Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Others vs Afaq Rasool Gadda And Another on 4 August, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
Serial No.03
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No.118/2017
Date: 04.08.2017
State of J&K and others.
...Appellants.
V.
Afaq Rasool Gadda and another.
...Respondents.
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice Hon'ble Mr Justice M. K. Hanjura, Judge Appearing counsel:
For the appellant(s) : Mr. M. A. Beigh, AAG.
For the respondent(s) : Mr. S. N. Ratanpuri, Advocate.
i) Whether to be reported in
Press/Media. Yes/No
ii) Whether to be reported in
Digest/Journal. Yes/No.
Badar Durrez Ahmed, CJ (Oral)
01. The present appeal is directed against the order dated 24.11.2016 passed by a learned Single Judge of this court in SWP No.1475/2016.
02. The services of the respondents herein were regularized in terms of Government order no.29-ID of 2016 dated 05.10.2016 in the pay scale of Rs.9300-34800 with grade pay of Rs.4800/-. The said regularization was done under the provisions of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010, (hereinafter referred to as the said Act). The only issue that was before the learned Single Judge was with regard to the date LPASW NO.118/2017 1 OF 4 from which the regularization was to operate. As per the appellants herein, the regularization was to operate prospectively from 05.10.2016. Whereas, as per the respondents, the regularization was to take effect retrospectively from September, 2009 i.e., the date on which the respondents completed seven years of ad hoc service.
03. The learned Single Judge followed the decision of the Division Bench in COD no.159/2016 c/w Review Petition no.25/2016 & Contempt petition no.13/2016 in the case of Mrs. Rabia Shah v. State of J&K and others, decided on 07.09.2016. In the said decision, it was indicated that an outer time limit has been prescribed under the provisions of the said Act, particularly, Section 10 thereof for completing the process of regularization.
According to the Division Bench, 150 days after the appointed day was the outer time limit within which the regularization, in cases where the period of seven years' service had been completed prior to the appointed day, were to be finalized. Consequently, the Division Bench held that the date from which regularization would take effect under the said Act in cases where the period of seven years had transpired prior to the appointed day would be 26.09.2010 (i.e., 150 days after the appointed day - 29.04.2010). The learned Single Judge applied the said Division Bench decision and held that the respondents herein would be entitled to regularization of services with effect from September, 2010 and that the regularization order be accordingly modified.
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04. We may point out that the said decision in the case of Mrs. Rabia Shah was not accepted by the appellants herein and they took the matter to the Supreme Court by way of SLP(C) no.496-498/2017. However, the said special leave petition was dismissed by the Supreme Court by virtue of its order dated 05.01.2017. Since the appellants herein continued to be aggrieved by the said order of dismissal of the special leave petition, a review petition was also filed being R.P(C) no.1388-90/2017. That was also dismissed by the Supreme Court by virtue of its order dated 12.07.2017.
05. Confronted with these facts, when, in our view, the matter was entirely covered by the decision in the case of Mrs. Rabia Shah, the learned counsel for the appellants submitted that Section 5 of the said Act had not been considered in the decision in Mrs. Rabia Shah's (supra).
06. We have gone through the decision dated 07.09.2016 in that case in detail and find that the very issue of Section 5 of the said Act was specifically considered by the Division Bench in Mrs. Rabia Shah (supra). Therefore, the contention of the learned counsel for the appellants that Section 5 of the said Act had not been considered and that only Section 10 was considered in Mrs. Rabia Shah (supra), does not have any basis. In these circumstances, the learned Single Judge has not committed any error in relying upon the decision of the Division Bench in the case of Mrs. Rabia Shah (supra) and the present case is fully covered by that decision. Consequently, the appeal has no merit. The respondents' services would LPASW NO.118/2017 3 OF 4 have to be regularized in terms of the provisions of the said Act and the said Division Bench decision with effect from 26.09.2010 and the regularization order shall be modified accordingly.
07. The appeal stands dismissed.
(M. K. Hanjura) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar
04.08.2017
Abdul Qayoom, PS
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