Jammu & Kashmir High Court - Srinagar Bench
Sabha Ali vs Zahoor Hussain & Ors on 26 August, 2021
Bench: Chief Justice, Sanjay Dhar
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
Reserved on:16.08.2021
Pronounced on: 26.08.2021
LPA SW No.90/2016 c/w
LPASW No.114/2016, LPASW No.184/2017,
SWP No.228/2017 and SWP No.1578/2018
Sabha Ali ... Petitioner(s)/Appellant(s)
Through: Mr. Hakim Suhail Ishtiyaq, Advocate in
SWP No.1578/2018
Mr. Tasaduq H.Khawaja, Advocate in LPASW
No. 114/2016 and LPASW No.184/2017
Vs.
Zahoor Hussain & Ors. ...Respondent(s)
Through: Mr. B.A.Bashir, Sr.Advocate with
Ms. Falak Bashir, Advocate for R-1.
Mr. J.H.Reshi, Advocate for R-2 in
LPA SW No.90/2016.
Mr. Tasaduq H.Khawaja, for R-4 to 9 in LPA
No.90/2016
Mr. G.A.Lone, Advocate in
LPASW No.184/2017
Mr. F.A.Wani Advocate with Ms.Shaila, Advocate
in LPASW No.114/2016
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar, 'J'
1) By this common judgment and order, we propose to decide three intra court appeals arising out of impugned judgment dated 25.04.2016 passed by the learned writ court in SWP No.446/2015 as also two writ petitions bearing SWP No.228/2017 and SWP No.1578/2018. LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 2
2) LPA(SW) No.90/2016 has been filed by one Sabha Ali who happened to be respondent No.8 in SWP No.446/2015, which stands decided vide the impugned judgment. LPASW No.114/2016 has been filed by the University of Kashmir-respondent No.1 in SWP No.446/2015. The University has filed another LPA bearing No.184/2017 challenging order dated 27.10.2016 passed by the writ court in SWP No.1637/2015, whereby the aforesaid writ petition has been disposed of and decided in terms of impugned judgment dated 25.04.2016 passed in SWP No.446/2015.
3) Writ petition bearing SWP No.228/2017 has been filed by Sabha Ali challenging the scheme of regularization of casual workers issued by the University of Kashmir vide Notification No.F(Regular- Casual/Const.Gen.Admn)KU/14 dated 03.09. 2014, whereas, writ petition SWP No.1578/2018 has been filed by Rehana Nazir seeking a mandamus against the University of Kashmir for her appointment to the post of Junior Professional Assistant.
4) Since the controversy involved in all these cases is identical in nature, as such, the same were taken up for analogous hearing.
5) Briefly stated the facts giving rise to the afore noted cases are that the writ petitioners, namely Zahoor Hussain, Masooda Bano and Zeenat-ul- Nissa came to be engaged on contractual/casual basis by the University Of Kashmir. While the writ petitioner, Zahoor Hussain was engaged in terms of order issued by the respondent-University of Kashmir on 29.08.2007, the LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 3 writ petitioner-Zeenat-ul-Nissa came to be engaged by the University of Kashmir vide order dated 27.12.2007 and the writ petitioner-Masooda Bano was engaged in terms of order issued by the University on 13.12.2007. The above named writ petitioners claim that they were engaged as Junior Professional Assistants on sanctioned posts, though on contractual/casual basis, whereas, the respondent-University of Kashmir claims that the writ petitioners were engaged on casual basis for rendering help like Orderlies and that they were not engaged against the sanctioned posts of Junior Professional Assistants.
6) It is not in dispute that the aforementioned three writ petitioners continued to work on contractual/casual basis for more than seven years. It appears that the University of Kashmir invited applications for the posts of Junior Professional Assistants on a few occasions setting into motion the process of regular selection, to which even the writ petitioners responded, but it seems that the respondent-University of Kashmir did not take forward the selection process and ultimately invited fresh applications for filling up the posts of the Junior Professional Assistants in terms of its Advertisement Notification No.V of 2014 dated 09.05.2014. On 4th March, 2015 notice was issued by the authorities of the University of Kashmir for conducting written test for the posts of Junior Professional Assistants. It is at this stage that the writ petitioners filed SWP No.446/2015 challenging the Advertisement Notice No.V of 2014 dated 09.05.2014 and Notice dated 04.03.2015. The writ petitioners further claimed that they are entitled to LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 4 regularization of their appointment as Junior Professional Assistants in terms of Notification dated 3rd September, 2014 issued by the University of Kashmir and sought a direction to this effect in the writ petition.
7) The writ petition was contested by the University of Kashmir by filing reply thereto. In its reply the University took a stand that the 3rd regularization policy issued vide Notification dated September, 2014 pertains and applies to regularization against the Class IV posts only and not to the higher posts like the posts of Junior Professional Assistants. It was further claimed that only writ petitioner-Zahoor Hussain was appointed on contractual basis against the post of Junior Professional Assistant, whereas, the other writ petitioners were engaged on casual basis to perform the duties of the Orderlies and, as such, they cannot claim regularisation against the posts of Junior Professional Assistants. It was further contended that the Notification dated 3rd September, 2014 owes its origin to the resolution dated 11.10.2013 passed by the University Council which does not envisage regularization of services of the writ petitioners against the posts of Junior Professional Assistants but the same envisages regularization against Class IV posts only.
8) During the pendency of the writ petition, Rehana Nazir and Sabha Ali, upon making application for impleadment, were impleaded as respondent Nos. 7 and 8 to the writ petition. Both these respondents had participated in the selection process that was set into motion by the LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 5 University of Kashmir pursuant to impugned Advertisement Notification No.V of 2014 dated 09.05.2014 and according to them, respondent-Rehana Nazir had secured merit position No.8, whereas, respondent-Sabha Ali had secured merit position No.9 in the select list. These newly added respondents also filed their response to the writ petition contending therein that they have undergone the proper selection process pursuant to the Advertisement Notification issued by the University of Kashmir and, as such, they have a right of consideration for appointment to the posts of Junior Professional Assistants and that the same cannot be denied to them.
9) During the pendency of these intra court appeals, the above named candidate, Sabha Ali filed a writ petition bearing SWP No.228/2017, whereby she has challenged the policy of regularization notified by the University of Kashmir on 3rd September, 2014 on the ground that the impugned policy seeks to legitimize the back door appointments and perpetuates illegalities and irregularities in the appointments. It has been contended that the impugned policy of regularization is violative of fundamental rights guaranteed under article 14 and 16 of the Constitution of India, inasmuch as, it divests the petitioners and similarly situated persons of their rightful and legitimate claim to the posts of Junior Professional Assistants.
10) The writ petition has been resisted by the University of Kashmir as well as by the writ petitioners of SWP No.446/2015 by filing reply thereto. LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 6 The University has defended the policy of regularization by claiming that the engagement on casual basis had to be made by the University in the exigencies of the administration and that the engagements were not regular in nature. According to the University, these engagements continued for more than seven years and there was uncertainty about the future status of the persons who were engaged as such. It is in this back drop that the University Council considered the road map suggested by the Financial Advisor and keeping in view the social justice and in order to prevent the economic deprivation of employees engaged on casual basis, it was resolved to regularize the services of all such persons who were engaged on casual basis and had completed seven years of service against Class IV posts.
11) It appears that during the pendency of writ petition bearing SWP No.446/2015, an order came to be passed on 11.03.2015, whereby, the University of Kashmir was permitted to proceed with the selection process initiated in respect of impugned Advertisement Notice but it was provided that the selection process shall not be finalized. On 29.09.2015 aforesaid order came to be modified and it was provided that out of eleven advertised posts of Junior Professional Assistants, three posts shall not be filled up till further orders of the Court.
12) It further appears that one more post of Junior Professional Assistant, out of eleven advertised posts, was reserved pursuant to the direction LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 7 passed by the writ court in SWP No.1637/2015 filed by one Sabha Jan who claimed herself to have been engaged as Junior Professional Assistant on contractual basis in terms of communication dated 18.07.2009 issued by the authorities of University of Kashmir. In the writ petition she claimed relief similar to that claimed in SWP No.446/2015. She also challenged the Advertisement Notification No.V dated 9th May, 2014 and sought a direction for regularization of her services as Junior Professional Assistant in terms of the policy of regularisation notified by the University of Kashmir on similar grounds as was done by the writ petitioners in SWP No.446/2015. This writ petition came to be disposed of by the learned writ Court vide its order dated 27.10.2016 in light of the judgment dated 25 th April, 2016 passed in SWP No.446/2015, which is also under challenge before us.
13) Another writ petition bearing SWP No.1578/2018 has been filed by Rehana Nazir (respondent no.7 in SWP No.446/2015), claiming therein that out of eleven advertised posts of Junior Professional Assistants, seven posts were filled up by the University of Kashmir leaving four other posts vacant in terms of the interim orders passed by the writ Court from time to time. It has been further averred in the writ petition that out of the seven candidates appointed by the University Authorities, one candidate namely Iram Mukhtar has tendered her resignation thereby making one more vacancy available. The petitioner Rehana Nazir has sought direction for her appointment to one of the LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 8 vacant posts of Junior Professional Assistants advertised vide notification No. V of 2014 dated 9th May, 2014 and to transfer the post which has been left vacant due to resignation of Iram Mukhtar to the posts reserved in terms of interim orders passed by the writ Court.
14) The respondent-University has, in its response to the above writ petition, admitted the fact that Ms. Iram Mukhtar, after her appointment pursuant to Advertisement notice No.V of 2014, has tendered her resignation.
15) During the course of hearing of these cases, learned counsel for the petitioner in SWP No.228/2017, Mr. Suhail Ishtiyaq, has fairly submitted that in case the writ petitioner-Sabha Ali is considered for her appointment as Junior Professional Assistant in respect of one of the posts advertised vide Notification No.V of 2014 dated 09.05.2014, without quashing the said notification, the writ petitioner would withdraw her challenge to the impugned policy of regularization. In view of this, we would like to first determine as to whether the writ petitioners in SWP No.446/2015 and SWP No.1637/2015 are entitled to be regularized against the posts of Junior Professional Assistants in terms of the policy and guidelines issued by the University of Kashmir vide Notification dated 3rd September, 2014.
16) We have heard learned counsel for the parties and perused the record of the case.
LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 9
17) Mr. Tasaduq H. Khawaja, learned counsel appearing for the University of Kashmir has advanced two contentions. One that the writ petitioners in SWP No.446/2015 and SWP No.1637/2015 were engaged on contractual/casual basis to perform the duties of orderlies and not to perform duties of Junior Professional Assistants. His further argument is that even if it is assumed that the aforesaid writ petitioners were performing the duties of Junior Professional Assistants still then they cannot claim to be regularized against the said posts for the reason that the policy of regularization notified by the University of Kashmir vide Notification dated 03.09.2014 envisages regularization of contractual/casual employees only against Class IV posts.
18) Per contra, learned counsel appearing for the aforesaid writ petitioners, Mr. B.A.Bashir, Sr. Advocate, Mr. G.A.Lone and Mr. J.H.Reshi, Advocates have contended that the aforesaid writ petitioners were engaged on contractual/casual basis against the posts of Junior Professional Assistants and they have been performing the duties attached to the said posts regularly. It is their further contention that the policy of regularization of contractual/casual employees envisages regularisation against the posts in respect of which they are performing the duties and not against the Class IV posts.
19) In order to determine the aforesaid controversy, we need to go to the orders of engagement issued in favour of the afore named four writ LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 10 petitioners and the other documents placed on record by the parties in this behalf.
20) So far as writ petitioner Zahoor Hussain is concerned, it has been admitted by the respondent-University in its reply to the writ petition that he has been engaged against the post of Junior Professional Assistant. The order of engagement dated 29.08.2007, issued in favour of the said writ petitioner, makes it manifestly clear that he has been engaged on contractual basis as Junior Professional Assistant.
21) Petitioner-Masooda Banoo has been engaged on casual basis in terms of order dated 13.12.2007. She has placed on record certificates dated 23.03.2015 and 30.07.2015, issued by the different authorities of University of Kashmir, which clearly reveal that she had been performing the job of Junior Professional Assistant. The said petitioner is holding Masters Degree in Library and Information Science and as per her engagement order she was required to produce original Degree Certificate meaning thereby that her job requirements were definitely not of an Orderly.
22) Writ Petitioner-Zeenat-ul-Nissa has been engaged vide order dated 27.12.2007 on casual basis. One of the conditions of her engagement is that she has to produce degree certificate, which cannot be a requirement for the job of Orderly. She has placed on record certificates dated 03.11.2015 and 31.7.2015 issued by the University LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 11 authorities which show that she has been performing job of a Junior Professional Assistant. Even the order of her transfer issued on 22.11.2010 shows that she has been asked to take up the assignment of one Mrs. Zeenat Qureshi, Professional Assistant and her joining report shows that she has joined as Junior Professional Assistant on casual basis.
23) Writ petitioner-Saba Jan has been engaged vide engagement order dated 18.07.2009 on contractual basis and she was directed to produce Degree Certificate/Education Certificate which cannot be a requirement for a position of Orderly. The approval note pertaining to her engagement shows that she has been engaged against the post of Junior Professional Assistant. She has further placed on record certain documents to buttress her contention that she has been performing the assignment of Junior Professional Assistant.
24) In the face of aforesaid material on record and in the absence of any document or material in rebuttal from the University authorities it can safely be stated that all the four writ petitioners, though engaged on contractual/casual basis, were performing the duties of Junior Professional Assistants. All of them are admittedly having the requisite qualification for the post of Junior Professional Assistants. Therefore, the finding of the learned writ court on this issue does not call for any interference.
LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 12
25) The other issue which falls for determination is as to whether in terms of the policy of regularization notified by the University of Kashmir vide its Notification dated 03.09.2014, the aforementioned four writ petitioners can claim regularization against the posts of Junior Professional Assistants, which is admittedly not a Class IV post. In order to determine this issue we need to go to the Resolution passed by the University Council on 11th October, 2013 which is the basis of notification dated 03.09.2014. It reads as under:-
University Council meeting held on 11.10.2013 1.1.1 Casual/contractual engagements made against various non-teaching positions in the University of Kashmir and University of Jammu.
1.1.2 The issue of casual/contractual engagements against various non-teaching positions in both the Universities i.e. University of Kashmir and University of Jammu was discussed. Keeping in view the magnitude of the problem, it was resolved that no casual/contractual or any other engagements for non-teaching positions be made henceforth and the road map formulated as communicated by the Financial Advisor vide No. FA-KU-JU/202-
204.com/13 dated 20.08.2013 be implemented for the regularization of casual/contractual engagees. 1.1.3 It was also resolved that the provisions of filling up of 33% of the permanent vacancies in the category of Class-
IV employees out of the category of persons working temporarily or on daily wages or as work charge staff or on contractual basis subject to the condition that their work and conduct have been satisfactory as provided in the Calendar of the University of Jammu be approved for incorporation in the Calendar of the University of Kashmir so that the temporary, daily wage, work charged, contractual engagees in the University of Kashmir are also regularized against the 33% quota of permanent Class IV posts available in the University."
LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 13
26) The notification dated 03.09.2014 also bears reference to the road map communicated by the Financial Advisor vide No.FA- KU/JU/202-204.com/13 dated 20.08.2013, which stands approved by the afore quoted University Resolution. Therefore, road map formulated by the Financial Advisor in terms of communication dated 20.8.2013 also assumes great significance in the context of this case. The relevant paras of the aforesaid communication are quoted herein below:-
v. "All the cases of casual workers presently engaged in the two Universities, will be processed and put up to an Empowered Committee (One each for the two Universities) comprising of the concerned Vice-Chancellor, Registrar, Director General Accounts and Treasuries, Director Budget (both from the Finance Department) and an officer of the General Administration Department (not below the rank of Additional Secretary) strictly as per the provisions of Statutes and Regulations for regularizing all "engages" who have completed seven years of uninterrupted service after the date of first engagement and who have been paid regularly by the University from available non-plan resources. Upon regularization, such of the engagees as can't be regularized suitably against available posts, could be designated as "Helpers" and be given the pay scales applicable to the lowest class IV or class III level of employees in the Universities, as the case may be for such a process of regularization, supernumerary and temporary posts of "Helpers" shall be created outside the normal/existing hierarchy of the University.
vi. Helpers could subsequently move to clear posts/vacancies on the formal organizational hierarchy as and when these become available and the supplementary/temporary posts of Helpers vacated by the incumbents will automatically get abolished.
vii. In case of contractual employees also, a similar dispensation could be followed with the difference that the designation could be "Assistants" in place of "Helpers" in case of Class III posts.
LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 14 viii. The entire exercise shall have to be conducted within ninety (90) days in respect of both the Universities".
(emphasis supplied)
27) In the meeting dated 11.10.2013 the afore quoted road map stands approved by the University Council in terms of Resolution 1.1.2. Besides this, in the said meeting resolution bearing No.1.1.3 has been adopted by the University Council according to which 33% of the permanent vacancies out of the category of persons working temporarily or on daily wage basis or on contractual basis or on work charge basis subject to the condition of their conduct remaining satisfactory have been resolved to be regularised against 33% quota of Class IV posts. So in effect two decisions were taken by the University Council vide the aforesaid resolutions. One to implement the road map formulated by the Financial Advisor vide his afore quoted communication for the purpose of regularization of contractual/casual engagees and the other to fill up 33% vacancies in the category of Class IV employees for regularization of services of the daily wagers etc.
28) The Notification dated 03.09.2014 not only refers to the resolution dated 11.10.2013 of the University Council but it also refers to the advice of the Financial Advisor communicated vide his letter dated 20.08.2013. The aforesaid letter clearly envisages in para (v) as well as in para (vii) the regularization of engagees not only to the lowest class IV but also to Class III level posts. This LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 15 advice and opinion of the Financial Advisor has been adopted and approved by the University Council in its resolution dated 11.10.2013. Therefore, it does not lie in the mouth of University of Kashmir to contend that the resolution adopted by the Council envisages regularization of engagees only against Class IV posts.
29) Thus the finding of the writ court that regularization of casual/contractual engagees has to be considered against the posts in respect of which they have been performing their duties is further strengthened by the road map formulated by the Financial Advisor as approved by the University Council vide its resolution dated 11.10.2013. We are, therefore, of the considered opinion that the notification dated 03.09.2014 envisages regularization of engagees not only against Class IV posts but against Class III posts provided the engagees fulfill the requisite conditions postulated in the aforesaid notification.
30) It is not the case of respondent-University that aforementioned four writ petitioners do not fulfill the requirements postulated in notification dated 03.09.2014 for their regularization. Therefore, the authorities of the University of Kashmir cannot deny accord of consideration of above named four writ petitioners for their regularization against the posts of Junior Professional Assistants as they have been regularly performing the duties as such against these posts. We, therefore, do not find any infirmity or LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 16 illegality in the finding recorded by the learned writ court in this regard.
31) There is yet another aspect of the matter which requires to be considered. On the one hand we have recognized the right of the afore named four writ petitioners to their regularization to the posts of Junior Professional Assistants in terms of the policy of the University of Kashmir notified vide notification dated 3rd of September, 2014, on the other we have to balance the rights of the respondents 7 and 8 in SWP No.446/2015, namely, Rehana Nazir and Saba Ali, who claim to have found their way into the select list of Junior Professional Assistants issued pursuant to Advertisement Notice No.V of 2014 dated 09.05.2014.
32) We feel that competing claim of the writ petitioners who seek regularization of their services and that of the respondent Nos. 7 and 8 in SWP No.446/2015 can be balanced by directing the University of Kashmir to accord consideration to the appointment of Rehana Nazir and Sabha Ali to the posts advertised vide Advertisement Notice No. V of 2014 dated 09.05.2014 and to accord consideration to the regularization of above named four writ petitioners to any other vacant posts of Junior Professional Assistants subject to their availability. In case requisite number of posts of Junior Professional Assistants are not available, then the LPA SW No.90/2016 c/w LPASW No.114/2016, LPASW No.184/2016, SWP No.228/2017 and SWP No.1578/2018 17 University of Kashmir shall adopt the course provided in clause (3) of the Notification dated 03.09.2014. Ordered accordingly.
33) In view of the directions passed in the preceding para, we are not going into the issue with regard to legality of the policy of regularization issued by the University vide its notification dated 03.09.2014.
34) The intra court appeals and the writ petitions which are subject matter of this order are disposed of in above terms.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
26.08.2021
Sarveeda Nissar
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
LPA SW No.90/2016 c/w
LPASW No.114/2016, LPASW No.184/2016,
SARVEEDA NISSAR SWP No.228/2017 and SWP No.1578/2018
2021.08.26 15:54
I attest to the accuracy and
integrity of this document