Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Another vs Aijaz Muzaffar on 15 September, 2021
Author: Pankaj Mithal
Bench: Chief Justice, Vinod Chatterji Koul
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
LPA No.134/2019
State of J&K and another ....Appellants.
Through: Mr. D. C. Raina, AG, with Mr. Sajad Ashraf, GA.
Vs.
Aijaz Muzaffar ....Respondent(s)
Through: Mr. N. A. Ronga, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
15.09.2021 Pankaj Mithal, CJ
01. Under challenge in this appeal is the judgment and order dated 16.10.2018 by which the learned single Judge has allowed/ disposed of SWP No.1833/2016 : Dr. Aijaz Muzaffar v. State of J&K and anr.
02. The writ court by the impugned judgment and order quashed the orders dated 5th September, 2014, issued by the Secretary to the Government General Administration Department, Jammu/ Srinagar, and also the order dated 4th June, 2015 issued by the Commissioner/ Secretary to the Government, Health and Medical Education Department, Jammu/ Srinagar. In addition to quashing of the above two orders, the Court directed for according fresh consideration to the case LPA No.134/2019 1 of the petitioner/ respondent for regularization of his services in terms of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010, on the same parameters as had been laid down in the select list dated 25 th October, 2008. It further directed to give all consequential benefits as might have accrued to the petitioner/ respondent in respect thereof and post him in the same district for which the notification was issued. The above exercise was expected to be completed within a period of two months.
03. We have heard Mr. D. C. Raina, learned Advocate General, assisted by Mr. Sajad Ashraf, GA, for the appellants and Mr. N. A. Ronga, learned counsel for the respondent.
04. Learned Advocate General submitted that the relief granted by the writ court is conflicting in nature. At one place it quashes the order of granting age relaxation to the petitioner/ respondent for the purposes of appointment as well as the appointment order and at the same time directs for regularization of his services. Secondly, straightway directions for granting consequential benefits and for posting the petitioner/ respondent at a particular district could not have been issued by the writ court except directing for such consideration.
05. Mr. N. A. Ronga, learned counsel for the respondent, in defence contends that there is no error or illegality in the impugned judgment. The petitioner/ respondent figured in the select list dated 25 th October, 2008 at Sr.No.5 and was entitled to appointment in pursuance thereof along with other candidates on contract basis. The other appointees have LPA No.134/2019 2 been regularized and as such petitioner/ respondent is also entitled for the same benefit with retrospective effect.
06. The facts of the case reveal that the Deputy Commissioner, Budgam, vide notification dated 1st January, 2008 invited applications from the permanent residents of the Jammu & Kashmir State to fill up the vacancies of Dental Surgeons in the department of Health at Budgam on contractual basis. On exhausting the selection process, a select list was prepared which included the name of the petitioner/ respondent at Sr. No. 5 but he was not appointed on the ground that he is overage as on the cut of date of 1st January, 2008 by about 02 years 04 months and 10 days.
07. The petitioner/ respondent thus preferred a representation to the Government referring to instances of the candidates in whose favour relaxation in the upper age limit was granted and were appointed. In the absence of any response to the said representation, the petitioner filed SWP No.1738/2009 which was finally disposed of vide order dated 28th February, 2011, with the direction to the State respondents to consider the claim of the petitioner for according relaxation in the upper age limit. In pursuance of the said order, the representation of the petitioner/ respondent was rejected on 3rd January, 2012 stating that the petitioner/ respondent do not have any exceptional qualification as was possessed by the other candidates to whom age relaxation was granted.
08. The aforesaid order rejecting the representation of the petitioner/ respondent was challenged by him by filing yet another writ petition LPA No.134/2019 3 being SWP No.1431/2012 which was also disposed of vide order dated 10th October, 2013 quashing the order rejecting his representation and directing to issue appointment in favour of the petitioner/ respondent in accordance with the select list notified on 25th October, 2008 after granting relaxation in the upper age limit. The said order of the writ court was assailed by the Government by means of LPA no.04/2014. The Division Bench vide judgment and order dated 23 rd May, 2014 disposed of the appeal holding that the consideration accorded to the grant of relaxation to the petitioner/ respondent was not appropriate and has to be reconsidered afresh.
09. In compliance with the judgment and order of the Division Bench of the High Court, the case of the petitioner/ respondent for grant of age relaxation was reconsidered and in terms of the Government order dated 5th September, 2014, sanction was accorded to grant him relaxation in the upper age limit by 02 years 04 months and 10 days as on 1st January, 2008 and directions were issued to issue a formal appointment order in favour of the petitioner/ respondent. Accordingly, petitioner/ respondent was appointed as Dental Surgeon on contractual basis vide order dated 4th June, 2015.
10. In view of the aforesaid facts and circumstances, the basic grievance of the petitioner/ respondent that as he was in the select list should be given appointment after grant of age relaxation was duly satisfied but he still remained dis-satisfied and moved a representation to the Government for giving effect to his appointment from the date LPA No.134/2019 4 when other persons of the same select list were appointed and to regularize his services. When the said representation did not evoke any response, the instant writ petition was filed by him for quashing of the order dated 5th September, 2014 to the extent it directs for issuing formal appointment order in his favour with immediate effect and also for quashing of the appointment order dated 04.06.2015 to the extent it appoints him with effect from 04.06.2015. At the same time, he sought direction that he should be appointed as Dental Surgeon on contractual basis with effect from 10.06.2009 the date from which similarly situate candidates were appointed and consequentially to regularize his services in terms of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010.
11. The writ court in the absence of the counter affidavit filed on behalf of the Government proceeded to decide the writ petition holding that the State Government cannot discriminate between the candidates of the same select list and he should be treated at par with them. Accordingly, writ of certiorari quashing the order of relaxation of age and directing for his appointment was issued and simultaneously a further writ of mandamus was issued directing for considering the case of the petitioner/ respondent for regularization of his services in terms of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010. In addition to it, directions were issued to give all consequential benefits as may have accrued to him and to post him in the same district for which the notification was issued.
LPA No.134/2019 5
12. Apparently, the question of according fresh consideration to the case of the petitioner/ respondent for regularization does not arise when the very order granting age relaxation to the petitioner/ respondent for the purposes of contractual appointment and the appointment itself have been quashed. Consequently, the petitioner/ respondent became dis- entitled even to all consequential benefits or any post in any district.
13. If we consider the relief granted by the writ court in the light of the reliefs claimed by the petitioner/ respondent in the writ petition, it appears that as in the writ petition prayers were made for quashing of the above orders but to a limited extent, the writ court ignoring the same granted the relief of quashing of the said orders which has worked detrimental to the petitioner/ respondent. In effect the writ court ought to have modified the order dated 5th September, 2014 which allowed age relaxation to the petitioner/ respondent and directed for issuing formal order of appointment with immediately effect by stating that he is entitled to appointment with effect from 10.06.2009 as some other candidates from the same select list were appointed on the said date. It would be in the above circumstances that the petitioner/ respondent would have completed seven years of continuous service from 10.06.2009 to make him entitled for consideration of regularization in accordance with the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010, but unfortunately the said relief has not been granted to the petitioner/ respondent.
LPA No.134/2019 6
14. It is pertinent to mention here that under Section 5 of the aforesaid Act, all ad-hoc or contractual or consolidated appointees referred to in Section 6 of the said Act, are entitled to be regularized on fulfillment of certain conditions, one of which happens to be that such an employee must have completed seven years of service on the appointed date i.e. 28th April, 2010 provided those who have not completed seven years on the said date, shall continue till such completion of seven years and shall thereafter be entitled to regularization under the Act.
15. In view of the aforesaid facts and circumstances, the writ court instead of quashing the above orders ought to have modified the same as mentioned above and then could have directed for consideration of the regularization of his services in terms of the aforesaid Act and for grant of consequential benefits if he is so regularized.
16. Secondly, the writ court, instead of directing for consideration of grant of consequential benefits, has directly granted the consequential benefits beyond the scope of its jurisdiction. The court could not have taken over the task of granting the consequential relief to the petitioner/ respondent and ought to have left if for the authority to consider in accordance with law.
17. The petitioner/ respondent has not challenged the above order by filing any separate appeal or through a counter claim and, as such, has accepted quashing of the orders. Once the said are no longer in LPA No.134/2019 7 existence, the petitioner/ respondent looses right to remain in service and for being regularized.
18. Notwithstanding the above in the ends of justice, we treat the above orders to be in existence without any modification as the writ court has not granted the relief for the modification of the same and has not even referred to any reason for such modification. Thus, maintaining the above orders dated 5th September, 2014 and 4th June, 2015, we provide that the matter of regularization of the petitioner/ respondent in terms of the Act may be considered by the competent authority and if he is so regularized to consider even the grant of all consequential benefits as may be available to him in law.
19. The appeal is disposed of, accordingly.
(VINOD CHATTERJI KOUL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
15.09.2021
Abdul Qayoom, PS
Whether the order is speaking? Yes.
Whether the order is reportable?
LPA No.134/2019 8
ABDUL QAYOOM LONE
2021.09.17 14:39
I attest to the accuracy and
integrity of this document