.
22. On the basis of the above findings, we are unable to interfere with the orders of the learned single Judge. There are no merits in the writ appeals, consequently the writ appeals stand dismissed. No costs. (Bansi Lal Bhat) (N. Paul Vasanthakumar) Judge Chief Justice Jammu, 02.03.2015 Anil Raina, Secy