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2002 DIGILAW 334 (JK)

Niyaz Ahmad Bhat v. Union Of India

2002-10-30

B.L.BHAT, T.S.DOABIA

body2002
1. Even if the facts as pleaded by the Union of India in the counter affidavit are taken at its face value, even then, something is required to be said in favour of the appellant. 2. No doubt the writ petition preferred by the appellants stand dismissed, but it appears that some facts were not properly projected before the learned Single Judge. 3. The undisputed facts are that appellant No. 1 namely Niyaz Ahmad Bhat came to be appointed as lower Division Clerk (LDC).Order to this effect was initially issued on 10-08-1990. The tenure fixed in the order came to an end on 04-02-1991. Thereafter petitioner/appellant No. 1 was reappointed for a further period of six months. This tenure was to expire on 05-08-1991. Even though the tenure came to be end. it is the case of the appellant No. 1 that he continued to perform the duties of the post of lower Division Clerk (LDC). 4. In so far as petitioner/appellant No. 2 is concerned, he came to be appointed as LDC in the year 1997 and he has continued to work as such. 5. Apprehending that the appellants might be reverted, they approached this court. An interim order was, permitting them to continue. This order was passed in SWP No: 374 of 1998. Notwithstanding the passing of the order, appellants were reverted. Thereafter another writ petition came to be filed bearing SWP No: 462/1998 challenging their reversion. Both the writ petitions were disposed of by a common judgment passed on 31 -12-1999. Learned Single Judge of this court came to the conclusion that as the selection was made by the Staff Recruitment Commission and some incumbents came to be appointed against the post held by the appellants, therefore, they had no valid right which could be enforced by this court. It was on these premises that the writ petitions were dismissed by the learned Single Judge, which is subject matter of challenge in this appeal. 6. It was on these premises that the writ petitions were dismissed by the learned Single Judge, which is subject matter of challenge in this appeal. 6. The further factual position discernible from the stand taken by the respondents is summarized as under: - (i) The Group ˜C™ Ministerial Cadre (Non-technical including the post of CG-II (LDC) is to be filled in the following manner: a) 90%by direct recruitment through Staff Selection Commission: b) 5%through Departmental Competitive Examinations amongst Group ˜D™ staff as per eligibility criteria; and c) 5% through seniority-cum-fitness amongst Group ˜D™ staff having 5 years continuous service subject to the availability of posts in the Zone by Zonal Station. All India Radio, Jalandhar. The Zone consists as under: Jammu and Kashmir, Himachal Pradesh. Haryana, Punjab and Union Territory Chandigarh. (ii) That the appellants cannot be adjusted as 5% post mentioned at serial No. (c) were not available. It is, however, submitted that their cases are under consideration and as per the eligibility criteria, they would be adjusted under 5% reservation. Such is the stand taken in opening part of paragraph (9). 7. So far as 90% posts are concerned, appointments have been made and the names of 14 persons have been indicated, in para No. 14 (b) of the counter affidavit. 8. It be seen that so far as the appointment of 14 persons is concerned, this has been made by the Staff Selection Commission. This could be relatable to 90% posts meant for direct recruitment through Staff Selection Commission. These appointments are not against the quota meant for the present appellants. Therefore, even if somebody has been appointed against this 90% quota, it would not take away the rights of the appellants because they are seeking appointment against 5% quota referred at serial Nos.(b) and (c) above. It is against this quota that the claim of the appellants were required to be considered. A perusal of the counter affidavit indicates that this aspect of the matter has not been adverted to and the claim of the appellants has not been considered. 9. It is against this quota that the claim of the appellants were required to be considered. A perusal of the counter affidavit indicates that this aspect of the matter has not been adverted to and the claim of the appellants has not been considered. 9. It may be mentioned here that the Union of India has contended that the appellants were appointed on adhoc basis and no right accrued to them to be considered for their regularisation in presence of the fact that already candidates stand nominated by the Staff Selection Commission against the posts held by the adhocees and those selected/appointed candidates were allowed to join. 10. It is apt to mention here that the case of the appellants fall within para b and c above as they are seeking appointment against 5% quota referred to in the saidparas. It is against this quota that the claims of the appellants were required to be considered, through seniority-cum-fitness amongst Group ˜D™ staff. So far as Group ˜D™ is concerned, appellant No. 1 was appointed as Peon in the year 1984. So far as appellant No. 2 is concerned, he came to be appointed as peon in the year 1979. Therefore, their claims are required to be considered even under this head. This aspect of the matter has not been adverted to by Union of India. As a matter of fact, this was not taken note of by learned Single Judge. 11. In view of the above, this appeal is allowed and the respondents-Union of India is directed to consider the claim of the appellants against 5% quota mentioned at serial No. (b) and (c) above. As a matter of fact the stand taken by the Union of India in their counter affidavit is that the case of the appellants for regularisation is under consideration. It is hoped that this consideration would now be taken to its logical end the appellants who are continuing from 1990 and 1997 respectively on adhoc basis would receive proper consideration. As a matter of fact, if a person/employee has continued to work against any post for a pretty long time, then a valuable right accrues to him and he has a right of such consideration. This view has been expressed by the Supreme Court in case Wali Ahmad Vs. State of Bihar, 1999 SCC (L&S) 734. 12. As a matter of fact, if a person/employee has continued to work against any post for a pretty long time, then a valuable right accrues to him and he has a right of such consideration. This view has been expressed by the Supreme Court in case Wali Ahmad Vs. State of Bihar, 1999 SCC (L&S) 734. 12. Therefore, the respondents are directed to consider the claims of the appellants against 5% quota indicated separately at serial No. (b) and (c) above. The appointment of 14 persons referred to in the counter and which was taken into consideration is against 90% and the appellants are not claiming appointment against that quota. Let the consideration be done at the earliest. Till it is done, the appellants would continue to perform the duties of the posts and would also be entitled to draw salary against the said posts. In case any adverse order is passed. that will remain in abeyance for a period of three weeks from the date of passing of the said order. 13. Before parting with the case, it would-be apt to mention (hat this matter should have gone to the Central Administrative Tribunal. Since a view has already been expressed by a learned Single Judge of this court, therefore, it would not be apt to refer the matter to the said Tribunal The said Tribunal cannot be permitted to sit in judgment over the view expressed by a learned Single Judge of this court. Had it been at the initial stage and had no opinion been expressed by the court, then the course of transmitting the file to the Tribunal could have been adopted. This course has not been adopted. Now the matter is at appellate stage. It is in this context that we have taken an exercise of disposing of the appeal on merits.