The Single Bench of Justice Rajnesh Oswal dismissed a Petition under Article 226 challenging the disengagement of the Petitioner by the Respondent Department observing that once it is established that a candidate has not been appointed by a competent authority, his services cannot be regularized, neither can he be allowed to continue to work with the Department (Respondents). 

The Petitioner in the case had been appointed on consolidated basis with the Respondent Department, however, upon an enquiry report made by a committee constituted by the Government, and as per the directions of the Government, the Petitioner was terminated from services as being a back-door appointee having managed his appointment through the then Executive Engineer of the Department, which was not a competent authority to appoint the Petitioner, upon the recommendation of then Minister.

Assailing the order of disengagement as being illegal and arbitrary, one of the grounds of the Petitioner was that if the Executive Officer had no authority or competence to appoint any person in the respondent department, then he cannot be said to have competence to pass the order of disengagement of the petitioner either, besides, having utilized his services for more than 14 years, the respondents cannot shun him out without even affording an opportunity of being heard to him. 

The Respondents contended that being a backdoor appointee, his employment resulted into denial of opportunity of participation in selection process for engagement to the other eligible candidates, and that once the officer who engaged the petitioner was not having competence to engage the petitioner, the petitioner cannot claim any right to continue at the said post.

The Court, noted from the record that the Petitioner was engaged on consolidated basis in the respondent department on the recommendations made by then Minister of the erstwhile State of J&K, and also the relevant provision of the Jammu and Kashmir Municipal Act, 2000 (Section 307)which provides that, “the municipality may with the previous approval of the Government or any other officer authorized in that behalf, appoint such officers and servants as it considers necessary for the efficient discharge of its duties”. Noting thus, the Court observed that the Petitioner failed toestablish that the Respondent No. 3 (Executive Engineer) was competent to engage the petitioner even on consolidated basis.

Further, the Court vis-a-vis the plea of audi altrem partem observed, “In view of the admitted facts, the denial of opportunity of hearing to the petitioner by the respondents before passing the order impugned is inconsequential, as if the same had been granted, the result would have been the same”. In observing the same, Court relied upon the judgment of the Apex Court in “State of Uttar Pradesh v. Sudhir Kumar Singh [2020 SCC Online SC 847]”.

The Court, moreover, reiterated the settled law that once the initial engagement of a candidate is not by the competent authority, his services cannot be regularized [Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006) 4 SCC 1].

Thus, the Court while holding that there is no illegality in the order of disengagement of Petitioner, dismissed the Petition observing, “Once this Court has come to the conclusion that the initial engagement of the petitioner was not in accordance with law, he cannot be allowed to continue to work with the respondents.”