Jammu & Kashmir High Court
Jk Bose vs Saleem Ali And Others on 21 November, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 1
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No.208/2017, MP No.01/2017
Date of judgment: 21.11.2017
JK BOSE vs. Saleem Ali and ors
\
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the appellant(s) : Ms Aruna Thakur, Advocate.
For the Respondent(s) : Mr Abhinav Sharma, Advocate.
i) Whether approved for reporting in Yes/No
Law journals etc.
ii) Whether approved for publication
in press: Yes/No
Badar Durrez Ahmed, CJ (Oral)
1 This appeal is directed against the judgment dated 16.08.2017 delivered by
a learned Single Judge of this Court in SWP No.1806/2012. By virtue of the said decision, a Writ of Mandamus was issued to the appellant herein, directing it to regularize the writ petitioners/respondents herein as class-IV employees against the available vacancies with notional effect from the date, on which the regularization had become due, subject, however, to their fulfillment of other eligibility criteria. It was also directed that the appellant herein would fill up the remaining vacancies through the regular process.
2 The learned counsel for the appellant submitted that such a direction could not have been given in view of the fact that the writ petitioners/respondents herein were working as consolidated workers and had no right to regularization. On the other hand, the learned counsel for the writ petitioners/respondents herein submitted that there were several persons, who were similarly situated or were in LPASW No.208/2017 Page 1 of 4 a worse position than the respondents herein, who were also working as consolidated workers and who have been regularized by virtue of an order dated 20.07.2012. Therefore, invoking Article 14 and 16 of the Constitution of India, the learned counsel for the respondents submitted that the decision of the learned Single Judge cannot be faulted.
3 Without going into great detail, inasmuch as this case has a chequered history, the crux of the matter is, as to whether the respondents herein could be regularized in view of the fact that the Board/the appellant had regularized other consolidated workers in 2012 based on an order dated 27.07.2010 which was issued after concurrence with the Board of Governors to the effect that those consolidated workers, who had put in seven or more years, could be regularized.
4 Initially, the respondents herein had been appointed as consolidated workers but, after going through a selection process. They were so appointed on 23.06.2004. In fact, the respondents herein were so appointed and were included in a batch of 12 persons, who were similarly placed. Subsequently, the said 12 persons including the respondents herein were disengaged on 20.01.2005. Pursuant to such disengagement, a writ petition had been filed being SWP No.262/2005, which was disposed of by an order dated 10.03.2006 by a learned Single Judge of this Court in the following manner:
"Objections have been filed.
While this matter was being heard Mr. Thakur, learned counsel appearing for the respondent stated at the bar that the Board is willing to accord consideration to the petitioner as and when any fresh engagement is to be made in future by the Board in various Districts for the purposes for which they were earlier engaged along with the f respondent and other similarly situated persons. Learned counsel appearing for the petitioner has accepted this offer subject to the condition that the consideration to be accorded to the petitioners should be on priority basis and before any appointment is made LPASW No.208/2017 Page 2 of 4 This petition is accordingly disposed of with the consensus of the learned counsel for the parties with the following directions:-
(i) As and when any engagement for the menial or similar job on consolidated basis is required to be made by the Board, the petitioners shall be accorded consideration on priority basis;
(ii) The vacancies, in various Districts be filled up from the concerned Districts subject to such policy being formulated by the competent authority;
(iii) In future, if any, dis-engagement is to be made principle of "first come, last go" and "last come first go" shall be adhered to."
5 Thereafter, the respondents herein were re-engaged by virtue of an order No.301-B of 2007 dated 09.05.2007. They were so re-engaged as consolidated workers on monthly wages of Rs.2100/- per month for a period of 60 days purely on temporary basis as per the need, subject to the condition that they were willing to work at any branch/sub-divisional office of the Board in the Jammu Province. We may point out that the said re-engagement order was passed only after the respondents herein had filed a contempt petition being COA (SW) No. 135/2006 which was disposed of by virtue of an order dated 07.07.2007. In the said order, it was specifically noted that in view of the re-engagement of the applicant, the contempt petition did not survive any further. However, the applicant was granted liberty to challenge the order dated 09.05.2007 passed by the Board before the appropriate forum, in case the applicant felt aggrieved thereby.
6 The learned Single Judge essentially passed the order in favour of the respondents herein on the consideration as noted in paragraph No.13 of the impugned judgment. The said paragraph is reproduced herein below:
"In any case the petitioners have since completed more than nine years after their subsequent engagement vide order dated 09.05.2007. In the facts and circumstances of the case, the interest of justice and equity favours their claim for regularization, more so in backdrop of their initial engagement LPASW No.208/2017 Page 3 of 4 in a selection process and unjustified termination at the earlier stage. I, thus, find strong merit in the claim of the petitioners insofar as it relates to their regularization."
7 On going through the above, it is evident that the factor, which weighed with the learned Single Judge, was that the respondents herein had already completed more than nine years even after their re-engagement through the order dated 09.05.2007. The learned Single Judge was also of the view that initially the termination was not justified and which further buttressed the reasoning of the learned Single Judge that the claim of the respondents herein was meritorious insofar as it related to their plea for regularization.
8 We are also of the view that the respondents herein had legitimately taken the plea of regularization, particularly because: (a) they had initially been appointed through a selection process; (b) they had already completed more than seven years even after their re-engagement by virtue of an order dated 09.05.2007; and, (c) other consolidated workers, who had not gone through the selection process, had been regularized on their having completed seven years of service by virtue of the said order dated 27.07.2010. Therefore, in our view, there is no reason as to why the same treatment should not be given to the respondents herein. Their regularization shall be taken as of 09.05.2014, that is, on their completion of seven years service from the date of re-engagement (i.e, 09.05.2007). In all other aspects, the impugned judgment stands. We are making it clear that this decision relates only to the respondents herein, who were part of the batch of 12 persons, who were initially appointed through the selection process. The appeal is accordingly disposed of in the above terms.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
21.11.2017
Sanjeev
LPASW No.208/2017 Page 4 of 4