Jammu & Kashmir High Court - Srinagar Bench
Latief Ahmad Mir vs State Of Jk & Ors. on 20 July, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.1024/2017
Date of Order: 20th of July, 2018.
Latief Ahmad Mir
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner(s): Mr Mir Manzoor, Advocate.
For the Respondent(s): Mr B. A. Dar, Sr. AAG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. In this writ petition, filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioner beseechs the grant of following relief(s) in his favour:
"a) Mandamus commanding the respondents to release the earned salary in favour of the petitioner.
b) Mandamus commanding the respondents to prepare the service book of the petitioner and also maintain his seniority as per his regularization date.
c) Mandamus commanding the respondents to consider and decide the representation filed by the petitioner for release of his earned salary."
02. The facts which constrained the petitioner to file the instant petition before this Court, briefly and as stated by the petitioner in his petition, are that the petitioner, after working in the respondent Department on consolidated/ SWP No. 1024 of 2017 Page 1 of 4 casual basis, was regularized as Chowkidar vide order bearing No.51 of 2015 dated 27th of July, 2017, subject to production of the following documents:
1. Academic Certificates;
2. Matriculation/Date of Birth Certificates;
3. Permanent Resident Certificate issued by the competent authority.
4. Category Certificate (if any)
5. Proper verification of initial engagement order and present status of the incumbent.
It is stated that the petitioner submitted all the documents before the respondents and was, accordingly, allowed to join his duties in the respondent Department. Thereafter, the respondent Department, through Police Station, Kreeri, verified the character/antecedents of the petitioner from the Inspector General of Police, CID, J&K. The Inspector General of Police, vide his communication bearing No. CID/VB/2015/39204-23 A/OD dated 20th of February, 2016, informed the Deputy General Manager, J&K Projects Construction Corporation Ltd, Unit 8th, Baramulla, that the petitioner is not involved in any kind of subversive activity, however, a criminal case, involving the petitioner, is pending trial before the Court of competent jurisdiction. It is stated that despite the fact that the petitioner is performing his duties in the respondent Department to the best of capabilities since the year 2015, yet, till date, he has neither been paid any salary nor has his service book been prepared by the respondents. The petitioner filed a number of representation before the competent authority for the redressal of his grievances, but same did not bear any fruits, constraining the petitioner to approach this Court through the medium of the instant writ petition.
03. The respondents have, in opposition to the writ petition, filed their objections, wherein they have stated that owing to the adverse report of the Inspector General of the Police (CID) in respect of the character/ antecedents of SWP No. 1024 of 2017 Page 2 of 4 the petitioner, the regularization of the petitioner on substantive post is deemed to have been cancelled ab initio as per condition No. (i) laid down in the regularization order dated 25th of July, 2015. The respondents have proceeded to state that since the petitioner is involved in a criminal case bearing FIR No.43/2013, registered at Police Kreeri, Baramulla, for the commission of offences punishable under Sections 147, 447, 506, 436 of the Ranbir Penal Code (RPC), which case is still under trial, therefore, he cannot be paid any salary.
04. Heard the learned counsel for the parties, perused the record and considered the matter.
05. Apparently, the involvement of the petitioner in criminal case bearing FIR No.43/2013, registered at Police Kreeri, Baramulla, for the commission of offences punishable under Sections 147, 447, 506, 436 of the Ranbir Penal Code (RPC), is the sole reason for non-disbursement of the salary of the petitioner. This case is pending trial before the Court of competent jurisdiction and the petitioner has not been convicted in that case. As already stated hereinabove, the petitioner has/is discharged/discharging his duties in the respondent Department and not paying the salary to him, in the facts of this case, would tantamount to taking 'Begar' from the petitioner which is forbidden under Article 23 of the Constitution of India.
06. A person after discharging his duties on the appointed post becomes legally eligible to receive the salary attached to the said post in accordance with the rules governing the field. Admittedly, the petitioner has/ is discharged/discharging his duties ever since his joining the Department. The salary of an employee can be stopped only in terms of the prescribed rules and not otherwise. The salary is the property of the petitioner and, as a fundamental SWP No. 1024 of 2017 Page 3 of 4 right guaranteed in terms of Article 19 of the Constitution of India, he has right to receive the same. The salary of an employee may be stopped, but for that it has to be shown that same is authorized by the rules governing the field and the said rules have, in all cases, to be followed.
07. This Court, in a decision rendered in the case of 'Amarmeet Singh v. State & Ors.', reported as '2014 (3) JKJ 80(HC)', while dealing with a similar issue, has held as under:
"10. In the facts and circumstances of this case, the condition in the adjustment/ posting order that the "DDO shall not draw the salary of the appointee till character certificate and the antecedents are verified by the Add. DG of Police (CID), Jammu" is held to be un-just for the reason that it affects the right of the petitioner to receive the salary.
11. For the above stated reasons, this writ petition alongwith connected CMA(s) is disposed of and respondents more particularly respondents 2 and 5 are directed to forthwith release the salary of the petitioner in respect of the Laboratory Assistant from 1st November, 2010 till date and in future also in accordance with rules. Salary be released within four weeks from the date copy of this order is served."
08. In view of the preceding analysis, this writ petition is disposed of with a direction to the respondents to forthwith release the salary of the petitioner from the date he has been brought on the regular establishment of the respondent Department and in future also, strictly in accordance with the rules governing the field.
09. Writ petition disposed of alongwith connected MP(s).
(Ali Mohammad Magrey) Judge SRINAGAR July 20th, 2018 "TAHIR"
SWP No. 1024 of 2017 Page 4 of 4