Jammu & Kashmir High Court - Srinagar Bench
Union Of India & Ors vs Manzoor Ahmad Wani ---Respondent(S) on 11 September, 2019
Bench: Chief Justice, Sanjeev Kumar
IN THE HIGH COURT OF JAMMU AND KASHMIR
At SRINAGAR
SWP No. 2404/2018
Reserved on 03.09.2019
Pronounced on 11.09.2019.
Union of India & Ors. ---Petitioner/Appellant(s)
Through: Mr. Nazir Ahmad Bhat, Standing Counsel
V/s
Manzoor Ahmad Wani ---Respondent(s)
Through: Mr. M. A. Beigh, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
GITA MITTAL, CJ:
1. The instant writ petition has been filed assailing the judgment dated 25th January 2018 passed by the Central Administrative Tribunal, Chandigarh Bench, in OA No. 062/00002/2016. There is no material dispute to the essential facts. To the extent necessary, the same are briefly noted hereafter.
2. By an order passed on 9th April 1979, the private respondent along-with 17 others were appointed in the Ministry of Textiles as an Assistant Craftsman on consolidated basis. Two persons, namely, Ali Mohammad Wani and Riyaz Ahmad Rather were also given similar appointments.
3. The respondent has contended that his services were terminated in May 1985 by an oral order for the reason that the respondent could not attend duties on account of illness. Despite the respondent wanting to resume duties, he was not allowed to join the duties.
4. On 24th April 1990, in-service crafts person were given appointment as Assistant Instructors, thereby conferring regular status upon them. The MOHAMMAD ALTAF NIMA 2019.09.11 13:36 I attest to the accuracy and integrity of this document SWP No. 2404/2018 Page 1 of 10 respondent before us filed a writ petition being SWP No. 1471/1992 seeking regularization in terms of orders dated 24th April 1990 and also a mandamus commanding the appellants to allow the respondent to continue on the post of Assistant Craftsman.
5. The two colleagues of the respondent, namely, Ali Mohammad Wani & Riyaz Ahmad Rather, had previously filed a writ petition being SWP No. 873/1991 seeking the same relief.
6. These writ petitions came to be disposed of by an order dated 29th April 1998 wherein the court noted that learned counsel was relying upon the general terms and conditions for employment of casual labourers which stood issued under a guidelines being No. G.I.D.P.T.P.O.M No. 49014/18/84-Estt (C) dated 7th May 1985. The writ petitions (SWP Nos. 1471/1992 and 873/1991) were disposed of with the following directions :
"The writ petition is accordingly disposed of with the direction that if the guidelines referred to hereinabove are applicable to the petitioners, their regularization as also release of emoluments shall be considered on the touchstone of said guidelines and consideration shall be accorded within a period of two months, which period shall be reckoned from the date this order is served on the respondents."
7. The appellants purported to consider the matter, and, by an order dated 10th November 1998 rejected the claim of the writ petitioners on the ground that they are 'Group C' employees, whereas, the guidelines and instructions dated 7th May 1985 were applicable to 'Group D' employees and as such the writ petitioners were not covered under the guidelines.
8. This order was assailed by Ali Mohammad Wani & Riyaz Ahmad Rather by way of SWP No. 2314/1998 seeking directions to declare their status as permanent regular employees with all service benefits. In this writ MOHAMMAD ALTAF NIMA 2019.09.11 13:36 I attest to the accuracy and integrity of this document SWP No. 2404/2018 Page 2 of 10 petition, an order dated 27th November 1998 was passed directing that these two writ petitioners "shall be allowed to continue, if in position as on date."
9. Placing reliance on the orders in favour of Ali Mohammad Wani & Riyaz Ahmad Rather, the respondent herein filed SWP No. 65/1999 seeking directions to the respondents to allow him to work as Assistant Craftsmen on the same analogy as had been applied to the aforesaid Ali Mohammad Wani & Riyaz Ahmad Rather. In this writ petition, an interim order dated 17th February 1999 came to be passed whereby the appellants were directed to consider taking back the private respondent on usual emoluments keeping in view the order dated 24th November 1998 passed in SWP No. 2314/1998 and LPA No. 309/1997.
10. As the appellants failed to take any action in the matter, the respondent was constrained to file a contempt petition being CP No. 144/2002 (in SWP No. 65/1999) seeking implementation of the order dated 17th February 1999.
11. It took the appellants more than five years before the order dated 17th February 1999 was implemented. The appellants finally passed the order only on 23rd November 2004 directing reappointment of the respondent to the post of Assistant Instructor with immediate effect.
12. In this background, SWP No. 65/1999 came up for consideration before the Court on 19th September 2002. In the hearing on this date, on a consideration of the totality of circumstances, a statement was made on behalf of the appellants herein (respondents in the writ petition) that the grievance of the writ petitioner had been redressed and that the writ petition has been rendered infructuous. On this statement, consequently, by an order dated 19th September 2002, the writ petition was dismissed.
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13. We are informed by Mr. M. A. Beigh, learned counsel for the respondent that the statement was wrong and consequently he sought restoration of SWP No. 65/1999 for hearing.
14. It appears that the writ petition was restored and was transferred to the Central Administrative Tribunal, Chandigarh Bench (Circuit Bench at Srinagar) for hearing and adjudication. Upon such transfer, SWP No. 65/1999 came to be registered as TA No. 32/JK/04. This petition came up for consideration on 23rd December 2004. The Central Administrative Tribunal noted the fact that the petitioner along-with other "two similarly situated terminated employees" had approached the High Court of J&K which, vide an interim order, had directed the respondents in the writ petition to take them in service during the pendency of the writ petition. The Tribunal noted that though the two similarly situated employees were taken back into service. However, the respondent had been left out who had been compelled to approach the Court again, making the grievance with regard to his non- reappointment.
15. Before the Tribunal, counsel for the official respondents (the appellants before us) had informed that vide orders dated 23 rd November 2004, the respondent herein had been reappointed to the post of Assistant Instructor and had joined the services on 29th November 2004. In this background, the Tribunal noted the grievance of the respondent that he had not been reappointed along-with his two colleagues and that the respondents had extended the reappointment to him only with effect from 23rd November 2004. In para 3 of the order recorded on 23rd December 2004, the Tribunal noted that there was no reason forthcoming from the official respondents as to why the respondent was left out. The Tribunal had inter alia observed as follows : MOHAMMAD ALTAF NIMA 2019.09.11 13:36 I attest to the accuracy and integrity of this document SWP No. 2404/2018 Page 4 of 10
"3. The grievance of the applicant who is present in person in court today is that though he was also asked to be reappointed along-with his two colleagues, the respondents have extended the re- appointment to him only from 23.11.2004. No reason is coming from the respondents why he was left out while two others similarly situated employees were given reappointment to the post of Assistant Instructor by the respondents."
16. In view thereof, the Tribunal directed as follows:
"4. We are of the considered opinion that non-extension of the same benefit of continuity in service or re- appointment in service to the applicant is not justified and, therefore, though the applicant is now reappointed vide orders dated 23.11.2004, we direct the respondents that this reappointment shall be considered to have been made with effect from the date the other two employees were taken back in service and consequential benefits be extended to the applicant. This exercise shall be undertaken within a period of four months from the date of receipt of copy of this order. The OA stands disposed of accordingly."
(Emphasis by us)
17. It is undisputed that no challenge was laid by the appellants to these clear findings that the failure to reappoint in service of the respondent herein was not justified. The order dated 23rd December 2004 has achieved finality and the appellants remain bound by the clear direction of the Tribunal.
18. An order dated 27/28th July 2005 came to be passed by the appellants appointing the respondent as an Assistant Instructor purely on temporary basis only w.e.f. 29th November 2004. This order was clearly not in compliance with the directions made by the Central Administrative Tribunal in para 4 of its order dated 23rd December 2004 inasmuch as the appellants had been directed that the reappointment of the private respondent "shall be considered to have been made with effect from the date the other two employees were taken back in service and consequential benefits be extended to the applicant."
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19. Representations dated 10th August 2005, 2nd June 2006, 4th July 2006 and 3rd March 2007 by the respondent seeking implementation of the order passed by the Central Administrative Tribunal on 23 rd December 2004 were of no avail.
20. It appears that in the meantime, the services of Ali Mohammad Wani & Riyaz Ahmad Rather, with whom the respondent was granted parity, were terminated on 21st June 2007. These two employees filed a writ petition being SWP No. 901/2007. This writ petition was disposed of by this court by an order dated 1st April 2011 directing the official respondents to process their case in terms of order passed in SWP No. 873/1991 and Contempt Petition No. 339/1991. These two employees were permitted to join back the duties vide order dated 1st April 2011.
21. Writ petition SWP No. 2314/1998 filed by the two colleagues of the respondent for regularization was also transferred to the Central Administrative Tribunal where it was registered as T-17/JK-05. The Tribunal found the prayer in the writ petition as devoid of merit observing that if work was available with the official respondents, they may allow the petitioners to continue on their respective jobs till required or till regularly selected persons for those jobs became available subject to their work and conduct being found upto mark.
22. Aggrieved thereby, these two employees filed SWP No. 901/2007. Upon a consideration of the entire matter, by the order dated 1st April 2011, this Court found merit in the pleas of the employees and directed the respondents to process their case for regularization in service and declaration of the status as permanent employees.
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23. The order dated 1st April 2011 noted the fact that these two employees had filed SWP No. 873/1991 in which an interim order dated 26th June 1991 was passed directing the official respondents to process their case for regularization of services and declaration of status as permanent employees. As this was not done, Ali Mohammad Wani & Riyaz Ahmad Rather had compelled to file the contempt petition being CP No. 339/1991 in which certain directions were issued by this Court.
An order dated 7th March 2012 came to be passed by the appellants and their service were regularized with effect from 21st December 1991 and 16th December 1991 and benefits of service was also granted. These two persons were allowed to join and they also received their service benefits.
24. In this background, the applicant submitted representations dated 13th August 2012 and 8th February 2015 that he also deserved to be treated similarly. The respondent before us also drew attention of the appellants to the fact that in terms of the order dated 23 rd December 2004, the petitioner was to be treated as having been reappointed with effect from 1990 and he was entitled to all consequential benefits.
25. Despite the clear directions in the order dated 23rd December 2004, the appellants before us continued to deny the relief to the applicant on specious grounds primarily taking advantage of the failure on their own part to comply with the directions made in favour of the private respondent.
26. In this background, the respondent was compelled to file a petition being OA No. 062/00002/2016 before the Central Administrative Tribunal effectively praying for directions to the respondents to ensure compliance with the order dated 23rd December 2004 as well as orders passed in SWP No. 65/1999. This petition was considered at length by the Tribunal which by the MOHAMMAD ALTAF NIMA 2019.09.11 13:36 I attest to the accuracy and integrity of this document SWP No. 2404/2018 Page 7 of 10 judgment dated 25th January 2018 accepted the prayer made by the applicant. We find that the Tribunal has noted that the private respondent had made the prayer that he was entitled to parity of treatment as Ali Mohammad Wani & Riyaz Ahmad Rather as they were similarly placed; that they had also remained absent for some time, but they had been permitted to join the duties which relief was wrongly denied to the respondent.
27. The respondent has also pointed out that these two persons though disengaged for a short period were taken back in terms of the order of the Tribunal dated 30th May 2007; that they had in their favour the order of this Court in SWP No. 901/2007 which directed the official respondents to regularize the service of the petitioners on the ground that they had acquired the right of continuity having served for a long time. Just as Ali Mohammad Wani & Riyaz Ahmad Rather, the applicant was also re-engaged consequent to relief given in writ petition being SWP No. 1471/1992 in the case of the respondent before us. The Tribunal has thus found substance in the prayer of the private respondent.
28. So far as the respondent being out of service is concerned, the Tribunal has found that even though the private respondent was ready to join back duty after the leave period, it was the respondents who failed to take him back until the contempt petition was filed in 2004 and that this was a discriminatory and arbitrary exercise of power, especially given the fact that Ali Mohammad Wani & Riyaz Ahmad Rather stood restored to their employment with effect from 1991.
29. The Tribunal has also noted the fact that the order dated 23rd December 2004 had attained finality and bound the official respondents. MOHAMMAD ALTAF NIMA 2019.09.11 13:36 I attest to the accuracy and integrity of this document SWP No. 2404/2018 Page 8 of 10
30. Just as before the Tribunal, the appellants are unable to point out even before us as to any point of distinction in the factual background relating to Ali Mohammad Wani & Riyaz Ahmad Rather vis-à-vis the private respondent. The respondents have also been unable to render any explanation as to why the appellant was not permitted to resume duty, or, why he was discriminated, despite orders in his favour by this court and the Tribunal. While Ali Mohammad Wani & Riyaz Ahmad Rather were permitted to join in terms of the order dated 25th November 1991 of this Court, the order in favour of the appellant was not complied with.
31. The order dated 23rd December 2004 passed in TA No. 32/J&K/2004 by the Tribunal specifically directed that the private respondent was required to be taken back into service with effect from the date when Ali Mohammad Wani & Riyaz Ahmad Rather were regularized by the appellants. Inasmuch as the applicant was willing to join back duty after the leave period, the respondents have no justification for not permitting him to resume duties till he was compelled to file the contempt petition. The Tribunal has found that the appellants have exercised their power arbitrarily and discriminated against the respondent vis-à-vis Ali Mohammad Wani & Riyaz Ahmad Rather.
32. In this background, the direction of the Tribunal by the impugned order dated 25th January 2018 that the appellants are bound to comply with the specific directions made by the Tribunal in TA No. 32/J&K/2004 and SWP No. 65/1999 is unassailable. The appellants are bound to re-engage the respondent with effect from the date when Ali Mohammad Wani & Riyaz Ahmad Rather, who were similarly placed persons, were taken back in service with notional seniority and notional fixation of benefit with effect from 21st MOHAMMAD ALTAF NIMA 2019.09.11 13:36 I attest to the accuracy and integrity of this document SWP No. 2404/2018 Page 9 of 10 December 1991 and actual payment of benefits with effect from 23rd November 2004, when the orders were passed in his favour.
33. We are of the view that the respondent had been wrongly denied the benefit of the orders passed in his favour after detailed adjudication. The respondents have thereby compelled the respondent to file the petition before this Court as well as Central Administrative Tribunal.
34. In this view of the matter, valuable judicial time has also been caused to be expended on completely unwarranted litigation. We are of the view that the appellants deserve to be burdened with heavy costs which are quantified at Rs. 30,000/-.
These costs shall be paid to the respondent within a period of two weeks from today.
35. The orders in terms of the impugned order dated 25th January 2018 and the directions herein contained, shall also be passed within a period of two weeks and forthwith communicated to the respondent.
36. Compliance report shall be filed by the appellants in the present proceedings within a period of four weeks from today.
37. This writ petition is dismissed with costs as above.
(SANJEEV KUMAR) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Srinagar
11.09.2019
Altaf
Whether the order is speaking: Yes
Whether the order is reportable: Yes
MOHAMMAD ALTAF NIMA
2019.09.11 13:36
I attest to the accuracy and
integrity of this document
SWP No. 2404/2018 Page 10 of 10