Jammu & Kashmir High Court - Srinagar Bench
Imtiyaz Ahmad Mir Amd Ors vs State And Ors on 14 December, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP (C) No. 840/2019
[WP(C) No. 1338/2019]
CM No. 6150/2020
CCP(S) No. 280/220
Imtiyaz Ahmad Mir amd Ors.
...Petitioner(s)
Through: Ms. Saima Mehboob, Advocate.
vs
State and Ors.
...Respondent(s)
Through: Mr. Rais Ud Din Ganai, GA.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge Order 14.12.2020
01. In this petition, filed under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs;
A writ in the nature of mandamus may be issued by this Hon'ble Court and the respondents may be directed to release the unpaid salary of the petitioners from 2018 till date. Moreover, by way of writ of mandamus the respondents may further directed by this Hon'ble Court to allow the petitioners perform their duties without any hassle.
02. Brief facts of the case are summarized as under:-
03. The petitioners are aggrieved of non-payment of their salaries from 2018 till date without any reasons. It is submitted that the petitioners are continuously rendering their services to the respondents with honesty and dedication but their salary withheld without any reasons by the respondents from 2018 till date.
04. The petitioners, as stated, were engaged in the respondent department in the year 2009 against the posts including Tax Collector, Khilafwarzi Page 2 of 10 SWP No. 840/2019 [ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 Assistant and Junior Assistant. It is submitted that the petitioners after their appointment have been rendering their services till date, therefore, as stated, in all respects the petitioners are the lawful employees of the respondent department. It is submitted that the petitioners even have been transferred from one place to the other in order to meet out the administrative exigencies and the requirement of the respondent department.
05. It is submitted that some anonymous complaint came to be filed with the allegations that dozens of male/female persons have been appointed by officers/officials of different Municipal Committee falling under Urban and Local bodies Kashmir during the year 2010-2011 and taking note of the same, the respondent No. 2, Director, Urban Local Bodies, Kashmir, Srinagar, constituted a committee vide order No. 1110-HUD of 2011 dated 20.04.2011 to look into these allegations and fix responsibility of the officers/officials and said order was further modified vide order No. 134- HUD of 2011 dated 03.06.2011.
06. It is submitted that with regard to allegations another anonymous complaint came to be lodged under the name ABC Group of NGO's before the Crime Brach, Kashmir and same came to be forwarded by Crime Headquarters vide letter dated 27.10.2011 to the Police Station, Crime Branch, Kashmir and on the basis of same FIR No. 19/2011 under Section 5(2) of J&K P. Act Section 2006 read with 420, 468, 471 read with 120-B RPC stands registered. It is submitted that in the said general FIR No. 19/2011, the investigation by the Crime Branch, Kashmir is still in progress, however, in the year 2016 an another complaint came to be lodged before Police Station Vigilance Organization Kashmir with regard to Municipal Committee, Baramulla and an FIR No. 20/2016 Police Station VOK under Page 3 of 10 SWP No. 840/2019 [ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 Section 5(2) of J&K P. Act Sct. 2006 read with 420, 468, 471 read with 120- B RPC came to be lodged. However, SSP, VOK, Srinagar, communicated to Director, Vigilance J&K, wherein it was clarified that there is already an FIR No. 19/2011, pending before the Crime Branch and on the same allegations two separate cases on a single occurrence cannot be registered as such the case was requested to be transferred to Crime Branch, Kashmir.
07. The Court of Special Judge, Anti-Corruption, Srinagar vide order dated 18.01.2018, after taking the cognizance posted the case for arguments on charge/discharge however, at the same time returned a finding holding that the allegations against the petitioners/accused persons is true and has held that the investigation agency should have proposed action against accused persons at administrative side as to why action is not taken against the accused persons and how the accused persons are allowed to continue and the said order is passed as if the Court has finally decided the matter and found the accused persons guilty as such has made up his mind that the accused persons are guilty before even the trial is started or charge is framed, as such, the Court order dated 18.01.2018, passed by the Court of Special Judge, Anti-Corruption, Srinagar. It is stated that by virtue of said order the respondents stop the salary of employees working in the department. The order dated 18.01.2018, has been assailed by the petitioners and similarly situated employees in petition filed under Section 561-A No. 114/2018 before this Court. This Court vide order dated 03.05.2028 set aside the order dated 18.01.2018.
08. The petitioners and other similarly situated employees served the Court order dated 03.05.2018 upon the respondents, but the respondents Page 4 of 10 SWP No. 840/2019 [ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 released the salary of some employees which are similarly situated with the petitioners without any reason and justification.
09. The petitioners being aggrieved of withholding of salary, challenge the same on various grounds more particularly that the respondents cannot deny the release of salary of the petitioners, as they have paid the salary to similarly situated persons who are being paid regularly without any break.
10. On notice, respondents have filed reply, wherein it is stated that the basic engagement of the petitioners is dehors the rules and in total contravention to Rule 5 of the J&K Urban Local Body Institutions (Management) Service Recruitment Rules, 2008. It is further stated that as the issue of illegal engagements/appointments has been dealt with by the Constitution Bench of the Hon'ble Apex Court of India in a landmark Judgment passed in case titled Secretary State of Karnataka Vs. Umadevi (2006) vol. 4 SCC 1, wherein the Hon'ble Apex Court in no uncertain terms held " that any appointment made in violation of the statute or in derogation of the equality clause contained in Articles 14 and 16 of the Constitution would be void and of no effect." It is further stated that the Division Bench of this Hon'ble Court in an identical matter in LPA titled Muneer Ahmad Tantray Vs. State of JK and Ors., 2013 (1) SLJ held "that a writ of mandamus cannot be issued by a Court to compel the respondents to perpetuate an illegality."
11. Heard learned counsel for the parties, perused the records and considered the matter.
12. The contentions raised by the learned counsel for the petitioners, needs a mention that the petitioners have made a specific averments in the writ petition that their appointment was made in accordance with the law. Page 5 of 10 SWP No. 840/2019
[ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220
13. The Municipal Committee, Ganderbal, is the creation of a Statute, namely, the Jammu and Kashmir Municipal Act, 2000 (for short the Act). Section 307 of the Act relates to the posts in Municipality and appointments thereto. Sub Section (1) and (2) of Section 307 provide as under:-
" (1) Subject to the provisions contained in this Act and any other condition of services prescribed by the Government by notification, the Municipality may with the previous approval of the Government or any other officer authorized in this behalf, appoint such officers and servants as it considers necessary for the efficient discharge of its duties. (2) The qualifications, method of recruitment, salaries, leave, allowances and other conditions of service, including disciplinary matters of such officers and servants shall be such as may be prescribed."
The Government in exercise of the powers conferred by Section 307 and all other enabling provisions of the Act has made the Rules called as the Jammu and Kashmir Urban Local Body Institutions (Management) Service Recruitment Rules, 2008 (for short the Rules of 2008). Rule 5 of the Rules of 2008 prescribes the qualification and method of recruitment. It reads as under:-
" (1) No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he/she possesses the qualification as laid down in Schedule-II and fulfils other requirements of recruitment as provided in the rules and orders for the time being in force. (2) Appointment to the service shall be made:
(a) by direct recruitment ; or
(b) by promotion; or
(c) partly by (a) and partly by (b) in the ratio and in manner
as mentioned against each post in Schedule-II;
Provided that all posts to be filled up by
promotion/direct recruitment shall be referred to the Departmental Promotion Committee(s)/Selection Agency as the case may be."
14. The proviso appended to Rule 5 of the Rules of 2008, quoted hereinabove, unambiguously prescribes that all posts to be filled up by direct Page 6 of 10 SWP No. 840/2019 [ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 recruitment shall be referred to Selection Agency. The claim of the petitioners is that they were appointed in the year 2009. The Rules of 2008 have been promulgated vide SRO 417 dated 18.12.2008, meaning thereby that as on the date the petitioners claim to have been appointed, the Rules of 2008 were in operation. Admittedly, the posts were not referred to the Selection Agency. Consequently, the petitioners' appointment has not been made in accordance with the mandate of proviso to Rule 5 of the Rules of 2008. Any appointment made in contravention of the aforesaid Rule and without observing the procedure established by law cannot, by be dehors the Rules. Since the appointment was made in total disregard of the aforesaid provision of the Rules of 2008, it cannot, but be termed as a backdoor appointments.
15. The issue of appointments made dehors the Rules has come up before the Apex Court umpteen times. In Satchidananda Misra Vs. State of Orissa, (2004) 8 SCC 599, Rules had been made in 1979 and the appointments made in 1980 under the 1973 rules. The Apex Court in paragraph 7 of the Judgment held as under:-
" It is an admitted position that the provisions of the 1979 Rules were not followed and the appointments made in 1980 were after the said rules had been enforced..... thus, in my our opinion, is an illegality which strikes at the root of the appointment and, therefore, it is beyond the scope of the legislature to validate such illegal appointments as any such appointment would violate Articles 14 and 16 of the Constitution."
16. In a recent Judgment in Bhupendra Nath Hazarika vs. State of Assam, (2013) 2 SCC 516, the Apex Court has again had the occasion to deal with the issue. While referring to some of the earlier Judgments, it was observed and held as under:-
Page 7 of 10 SWP No. 840/2019
[ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 " 53. In University of Kashmir Vs. Mohd Yasin (1974) 3 SCC 546, this Court expressed the view that an equitable ground does not clothe an appointment with a legal status. Similar view was also expressed in Swapan Kumar Pal vs. Samitabhar Chakraborety (2001) 5 SCC 581.
54. In State of Haryana vs. Haryana Veterinary and AHTS Assn, (2000) 8 SCC 4, a three Judge Bench, after x-ray of the relevant rules, came to hold that when appoints are made in violation of the recruitment rules, the said appointments cannot be treated to be regular.
55. The aforesaid authorities clearly laid down the principle that when there is violation of the recruitment rules, the recruitment is unsustainable..."
In paragraphs 61, 63 and 64 of the judgment, the Apex Court observed as under:-
"61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
62...
63. In State of Kernataka Vs. Umadevi (3) (2006) 4 SCC 1 (SCC p. 18 para 6) the Constitution Bench, while discussing the role of State in a recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.
64. In Mehar Chand Polytechnic vs. Anu Lamba (2006) 7 SCC 161 (SCC p. 166, para 16) the Court observed that public employment is a facet of right to equality envisages under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts."
17. Ms. Saima Mehboob, learned appearing counsel for the petitioners while inviting the attention of this Court to the orders of appointment, contended that it manifestly shows that the orders were passed with approval of the competent authority and therefore, were validly issued. The argument is fallacious and misconceived simpliciter. No amount of tacit or express Page 8 of 10 SWP No. 840/2019 [ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 connivance at an illegality can validate an action otherwise dehors the Constitutional mandate and the rules governing the subject.
18. The Judgment titled Manzoor Ahmad Baqal Vs. Srinagar Municipality and Ors., referred to and relied upon by learned counsel for the petitioners is not applicable to the case on hand, as in the said case, the petitioners therein were removed from service and they have challenged the termination order on the ground that the same was violation of Articles 14 and 16 of the Constitution of India, but in the instant case petitioners have not been terminated but their salary has been stopped.
19. On proper scrutiny of the matter with reference to the pleadings of the parties, documents on record, application of the rules and the Judgment passed by the Division Bench of this Court, I am of the considered view that the appointment of the petitioners is made dehors the rules and the Judgment of the Division Bench of which I am the author, squarely covers the case so far as the appointment of the petitioners is concerned being illegal, but the only distinction which can be made between the petitioners in the present case and the petitioners in the case decided by the Division Bench in LPA No. 196/2012, is that in that case appointees were removed from service on the ground that their appointment was dehors the rules/ illegal, but in the present case there is no order of removal made by the respondents on noticing the nature of appointment of the petitioners, as the learned counsel for the respondents pointedly asked to show any order of removal, contrary the petitioners have placed on record the evidence substantiating their continuation. Now the question which arises before this Court is that till date no formal order has been issued by the respondents, removing the petitioners from service on noticing their appointment being illegal, therefore, the claim Page 9 of 10 SWP No. 840/2019 [ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 of the petitioners for release of salary needs to be addressed. In the facts and circumstances of the case, the respondents are justified in withholding the salary of the petitioners, the answer to the above formulated question has to be in negative. This is so because in case the said course, as adopted by the respondents, is allowed, that would amount to "Begar". The word "Begar" is not a word of common use in English language, instead, it is a word of Indian origin which, like many other words, has found its way in the English vocabulary. It is very carry burthenes for individuals or the public. 'Begar' may, therefore, be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. This definition was accepted by a Divisional Bench of the Bombay High Court, in case titled 'S Vasudevan v. S.D Mital',AIR 1962 Bom 53' 'Begar' thus, clearly is a form of forced labour and all forms of forced labour are unconstitutionally prohibited by Article 23 of Constitution of India. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. In the case on hand, the respondents are extracted services from the petitioners but are not paying them any salary/wages/remuneration for the same solely on the ground that their appointment is not genuine, thereby subjecting the petitioner to 'Begar', moreso, when there is no formal order declaring the petitioners as having been fraudulently appointed. In absence of a final decision with reference to the case of petitioners' fraud appointment, coupled with the factum of the petitioners discharging their duties in the respondent department, the respondents cannot retain the salary of the petitioners for inordinate time. The respondents, in law, were/are obliged to take all possible steps so as to ensure that the decision in the matter is taken regarding their fraudulent appointment of the petitioners. The petitioners have been discharging their duties ever since their joining the Page 10 of 10 SWP No. 840/2019 [ WP(C) No. 1338/2019] CM No. 6150/2020 C/w CCP(S) No. 280/220 respondent department. It is also well settled that salary is the property of an employee and that the right to receive the salary is a fundamental right of an employee as enshrined under Article 19 of the Constitution of India. In the case on hand, the only reason for non-payment of the salary in favour of the petitioners is genuineness or otherwise of the appointment of the petitioners. As already stated, the petitioners are discharging their duties in the respondent department and not paying them salary would tantamount to taking 'Begar' form the petitioners which, as observed hereinabove, in forbidden under Article 23 of the Constitution of India. This view is fortified by a judgment of law rendered by Co-ordinate Bench of this court in Jammu wing of the High Court in case titled Amarmeet Singh vs. State of Jammu and Kashmir and Ors., reported as 2014 (3) JKJ 80 (HC).
20. For the reasons discussed above, the instant writ petition is allowed with a direction to respondents to release the unpaid salary of the petitioners from 2018. However, respondents are at liberty to pass appropriate orders in dealing with the appointment of the petitioners.
Disposed of along with connected CM(s).
CCP(S) No. 280/220 In view of the disposal of the writ petition, the instant contempt petition shall also stands disposed of. Registry to place a copy of this order on each file.
Disposed of.
`` (Ali Mohammad Magrey) Judge Srinagar:
14.12.2020 "Mohammad Yasin Dar"
i. Whether the Order is reportable? Yes/No. MOHAMMAD YASIN DAR 2020.12.14 20:42 ii. Whether the Order is speaking? Yes/No. I attest to the accuracy and integrity of this document