Draft rules have no statutory force if recruitment rules exist: HC

HC vacates interim directions paves ways for appointments of Panchayat Secretaries

28/04/2024

JAMMU, Apr 27: The High Court of J&K and Ladakh comprising of Justice Wasim Sadiq Nargal has after hearing the counsels appearing in a batch of petitions held that draft rules have no statutory rules.
The High Court has vacated the interim orders/ Stays passed stalling the recruitment of GRS by the Service Selection Board and directed that the same may be made subject to outcome of the petitions.
Justice Nargal passed this significant direction in one petition titled Shafket Ali and ors through: Mr. Wasim Akram, Advocate. vice
Mr. N.D. Qazi, Advocate alongwith batch of petitions. The Union Territory of J&K was represented by Mr. Amit Gupta, Rahul Sharma, Bhavesh Bhushan and Rupali Sharma, Advocates for other respondents in WP(C) No. 1318/2022.
The Court observed " Since the issue involved in all the petitions is the same and the Advertisement Notice under challenge is also the same, therefore, this Court is proposed to pass a common order in all the petitions.
It is an admitted case of the parties that the petitioners were
engaged as Gram Rozgar Sevak (in short, "GRS") on contractual basis for a period of one year under a Scheme viz Mahatma Gandhi National Rural Employment Guarantee Act (in short, "MGNREGA"). They are seeking their claim on the basis of a proposed amendment in J&K Rural Development (Sub-ordinate) Service Recruitment Rules, 2007 (hereinafter referred to as the "Rules of 2007"), whereby the post of GRS has been proposed to be
incorporated in Clause V and Category D as one of the feeding cadre post for promotion to the post of Panchayat Secretary/VLWs.
5. The further case of the petitioners is that an Advertisement
Notification No. 03 of 2022 dated 26.05.2022 was issued by the respondent No. 4, advertising 1395 posts of Panchayat Secretary, to be appointed as such by the Rural Development and Panchayati Raj Department. The instant petitions have been filed on behalf of the petitioners on a mere apprehension that if the selection process pursuant to the aforesaid notification is completed and 1395
posts of Panchayat Secretary are filled up, there may not be any vacancy left for GRS, whereto they would be promoted (provided the proposed amendment in the recruitment rules are finally notified and enforced) and in the aforesaid backdrop, the petitioners have filed the instant petitions, inter-alia, challenging the said notification with a view to stall the selection process. For the facility of
reference, the order dated 16.06.2022 passed in WP(C) Nos. 1318/2022, 1317/2022 & 1323/2022 & orders dated 24.06.2022 passed in WP(C) Nos. 1392/2022, 1399/2022 & 1403/2022, whereby interim directions have been passed by this Court and also the order dated 27.03.2024, whereby the impleadment of the applicants has been made.
The Court further observed " The law is settled in this regard that the draft rules unless accepted and takes the form of statutory flavor, cannot be relied upon for taking any benefit, particularly, in view of the existence of already applicable statutory
rules in place. The record further reveals that in compliance to order dated 16.06.2022 passed by this Court in Writ Petitions bearing WP(C) Nos. 1318/2022, 1317/2022 & 1323/2022, the Department of Rural Development and Panchayati Raj considered the case of the petitioners for regularization and rejected the same by virtue of Government Order No. 225-RD&PR of 2022 dated 02.09.2022.
8. The record further reveals that all the supporting staff (contractual
staff) including the petitioners, has been engaged under the Centrally Sponsored Scheme MGNRGA purely on contractual basis and their engagement was temporarily till the end of the contract or the expiry of the scheme, whichever is earlier.
9. Even, on a perusal of the MGNREGA guidelines, it is clearly
envisaged that the services of MGNREGA supporting staff are hired purely on contractual basis and there is no provision under law for their permanent absorption in the existing Recruitment Rules, as their contractual engagements shall expire with the expiry of the scheme/period of their contract, whichever is earlier.
10. Even an exercise was carried out by the respondent-department for adjustment of the subordinate staff engaged under the aforesaid scheme in the erstwhile State against the posts of non-gazetted cadre of the department and it was found that the proposal requires amendment in the Rules of 2007.
Accordingly, the case was examined and proposal in this regard was taken up with the Finance Department for concurrence as well as with the Law Department, however, the proposal has not been agreed upon and there is presently no policy with the Government for regularization/absorption of the supporting staff engaged under MGNREGA on contractual basis.
Further it was observers that "Admittedly, the petitioners have been engaged under MGNREGA Scheme on contractual basis and not against sanctioned posts of VLWs, which otherwise required to be filled up in accordance with the existing recruitment rules and not as per the draft proposal, which has since been rejected by the
Government. The case of the petitioners cannot be considered in violation of the recruitment rules, which are in vogue.
14. The fact that the draft rules, on which the reliance has been placed by the petitioners, stood rejected by the competent authority and are non-est, is further evident from the publication of new proposed draft amendments in the Rules of 2007 for inviting objections. In the said proposed draft amendments, the post of Panchayat Secretary (Level-2) has been proposed to be filled up
through 100% by way of direct recruitment.
Further it was observed "Since, the interim orders stalling the process of recruitment have adverse impact and have seriously jeopardized the functioning of the department, as has been projected by the learned counsel appearing on behalf of
the respondents, this Court, accordingly, is required to consider not only the interest of the parties, but also the larger interest of services, as also the element of public interest whether to continue the interim orders or to vacate the same by stalling the whole recruitment process, which not only causes injury to the large number of employees, who are deprived of the right of consideration for appointment, but is also antithesis of public
interest and adversely affect the service as a whole.
18. It is beyond any cavil of doubt that before passing an interim order, the Courts should not only consider the prima-facie case, balance of convenience and irreparable injury, but also has to consider the affect on public interest, as well. The public interest in the instant cases demands that the process should be continued, thus, an interim order involving public interest in
public law cases must receive different considerations.
19. Since the respondents have projected acute shortage of manpower to run the administration and the stalling of selection process is in nobody's interest, therefore, this Court deems it proper to permit the official respondents to go ahead with the selection process and make appointments, accordingly, which, however, shall be subject to the final outcome of the present proceedings.
Further the High Court observed "23. The law has been settled as naught by the Apex Court in case titled,"Union of India Th. Govt. of Pondicherry and Anr. Vs. V. Ramakrishnan and
others, reported in (2005) 8 SCC 394" that the draft rules can be acted upon, where there are no rules governing the matter and where the recruitment isgoverned by the departmental instructions or executive order under Article 162 of the Constitution of India. Thus, it can safely be held that the draft rules have no statutory force. It is apt to reproduce the relevant para of the said judgment.
"12. The aforesaid decision also in unequivocal terms states that the principle in Abraham Jacob & Ors, Vimal Kumari & Gujarat
Kishan Mazdoor Panchayat that draft rules can be enforced is
applicable only when there are no rules governing the matter
and the recruitment is governed by the departmental
instructions. This is not the position in the case at hand. The
academy has its own J&K Judicial Academy Rules 2007 in
place and the recruitment thereto is not being governed by any
executive instructions. Therefore, the draft rules which in effect
have not been accepted by the Chief Justice and approved by the
Full Court has no application whatsoever and that the services
of the staff employees of Academy shall continue to be governed
by the specific rules in vogue and as amended from time to time.
13. This apart, even the decision of Vimal Kumari's case provides
that the draft rules cannot be followed if there is no intention to
notify them as they do not have the statutory character. The
draft rules framed as aforesaid have not yet been approved by
the Full Court and, as such, there can be no proposal or
intention to notify the same as on date." the Court discussed.
It was held by the High Court as follows:
"25. It is very strange that the petitioners instead of participating in the selection process, have filed the instant writ petitions with a view to stall the selection process by way of misrepresentation of the facts and on mere apprehension, as they have based their claim on the draft rules, the proposal of which has already been rejected by the competent authority.
26. That due to the passing of the interim orders in the aforesaid writ petitions, the whole selection process has been stalled and as per the learned counsel appearing for the official respondents, the department is suffering due to dearth of staff and has prayed for vacation of the interim orders. Even otherwise also, this Court is prima-facie of the view that the petitioners have no locus to challenge the selection process for direct recruitment, as there is no preferential fundamental right of the petitioners for seeking regularization. Thus, it can safely be concluded that the Jammu and Kashmir Service Selection Board being a creature of the statute, is under an obligation to carry out and finalize the selection process for the advertised posts strictly in accordance with the rules/regulations occupying the field and not as per the draft proposal, which has since been rejected by the competent authority.
27. Thus, after hearing learned counsel for the parties, this Court is of the opinion that no fruitful purpose will be served to extend the interim directions, which are being harshly working against the interests of the candidates, who have since been selected and not being appointed due to the rider imposed by this Court and in the aforesaid backdrop, the interim directions passed by this Court vide orders dated 16.06.2022 & 24.06.2022 in all the above-stated writ petitions are hereby vacated and the official respondents are
directed to finalize the selection process, expeditiously.
28. However, the selection/appointment of the selected candidates shall be subject to the final outcome of the instant writ petitions…”

Photo Gallery

BSE Sensex

NSE Nifty