Jammu & Kashmir High Court
State Of J&K And Others vs Vinod Kumar Gandotra on 31 March, 2022
Bench: Chief Justice, Moksha Khajuria Kazmi
Sr. No. 02
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Case: LPA No. 15 of 2022
in
MCC No. 418 of 2018
State of J&K and others ....Petitioner/Appellant(s)
Through :- Sh. Ravinder Gupta, AAG
V/s
Vinod Kumar Gandotra ....Respondent(s)
Through :- Sh. Abhinav Sharma, Sr. Advocate with
Sh. Vishal Sharma, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
Moksha Khajuria Kazmi-J MCC No. 418/2018 For the reasons stated in the application, the same is allowed. Leave to file appeal is granted.
MCC No. 418/2018 is disposed of.
LPA No. 15/2022
01. Through the medium of present Letters Patent Appeal (LPA), the appellants herein have challenged the judgment dated 19.04.2018 passed in SWP No. 1030/2012 titled as Vinod Kumar Vs. Commissioner/Secretary, General Administration Department and others whereby the State Government has been directed to consider the case of the petitioner-respondent herein for regularization of his services on the post of Junior Scale Stenographer by invoking the Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) 2 LPA No.15/2022 Rules, 1956 (for short the Rules of 1956) and to accord him all consequential benefits within a period of three months from the date of receipt of a certified copy of the said order.
02. Briefly stated, the facts emerging from the writ petition are that the petitioner-respondent herein had filed a writ petition before the writ court and sought a writ of Certiorari for quashment of Government Order No. 465-GAD of 2012 dated 26.04.2012 along with relieving order No. Edu/Adm/NG/2012 dated 26.04.2012. He had also sought his regularization against the post of Junior Scale Stenographer on the analogy of Sh. Nazir Ahmed Shah with all consequential benefits and restrained the respondents from demoting him to the post of Senior Assistant or passing any order prejudicial to the service interest of the petitioner- respondent herein.
03. Initially the respondent was appointed as Junior Assistant in the J&K Secretariat (Subordinate) Service vide Government Order No. 940-GR of 1986 dated 31.07.1986 and was posted in School Education Department. The service condition of the respondent was regulated under the J&K Secretariat (Subordinate) Service Rules 1998 issued vide SRO 255 dated 21.08.1998. In terms of Rule 5 of SRO 255, the qualification and method of recruitment laid down in terms of Rule 5 (2) for appointment to the service has to be made:-
a. By direct recruitment, (which will include appointment by transfer) b. By promotion; and c. Partly by direct recruitment and partly by promotion,
04. Thereafter, by virtue of order dated 20.08.2001, the respondent was adjusted as Junior Scale Stenographer on adhoc basis and his appointment as Junior Scale Stenographer was extended from time to time with charge allowance up to 2011, i.e., for a period of more than 10 years. It is the case of the respondent 3 LPA No.15/2022 that the he was undergoing the Secretariat Training Course, which was mandatory under the Rules of 1998 for promotion to the post of Head Assistant and thereafter, as Section Officer but he was asked to leave the course as he was adjusted as Junior Scale Stenographer, which post was required to be filled up 100% by direct recruitment.
05. The Schedule-II of the J&K Secretariat (Subordinate) Service Rules, 1998 reads as under:-
SCHEDULE - II Class Cate Designation Pay Qualification Method of Recruitment gory of Scale Posts
(a) for direct (b) for recruitme promo nt tion 1 2 3 4 5 6 7 1 1 a Section [7450- By selection from category Officer 11500] (b) having not less than 3 years service as such.
b Head 5000- By promotion from category Assistant 8000 (c) having at least 3 years service as such and having passed Secretariat Assistants Examination.
c Sr. Assistant 4000- By promotion from category 6000 (d) having at least 3 years service as such.
2d Jr. Assistant [3050- i) Graduation i) 75% by direct recruitment.
4910 from any ii) 25% by promotion from
recognized Matriculate/Orderlies/Jamadars
University having at least 3 years service as
with such, on the recommendations of
knowledge DPC, who qualify type test
of Type requiring a minimum speed of 25
writing words per minute in order of
having not Seniority,
less than 35
words speed
per minute.
ii) Six
months
certificate
course in
Computer
Applications
from a
recognized
Institute.
4 LPA No.15/2022
1
II a Sr. [7450- By selection from category (b)
Stenographer 11500] (Junior Stenographer) having not
less than 5 years service in that
category.
2
b Jr. [5000- i) Graduation 100% by direct recruitment.
Stenographer 8000 from any
recognized
University
having
minimum
speed of 65
and 35 words
per minute in
shorthand
and type
writing
respectively.
ii) Six
months
certificate
course in
Computer
Application
from a
recognized
Institute.
06. The writ court, after examining the submissions made by the learned counsel for the parties and after perusing the record held as under:-
"8) I have considered the submissions made by the learned counsel for the parties and have perused the record. Admittedly, the petitioner did not apply for his appointment as Junior Scale Stenographer on adhoc basis. The appointment of the petitioner as Junior Scale Stenographer on adhoc basis was made by an order passed by the State Government. The petitioner has admittedly discharged the duties on the post of Junior Scale Stenographer for more than 15 years and has been paid the charge allowance as well.
9) The Supreme Court in the case of Narinder Chadha vs. Union of India (supra) has held that whenever a person is appointed on a post without following the rules prescribed for appointment to that post, he should 5 LPA No.15/2022 be treated as a person regularly appointed to that post, m case the person so appointed has been allowed to function for a period of 15 years or more and he cannot be reverted unceremoniously and cannot be treated as person not belonging to the service particularly when the Government is empowered to relax the Rules. In the instant case, as stated supra, the petitioner was appointed by the State Government itself on the post of Junior Scale Stenographer on adhoc basis and he was permitted to continue for a period of more than 15 years and was also paid the charge allowance as well.
Admittedly, under Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, the State Government has power to relax any rule in order to remove the hardship being faced by a particular individual/employee or group of individuals/employees. Therefore, the Government can relax the rules in order to regularize the appointment of the petitioner on the post of Junior Scale Stenographer.
10) In view of the law laid down by the Supreme Court in the case of Narinder Chadha vs. Union of India (supra), it is directed that the respondents cannot be permitted to take the plea, particularly in lieu of Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, that the petitioner is a person belonging to this service, as the State Government has power to relax any rule. It is also relevant to note here that for the action on the part of the State Government, the petitioner cannot be made to suffer. Accordingly, it is a fit case where the State Government can invoke the provisions of the Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Therefore, the contention of the learned counsel appearing for the 6 LPA No.15/2022 respondents that the regularization of the petitioner on the post of Junior Scale Stenographer is contrary to the rules in the face of power to relax the same, cannot be accepted, as no justification has been put forth by the respondents as to why the petitioner was posted as Junior Scale Stenographer on adhoc basis and was allowed to continue for 15 long years.
11) Accordingly, the State Government is directed to consider the case of the petitioner for regularization of his services on the post of Junior Scale Stenographer by invoking the Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 and to accord the petitioner all consequential benefits. Let the aforesaid exercise be carried out within a period of three months from the date of receipt of a certified copy of the order passed today."
07. The appellants herein have challenged the judgment of the writ Court on the grounds that the post of Junior Scale Stenographer is a direct recruitment post and there is no provision for filling up the post by way of promotion. It has also been submitted that the respondent was a Junior Assistant in the J&K Secretariat (Subordinate) Rules and then promoted as Senior Assistant vide order dated 14.03.2011 and could not be promoted as Head Assistant in view of the fact that he did not qualify the Secretariat Training Course.
08. Heard learned counsel for the parties and perused the material on record.
09. Admittedly, the respondent has been allowed to function for a period of more than a decade and as such, he cannot be shown the doors at the fag end of his career. The Government is neither granting him promotion to the post of Head Assistant/Section Officer nor allowing him to function against the post of 7 LPA No.15/2022 Junior Scale Stenographer, thereby making him to suffer stagnation at both ends. The respondent has already crossed the age of 55 years and is still not regularized against the post against which he is made to work for more than 20 years by now. The writ court has rightly directed the Government to consider the case of the petitioner-respondent herein for regularization of his services to the post of Junior Scale Stenographer by invoking Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956.
10. In view of the aforesaid, the instant Letters Patent Appeal is dismissed.
(MOKSHA KHAJURIA KAZMI) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
31.03.2022
Angita
Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No