Jammu & Kashmir High Court - Srinagar Bench
Khursheed Ahmad Khan & Ors vs State Of Jk & Ors. on 4 July, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.425/2013
MP No.683/2013
Date of Order: 4th of July, 2018.
Khursheed Ahmad Khan & Ors.
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr M. A. Qayoom, Advocate.
For the Respondent(s): Mr Q. R. Shamas, Dy. AG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. Through the medium of this writ petition, the petitioner seeks a writ of Certiorari for quashing the order bearing No. CEMK/368 of 2012 dated 8th of December, charge-sheet dated 7th of August, 2012, show cause notices dated 18th of October, 2012 & 16th of November, 2012, as also the order No. CEMK/GS/7/7197-7206 dated 28th of December, 2012, issued by the respondent No.2, whereby the petitioner has been dismissed from Government service with immediate effect. A writ of mandamus is also sought for commanding the respondents to allow the petitioner to function as Senior Assistant and also process his case for regularization against the said post on the SWP No. 425/2013 Page 1 of 17 same analogy as has been evolved in the cases of his colleagues, whose cases have been processed and finalized by the respondents in terms of the order dated 30th of July, 2012.
02. The facts, as these emerge from the study of the file under consideration, are that by order No. 03 of 1980 dated 1st of February, 1980, the petitioner was temporarily appointed as an Orderly for a period of three months. He was posted as Field Sub-Division, Pattan, against an available vacancy. After working on the post of Orderly, sanction was accorded for the officiating promotion of the petitioner against the post of Junior Assistant vide an order bearing No. 76 dated 12th of September, 1991. In pursuance of the decision taken by the Departmental Promotion Committee in its meeting held on the dates 20th of May, 1992 and 26th of May, 1992, the petitioner was asked to officiate as Junior Assistant against an available migrant post in Mechanical Division, Baramulla, vide order No. SEMK/ 12 of 1992 dated 19th of June, 1992. Thereafter, in terms of his letter dated 27th of July, 2009, the respondent No. 4 requested the respondent No. 3 to regularize the petitioner as Junior Assistant as he was working on the post from 19th of June, 1992. The respondent No. 2, in terms of his letter dated 8th of August, 2009, asked the respondent No. 4 to explain as to why the case of the petitioner has not been placed before the higher authorities for the last 17 years. He was also asked to certify as to whether the petitioner has continuously served as Junior Assistant and as to whether his performance as Junior Assistant has been found satisfactory. The respondent No. 2, vide his letter dated 3rd of September, 2009, informed the respondent No. 2 that the performance of the petitioner has remained satisfactory and there is nothing adverse against him and, as such, his case may be considered sympathetically. It is stated that when the aforesaid SWP No. 425/2013 Page 2 of 17 process was going on, the respondent No. 2, in terms of order No. CEMK/ADM/238 of 2010 dated 26th of October, 2010, placed the petitioner and others as I/C Senior Assistants in their own pay and grade, purely on stop gap arrangement, pending clearance by the Departmental Promotion Committee (DPC). The petitioner was posted as I/C Senior Assistant in the Mechanical Division, Baramulla, against an available post. On 18th of February, 2011, the respondent No. 2 also issued a tentative seniority list of Ministerial staff of the Mechanical Engineering Department, Kashmir, as it stood on 15th of January, 2011. In the said seniority list, the petitioner was also shown in the cadre of Senior Assistants at serial No. 15 with the date of promotion to the said post as 26th of October, 2010. By order No 37-CEMK of2012 dated 25th of April, 2012, issued by respondent No. 2, the petitioner was transferred from the office of Mechanical Division, Baramulla, to the Mechanical Division, Srinagar as I/C Senior Assistant on deputation to MHCHD, Srinagar. Simultaneously with the issuance of the aforesaid order. The respondent No.1 issued another order No. 38-CEMK of 2012 dated 25th of April, 2012, whereby the petitioner's new place of posting was shown at Circle Office, Srinagar, with his designation as Senior Assistant. By virtue of office order No. CEMK/GS-DPC/136 of 2012 dated 30th of July, 2012, the respondent No. 2, on the clearance/approval of the Divisional Level DPC confirmed a number of officials including Narinder Singh against the posts shown against each of them, from the dates indicated in the order. The petitioner was not, however, confirmed/ regularized in terms of the said order to the post of Senior Assistant, although his case as also the case of Narinder Singh was forwarded by the respondent No. 4 in terms of his communication dated 27th of July, 2009, to respondent Nos. 2 and 3 for regularization/ confirmation. After the issuance of the aforesaid order dated 30th of July, 2012, SWP No. 425/2013 Page 3 of 17 the petitioner filed a representation before the respondent No. 2 for the redressal of his grievances, but the petitioner was told that he has only been allowed to officiate as a Junior Assistant as per available entries made in his service records. It is also indicated that at no point of time, has he been adjusted as a Junior Assistant. Therefore, his request for confirming him as Junior Assistant is not entertainable. The petitioner was, however, told to produce any record available with him, as would prove that he has been duly promoted/ adjusted as Junior Assistant against a clear vacancy. On receipt of the letter dated 10th of September, 2012, the petitioner submitted a representation to the respondent No.3 indicating therein that he was appointed as an Orderly in 1980 and was posted at Pattan. It was also stated that he was, thereafter, posted in the Revenue Section as Revenue Clerk with additional charge of IDC, Pattan. He remained on the post for 15 years and was, thereafter, adjusted against the post of Junior Assistant. The petitioner, accordingly, requested the respondents that he be also confirmed against the post of Junior Assistant and allowed to function as Senior Assistant. On the receipt of the letter dated 12th of September, 2012, from the petitioner, the respondent No. 3 addressed a communication dated 19th of October, 2012 to the respondent No. 2 informing him that, one Mst. Hanifa Bano, similarly situated with the petitioner, had also been promoted as Junior Assistant and adjusted against the migrant post. It was also stated that the case of Narinder Singh, whose promotion as I/C Senior Assistant has been confirmed, is not different from that of the petitioner and Mst. Hanifa Bano and, therefore, his case be also put on the agenda of the proposed Departmental Promotion Committee (DPC) for deliberations and appropriate decision. By virtue of an office order No. CEMK/368 of 2012 dated 8th of December, 2012, the respondent No. 2, reverted the petitioner to the post, he was holding prior to SWP No. 425/2013 Page 4 of 17 June, 1992, i.e. as orderly till further advice is received from the Administrative Department. On 27th of July, 2012, the petitioner was informed by the respondent No. 5 that a departmental enquiry has been ordered regarding the irregularities made in the records of the Divisional Stores, Baramulla, and gross irregularities/embezzlements of certain records pertaining to his period of posting as Storekeeper, were found. He was requested to cooperate with the enquiry committee and explain the irregularities observed by the Committee. Before the petitioner could reply the letter dated 27th of July, 2012, addressed by the respondent No.5 to him, the respondent No.2 issued an order bearing No. CEMK/Estt/132 of 2012 dated 27th of July, 2012, when the petitioner was on leave, whereby the petitioner was placed under suspension. Vide No. CEMK/Estt/3372-76 dated 7th of August, 2012, the respondent No.2 issued a charge-sheet to the petitioner and asked him to reply the same within a period of 10 days. The petitioner replied the charge-sheet on 22nd of August, 2012 and denied all the allegations levelled against him. He also submitted an application to the Physical Verification Officer, Divisional Stores, Baramulla, whereby he explained his position. Instead of considering his reply in its true and proper perspective, the respondent No.2, in terms of letter dated 18 th of October, 2012, issued a show cause notice to the petitioner and asked him to show cause as to why action under Classification, Control and Appeal Rules be not taken against him by imposing a major penalty. The petitioner was asked to submit his reply within 15 days. On 3rd of November, 2012, the petitioner replied the show cause notice dated 18th of October, 20l2, wherein he, besides denying the allegations levelled against him, submitted that since he is not in a position to produce any documentary evidence regarding the fraud committed by the then Executive Engineer and Cashier and as his involvement in the case is negligible, therefore, SWP No. 425/2013 Page 5 of 17 he be reinstated. Without considering the request of the petitioner, as projected by him in his reply dated 3rd of November, 2012, the respondent No.2 issued another show cause notice to the petitioner on 16th of November, 2012, in terms whereof he was asked to provide proof in support of the allegations levelled by him against the officers and also to show cause as to why a major penalty of dismissal from Government service be not passed against him, besides recovering the amount of embezzlement from his salary. The show cause notice dated 16th of November, 2012, was also replied by the petitioner on 21st of November, 2012, wherein he, once again, reiterated that a team of technical staff, i.e. Assistant Executive Engineer Stores, Junior Engineer and Draftsman was in place from April, 2011 to March, 2012 and all the accounts submitted to the Divisional Officer were signed by them, as such, the proof of the same was with the Divisional Officer. It was also stated by the petitioner that though he had informed the Executive Engineer from time to time regarding handing over and taking over of the files, but he has been blamed to have committed a wrong and the officials/ officers who are guilty of wrong and fraud have been set free. The petitioner, again, requested respondent No. 3 to look into the matter and also release his salary from May, 2012. Finally, the respondent No. 2, without considering the reply filed by the petitioner in answer to the show cause notices aforesaid, in terms of order No. CEMK/GS/7l97-7206 dated 28th of December, 2012, dismissed the petitioner from service with a further stipulation that the recovery of the overall amount of embezzlement committed by the petitioner, as per the findings of the enquiry committee, will be ordered separately.
03. In their objections, filed in opposition to the writ petition, the respondents have resisted and controverted the petition of the petitioner. It has been submitted that the petitioner was, temporarily, engaged as an orderly for a SWP No. 425/2013 Page 6 of 17 period of three months. The order in question was subject to the approval of the competent authority, i.e. the Superintending Engineer, Mechanical Circle, MED, Srinagar, who never approved his engagement. The respondent No. 3 forwarded the case of petitioner for the consideration of his promotion on the same lines as adopted in the case of Mst. Hanifa Bano. However, in view of the fact that the petitioner was never adjusted as a Junior Assistant against any general vacancy other than that of a migrant post which could be filled only by virtue of death, retirement, etc., of its holder as per the standing Government instructions. The petitioner was informed by the enquiry officer on 13th of July, 2013, through phone, that a departmental enquiry has been ordered against him regarding the irregularities made in the records of the Divisional Stores, MED, Baramulla, during his posting as Storekeeper, Baramulla. The departmental enquiry necessitated in view of the annual physical verification of the stores of the Mechanical Division, Baramulla, as per Rule 8.28 of the J&K Financial Code, ordered by Superintending Engineer, Mechanical Circle, MED, Srinagar vide No: SEMK/Acctt/PV/1238-44, dated 21st of April, 2012, which had identified gross irregularities made in the stores and demanded an enquiry. The petitioner was, repeatedly, asked to appear before the enquiry committee but he did not cooperate. On 25th of July, 2012, the enquiry committee submitted its preliminary report wherein it identified losses of more than rupees ten lacs in the stores having been committed by the petitioner. The magnitude of the fraud committed by the petitioner was huge. He continuously remained away from the enquiry committee. Therefore, in order to ensure that he does not temper with the evidence, the petitioner was placed under suspension. The petitioner denied the allegations levelled against him and also submitted an application to the Physical Verification Officer, but the reply was found unsatisfactory as it could SWP No. 425/2013 Page 7 of 17 not neutralize the charges levelled against him. The petitioner, ultimately, appeared before the enquiry committee in person on 27th of August, 2012, as per the attendance report submitted by the enquiry committee to the Superintending Engineer, Mechanical Circle, Srinagar, vide No: AEE/CL/3333-35, dated 29th of September, 2012. As per this statement, the petitioner appeared before the enquiry committee on 27th of August, 2012, 28th of August, 2012, 29th of August, 2012, 31st of August, 2012 and 17th of September, 2012, during which, he was given a detailed account of the irregularities/frauds committed by him and the loss caused to the state exchequer. All the documentary evidence collected by the enquiry committee in the shape of torn off original G.R.s, fake G.R.s., indents with correction, insertions and over writings were shown to him by the enquiry committee. He was given an opportunity of being heard and was asked to defend himself. The statements of other officials posted in Mechanical Division, Baramulla, during the relevant period, were also shown to the petitioner and he was given ample opportunity to cross examine them. However, his replies were not found convincing by the enquiry committee. Moreover, during the enquiry proceedings, the petitioner, voluntarily, admitted that he has committed the embezzlement. On the admission of the commission of misconduct by the petitioner, the question of following other formalities of enquiry did arise. However, proper procedure was applied and decision for his removal from service was taken, accordingly. The matter, as stated, was considered judiciously and, when the charges levelled against the petitioner were established, the department, rightly, issued a show-cause notice to the petitioner asking him as to why action under Classification, Control & Appeal Rules be not initiated against him. The magnitude of the fraud committed by the petitioner was so high that it warranted his immediate dismissal from the SWP No. 425/2013 Page 8 of 17 Government services. The whole exercise was carried out having due regard to the provisions of the Classification, Control & Appeal Rules. It was also felt that the petitioner should not be allowed to usurp the Government money for one reason or the other and, therefore, the dismissal order of the petitioner followed one more Government order for the recovery of the Government money from him. In the end, it has been urged that, in view of the above factual position, the petition of the petitioner may be dismissed.
04. In his rejoinder affidavit, the petitioner has stated that a Committee of four officers was constituted by the respondent No. 2 to look into the allegations of irregularities in the Divisional Stores, Mechanical Division, Baramulla. The Committee visited the Mechanical Division, Baramulla, on 17th of July, 20l2 and perused the available records in the Divisional Store, Baramulla. The Committee, besides the petitioner, summoned Abdul Hamid Changal, an Assistant Executive Engineer, to explain his position. The said officer admitted before the Committee that he was guilty. However, instead of recommending any action against him, the Committee, in its report, stated that Abdul Hamid Changal does not appear to be in a perfect state of mental health and, therefore, he be sent for medical examination, but, in the case of the petitioner, they held him guilty though he had, at no point of time, admitted before the Committee that he has committed any irregularity or illegality. The members of the Committee, of their own, stated in the report that the petitioner had accepted the observation of the Committee as being correct. The petitioner had stated before the Committee that he was not responsible for any irregularity and that there were other officials who were involved in these irregularities and he would come up with evidence in his defence. The petitioner, thereafter, provided a list of these officers to the Committee, but instead of examining the matter in its SWP No. 425/2013 Page 9 of 17 proper perspective, the Committee submitted a report of verification of the Divisional Store, Baramulla, to the respondent No. 2, who, on the basis of the said report, not only placed the petitioner under suspension, but also initiated departmental enquiry against him. The allegations levelled against the petitioner by the respondents are totally unfounded and baseless. The finding regarding GR No. 344/01 dated 2nd of April, 2011, GR No. 13 dated 27th of June, 2011, and GR No. 31 dated 14th of October, 2011, is also not correct. It has been pleaded that the petitioner has been treated harshly and unfairly by the respondents. Assuming for the sake of argument, though not admitting, that any shortage was found in the Stores by the Committee, even then, the petitioner could not have been dismissed from service by respondent No. 2, for the reason that, under similar circumstances, the Storekeepers have been directed to make good the shortages and have not been dismissed from service. The petitioner has, alongwith the rejoinder affidavit, placed a copy of order dated 29th of January, 2009, to show that while conducting inspection of Divisional Stores, Pampore, on 13th of July, 2007, certain irregularities were found. The Executive Engineer, Mechanical Division, Srinagar, was, accordingly, directed to conduct an enquiry into the matter. The Executive Engineer conducted an enquiry and worked out the shortage of stores against the concerned officials. Those officials were, thereafter, directed to pay the cost of shortages in easy instalments. The petitioner has, however, been denied the said treatment by the respondents and, in his case, not only recovery has been ordered to be affected, but he has also been dismissed from service. The petitioner has, therefore, been subjected to discrimination by the respondents and, whileas, one kind of treatment has been given to one group of employees, but most harsh and disproportionate treatment has been meted out to the petitioner. Neither his reply has been considered by SWP No. 425/2013 Page 10 of 17 them nor he has been given an opportunity of being heard. The impugned orders have been issued against him by the respondents as a measure of punishment.
05. The reason for initiating action against him, as has been stated by the petitioner in the writ petition, is that he was allotted a Government residential flat at Baramulla and when he was transferred from Baramulla, he did not vacate the said accommodation. The action taken by the respondents against the petitioner was challenged by him before the Court and it is this action of the petitioner which annoyed the respondents and have made them to issue the orders dated 8th of December, 2012 and 28th of December, 2012, against him. These orders, as per the petitioner, are violative of the legal, fundamental and constitutional rights of the petitioner.
06. Heard and considered.
07. What requires to be stated, at the outset, is that the petitioner has expired. His legal representatives have been brought on record. By an order bearing No. 03 of 1980 dated 1st of February, 1980, the petitioner was, temporarily, appointed as an Orderly for a period of three months and posted at Field Sub Division, Pattan, against an available vacancy. After working on the post of Orderly, sanction was accorded for the officiating promotion of the petitioner against the post of Junior Assistant vide an bearing order No. 76 dated 12th of September, 1991. In pursuance of the decision taken by the Departmental Promotion Committee in its meeting held on the dates 20th of May, 1992 and 26th of May, 1992, the petitioner was asked to officiate as Junior Assistant against an available migrant post in Mechanical Division, Baramulla, vide order No. SEMK/12 of 1992 dated 19th of June, 1992. In terms of his letter dated 27th of July, 2009, the respondent No. 4 requested the respondent No. 3 to confirm/regularize the petitioner as Junior Assistant on the ground that he has SWP No. 425/2013 Page 11 of 17 been working on the post from 19th June, 1992. The respondent No. 2, in terms of his letter dated 8th of August, 2009, asked the respondent No. 4 to explain as to why the case of the petitioner has not been furnished to the higher authorities for the last 17 years. He was also asked to certify categorically as to whether the petitioner has put in continuous service as Junior Assistant and as to whether his performance as Junior Assistant remained satisfactory. The respondent No. 2, in terms of his letter dated 3rd of September, 2009, informed the respondent No. 2 that the performance of the petitioner has remained satisfactory and there is nothing adverse against him, and, as such, his case may be considered sympathetically. While the aforesaid process was going on, the respondent No. 2, in terms of order No. CEMK/ADM/238 of 2010 dated 26th of October, 2010, placed the petitioner alongwith others as Incharge Senior Assistants in their own pay and grade purely on stop gap arrangement, pending clearance by the Departmental Promotional Committee. The petitioner was posted as Incharge Senior Assistant in the Mechanical Division, Baramulla, against an available post. On 18th of February, 2011, the respondent No. 2 issued a tentative seniority list of ministerial staff of the Mechanical Engineering Department, Kashmir, as it stood on 15th of January, 2011. In the said seniority list, the petitioner was shown in the cadre of Senior Assistants at serial No. 15 with the date of promotion to the said post as 26 th of October, 2010. In terms of order No. 37-CEMK of 2012 dated 25th of April, 2012, issued by respondent No. 2, the petitioner was transferred from the office of Mechanical Division, Baramulla, to the Mechanical Division, Srinagar, as Incharge Senior Assistant on deputation to MHCHD, Srinagar. By virtue of office order No. CEMK/GS- DPC/136 of 2012 dated 30th of July, 2012, the respondent No. 2 on the clearance of the Divisional Level Departmental Promotion Committee SWP No. 425/2013 Page 12 of 17 confirmed a number of officials including Narinder Singh who was similarly situated with the petitioner. The petitioner filed a representation before the respondent No. 2, but he was told that he has only been allowed to officiate as Junior Assistant and the available entries made in his service book, indicate that at no point of time has he been adjusted as Junior Assistant, therefore, his request for confirming him as Junior Assistant cannot be entertained. On the receipt of the letter depicting so, the petitioner submitted a representation to respondent No. 3, stating therein that he was appointed as an Orderly in the year 1980 and was posted in Pattan. It was also stated that he was thereafter posted in Revenue Section as Revenue Clerk and additional charge of IDC, Pattan, was given to him and he remained on the post for 15 years and, was thereafter, adjusted against the post of Junior Assistant. He requested the respondents that he be confirmed as Junior Assistant and allowed to function as Senior Assistant. On the receipt of the letter dated 12th of September, 2012 from the petitioner, the respondent No. 3 addressed a communication dated 19th of October, 2012 to the respondent No. 2 informing him that like petitioner, one Mst. Hanifa Bano, had also been promoted as Junior Assistant and adjusted against the migrant post and that the case of Narinder Singh, whose promotion as Incharge Senior Assistant has been confirmed, is also similar to that of the petitioner. It also stated that the case of Mst. Hanifa Bano also figures on the same scale and, therefore, the case of the petitioner be also put on the agenda of the proposed DPC for deliberations and appropriate decision. On the face of the letter of the respondent No. 3 addressed to respondent No. 2, what can be stated is that the case of the petitioner has been treated on a different pedestal and he has not been equated and treated on par with the similarly circumstanced persons, which is violative of the mandate of Article 14 of the Constitution of India.
SWP No. 425/2013 Page 13 of 1708. The respondents have produced the record relating to the enquiry conducted against the petitioner before this Court, which bears testimony to the fact that the enquiry has not been conducted in accordance with the rules governing the subject. No evidence has been recorded in the case. The only thing that has been done is that a charge-sheet and two 'Show Cause Notices' have been issued to the petitioner, one in the mid of the enquiry and the other after its conclusion. He has not been given an opportunity of being heard, which is a sine quo none in a Departmental Enquiry. The procedure laid down in the J&K Civil Services (Classification, Control & Appeal) Rules, 1956, has not been followed at any stage. It has been given a complete goby. The impugned orders have been passed in violation of the safeguards provided in the Constitution as well as in the J&K Civil Services (Classification, Control & Appeal) Rules, 1956. The requirement of Section 126(2) of the Constitution of the J&K, which contemplates conveying of specific charge to the delinquent officer/official and providing him a reasonable and adequate opportunity of being heard and then his removal from service after enquiry, have been done away with in the matter. Section 126(2) aforesaid provides an additional safeguard of an additional 'Show Cause Notice' regarding the proposed punishment to be imposed, which has been followed in breach in the instant case.
09. The petitioner appears to have been shown the exist under a premeditated design, as can be seen from perusal of the enquiry report laid down by the Enquiry Officer, the relevant extracts of which, are detailed below for the convenience of ready reference:
"17. Whereas you have accepted one count of fraud in your written statement before the enquiry committee regarding the swindling of the supplies received vide G.R.No. 31 dt. 14-10- SWP No. 425/2013 Page 14 of 17 2011 and you have admitted in your statement to have committed a fraud by selling these spare parts and have admitted to have taken money for this.
18. Whereas you have associated other officials in your statement as having been your accomplices in this act but have failed to prove your allegations against other officials and have failed to defend yourself. You were asked by the department to furnish any proof of involvement of other officials alleged by you in your reply but you failed to do so........................
26. Whereas you have in your written statement before the enquiry committee accepted to have taken money for selling off the spares received against Chief Engineers Supply order No. CEMK/TS/2011-12/07 dt. 28-02-2011 from M/s. Wilson Engineering Industries Pvt. Ltd. and have accepted in the written statement to have recorded the material received on G.R. No. 31 dated 14-10-2011 and then torn off the original G.R. and inserted a fake and fictitious G.R. in its place."
10. In the paragraphs cited above, what has been stated is that the petitioner admitted his guilt in the written statement, which does not hold true as per the record made available to this Court. There is no written document to substantiate this contention of the respondents.
11. The Committee, constituted to enquire into the alleged irregularity, visited the Mechanical Division, Baramulla, on 17th of July, 2012. They perused the available record in the Division Store, Baramulla, and summoned Shri Abdul Hamid Changal, Assistant Executive Engineer, to explain the position. The said officer admitted before the Committee that he was guilty. However, instead of initiating any enquiry against him, the Committee, in its report, stated that he does not appear to be in a perfect state of mental health and, therefore, he be sent for medical examination, but in the case of the petitioner, the respondents held him guilty, although the petitioner, at no point of time, admitted before the Committee that he has committed any irregularity. This action of the Committee reflects that a small fry has been caught hold of by SWP No. 425/2013 Page 15 of 17 holding him guilty and the big bumble bee has been let off by taking recourse to the jugglery of words that he is not in a state of good mental health.
12. It has been argued by the learned counsel for the petitioner that the petitioner has been treated harshly and unfairly by the respondents. He has placed some documents on record, in which, under similar circumstances, the store keepers have been directed to make good the shortages and have not been dismissed from service. The petitioner has placed a copy of the order dated 29 th of January, 2009, on record to show that, while conducting the inspection of Pampore Division on the 13th of July, 2007, certain irregularities were found. The Executive Engineer, Mechanical Division, Srinagar, was, accordingly, directed to conduct an enquiry into the matter. The Executive Engineer conducted an enquiry and worked out the shortage of stores against the concerned officials. Those officials were, thereafter, directed to pay the cost of shortages in easy instalments. The petitioner, has, however, been denied the said treatment by the respondents and, in his case, not only recovery of money has been ordered to be made, but he has also been dismissed form service. The petitioner, on the face of this document, has, therefore, been subjected to discrimination by the respondents. One kind of treatment has been given to one group of employees and most harsh and disproportionate treatment has been meted out to the petitioner. Neither his reply has been considered by the respondents nor has he been given an opportunity of being heard. The impugned orders appear to have been issued against him by the respondents as a measure of punishment. The action of the State has to be transparent. The State cannot discriminate between two similarly circumstanced persons. Ours is a welfare State which aims at achieving the goal where everyone is/has to be, as far as possible, looked after equally. The case of the petitioner ought to have been SWP No. 425/2013 Page 16 of 17 considered on the same parameters and analogy as has been evolved in the case of other Storekeepers in the Department. The respondents have treated the case of the petitioner as a sui generis case, which is impermissible under law.
13. For all that has been said and done above, the petition of the petitioner is allowed and the impugned order No. CEMK/368 of 2012 dated 8 th of December, 2012, charge-sheet dated 7th of July, 2012, show cause notices dated 18th of October, 2012 and 16th of November, 2012 as also the order of dismissal of the petitioner No. CEMK/GS/7197-7206 dated 28th of December, 2012, issued by the respondent No.2, are quashed. The respondents are directed to consider the case of the petitioner for his appointment as Senior Assistant from the date he was ordered to function as such till such time that he died on the same analogy as have been evolved in the cases of his other colleagues, whose cases have been processed and finalized by the respondents vide order dated 30th of July, 2012. His pay and other consequential benefits shall also be released in favour of his legal heirs.
14. Writ petition, alongwith connected MP(s), disposed of as above.
(M. K. Hanjura) Judge SRINAGAR July 4th, 2018 "TAHIR"
SWP No. 425/2013 Page 17 of 17