Jammu & Kashmir High Court - Srinagar Bench
Nisar Ahmad Kumar vs State Of Jk & Ors. on 16 April, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 1761/2017
MP No. 01/2017
Date of Order: 16th of April, 2018.
Nisar Ahmad Kumar, Aged 30 Years
S/o Mohammad Yousuf Kumar
R/o Redwani, Bala Kulgam,
Presently Qtr No.9 back side Kashmir House Rajaji Marg, New Delhi.
Versus
1. State of Jammu and Kashmir, Through Commissioner/ Secretary to Govt., General
Administration Department, Civil Secretariat, Srinagar/ Jammu.
2. Commissioner/ Secretary to Govt., Hospitality and Protocol Department, Civil Secretariat,
Srinagar/ Jammu.
3. Principal Resident Commissioner Govt. of Jammu and Kashmir 5-Prithvi Raj Road New Delhi-
110011.
4. Deputy Resident Commissioner Govt. of Jammu and Kashmir 5-Prithvi Raj Road New Delhi-
110011.
5. J&K State Services Selection Board Srinagar/ Jammu through its Secretary.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner(s): Mr Syed Faisal Qadri, Advocate.
For the Respondent(s): Mr B. A. Dar, Sr. AAG.
i) Whether approved for reporting Yes/No
{Oral};
01. In the present petition, the petitioner is seeking direction in the name of respondents to regularize his services as Driver retrospectively, on the analogy adopted in the case of one Shri Raj Kishore Singh.
SWP No. 1761/2017 Page 1 of 1302. The petitioner is stated to be holding the post of Chowkidar in the respondent Commission, who is discharging his duties as Driver since the year 2010, therefore, seeks release of the benefits including the grade attached with the post of Driver.
03. On motion hearing, when this writ petition was considered, the Court, while issuing notice to the other side for filing of the returns, had directed the respondents in the interim to take a decision in the case of petitioner for the regularization of his services against the post of Driver in light of the recommendations made in terms of the communication bearing No. KRC/PRC/PS/8462/14 dated 21st of February, 2014, on the same lines adopted in the case of Shri Raj Kishore Singh. This direction was passed on the 31st of August, 2017.
04. The respondents in compliance of the directions so passed considered the case of the petitioner and rejected his claim in terms of order bearing No. 263-KRC of 2017 dated 30th of October, 2017.
05. In view of the above consideration order, the petitioner sought amendment of the writ petition so as to challenge the consideration order which application was allowed in terms of order passed by this Court on 30th of November, 2017 and the amended petition was taken on record with a direction to the respondents to file the reply to the amended petition within a period of three weeks.
SWP No. 1761/2017 Page 2 of 1306. Reply to the amended petition stands filed on behalf of the respondents. On 12th of March, 2018, the amended petition was admitted to hearing and, on the same day, with the consensus of the learned counsel for the parties, was taken up for final disposal. The matter was partly heard and was directed to be listed for continuation of arguments on the 22 nd of March, 2018, on which date, the matter, however, could not be considered in absence of the records, therefore, Mr Dar, the learned Senior Additional Advocate General, appearing on behalf of the respondents, was asked to produce the records of the Government order bearing No. 11-HP of 2017 dated 14th of July, 2017, releasing the grade against the post of Driver (Grade-I) in favour of Raj Kishore Singh on the 6th of April, 2018. On 6th of April, 2018, the matter was finally heard and reserved for judgment.
07. Before appreciating the controversy involved in the matter, it would be advantageous to have a glance of the facts leading to the filing of the instant petition, which, briefly and as stated by the petitioner, are that on the recommendations of the Selection Committee, constituted vide Government order No. 1371-GAD of 2006 dated 13th of November, 2006, and, by virtue of the office order No. 156-ARC of 2007 dated 20th of September, 2007, sanction came to be accorded to the temporary appointment of the petitioner against the vacant post of Chowkidar in the pay scale of Rs. 2550-3200. The petitioner was, subsequently, appointed in the office of the respondent No.3 and was kept on probation for a period of two years. Consequent to the joining of the petitioner with the office of SWP No. 1761/2017 Page 3 of 13 the Respondent No.3, the petitioner performed his duties to the best satisfaction of his superiors and, accordingly, on completion of the period of probation, the services of the petitioner were confirmed vide order No. 53-KRC of 2010 dated 19th of May, 2010, whereby and whereunder the petitioner was substantively appointed on the said post of Chowkidar and his services were to be governed in terms of the Jammu & Kashmir Hospitality and Protocol Subordinate Service Recruitment Rules. Upon confirmation of the petitioner against the post of Chokidar, the respondents after taking into account the fact that the petitioner was a matriculate and had the requisite driving license, as is otherwise provided in terms of the relevant Rules, ordered the petitioner to work as a driver temporarily against an available vacancy. Thereafter, the petitioner started rendering his services with the respondents as a Driver and, as stated, is continuing to do so till date against an available post. On 21st of February, 2014, the respondent No.3 addressed a communication to the respondent No.2, indicating therein that the petitioner, amongst others, has been working against the post of Driver for many years. It was further stated in the communication aforesaid that the petitioner, amongst others, has the requisite qualification and eligibility as prescribed in the rules with respect to the post of Driver, but is not being paid the salary attached to the said post. The respondent No.2, till date, has not taken any decision on the communication dated 21st of February, 2014, and is continuously exploiting the position of the petitioner by extracting the work of Driver from him, without releasing the monetary benefits in favour of the SWP No. 1761/2017 Page 4 of 13 petitioner attached to the post of Driver. It has been stated in the instant petition that vide Government order dated 14th of July, 2017, one Shri Raj Kishore Singh, who was appointed and regularized against a post of Chowkidar, but having been discharging the functions of a Driver with the respondents, was regularized as a Driver retrospectively from the date he has been holding and discharging his duties as a Driver in the respondent Department.
08. In their reply filed in opposition to the amended writ petition, the respondents have stated that the 'Jammu & Kashmir Hospitality & Protocol (Subordinate) Service Recruitment Rules, 2008', are not applicable to the respondent Department, instead the petitioner is governed by 'J&K Trade Commission-cum-Agencies (Subordinate) Services Recruitment Rules, 1971', wherein there is no provision for the promotion of a 'Chowkidar' to the post of 'Driver'. Besides, it has been stated, that the post of Driver is a direct recruitment post in terms of these Rules. It has been further stated by the respondents that the petitioner has all along been substantively working against the post of Chowkidar and drawing his salary against the said post since his appointment and that the petitioner is only performing the function of a Driver due to shortage of staff and exigency of work. The respondents have further proceeded to state that the evidence adduced by the petitioner in the shape of letter No. KRC/PRC/PS/2462/14 dated 21 st of February, 2014, attached as Annexure-D to the writ petition, to buttress his claim for promotion to the post of Driver, is not the sufficient proof. The SWP No. 1761/2017 Page 5 of 13 said letter, as stated, mentions that (06) posts of Drivers are vacant for the last many years and no recruitment has taken place, despite (05) posts referred to the Jammu & Kashmir Services Selection Recruitment Board (JKSSRB). In regard to this query, it has been stated that (05) posts stand already filled up through the JKSSRB. The remaining one post, as stated, has also been referred to the JKSSB for selection by the Hospitality & Protocol Department vide letter No. HP/Estt/07/2014 dated 23 rd of February, 2016. With regard to the case of Shri Kishore Singh, the respondents have stated that his case is different from that of the petitioner. In the end, it has been prayed that the petition of the petitioner may be dismissed with costs.
09. Heard the leaned counsel for the parties, perused the record and considered the matter.
10. The point in issue, as raised by Mr Faisal Qadri, the learned counsel for the petitioner, with reference to the grant of relief as prayed for in the instant petition, is, primarily, based on the factum that the petitioner has performed his duties in the respondent Department on the post of Driver, admittedly, from the year 2010. It has further reference to the benefit which has been released in favour of the similarly situated official, Shri Raj Kishore Singh, Chowkidar, against the post of Driver (Grade-I) by the Resident Commission office, New Delhi, vide Government order bearing No. 11-HP of 2017 dated 14th of July, 2017.
SWP No. 1761/2017 Page 6 of 1311. Both the points in reference for the grant of relief as prayed for by the petitioner in the instant writ petition are well substantiated, not only by the pleadings on record, but also by the method adopted by the Government in considering the case of Raj Kishore Singh for the grant of such relief. Admittedly, Shri Raj Kishore Singh, Chowkidar, is similarly situated with the petitioner. There is not even an iota of dissimilarity in their cases. Shri Raj Kishore Singh was substantively holding the post of Chowkidar, and, on asking by the respondents, at a given point of time, he performed his duties on the post of Driver in the Resident Commission Office for long number of years. His continuation against such arrangement formed the ground for his claim with reference to regularization against the post of Driver (Grade-I) And the release of grade attached to the said post. Initially, in the case of case Shri Raj Kishore Singh, Chowkidar, the Resident Commission Office had released the grade attached to the post of Driver in his favour, vide Resident Commission Office's order No. 780- KRC of 1990 dated 6th of December, 1990, but, subsequently, he was reverted back and directed to perform the duties on the substantive post of Chowkidar, vide Resident Commission Office order No. 62 dated 17th of February, 1993, which constrained the said official to approach the High Court of Delhi for seeking the indulgence of the Court for the release of such grade. The said Court, in terms of interim order passed on 22nd of February, 1993, while issuing notice to the other side, directed that the petitioner be not reverted from the post of Driver. The respondents, on receipt of the aforesaid interim order of the Court, and on examination of SWP No. 1761/2017 Page 7 of 13 the case of Shri Raj Kishore Singh, continued and regularized his services retrospectively from the 6th of February, 1990, i.e. the date he has been performing his duties as Driver in the respondent Department.
12. Mr Dar, the learned Senior Additional Advocate General, appearing on behalf of the respondents, when asked, as to point out the dissimilarity between the case of Shri Raj Kishore Singh, Driver and that of the petitioner, could not conveniently convince the Court and had no reply available from the records produced by him before the Court. The learned Senior Additional Advocate General only reiterated the grounds taken in the reply with reference to the petitioner not being eligible for the post of Driver.
13. Apparently, the claim of the petitioner is well justified, based on the principle of equality and the approach adopted by the respondents in rejecting his claim for regularization of his services, is not only arbitrary, but also violative of the Articles 14 and 16 of the Constitution of India. The respondents were expected to consider the claim of the petitioner for regularization of his services on the post of Driver, on which, at the asking of the respondents, he has been temporarily working for a considerable period of time and release the grade attached to the said post in his favour, as was directed by this Court in terms of interim order dated 31st of August, 2017. The respondents were expected to adopt a fair, honest and positive approach, but they have, without any application of mind, been selective in their approach and have not registered the claim of the petitioner, who, SWP No. 1761/2017 Page 8 of 13 admittedly, is performing his duties as Driver on ground for the last eight years. This approach on the part of the respondents is disapproved, while exercising judicial review of the order impugned.
14. The State of Jammu and Kashmir has, time and again, adopted policies in the shape of Legislation(s) with a view to ensure that the subjects, who are performing their duties even on consolidated, ad hoc and contractual basis for over a period of seven years, are also entitled for regularization of their services. This approach has been adopted for ensuring that these employees, who give their lives to the respective Departments they are engaged in, are able to sustain themselves and their families in a better way and are not subjected to any exploitation in the Society. Reference, in this regard, is made to "The Jammu & Kashmir Civil Services (Special Provisions) Act, 2010", enacted by the Government of Jammu and Kashmir, which provides as under:
"5. Regularization of ad hoc or contractual or consolidated appointees: Notwithstanding anything to the contrary contained in any law for the time being force or any judgment or order of any Court or tribunal, the ad hoc or contractual or consolidated appointees referred to in section 3 shall be regularized on fulfilment of the following conditions, namely:
i. That he has been appointed against a clear vacancy or post; ii. That he continues as such on the appointed day; iii. That he possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post; iv. That no disciplinary or criminal proceedings are pending against him on the appointed day;SWP No. 1761/2017 Page 9 of 13
v. That he has completed seven years of service as such on the appointed day:
Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this act shall have effect only from the date of such regularization, irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization:
Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years' service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act."
15. Reference to the above provision of law is made only to demonstrate that wherever the State felt the need of engaging the subjects on consolidated, contractual and ad hoc basis as per requirement, they have engaged them and even adopted the policy of regularization in the shape of the Act (supra). This approach adopted by the State is aimed at achieving the objective of being a welfare State and ensuring protection of the rights guaranteed to its subjects. It is further aimed to avoid exploitation of the subjects, who under compelling circumstances, have been performing the assigned jobs on consolidated, contractual and ad hoc basis on a meagre amount, and the State, after realizing the need of their continuation, has passed the legislation aforesaid in their favour. How come the respondents are expected to deny this benefit to the petitioner, who, admittedly, has been performing his duties as Driver with them for the last about 8 years. In terms of the legislation referred to above, the subjects are entitled for regularization only after putting in seven years of Government service. In SWP No. 1761/2017 Page 10 of 13 the instant case, the petitioner has been discharging his services in the respondent Department for a much longer period and no prejudice would be caused to any individual, if the benefit of regularization on the post of Driver is released in favour of the petitioner as prayed for in this writ petition.
16. The Court, during the course of justice delivery system, has to ensure that substantial justice is meted out to the litigants before it, without going into the mystic maybes and technicalities with reference to denial of such justice. The Court, while doing justice, has also to ensure that the same is seen to have been done. These principles are well established by the Constitution and the various landmark judgments of the Apex Court. In the case of "Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati & Ors.", reported in "(2015) 8 Supreme Court Cases 519", the Supreme Court has held as under:
"21.)........The principles of natural justice developed over a period of time and which is still in vogue and valid even today are:
(i) rule against bias i.e. nemo debet esse judex in propria sua causa;
and (ii) opportunity of being heard to the party concerned i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is the duty to give reasons in support of decision, namely, passing of a "reasoned order".
23.) Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian in the fifth and sixth centuries AD called it "jura naturalia" i.e. natural law.
24.) The principles have a sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide a great humanizing SWP No. 1761/2017 Page 11 of 13 factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take an administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision-making that a decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong."
17. Having regard to what has been elaboratively detailed out, examined and discussed hereinabove, the Court is of the considered view that the petitioner has made out a case for the grant of relief as prayed for in the writ petition.
18. In the above background, the instant petition is allowed and the impugned order bearing No. 263-KRC of 2017 dated 30th of October, 2017, alongwith the requisition made by the respondent Department to the Services Selection Board for filing up the post of Driver shall stand quashed, consequently, the petitioner shall be regularized against the vacant post of Driver (Grade-I) in the pay scale of Rs.4000-6000 (Pre- revised), retrospectively from the date he has been performing his duties in the respondent Department, on the same analogy as has been adopted in the case of Shri Raj Kishore Singh.
19. Writ petition, alongwith connected MP(s), disposed of as above.
20. Writ petition bearing SWP No. 1762/2017, which was clubbed and heard together with this petition, in view of the orders passed in that petition shall stand delinked, to be taken up separately as directed therein.
SWP No. 1761/2017 Page 12 of 1321. Record, as produced by Mr Dar, the learned Senior Additional Advocate General, is returned to him in the open Court.
(Ali Mohammad Magrey) Judge SRINAGAR April 16th, 2018 "TAHIR"
SWP No. 1761/2017 Page 13 of 13