Jammu & Kashmir High Court
State Of Jammu And Kashmir And Ors. vs Gulzar Ahmad Bhat on 6 December, 2004
Equivalent citations: 2005(3)JKJ115
JUDGMENT Hakim Imtiyaz Hussain, J.
1. This Civil Revision petition has been filed by the State of Jammu and Kashmir and others against the order dated 31.3.2004 passed by Sub-Judge, Anantnag, in an application for interim relief arising out of a civil suit titled Gulzar Ahmad Bhat v. State of J&K and others.
2. Gulzar Ahmad Bhat S/o Gh. Nabi Bhat, R/o Mattan, Anantnag, Kashmir instituted a suit for declaration and mandatory injunction for the following relief:-
"(i) Declaration declaring the plaintiff entitled for regularization of his services in the department in terms of Govt. Order No. 27-F of 1997 dated 14.01.1997 and in pursuance to the direction passed by the Hon'ble High Court of J&K Srinagar in SWP No. 871/01 titled as Shadi Lai Raina v. State of J&K dated 10.10.2002.
(ii) Declaration declaring the plaintiff entitled for regularization in terms of SRO 64 of 1994 and Government order No. 355-GAD of 1996 dated 30.04.1996.
(iii) Mandatory injunction directing the defendants to give the same treatment to the plaintiff which has been given to other daily wagers in other departments especially Shadi Lai Raina of Geology and Mining department (petitioner in SWP No. 871/2001).
(iv) Mandatory injunction directing the defendants to release the consequential benefits of pay and other allowances in favour of the plaintiff as admissible under rules.
(v) Mandatory injunction directing the defendants to allow the plaintiff to continue against the post held by him till his services are regularized.
(vi) Any other decree order or direction which the Hon'ble court may deem fit and proper in the circumstances of the case be passed in favour of the plaintiff and against the defendants."
3. Alongwith the suit the plaintiff moved an application for interim relief which was considered by the trial court and by means of the impugned order the same was disposed of with the following directions :-
"It is argued by the learned counsel for the plaintiff that defendants have not considered this aspect of the matter and submission is made by him that defendants be directed to accord due consideration to this fact of migration of the plaintiff and his entitlement for regular-ization in terms of Govt. order No. 27 dated 14.01.1997. Ld. P.P. has no objection in case such direction is issued to the defendant department. Therefore, defendants/non-applicants are hereby directed to give due consideration to this aspect of this matter that applicant/plaintiff is entitled for regularization in terms of Govt. Order No. 27-F of 1997 dated 14.01.1997 and pass appropriate orders accordingly within a period of one month on receipt of a copy of this order. Any order made in this regard by the defendants/non-applicants shall be without prejudice to the rights of plaintiff/applicant available to him in the main suit. The matter be put up for further proceedings on 8th May 2004."
4. Aggrieved by the said order the present revision petition has been filed on the main ground that by passing the impugned order the trial court has in a sense granted the final relief leaving nothing to be determined on trial of the main suit. As per the petition the trial court has exercised its jurisdiction in material irregularity in as much as it has passed the order without addressing to the conditions which are required to be satisfied before passing any interim order.
5. At the time when the case was taken up for final hearing nobody appeared for the petitioner, however, the counsel for the respondent was heard.
6. Since it is a revision challenging the legality of the order passed by the court below I feel it proper to decide the case on merits.
7. I have gone through the impugned order. The main relief as reproduced above is for a decree of declaration to the effect that the plaintiff is entitled for regularization of his service in the department in terms of the Government order Govt. order No. 27-F dated 14.01.1997. Perusal of the order impugned shows that the means of the same the trial court has virtually decided the whole case and has asked the defendants to give due consideration to this aspect of the case that the plaintiff is entitled for regularization in terms of Government order No. 27-F dated 14.01.1997 and pass appropriate orders accordingly within a period of one month. The order on the face of it shows that by means of the same virtually the whole case gets disposed of. The trial court has acted in illegal exercise of its jurisdiction and has by passing the final direction in the shape of interim order caused substantial failure of justice. As such, this revision stands accepted. The order under challenge is set aside.
Order accordingly.