Jammu & Kashmir High Court
State vs Abdul Latif Wani on 25 August, 2023
Author: Sanjeev Kumar
Bench: Sanjeev Kumar, Rahul Bharti
Sr. No. 4
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
LPA No. 57/2019
State
..... appellant (s)
Through :- Mr. S.S.Nanda Sr. AAG
V/s
Abdul Latif Wani .....Respondent(s)
Through :- Mr. R.K.S.Thakur Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT (ORAL)
Sanjeev Kumar, J.
1 This intra-Court Appeal filed under clause 12 of the Letters Patent is directed against judgment dated 19.04.2018 passed by the learned Single Judge of this Court ['the Writ Court'] in SWP No.2375/2014 titled 'Abdul Latief Wani vs. State and others' whereby the writ petition filed by the respondent ['writ petitioner') has been allowed and a direction has been issued to the appellant herein to regularize the services of the petitioner w.e.f 01.04.1998 in terms of Government Order No.1285-GAD of 2001 dated 06.11.2001.
2 Briefly stated, the facts leading to filing of this appeal, are that the writ petitioner came to be appointed on ad hoc basis as Driver in the Department of Rural Development vide order dated 03.07.1992 initially for a period of 89 days. The term of ad hoc engagement of the writ petitioner was extended from time to time. The writ petitioner completed seven years' continuous ad hoc service on 02.07.1999. While the writ petitioner was still continuing on ad hoc 2 appointment, the Government came up with a Government Order No. 1285- GAD of 2001 dated 06.11.2001 providing for regularization of all ad hoc appointees to non-gazetted posts recruited from time to time beyond 29.12.1988 subject to fulfillment of certain conditions. The writ petitioner was not given the benefit of aforesaid Government Order and, therefore, feeling aggrieved and with a view to avail the benefit of Government order dated 06.11.2001 (supra), the writ petitioner filed SWP No. 1452/2003. The said writ petition was contested by the appellant herein which was ultimately disposed of by the Writ Court vide order and judgment dated 26.05.2011 directing the appellant herein to consider the case of the writ petitioner for regularization under the Jammu and Kashmir Civil Services (Special Provisions) Act 2010 ['the Act of 2010'] which, in the meanwhile, had come into operation. 3 As is apparent from the impugned judgment dated 26.05.2011, after the coming into force of the Act of 2010, learned counsel appearing for the writ petitioner abandoned claim of the writ petitioner under the Government order dated 06.11.2001 and instead sought consideration under the new legislation i.e the Act of 2010. It is in this background, the writ petition was disposed of and a clear direction was issued to the appellant herein to consider the case of the writ petitioner for regularization under the Act of 2010. In compliance with the judgment dated 26.05.2011, (supra), the case of the writ petitioner was placed before the Empowered Committee and on the basis of recommendations made by the Empowered Committee, sanction was accorded to the regularization of the petitioner as Driver vide Government No. 197- RD & PR of 2013 dated 25-07-2013. The order of regularization was given prospective effect as is clearly indicated in the aforesaid Government order. 3 4 Feeling aggrieved of his regularization w.e.f 25.07.2013 instead of from the date the petitioner had completed seven years of service, the writ petitioner filed SWP No. 2375/2014 which came to be disposed of by the Writ Court vide its judgment dated 19.04.2018. It is this judgment of the Writ Court which is called in question before us.
5 Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the Writ Court has clearly misdirected itself in passing the judgment impugned. The judgment impugned is predicated on Government Order dated 06.11.2001 (supra) when the case of the petitioner for regularization was directed to be considered under the Act of 2010 by the Writ Court vide its judgment dated 26.05.2011. 6 It seems that it was not brought to the notice of the Writ court that the writ petitioner had earlier also filed a writ petition wherein a specific direction was issued to the appellant herein to accord consideration to the case of the petitioner for regularization under the Act of 2010 and the appellant, while considering the case of the writ petitioner under the Act of 2010, had not committed any illegality and had rather complied with the judgment passed by the Writ Court in its letter and spirit. Needless to say that the claim of the writ petitioner for his regularization based on Government Order dated 06.11.2001 stood abandoned at the time of disposal of the earlier writ petitioner and with the clear understanding that the case of the writ petitioner was covered by the Act of 2010, the writ petition was disposed of and a direction was issued to the appellant herein to accord consideration to the case of the writ petitioner for regularization under the Act of 2010.
7 In that view of the matter, we of the considered opinion that the judgment passed by the Writ Court directing the appellant herein to consider 4 the case of the writ petitioner for his regularization under Government order dated 06.11.2001 is not sustainable. Learned counsel appearing for the respondent/writ petitioner has, however, brought to our notice the judgment passed by a Division Bench of this Court in the case of State and others vs. Ulfat Ara and others, 2020 (6) JKJ(HC) 355 wherein the Division Bench relying upon its earlier judgment in the case of Rabia Shah vs. State and others 2017 (1) JKJ (HC) 490 has directed regularization of the petitioner therein who had completed seven years' continuous ad hoc service as on the date of commencement of the Act, to be given regularization w.e.f 150 days after the appointed date. The observations of the Division Bench made in para (19) in the case of Rabia Shah (supra) are noteworthy and are reproduced hereunder:
"19. From a bare perusal of Section 10 of the Act, it is thus seen that whereas the processes to be undertaken in terms of Sub- section (2) and (3) thereof are time bound, Sub-section (4) and (5) do not speak of any limitation for completion of the process of examination of the complaints, if any, received by the Empowered Committee; making of recommendations by it and the issue of orders of regularization of the concerned appointees by the Administrative Departments. However, as becomes axiomatic, the substantial part of the processes of making references by all departments in terms of sub-section (2), the scrutiny and verification of each individual case with regard to their entitlement to regularization under the Act and notification of the list of such appointees by integrity of this document the Empowered Committee in terms of sub-section (3) of Section 10 have to be completed within 60 days plus 15 days, respectively. This constitutes the substantial part of the whole process. If the substantial part of the processes is time bound and prescribed to be completed within 75 days from the appointed day, it by no 5 stretch of imagination can be said that the intention of the Legislature would have been to leave an unbridled discretion with the authorities concerned to complete the remaining process of examination of the complaints, if any, received by the Empowered Committee, making of recommendations by it and the issue of orders of regularization by the Administrative Departments. The act of constitution of the "Empowered Committee" and its composition by the provision of the Act itself, clearly suggests that the Legislature intended to eliminate the possibility of lackadaisical attitude by the concerned functionaries of the State and to reduce the possibility of consumption of time in completing the processes to the minimum. The Legislature clearly seems to have empowered the prescribed Committee to complete all the process at its own level to find out the entitlement of such an appointee to regularization so that no further time is wasted in the issuance of the regularization orders. This is further fortified by the provisions of Section 11 of the Act which confers a right of appeal; on an aggrieved person against the recommendation of the Empowered Committee, meaning thereby that credence and importance has been attached to the decision and recommendations of the Empowered Committee, not the order of regularization. Cumulatively, therefore, from the scheme of things, as discussed above, it flows that the Legislative intent seems to have been not to leave open ended discretion with the prescribed authorities, i.e. the Empowered committee and the Administrative Department, in the matter of examining complaints, if any, received; making of recommendations and issuance of final orders of regulations. In any case, since the Sub-sections (2) and (3) of Section10 prescribe a limitation of 75 days for completing the substantial part of the process, it is unimaginable that the remaining part of making of recommendations and issuance of regularization orders should take the prescribed authorities more than that time."6
8 In view of the aforesaid legal position, we are in agreement with the learned counsel for the respondent/writ petitioner that the respondent/writ petitioner is at least entitled to regularization w.e.f 150 days after the appointed date i.e w.e.f 26.09.2010.
9 For the foregoing reasons, this appeal is allowed to the extent indicated above. The judgment passed by the Writ Court is set aside. However, the respondent/writ petitioner is held entitled to regularization of his service as Driver w.e.f 26th day of September 2010 instead of 25.07.2013 as provided in the Government Order dated 25.07.2013 (supra) which was impugned in the writ petition. Needless to say that the writ petitioner shall also be entitled to all the consequential benefits including monetary benefits. The appellant shall do the needful within sixty days from the date a copy of this judgment is served upon it.
Disposed of accordingly.
(RAHUL BHARTI) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
25.08.2022
Sanjeev
Whether order is reportable:Yes/No