Saajid Siraj Bala vs University Of Kashmir And Ors on 15 December, 2022

[Cites 2, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Saajid Siraj Bala vs University Of Kashmir And Ors on 15 December, 2022

1. The instant petition has been filed by the petitioner herein, challenging the order No. F (Regularization/Cont)GA/KU dated 16.06.2017 issued by the Assistant Registrar, General Administration to the extent it regularizes the petitioner as "Helper" instead of "Trainee Engineer". Besides seeking the effect of regularization against such post; a formal order in this behalf in terms of roadmap as has been approved and issued by respondent No. 2 in the same manner as has been done by the Jammu University and in a way the similarly circumstanced contractual employees were regularized against their own post.

2. The petitioner has further sought direction against the respondents to release all his emoluments as a "Trainee Engineer" from the date order of regularization as "Helper", pay all benefits available to the said post and also to regularize the services of the petitioner with effect from the Page 2 of 13 date he has completed his seven years of service against the post on which he has been working.

3. The Kashmir University pursuant to the resolution passed by the University Council of University of Kashmir and a Roadmap approved and communicated by Financial Advisor (Universities) viz University of Jammu and University of Kashmir vide No. FA-KU/JU/202-

204.com13 dated 20.08.2013 also worked out the roadmap alongwith time lines, for opertaionalizing the framework. The relevant paras of the aforesaid communication are quoted herein below:-

".........IV. There will be complete ban on engagement of casual/contractual workers. V. All the cases of casual workers presently engaged in the two universities will be processed and put up to an empowered committee (one each for the two universities) comprising of the concerned Vice-Chancellor, Registrar, Director General Accounts and Treasuries, Director Budget (both from the Finance Department) and an officer to the General Administration Department (not below the rank of Additional Secretary) strictly as per the provisions of statutes and regulations for regularizing all "engagees who have completed seven years of uninterrupted service after the date of first engagement and who have been paid regularly by the University from available non plan resources. Upon regularization such of the engagees as cannot "Helpers" and be given the pay scales applicable to the lowest Class-IV or Class-III level of employees in the Universities, as the case may be. For such a process of regularization, supernumerary and temporary SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 3 of 13 posts of the "Helpers" shall be created outside the normal/existing hierarchy of the University. VI. Helpers could subsequently move to the clear posts/vacancies in the formal organizational hierarch as and when these become available and the supernumerary/temporary posts of helpers vacated by the incumbents will automatically abolished.

VII. In case of contractual employees also, a similar dispensation could be followed with the difference that the designation could be "Assistants" in place of "Helpers" in case of class III posts.

4. The University of Jammu vide notification No. Estab/13/477- 57611.04.2014 framed the roadmap in terms of notification No. FA-

KU/JU/202-204.com/13 dated 20.08.2013, the persons engaged on casual/contractual basis were to be regularized on the basis of following guidelines:-

I. That he/she has been engaged in the Main Campus/Offsite Campuses of the University of Jammu by the establishment Section on the approval of the Competent Authority. II. That he/she is continuously working on casual basis/consolidated/ contractual/ adhoc basis without any break (other than the usual breaks/leave sanctioned by the Authority i.e., Director/Head of the Department/Branch Officer).

III. That he/she possessed the requisite qualifications and eligibility criteria required or the past (as given at Annexure) on the date of his/her initial engagement on casual or adhoc or contractual or consolidated basis.

SWP No. 1847/2010

c/w SWP No. 2241/2013 Page 4 of 13 IV. That no disciplinary or criminal proceedings are pending against him/her on the appointed day i.e., the date on which he/she is considered for regularization.

V. That he/she has completed seven years or more service as such on the appointed day i.e., the day of regularization.

4. (a). The Committee shall consider the cases of all the casual/contractual engages who have completed seven years of uninterrupted service after the date of first engagement and who have been paid regularly by the University from available resources. Upon regularization, such of the engages as cannot be regularized suitably against available posts, could be designated as "Helpers" and be given the pay scales applicable to the lowest Class-Iv or Class-III level of employees in the University and temporary posts of "Helpers" shall be created outside the normal/existing hierarchy of the University.

b. Helpers could subsequently move to clear posts/vacancies in the formal organizational hierarchy as and when these become available and the supernumerary/temporary posts of Helpers vacated by the incumbents shall automatically get abolished.

c. In case of contractual employees also, a similar dispensation could be followed with the different that the designations could be "Trainee Engineers" in place of "Helpers" in case of Class III posts."

5. The University of Kashmir vide notification No. F(Casual/Contra-Gen-

Adm) KU/14 dated 03.09, 2014 issued guidelines on the basis of which SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 5 of 13 persons engaged on casual/contractual basis shall be regularized on the following lines:-

"........3. Procedure for Regularization a. The committee shall consider the cases of all the casual/contractual engages who have completed seven years of uninterrupted service after the date of first engagement and who have been paid regularly by the University from available resources. Upon regularization such of the engagees as cannot be regularized suitably against available posts, could be designated as "Helpers" and be given the pay scales applicable to the lowest class-IV of employees in the University as the case may be. For such a process of regularization, supernumerary and temporary posts of the "Helpers" shall be created outside the normal/existing hierarchy of the University.

                       b.      Helpers could subsequently move to
                       clear     posts/vacancies     in   the   formal

organization of hierarchy as and when these become available and the supernumerary/temporary posts of Helpers vacated by the incumbents shall also automatically get abolished.

6. The contention of the petitioner is that the roadmap of the University of Kashmir which has been issued vide notification dated 03.09.2014 pursuant to which the petitioner herein has been regularized as "Helpers" is in violation of the aforesaid roadmap. The petitioner was regularized as "Helpers" instead of "Trainee Engineer". The petitioner was regularized in terms of Order No. F (Regularization)/Cont/GA/KU dated 16.06.2017. It is further stated that he was working on contractual basis for more than seven years that too against the clear vacancy, had to be regularized on the basis of roadmap approved and issued by the respondent No. 2 for both the Universities i.e., Jammu and Kashmir. The employees of both the Universities within the State are working under one employer i.e., State of Jammu and Kashmir and therefore, casual/contractual employees of both the Universities are supposed to SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 6 of 13 be treated at par and forms a single class. It is also further stated that the petitioner deserves to be regularized against the post of "Trainee Engineers" from the date they completed his seven years of service.

7. On being put to notice, respondents have filed their reply. It is stated by the respondents that petitioner's initial engagement was as "Trainee" (for internship purposes) and was given training in order to attain professional skills for competing in the industry openings. It is further stated that the petitioner was neither appointed as "Trainee Engineer"

as wrongly claimed in his petition nor he was working on a sanctioned post. It is further stated that petitioner was engaged on contractual basis from 26.07.2010 to 20.01.2011 and he was entitled to further extension on need basis subject to assessment of his work.

8. It is also stated that the Vice-Chancellor has passed an approval on 26.05.2009 for engagement of the petitioner alongwith others on contractual basis as Trainee, on monthly remuneration of Rs. 5000/- w.e.f February 2009. It is further mentioned in the reply that the petitioner was continued working as "Trainee" pursuant to Orders passed by this Court dated 24.12.2010 & 13.03.2021.

9. Heard learned counsel for the parties and perused the material on record.

10. At the very outset, it needs to be stated herein that the petitioner has sought amendment of the writ petition twice, firstly by an application filed on 16.02.2016 stating therein, that the project against which the petitioner has been working has assumed the character of full-fledged Department, therefore, the amendment to the writ petition is required to be made. The second amendment had been sought by an application dated 13.08.2017 on the ground that the petitioner has been regularized SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 7 of 13 as "Helper" during the pendency of the writ petition, when as a matter of fact he was required to be regularized against the post he was holding i.e., "Trainee Engineer/Scientist B" in terms of policy in vogue.

11. The counsel for the petitioner has placed on record the Judgment dated 26.08.2021 passed by the Division Bench in batch of appeals, the lead case being LPASW No. 90/2016 titled as "Sabha Ali Vs. Zahoor Hussain & Ors. Paragraphs 29,30 & 33 being relevant are taken note of herein:-

........."29. Thus the finding of the writ court that regularization of casual/contractual engages has to be considered against the posts in respect of which they have been performing their duties is further strengthened by the road map formulated by the Financial Advisor as approved by the University Council vide its resolution dated 11.10.2012. We are, therefore, of the considered opinion that the notification dated 03.09.2014 envisages regularization of engages not only against Class-IV posts but against Class-III posts provided the engagees fulfill the requisite conditions postulated in the aforesaid notification.

30. It is not the case of respondent-University that aforementioned four writ petitioners do not fulfill the requirements postulated in notification dated 03.09.2014 for their regularization. Therefore, the authorities of the University of Kashmir cannot deny accord of consideration of above named four writ petitioners for their regularization against the post of Junior Professional Assistant as they have been regularly performing the duties as such against these posts. We, therefore, do not SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 8 of 13 find any infirmity or illegality in the finding recorded by the learned writ court in this regard.

33. In view of the directions passed in the preceding para, we are not going into the issue with regard to legality of the policy of regularization issued by the University vide its notification dated 03.09.2014."

The petitioner has also relied upon the judgment rendered by this Court in case titled SWP No. 1295/2018 titled "Qurat-ul-Ain Vs. University of Kashmir and Ors." to buttress his contentions.

12. Counsel for the respondents has also conceded to the fact that the judgment of the Division Bench has attained finality and has not been challenged by respondent-University so far.

13. Having considered the submissions made by the learned counsel for the parties and taking into consideration the ratio laid down by the Division Bench of this Court in the case supra, it would be appropriate if the respondents are asked to consider the matter based on such consideration and take a decision in the matter, so that the grievance projected by the petitioner is addressed properly.

14. Petitioner herein stands already regularized in terms of the policy against the post of "Helper" w.e.f. 01.06.2017.

15. In view of above, the writ petition is allowed and the respondent-

University is directed to accord consideration to the case of the petitioner seeking his regularization against the post of "Trainee Engineer" subject to the condition that the said post exists on the establishment of the University; is available to be filled up and falls within the contours of the Division Bench Judgment supra. The SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 9 of 13 consideration order shall be made and decision taken thereon within a period of two months from the date copy of the Judgment is served upon respondents.

16. Disposed of along with connected CMs.

SWP No. 2241/2013

1. The petitioner through the medium of this writ petition is challenging and seeking quashing of the minutes of meeting dated 5 th June, 2013 held under the chairmanship of Dean Academic Affairs, University of Kashmir, whereby the representation moved by the petitioner seeking grant of pay scale and change of his designation from "Trainee" to "Scientist B" has been rejected.

2. Briefly stated, the case of the petitioner is that he was working as "Trainee Engineer" in the University of Kashmir on a consolidated salary of Rs. 5000/- per month. While working as such, the petitioner apprehended his ouster, therefore, filed a writ petition bearing SWP No. 1847/2010 seeking direction upon respondents to regularize his services whenever such exercise is undertaken by the respondents and allow him to continue on the post till then. The petitioner had further sought direction upon respondents to allow the petitioner and continue him till the post is filled up through regular process or till the Department of IT and SS is wound up or every contractual/casual employees are discharged from their contractual engagement.

3. This court upon consideration of the said writ petition, while issuing notice to the other side, directed the respondents for maintaining status quo viz-a-viz the position of the petitioner. The petitioner appears to SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 10 of 13 have continued in the University on the basis of the Orders passed by this Court in writ petition SWP No. 1847/2010.

4. During the pendency of the said writ petition, the respondent-

University accorded sanction to the re-designation of two "Trainee Engineers" namely Mr. Muheet Ahmed Bhat and Mr. Majid Zamman as "Information Officer" and placed them in the pay scale of Rs. 8000- 275-13500 plus usual allowances under rules w.e.f 13.03.2004, the date they completed their training.

5. The petitioner is stated to have moved a representation dated 19.03.2013 before the respondent-University seeking his designation as "Scientist-B" formerly known as "Information Officer" on the basis of parity with above two "Trainee Engineers" who stood re-designated as "Information Officers".

6. The respondents appear to have not taken any decision on the said representation constraining the petitioner to file yet another writ petition bearing SWP No. 503/2013, which upon consideration, has been disposed of by this Court vide Order dated 05 th April, 2013 directing the respondents to consider the representation of the petitioner within a period of two weeks and communicate the decision to the petitioner.

7. The respondents thereafter have considered the representation of the petitioner and rejected the same on the ground that the petitioner does not exist in the University establishment against any substantive post, but was working as Trainee on consolidated wages of Rs. 5000/- per month by debit of E-Governance Project funds. The Committee, however, while rejecting the representation of the petitioner recommended the continuation of the petitioner in the Directorate of IT SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 11 of 13 & SS and enhancement of his wages be considered as admissibility under the provisions of ongoing IT Projects.

8. Aggrieved of such rejection, the petitioner has filed instant writ petition seeking its quashment on the ground that same is discriminatory in nature as the similarly placed persons were accorded the benefit that has been denied to the petitioner.

9. The respondents upon notice appeared and filed their reply, stating inter alia therein that the petitioner did not work up to the expectations despite having been granted so many extensions in his contractual engagement on the basis of the Orders passed by this Court. It is further stated in the reply that the adjustment sought by the petitioner against the post held by Mr. Muheet Ahmed Bhat has no basis, as the said vacancy has to be filled up through the regular recruitment process in which all candidates eligible to the post get an opportunity to compete.

10. Heard learned counsel for the parties and considered the submissions made.

11. It merits reiteration that two persons referred to by the petitioner namely Mr. Muheet Ahmed Bhat and Mr. Majid Zamman were engaged on contractual basis for a period of three months through an advertisement issued by the respondent-University. From the perusal of the Advertisement notice dated 24.10.2003 issued by the University for engagement of "Trainee Engineers", it was clearly provided that after completion of the training and satisfactory performance, they were likely to be absorbed in the University as "Information Officers". It further appears from the perusal of the order dated 4th April, 2008 by virtue of which said Mr. Muheet Ahmed Bhat and Mr. Majid Zamman were re-designated as "Information Officers" and placed in the regular SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 12 of 13 pay scale of Rs. 8000-275-13500 plus usual allowances w.e.f. 13.03.2004 the date they completed their training which suggests that the two persons with whom the petitioner seeks parity have been engaged through a regular process and after having complete the requisite training as prescribed by the advertisement notice dated 24.10.2003, they were re-designated as "Information Officers". The petitioner, admittedly, having not been engaged through a regular process of selection cannot claim parity with the above two individuals.

12. The petitioner has placed on record the rejoinder affidavit dated 23rd May, 2014, wherein it is stated that the petitioner did not participate in the selection process initiated for the post in the year 2011 but he did participate when it was again advertised in the year 2013 and secured 14 out of 20 points. On this count also, the petitioner, on his own showing, therefore, admits that he participated in the regular selection process for the post in question only in the year 2013 and not before that. In that view of the matter also, the petitioner is not similarly placed with the Mr. Muheet Ahmed Bhat and Mr. Majid Zamman.

13. The petitioner as would appear from the perusal of the material made available, had initially sought his continuation as he was apprehensive of his ouster and on the basis of the Orders of this Court he continued not only to occupy the post but came to be regularized also as "Helper". The claim made by the petitioner in his representation seeking his re-designation as "Scientist-B" is not merely a re- designation but his permanent absorption against the post which cannot be filled up in disregard of the regular recruitment process being a public post in that the other eligible candidates who may get an opportunity to compete for the post in the regular process, would lose SWP No. 1847/2010 c/w SWP No. 2241/2013 Page 13 of 13 such precious opportunity of participating in the recruitment process for the post in question without any legal justification. Furthermore, the learned counsel for the respondent-University has quite specifically contended that the post against which the petitioner is seeking his adjustment is either a Class-II or Class-I category post, therefore, the benefits sought by learned counsel for the petitioner viz-a-viz the application of the Division Bench Judgment rendered in case titled as "Sabha Ali Vs. Zahoor Hussain & Ors." passed in batch of appeals, the lead case being LPASW No. 90/2016 is not available to him, as the said judgment only covers the regularization aspect in respect of Class-III and Class-IV category of employees. The said contention of the learned counsel for the respondents carries weight and is accepted as such.

14. In view of above, the impugned rejection order does not suffer from any illegality, therefore, is maintained.

15. The writ petition, as such, fails and is dismissed along with connected CM(s). Interim direction, if any subsisting, shall stand vacated.

16. Registry shall place a copy of this Judgment on each file.

(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR 15.12.2022 ARIF Whether the order is speaking Yes/No Whether the order is reportable Yes/No SWP No. 1847/2010 c/w SWP No. 2241/2013

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court - Srinagar Bench