Jammu & Kashmir High Court
Joginder Kour vs Union Of India And Ors on 25 September, 2012
Bench: Virender Singh, Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 162 OF 2008 Joginder Kour Petitioners Union of India and ors Respondent !Mr MK Bhardwaj, Sr. Adv., with Mr Ajay Abrol, Adv ^Mr Tashi Rabastan, CGSC Honble Mr Justice Virender Singh, Judge Honble Mr Justice Muzaffar Hussain Attar,Judge Date: 25.09.2012 :J U D G M E N T :
Muzaffar Hussain Attar Amongst others, in beauty, and hazard of human life, lies its unpredictability.Sometimes, the human life projects and poses most complex problems for their solution. In the scheme of nature, it is the human life, which occupies the central position. Through the evolutionary process, besides other things which are available in this universe, the human life has to be shaped up so as to enable it to illuminate its surroundings. With the progress of time, civil societies have come into existence which are governed by rule of law. The laws whether fundamental, primary or subordinate legislations, are all brought into existence for the welfare of the human being. The laws are, thus, to be interpreted in a manner, which work for the advantage of the human being. Everything which one faces in the life, cannot be foreseen. The life, when it poses some complex problems for which no existing solution is available, then, an honest effort has to be made to retrieve a person from such a situation. The life, at times, becomes unpredictable and the laws for such a situation, thus, would not be available on the statute book.
The case on hand is one such rare and exceptional case where the laws, as they are, have created more problems than solving the same for the appellant. This court is duty bound to meet out justice to the appellant. Justice, however, has to be done in accordance with the laws. When the consequences of an action based on existing laws are bound to produce harsh results, then the concept justice according to the laws, has to be tailored and fashioned in a manner which would produce most equitable and just results.
In the above backdrop, the undisputed facts emerging in this case are taken note of:-
Appellant was appointed as Lower Division Clerk in Central Water Commission under Chenab Investigation Circle, Jammu, on 16th of June80. She failed to qualify the test which was conducted by the Staff Selection Commission, New Delhi, and consequently, her services were terminated vide order No. CIC/PF-326/80/3253-57 dt. 1st of Dec86. The order was issued by the Superintending Engineer, Central Water Commission, Chenab Investigation Circle, Jammu. A representation was filed by the appellant for her continuation in service, which was referred by the Chairman, CWC, New Delhi, to the Ministry of Water Resources, New Delhi. The Superintending Engineer, Chenab Investigation Circle, Jammu, was asked to restore the services of appellant to the original position and, accordingly, she was restored to the post of Lower Division Clerk on adhoc basis. Her claim for regularization was, however, not accepted by DOPT, New Delhi, and the Superintending Engineer, Chenab Investigation Circle, Jammu, was directed to rehabilitate the appellant on an equivalent post on Work Charge establishment. The appellants services were terminated vide order dt. 4th of Aug88, and she was placed on Work Charge establishment as Work Assistant (Work Sarkar Grade-II) on adhoc basis, for a period of 59 days vide order dt. 3rd of Oct88. Thereafter, she was continued in service with a break of one day after every spell of 59 days.
The appellant filed SWP No. 1076/96, praying therein that her services be regularized. The court vide judgment dt. 17th of July2000, disposed of the writ petition with the following observations:-
This petition is disposed of with a direction that respondents would treat the writ petition as notice of demand. They would take notice of the above position of law and pass such order as is permissible under law. Let this be done within a period of three months from the date copy of order passed by this court is made available by the petitioners to the respondents and also their counsel. Petitioner shall also make available copy of judgment referred to above to the respondents. The implementation of aforementioned judgment resulted in passing of order dt. 17th of Oct2000, wherein claim of the appellant for regularization of her services was rejected. It may not be out of place to mention here that after the disposal of the writ petition, the services of the appellant were terminated.
The consideration order wherein claim of the appellant was rejected, was called in question in SWP No. 2128/2001, which came to be dismissed by a learned Single Judge vide order dt. 2nd of Sept08. It is this order, which is called in question in this Letters Patent Appeal.
Learned counsel for the appellant submitted that at the time, the appellant was appointed in the respondent-department, she was hardly 22 years of age and when she filed the writ petition challenging the consideration order by which her claim was rejected, she was 45 years of age. At the time of filing of Letters Patent Appeal in the year 2008, she was 52 years of age and by now, must be 56 years of age. Learned counsel, while inviting the attention of the court to the consideration order, submitted that though a stand has been taken that the post on which appellant was working being a 100% promotional cadre post, the appellants services could not be regularized on the said post, and further submitted that the respondents, on a completely illogical ground, did not appoint the appellant on any other similar post for the reason that she had crossed the upper age limit of 30 years prescribed for direct recruitment. Learned counsel submitted that respondents, in the facts and circumstances of this case, were duty bound to accord relaxation in upper age limit to the appellant and appoint her on any other similar post, which post could be filled up through direct recruitment. It is submitted that injustice has been done to the appellant.
Mr Tashi, learned counsel appearing for respondents submitted that the post on which appellant was working being 100% promotional cadre post, the respondents had no authority to regularize her services on such a post. Learned counsel also submitted that the appellant is out of service from the year 2000, and at this stage, would not be entitled to any relief.
Paragraph b of the order impugned in the writ petition is taken note of: Smt Joginder Kour cannot be appointed in any other similar post under work charged establishment post as she is age barred and the age limit for direct recruitment is 30 years whereas Smt Joginder Kour is more than 44 years of age. Appellant who was appointed in the respondent-department way back on 16th of June80, must have been 23-24 years of age at that point of time. She was continued in service by the respondents till 2000 with negligible break in service. The appellant had rendered services to the respondent-department for almost 20 long years and had become part of the respondent-organization. Her continuation for almost 20 long years, in the facts and circumstances of this case, would not keep her status as adhoc, temporary or work charged employee. Article 14 of the Constitution of India, which constitutes its soul frowns on arbitrary actions of the State and its authorities. Treating the appellant as adhoc or working in work charge establishment for almost 20 long years, would not be in-consonance with the Constitutional Scheme, more particularly with the mandate contained in Articles 14 and 21 of the Constitution of India. Respondents should not have terminated the services of the appellant in the year 2000 in the manner, they have done it. They should have taken into consideration the fact that the appellant had worked with them for almost two decades and could not be shown the door in such an un-reasonable and arbitrary manner.
In the order which was impugned in the writ petition, the respondents have admitted that the appellant could have been appointed on a similar post but since the prescribed upper age limit for direct recruitment was 30 years, and as she had crossed the same, she could not be appointed. Respondents have not considered the case and taken steps for according relaxation of upper age limit. Thus, in the facts of this case, she has been subjected to grave injustice.
Appellant who has sacrificed her youth by serving the respondent- department, has reached to such a stage where she cannot seek employment anywhere else as she has attained the age of 56 years. Had the respondents acted in a just and reasonable manner, the appellant could have been appointed on regular basis in the year 2000 and would retire on attaining the age of superannuation of 60 years getting the service benefits in accordance with the rules. But unjust and unreasonable action on the part of respondents has stripped-off her of her rights and she has been deprived even of her basic human rights. The cases of like nature bring the justice dispensation authorities on cross-roads. The Constitutional courts, which are repositories of rights of people cannot, in such situations, allow themselves to be caught on the horns of dilemma, but in order to meet out justice, shall have to innovate a solution which will synchronize with laws of land.
It may not be appropriate at this stage now to direct respondents to appoint the appellant in service as she can hardly have four years of service.
In the facts and circumstances of this case, in order to meet out justice to the appellant, we deem it appropriate to dispose of the appeal, along with connected CMA, in the following manner:-
1/ The respondents are directed to pay an amount of Rs.3(Three) lacs in lump-sum to the appellant. The amount be paid to her within a period of one month from the date, a copy of this order is made available to the respondents.
The impugned judgment accordingly stands modified in the manner indicated above.
(Muzaffar Hussain Attar) (Virender Singh)
Judge Judge
Jammu
Dt.25.9.12
SS Khalsa/