Jammu & Kashmir High Court - Srinagar Bench
Mrs. Rabia Shah vs State Of Jammu And Kashmir J&K on 19 May, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP no. 624 of 2014 LPA no. 56 of 2015 MP no. 1 of 2015 Mrs. Rabia Shah W/o Zahoor Ahmad Shah R/o Vakeel Colony, Brane Nishat, Srinagar Petitioners State of Jammu and Kashmir J&K through Chief Secretary to Govt., at Jammu Commissioner/Secretary to Govt. General Administration Department, J&K State at Jammu Commissioner/Secretary to Govt; Finance Department J&K State at Jammu Commissioner/Secretary to Govt; Forest Department J&K State at Jammu. Respondents !Mr. Zahoor Ahmad Shah, Advocate ^Mr. B. A. Dar, AAG Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Dhiraj Singh Thakur, Judge Date: 19/05/2015 : J U D G M E N T :
N. Paul Vasanthakumar (Oral) SWP no. 624/2012
1. This writ petition is filed praying for writ of Mandamus directing the respondents to implement the recommendation, forwarded and recommended for regularization, confirmation and release of Grade to Government by respondent no. 4 and approved by the Forest Ministry for regularization, confirmation and release of Grade in favour of the petitioner, and for directing respondents to regularise services of the petitioner and release grade with retrospective effect.
2. The case of the petitioner before this Court is that she is a Law Graduate having practiced as an Advocate, joined the Forest Department in the year 1990 and discharged her duties in the Forest Department as Law Officer. The petitioner sought confirmation and release of grade for the post of Law Officer. According to the petitioner, the post was substantively vacant and available and the petitioner continues to hold the said post. The petitioners services having not been regularized, she filed SWP no. 2619/1991 and prayed for regularization of her services. At that time, the respondents gave a promise to her that her grievance will be considered if she withdraws the writ petition. The said writ petition was withdrawn on 08.07.1999. The Principal Secretary to Government, Forest Department, passed the Government order No. 250-SFT of 1999 dated 23.6.1999 which reads as follows:
GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT FOREST DEPARTMENT Subject: Release of Grade in favour of Mrs. Rabiya Wani, Law Officer, Forest Department.
GOVERNMENT ORDER NO. 250-FST of 1999 DATED 23.06.1999 Sanction is hereby accorded to the placement of Mrs. Rabiya Wani presently working in the Legal Section of Forest Department in the pay scale of Rs. 6500-10500 for a period of six months or till the post is filled up by the competent authority under rules. She shall continue to draw this salary against the post of Law Officer in the Forest Department.
This order shall have effect from the date she withdraws the writ petition No. 2619 of 1991 and CMP no. 6446 of 1991.
By order of the Government of Jammu and Kashmir.
Sd/-
Principal Secretary & Secretary to Govt.
Forest Department.
3. By virtue of the above order, the petitioner is continuing in the scale of pay for the post of Law Officer for about sixteen years.
4. The contention of learned counsel for the petitioner is that even though the Forest Department as well as the Finance Department recommended the case of the petitioner for regularization, she has not been regularized and thus, the present writ petition has been filed.
5. Learned counsel appearing for the petitioner argued that the post having been sanctioned and the petitioner having been appointed on the sanctioned post with the scale of pay and having satisfied the qualification prescribed for the post on completion of seven years, she is entitled to be regularized in terms of Rule 5 of the J&K Civil Serviced (Special Provisions) Act, 2010.
6. Learned counsel appearing for the State submits that there is no post available against which the petitioner seeks regularization as a matter of right.
7. We have perused the order dated 23.06.1999. From perusal of the said order it is very clear that the Government has sanctioned the post of Law Officer and the petitioner was appointed in the scale of pay on adhoc basis for a period of six months or till the post is filled up by the competent authority under rules. Admittedly, the post has not been filled up by the competent authority as on date.
8. As rightly pointed out by learned counsel for the petitioner, Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, grants power to the Government to regularize the employees who are satisfying the conditions mentioned in the said Section. Section 5 of the said Act reads as under:
5. Regularisation of ad hoc or contractual or consolidated appointees Notwithstanding anything to the contrary and contained in any law for the time being in force or any judgment or order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in section 3 shall be regularized on fulfillment of the following conditions, namely:-
(i) that he has been appointed against a clear vacancy or post;
(ii) That he continues as such on the appointed date;
(iii) That he possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post;
(iv) That no disciplinary or criminal proceedings are pending against him on the appointed day; and
(v) That he has completed seven years of service as such on the appointed day:
Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization, irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization:
Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act.
9. Learned counsel for the petitioner submits that the petitioner satisfies the conditions laid down in Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010. He also produced the clarification issued by the Chief Conservator of Forests, Kashmir pursuant to the request made by the Government vide letter dated 31.01.2014. In the clarification which was given by the Chief Conservator of Forests, Kashmir vide letter dated 06.02.2014 it is stated as follows: 1. The incumbent has been appointed against a clear vacancy/post in terms of Government Order No. 250-FST of 1999 dated 23.06.1999;
2. The incumbent is continuing as such till date;
3. The incumbent possessed the requisite qualification and eligibility for the post on the date of her initial appointment as per the recruitment rules governing the service or post. The incumbent is not ad hoc/ contractual or consolidated;
4. No disciplinary or criminal proceedings are pending against the incumbent;
5. The incumbent has completed more than seven years service against the post she is holding.
10. In light of the above clarification and information furnished by the Forest Department, the petitioner is satisfying the conditions contained in Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 on completion of seven years of service. The petitioner having completed seven years of service as on 23.6.2006, the respondents are bound to regularize her services with effect from 23.6.2006.
11. In such circumstances, the writ petition is allowed and 1st respondent is directed to issue order of regularization in favour of the petitioner as directed above within a period of four weeks from the date of receipt of copy of this order and on such regularization the petitioner is entitled to get other consequential benefits.
12. The writ petition is disposed of accordingly.LPA No. 56/2015
The LP Appeal having been preferred against the interim order passed by the writ Court in the writ petition against which review has also been dismissed, and in view of the fact that the main writ petition, SWP no. 624/2012 itself is disposed of, the prayer made in LP Appeal cannot be gone into and the same is dismissed as infructuous.
(Dhiraj Singh Thakur) (N. Paul Vasanthakumar)
Judge Chief Justice
Srinagar
19.05.2015
Yasmeen