Jammu & Kashmir High Court
Mohinder Singh vs State And Others on 11 November, 2022
Author: Sindhu Sharma
Bench: Sindhu Sharma
Sr. No. 18
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case :- SWP No. 2422/2013 in
CCP(S) No. 201/2021
Mohinder Singh .....Appellant/Petitioner(s)
Through :- Mr. Gourab Sharma, Advocate
v/s
State and others .....Respondent(s)
Through :- Mr. Ravinder Gupta, AAG
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
ORDER
01. Petitioner was engaged as a driver on a monthly consolidated salary of Rs. 4,000/- w.e.f. 20.12.2008, for driving the official vehicle in terms of Government Order No. 340-PW (R&B) of 2008 dated 30.05.2008 vide Order No. PMGSY(D)/SE/2124 dated 23.01.2009. This arrangement was to continue on need basis till alternative arrangement was made.
02. The contention of the petitioner is that he served continuously to the satisfaction of his superiors and was being paid consolidated salary up to the month of March, 2013. Though, his services were being utilized by the respondents, but they refused to pay him salary from month of April, 2013 onwards. This created a reasonable apprehension, that his services could be terminated, and he could be replaced by similar arrangement, therefore, he preferred this petition.
03. In this writ petition, the petitioner seeks a writ of mandamus, directing the respondents not to disturb the petitioner's services as driver on consolidated basis till he completed 7 years of continuous service, and become eligible for regularization under the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010. A direction is also sought to allow him to continuously work without any hindrance and not to replace the petitioner with another temporary arrangement and also to release his unpaid consolidated salary w.e.f. April 2013 onwards. 2
04. Reliance has been placed upon Jammu and Kashmir Civil Services (Special Provision) Act, 2010 by the petitioner. In terms of Section 5 of this Act, all the contractual, consolidated and ad hoc appointees are entitled to regularization after completing continuous service of seven years and other conditions as stipulated under Section 5. It is submitted that the case of the petitioner is fully covered under the Jammu and Kashmir Civil Services (Special Provision) Act, 2010 and as such, he would become eligible for regularization of his services on consolidated basis from 20.12.2015, as such, respondents be directed to allow him to complete 07 years of service on a consolidated basis.
05. The stand of the respondents is that the petitioner was engaged as a driver on need basis by the Superintending Engineer, PMGSY Circle Batote on 23.01.2009 on a consolidated pay of Rs. 4,000/- as per Government Order No. 340-PW (R&B) of 2008 dated 30.05.2008, which stated that engagement of 15 drivers and 23 computer assistants shall be on need basis. This arrangement was to continue on need basis till an alternative arrangement was made.
06. Though petitioner remained in active duty till March, 2013, and received his remuneration for that period, but after receiving the remuneration, he did not report back to his assigned duties. The work assigned to the petitioner was regarding crucial projects, which were under execution for connectivity to the habitations scattered in the plain and hilly areas, as a result, the respondents were constrained to make alternate arrangement and, accordingly, adjustments were carried out.
07. Vide order dated 12.11.2013, notice was issued and status quo as was on date with respect to the petitioner was directed to be maintained. The grievance of the petitioner is that despite status quo order, the respondents have not released his salary and have also engaged somebody else in this project.
08. Perusal of the order of engagement of the petitioner reveals that the petitioner was engaged on need basis and thereafter, respondents have attached services of 3 another driver on that project. Nothing has been placed on record by the petitioner to show that he was continuing with the respondents after March, 2013. In fact, this petition was filed in the month of November, 2013 and the interim order of status quo was granted on 12.11.2013, whereas as per the respondents, they have already engaged someone else after the petitioner did not report back for his duties after March, 2013. The petitioner also did not approach this Court for any violation of interim order till the year 2020. This apart, the reliance of the petitioner placed on the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 is also unfounded as in terms of Section 5 of the said Act, all contractual, consolidated and ad hoc appointees are entitled to regularization after completing continuous service of seven years and other conditions as stipulated under Section 5.
09. The Jammu and Kashmir Civil Services (Special Provision) Act, 2010 does not apply to the petitioner because he is not working since 2017 and has not completed seven years of services from the date of his engagement i.e. 2009. Therefore, the said provisions of the Act are not attracted in the case of petitioner. Thus, no right has been vested upon the petitioner for continuation on need basis. In "State of Karnataka & Others. Vs. Umadevi & others", AIR 2006 SC 1806. Recently, the Hon'ble Apex Court in "Union of India Vs. Ilmo Devi & Anr.", AIR 2021 SC 4855 has held as under: -
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the 4 process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
10. In view of the aforesaid, there is no merit in the petition and the same is, accordingly, dismissed.
CCP(S) No. 201/2021
11. In view of the dismissal of the main petition, the contempt proceedings are, accordingly, closed.
(SINDHU SHARMA) JUDGE JAMMU 11.11.2022 Vishal