Jammu & Kashmir High Court
Zarifa Begum And Anr. vs State Of J&K; And Others. on 10 November, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.26/2011
MP No.28/2011
Date of order: 10.11.2017.
Zarifa Begum and anr. v. State of J&K and others.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner(s) : Mr.R.K.S.Thakur, Advocate.
For the Respondent(s) : None.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The petitioners in this petition are seeking a writ of mandamus directing the respondents for treating them to have been regularized w.e.f.22.07.1989 instead of 06.09.2007 with effect from which their services have actually been regularized in terms of Govt. Order Nos. 596-HME of 2007 dated 06.09.2007 and 582-HME of 2009 dated 30.12.2009. The petitioners have also prayed for a writ of certiorari to quash the aforesaid order to the aforesaid extent and also for quashing the subsequent entries with respect to their date of regularization made in their respective service books.
2. The case set up by the petitioners in brief is that vide order dated 22.07.1989 issued by the Chief Medical Officer, Health and Family Welfare, Doda, the petitioners were appointed as Safaiwalas on adhoc basis. The adhoc arrangement against which the petitioners were engaged in the year 1989 came to be extended from time to time. It may be noted that just a few months after the engagement of the petitioners, respondent No.1 came up with Government Order No.1220-GAD of 1989 dated 11.09.1989. Since the petitioners had been appointed on 22.07.1989, therefore, their case was covered under paragraph SWP No.26/2011 Page 1 of 5 No.4 of the Government Order dated 11.09.1989 (supra). It appears that the case of the petitioners was not forwarded to the Chief Minister for appropriate orders through the General Administration Department and as a consequence whereof the petitioners were not considered for regularization. Aggrieved, the petitioner approached this Court by filing SWP No.1082/1994 seeking, inter alia, a direction to the respondents for their regularization on permanent basis. The writ petition was disposed of by this Court vide order dated 15.05.1998 directing the respondents to submit the case of the petitioner for consideration of the Chief Minister through General Administration Department in terms of para No.4 of Government Order dated 11.09.1989 for appropriate orders. It was also directed that till the matter is considered by the competent authority, the petitioners would be allowed to continue.
3. The order passed by this Court on 15.05.1998 was not immediately complied with by the respondents, which constrained the petitioners to file contempt petition being COA(SW) No.7-D/1999. The contempt petition was disposed of by this Court on 03.03.1999 directing the respondents to comply with the order within a period of three months. The judgment was ultimately complied with and respondent No.1vide Government OrderNo.596-HME of 2007 dated 06.09.2007 regularized the services of petitioner No.1 prospectively w.e.f, 06.09.2007. Similarly, services of petitioner No.2 were also regularized by respondent No.1 vide Government Order No.582-HME of 2009 dated 30.12.2009,though, retrospectively w.e.f. 06.09.2007 i.e., the date when the services of petitioner No.1 had been regularized. These orders were accepted by the petitioners and accordingly, entries in their service books too were made.
4. The order of regularization in the case, as is evident from the sequence of facts given above, were passed in the year 2007 in the case of petitioner No.1and in the year 2009 in the case of petitioner No.2, which were accepted by the petitioners without protest and accordingly service record was also SWP No.26/2011 Page 2 of 5 maintained by the respondents. However, in the year 2001, the instant writ petition was filed by the petitioners without even making any representation to the respondents projecting their grievance.
5. The petitioners have also not explained any reason for filing this belated petition. In the absence of any such pleading in the writ petition and without any whisper in the writ petition with regard to the petitioners having approached the respondent at any time seeking retrospective effect to their regularization before filing this writ petition, it can safely be presumed that the petitioner had accepted their regularization w.e.f. 06.09.2007 as was granted to them.
6. That being so, the petition is highly belated and the petitioners are estopped by their conduct from calling in question the government orders whereby their services were regularized w.e.f. 06.09.2007. Otherwise also, on merits as is apparent from the provisions of Government Order No.1220-GAD of 1989 dated 11.09.1989, the adhoc appointees to non-gazetted posts recruited from time to time up to 29.12.1988, who were in service on the date of issuance of the order dated 11.09.1989 were entitled to be regularized w.e.f. the date of issuance of order dated 11.09.1989. Relevant extract of Govt. Order No.1220- GAD of 1989, is reproduced hereunder:-
"Government Order No.1220 GAD of 1989 dated 11.09.1989. Subject:- Regularization of adhoc appointments made by the various Departments.
Reference:- Cabinet Decision No.203 dated 05.09.1989. It is hereby ordered that--
(1) All adhoc appointees to non-gazetted posts recruited from time to time up to 29.12.1988 who are still in service be treated to have been appointed on regular basis on probation or trial as the case may be with effect from the date of issue of this order dispensing with reference of posts held by them to the Services Selection Board of the District Level Committees in the case of Class-IV posts constituted in pursuance of General Administration Department's Circular No. 64-
GAD of 1988 dated 29.12.1988, provided that--
SWP No.26/2011 Page 3 of 5(i) An incumbent working on adhoc basis was fulfilling all the pre-requisites of eligibility i.e. qualification and age-limit etc. as on the date such adhoc appointment was made;
(ii) Where an incumbent was over-aged up to one year on the date of such adhoc appointment but otherwise fulfilled all other pre-
requisites of eligibility, the age limit be deemed to have been relaxed to the extent of period calculated up to the date of this order:
Provided further that in case the post on which an incumbent is proposed to be aforementioned, as rementioned, has already been referred to the Services Selection Board the post shall be withdraw from the Board:
Provided also the orders of regularization shall be issued only with the approval of the Administrative Department concerned and a copy of every such regularization order shall be endorsed to the General administration Department for information.
(2).........
(3).........
(4) Adhoc appointments made by various Department during the period falling between the issuance of the ban viz 29.12.1988 and the date of issue of Government Notification No.SRO 291 dated 28.07.1989 amending Rule 14 of the Jammu and Kashmir Civil service (Classification, Control and appeal) Rules, 1956 and are still continuing without break shall be submitted to the Chief Minister for orders through the General administration Department with detailed reasons for making such appointments in disregard of the ban imposed.
By order of the Government of Jammu and Kashmir."
7. Admittedly, the petitioners were appointed after 29.12.1988, when the ban on such appointment was in operation and therefore, their case was required to be considered under Sub-Rule- (4) of Government Order No.1220-GAD of 1989 dated 11.09.1989. It may be pointed out that the right to regularization, if at all it was envisaged under sub-rule 4 was subject to the orders to be passed by the Chief Minister, who was enjoined to take appropriate decision after taking note of the reasons for making appointment in disregard to the ban imposed. Although, paragraph No.4 does not provide for regularization of the persons, who had been appointed during the ban but gives discretion to the Chief Minister to order regularization if upon consideration he/she finds that the SWP No.26/2011 Page 4 of 5 appointments though made in disregard of the ban imposed, were somehow justified. Such being the nature of the right that would flow from paragraph No.4, the petitioners cannot claim regularization of their services as a matter of right and that too with retrospective effect.
8. Resultantly, the petition is found to be without any merit on both the grounds as aforesaid. Hence the same fails and is hereby dismissed.
(Sanjeev Kumar) Judge Jammu 10.11.2017 Vinod.
SWP No.26/2011 Page 5 of 5