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2002 DIGILAW 375 (JK)

Nargis Mir v. State

2002-12-02

B.L.BHAT, T.S.DOABIA

body2002
PER DOABIA-J (ORAL) 1. The appellant came to be appointed on 14th of August, 1997. This was for a period of 60 days or till her services are regularised by the competent authority. Thereafter another order was passed on 8th September, 1997. The appellant was permitted to perform her duties till further orders. Yet another order was passed on 10th October. 1997. For facility of reference that order is reproduced below: - "In continuation to this office order No. DSW CS/97/329-31 dated 14-08-1997 Miss Nargis Mir D/O Gh. Mohi-ud-Din Mir R/O Srinagar. will continue on the post of orderly till regularisation of her services against the said post." 2. The argument raised by the State was that the appellant was appointed by an authority who was not competent to appoint her. This argument found favour with the learned judge. It was urged that once the vacancy was being filled by the competent authority, then the appellant would have no right to continue against the post. This aspect of the matter was then taken note of and the writ petition was dismissed on 12-05-1999. 3. The further fact is that when an appeal was prefferred, an interim order was passed on 19-05-1999. For facility of reference, this order is reproduced below:- "..... Judgment stayed. Respondents are directed to allow the petitioner to continue as Class-IV employee in the office; of the Falahi Mastoorat, Shalimar, Srinagar and she be paid the salary regularly. In the meantime, the respondents will take steps to regularise her services through proper selection Committee, if that be necessary." 4. After having heard learned counsel for the parties, we are of the opinion that once the order dated 10th October, 1997 was passed, then the least that was required to be done was to consider the claims of the appellant as and when regular selection process was undertaken. This has not happened. 5. A pointed question was put to the learned counsel appearing for the State as to whether any order of termination has been passed. All that has been said to that is the life of the order by which the appellant came to be appointed stood exhausted, therefore, there was no necessity to pass a further order of termination. This stand of respondent State cannot be sustained. The order dated: 10th October. 1997 noticed above is clear and categoric. All that has been said to that is the life of the order by which the appellant came to be appointed stood exhausted, therefore, there was no necessity to pass a further order of termination. This stand of respondent State cannot be sustained. The order dated: 10th October. 1997 noticed above is clear and categoric. In pursuance of the said order, The appellant was to continue against the post of orderly and her services were supposed to be regularised. If the terms of the order were to be modified, then the appelant should have been put to notice. 6. Another argument which has been advanced by the respondent State is that the appellant came to be appointed by an authority which was not competent to make appointment. 7. So far as the above aspect of the matter is concerned, reference in this regard can be made to a decision of the Supreme Court of India in the case of Punjab Land Development and Reclamationl Corporation Ltd., Chandigarh Vs. Presiding Officer. Labour Court, Chandigarh and ors., (1990) 3 SCC 682. In the above case, the services of the employee concerned were terminated on the ground that the order of appointment was not passed by the competent authority. Not with standing the above plea raised by the employer, the Labour Court came the conclusion that the order of termination is bad. This order was challenged in the Punjab and Haryana High Court. The view expressed by the Labour Court was sustained. when the mailer came before the Supreme Court of India, it did not interfere with the view expressed by the Labour Court. In this regard, it is accordingly concluded that an employee has no concern with the source of appointment. If an orders issued, then what transpired before issuance of order is not the concern of the employee in whose favour the order is passed. In case, it is established that the employee concerned is a party to or is in collusion with the authority issuing letter of appointment then the position may be different. Otherwise, as indicated above, the employee has no concern with the question as to the appointment having been made by an incompetent authority. As such, the argument advanced in this regard by the respondent-State cannot be accepted. As indicated above, we are of the opinion that the order dated: 10th October, 1997 was clear and categoric. Otherwise, as indicated above, the employee has no concern with the question as to the appointment having been made by an incompetent authority. As such, the argument advanced in this regard by the respondent-State cannot be accepted. As indicated above, we are of the opinion that the order dated: 10th October, 1997 was clear and categoric. The appellant was to continue and her services were supposed to be regularised. There was no other rider in the aforesaid order. If this be the position, then the stand taken by respondent-State cannot be sustained. The respondents have not passed any order of termination. Even if some regular selection process was undertaken, then, as indicated above, the least which was required to be done was to consider the claims of the appellant also. This has not happened in this case. 8. The further aspect of the matter which cannot be lost sight of is that in pursuance of interim order passed by this Court on 19th May. 1999, the appellant was supposed to continue in service. Direction was also given to consider the claims of the appellant for regularising her services through a regular selection process, which as indicated above, has not been done. In view of the above, this appeal is allowed. The judgment under appeal is set aside. Respondents are directed to consider the claim of the appellant for regularisation of her services. The above period for which there was no interim order i.e. from 12th May. 1999 to 19th May. 1999 shall be ignored. The appellant, however. would not be entitled to any wages for the above said period. So far as the monetary claims for the remaining period is concerned, that would also be settled. Let appropriate orders be passed within a period of two months from the date, a copy of this order is made available to respondent-State by the appellant. The learned counsel for the appellant, at this stage, submits that the interim order passed by this Court has not been complied with by the respondents and in this regard, a contempt petition is also been filed. Nothing is said so far as the above aspect of matter is concerned. It is hoped that the respondents shall now show full respect to the order passed now and would not, by their further acts of omission, render themselves liable for action under the Contempt of Court Act. Nothing is said so far as the above aspect of matter is concerned. It is hoped that the respondents shall now show full respect to the order passed now and would not, by their further acts of omission, render themselves liable for action under the Contempt of Court Act. The contempt petition filed by appellant shall stand disposed of to be revived in case the judgment now passed is not complied with. Disposed of.