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2002 DIGILAW 210 (JK)

Mohd. Shafi Matoo v. State

2002-07-10

T.S.DOABIA

body2002
1. The undisputed facts are as under: (i) That an order was passed whereby the petitioner was to be appointed as a Peon. This order was passed on 22.01.1978. (ii) That as post of a Peon was not available, the petitioner was adjusted as a Laboratory Bearer. These duties the petitioner has been performing with effect from 22.01.1978. 2. The further fact is that in his capacity as Laboratory Bearer, the petitioner was entitled to promotion as Laboratory Assistant. He was so promoted. This was done on 16.04.2001. Order annexure ˜B™ in this regard has been placed on the record. The petitioner, however, was not satisfied with this belated promotion. 3. The petitioner filed a writ petition bearing No SWP No: 1026/1996. the petitioner figured as one of the petitioners in the above petition. That writ petition was disposed of on 17.05.2001. A direction was given therein to consider the claims of the petitioners on the same basis as was done in the case of the respondent no.4, in the above writ petition. A copy of the judgment passed in the said writ petition has been placed on the record as annexure ˜C™. An appeal was preferred by the State. That was dispose of. Thereafter, the respondents have passed an order. This is annexure ˜D™. It is by this order i.e. annexure ˜D™ the petitioner is going to be treated as a peon and not as Laboratory Bearer. It is this aspect of the matter which is subject matter of challenge in this petition. 4. The only reason which has led to the passing of the order dated 24.12.2001 is that petitioner came to be appointed as a Peon and therefore, could not be assigned the duties of Laboratory Bearer. 5. It is not disputed that the petitioner has been discharging the duties of a Laboratory Bearer with effect from 1978. When this be the position then the action of the respondent/state in treating the petitioner as a Peon, which duties he never performed, would be contrary to law and infact the order can well be brought within the definition of "an arbitrary order". When this be the position then the action of the respondent/state in treating the petitioner as a Peon, which duties he never performed, would be contrary to law and infact the order can well be brought within the definition of "an arbitrary order". A person who has continued to work for more than 24 years against a particular post and when there is nothing on the record to show that he was in any way instrumental in getting his cadre changed, then to pass an order treating him as a Poen after 24 yeas would not be apt. Even otherwise also, if a person has continued to work against a particular post for more than two decades then he becomes entitled to hold such a post in view of the judgment of this court given in case of Tulsi Ram & Ors versus Union of India & Ors SWP No. 1832/1997 decided on 04.04.2001. 6. The decision of the Supreme Court reported as Wali Ahmed V State of Bihar 1999 SCC (L&S) 734 would also come to the rescue of the petitioner. In the above case a person had worked as a gauge reader for 17 years. He was held entitled to regularization on account of above factor. 7. In view of above, the petitioner is allowed the order dated 24.12.2001 is hereby quashed. The petitioner is held entitled to be treated as Laboratory Bearer and also to all consequential benefits. He would be given due promotion as Laboratory Assistant with effect from the date claimed by him and in case he has already been promoted he would not be deprived of that benefit. 8. Disposed of accordingly.