Jammu & Kashmir High Court
Zafferullah Ahmed vs State Of J&K And Others on 18 November, 2022
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 29.09.2022
Pronounced on : 18.11.2022
SWP No. 2772/2015
Zafferullah Ahmed .....Appellant(s)/Petitioner(s)
Through: Mr. Ankur Sharma, Advocate
Vs
State of J&K and others ..... Respondent(s)
Through: Mr. Amit Gupta, AAG
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
1. The petitioner through the medium of the present petition has sought the writ in the nature of mandamus commanding the respondent No. 4 to allow the petitioner to continue to work as Computer Operator as per the approval of the respondent No. 3.
2. The brief facts giving rise to the filing of the present petition are that the petitioner came to be engaged as Computer Operator vide order No. 92 of 2010 dated 29.01.2010 on consolidated basis @ Rs. 6000/- per month in HRT Division Baglihar H. E. Project Chanderkote by the Chief Engineer, Baglihar Hydro Electric Project, Chanderkote and as per the stand of the petitioner, he is serving the Corporation to the best of his ability, which stands reflected in the service record maintained with the respondents.
3. The further case of the petitioner is that while he was posted in HRT Division BHP Chanderkote, he met with an accident when he was going to attend the office and was remained hospitalized for the injuries sustained in the said accident.
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4. The further case of the petitioner is that he suffered 25% of the disability and after recovering from injuries, he had reported back to resume his duties but the respondent No. 4 did not allow to him and directed the petitioner to report to respondent No. 3 for the purpose to reengagement of the petitioner as Computer Operator and he was asked to produce the medical record and the FIR registered, so that his case can be processed further. Accordingly, in this regard, a communication dated 17.01.2015 came to be issued by the Administrative Officer, JKSPDC to the concerned Chief Engineer, BHEP-II, Chanderkote.
5. Further case of the petitioner is that pursuant to the aforesaid communication, the concerned Administrative Officer vide communication dated 02.03.2015 conveyed approval of reengagement of the petitioner on the same terms and conditions as laid down in his first engagement order subject to the condition that he shall not claim any wages for the period he remained absent due to his accident and his re-engagement shall be subject to the availability of funds. In compliance to letter 02.03.2015, the petitioner has submitted his joining report on 03.03.2015.
6. The further case of the petitioner is that though the approval has been given by respondent No. 3 for reengagement of the petitioner as Computer Operator in compliance to the direction of respondent No. 4, yet the respondent No. 4 is not allowing the petitioner to work and join as Computer Operator in spite of the fact that he submitted his joining report on 03.03.2015.
7. Feeling aggrieved of the same, the petitioner has filed the present petition challenging the action of the respondents for not allowing him to perform his duties as Computer Operator.
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8. It has been contended by the learned counsel for the petitioner, Mr. Ankur Sharma that in spite of the fact that the respondents have ordered reengagement of the petitioner as Computer Operator but non compliance of the same by the respondent No. 4 is arbitrary, discriminatory and illegal.
9. Lastly, Mr. Sharma has argued that the petitioner has been representing in this regard to the respondent No. 4 for allowing him to join in active service but till date the same has not been accorded consideration.
10. Per contra, Mr. Amit Gupta, learned AAG appearing for the respondents has vehemently argued that the present petition filed by the petitioner be dismissed being misconceived as the Government has imposed complete ban on re- employment/re-engagements in the Government Departments/Public Sector Undertakings/Boards/Autonomous Bodies and authority to engage casual/seasonal labourers to various departments.
11. Reply on behalf of respondent No.4 has been filed, in which specific stand has been taken by the respondents that although, the petitioner was engaged on consolidated basis in HRT Division BHEP Chanderkote and worked in HRT Division w.e.f. 01.02.2010 to 30.06.2010, thereafter he did not attend his duties.
12. The further case of the respondents is that petitioner has got the remuneration for the period he has worked and thereafter, the petitioner left the job without any intimation to HRT Division or the office of the respondents. Although, the petitioner has represented on 27.08.2014 for his re-engagement with an application supported with a photocopy of FIR and the Medical certificate, the same was submitted to corporate office vide letter dated 27.08.2014 for approval. Pursuant thereto, the petitioner was allowed to join the office with reference to the corporate office's letter No. JKSPDC/Adm/EN-78/CJ/4911 4 SWP No. 2772/2015 dated 02.03.2015 and he was also asked to submit his original certificate of academic and technical qualification for necessary verification.
13. The further stand of the respondent No. 4 is that the petitioner was allowed to join but the petitioner failed to produce his original certificate of academic and technical qualification for necessary verification.
14. The further stand of the respondent is that in the meanwhile, the erstwhile State of Jammu and Kashmir has issued Order No. 384-GAD of 2015 dated 17.03.2015 and Government Order No. 43-F of 2015 dated 17.03.2015 which is self explanatory for termination of re-employment/re-engagements in the Government Departments/Public Sector Undertakings/Boards/Autonomous Bodies and authority to engage casual/seasonal labourers to various departments as delegated vide Government order Nos. 239-F of 2005 dated 29.01.2005, 138-F of 2013 dated 23.05.2013 and Government Order No. 105- PD of 2010 dated 25.10.2010 were withdrawn with immediate effect.
15. The respondents have taken a specific stand in the objections that the petitioner was allowed to join after the order of his reengagement was passed but the services of re-engaged employees were terminated by the Government vide Government order No. 384-GAD of 20154 dated 17.03.2015 and Government Order No. 43-G of 2015 dated 17.03.2015. Besides, the respondents have taken a specific stand that the petitioner failed to produce the original certificates of academic and technical qualification for necessary verification.
16. The respondents have further contended that the petitioner was allowed to join in the office of respondent No. 4 prior to issuance of the aforesaid Government order No. 384-GAD(supra), whereby all the re-employment/ engagements/ arrangements orders issued by various Government Departments/PSUs/Boards/ Autonomous Bodies under any schemes against any sanctioned posts without 5 SWP No. 2772/2015 any selection procedure, even on contractual basis and at their own level, were revoked and shall cease to exist with immediate effect.
17. Heard learned counsel for the parties and perused the record.
18. There is no denying of the fact that pursuant to Government Order No. 384- GAD of 2015 dated 17.03.2015 and Government Order No. 43-F of 2015 dated 17.03.2015, the erstwhile Government of Jammu and Kashmir has imposed a complete ban on engagement of casual/seasonal labours in the Government/PSUs/Autonomous Bodies pursuant to the approval of the competent authority.
19. From the bare perusal of the aforesaid Government orders, it is apparent that the authority to engage casual/seasonal labourers to the various departments as delegated vide Government Order Nos. 239-F of 2005 dated 29.01.2005, 138-F of 2013 dated 23.05.2013 and Government Order No. 105-PD of 2010 dated 25.10.2010 was withdrawn with immediate effect.
20. The respondents have also placed on record Government order bearing No. 384-GAD of 2015 dated 17.03.2015 by virtue of which it was ordered, as under:
a) all the re-employment orders issued by various Government Departments are revoked with immediate effect;
b) all the engagements/arrangements made by the different Departments/Public Sector Undertakings/Boards/ Autonomous Bodies under any scheme against sanctioned posts without any selection procedure even on Contractual basis, shall cease to exist with immediate effect;
c) any other engagement/arrangement, made by the Departments/Public Sector Undertakings/Boards/Autonomous Bodies, at their own level shall also be governed by (a) and (b) above.
21. From the plain reading of the order of engagement of the petitioner dated 29.01.2010, it clearly transpires that the engagement of the petitioner was 6 SWP No. 2772/2015 purely on consolidated basis without conferring any right on the incumbent to claim permanent absorption or continuance as a matter of right.
22. I am, therefore, of the view that in light of the Government Order No. 384- GAD of 2015 dated 17.03.2015 having regard to the reemployment of the petitioner, no right is vested in him to continue in the department indefinitely. More so, when the authority under which the petitioner was engaged from time to time stood withdrawn by the Government by virtue of a policy framed by the erstwhile Government of Jammu and Kashmir in the Finance Department whereby there was a complete ban on engagement of casual/seasonal labourers in the Government departments and the State/PSUs as envisaged vide Government order No. 43-F of 2015 dated 17.03.2015.
23. Thus, in light of the aforesaid policy and the ban, the petitioner has no right whatsoever to continue as a matter of right and the writ petition as such, is grossly misconceived and liable to be dismissed.
24. From the plain reading of the order of the engagement of the petitioner, it clearly transpires that the engagement of the petitioner was on consolidated basis as Computer Operator @ Rs. 6000/- per month in HRT Division Baglihar H. E. Project Chanderkote without conferring any right on the petitioner to claim permanent absorption in the department or continuance as prayed for in the present writ petition.
25. It is pertinent to mention here that the services of the petitioner have not been disengaged by the respondents on the ground that the services of the petitioner are no more required by the department but have been disengaged in pursuance to the policy framed by the Government whereby a complete ban was imposed to engage such casual/seasonal labourers in various departments as delegated by virtue of various Government orders, the details of which find mentioned in 7 SWP No. 2772/2015 Government order No. 43-F(supra). Since the authority to engage casual/seasonal labourers delegated by the Government to the various departments including the department of the petitioner has been withdrawn with immediate effect and as a natural consequence of withdrawal of the authority, none of the authorised departments including the department of the petitioner was left with any authority to engage or continue the petitioner in the department.
26. I am fortified by the view of the judgment of this Court, titled, State of J&K and others vs Abdul Ahad Lone decided on 29.01.2021, it has held that:
"11......It is also worthwhile to notice that the services of the writ petitioners have not been terminated by the appellants on the ground that their services are no more required by the department, but have been disengaged in application of Government Order No.43-F of 2015 dated 17.03.2015 read with Government Order No.384- GAD of 2015 dated 17.03.2015. With a view to appreciate the stand of the appellants, it is necessary to set out both government orders (supra) herein below:-.....
12. From a perusal of Government Order No.43-F of 2015, it clearly transpires that the authority to engage casual/seasonal labourers delegated by the Government to various departments including the department of agriculture has been withdrawn with immediate effect and as a natural consequence of withdrawal of the authority, none of the authorized departments including the department of agriculture was left with any authority to engage the casual/seasonal labourers in their departments."
27. For all what has been said and discussed above, the present petition is devoid of any merit, as such, the same is dismissed along with connected CM, if any.
(WASIM SADIQ NARGAL) JUDGE Jammu 18.11.2022 Rakesh Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No