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2003 DIGILAW 262 (JK)

Afroza Akther v. State Of J. &K.

2003-08-30

SYED BASHIR-UD-DIN

body2003
Petitioner was appointed against class IV post in Health Department by Chief Medical Officer, Anantnag (respondent No. 3) on 9.3.1998 against the resultant vacancy caused by promotion of incumbent of such post (Annexure-A). Petitioner has alleged that her appointment is within the competence of Chief Medical Officer and has been in accordance with the rules. However, her service record is not maintained and she suspects official respondents are bent upon to terminate her service arbitrarily and malafide. Petitioner also alleges that even from the letter of Block Medical Officer to Chief Medical Officer Anantnag (Annexure-B) seeking clarification regarding appointment of petitioner who is stated to have worked upto 31.3.1999, her status thereafter is that she is working and there is no such thing as her termination from the post. Petitioner has prayed for relief(s) of regularization of service and quashment of termination of appointment, if any, and maintenance of service record. 2. Respondent on affidavit of Director Health Service has alleged that the then CMO Anantnag in violation of the Government orders without observing due procedure prescribed under law went for wholesale promotions from the posts of class-IV in the Health h Department in District Anantnag. Against he resultant vacancies thus created the CMO again in violation of Rules and procedure made appointment(s) to class IV posts in the Department Petitioner is one of such appointees to class-IV post. Only Head of Department could have made the appointment against the class-IV post in question and that too in accordance with the rule in question at the relevant point of time and subsequently such powers have been even taken from HODs and vested with General Administrative Department by the Govt. vide order dated : 14.6.99. Petitioner having obtained appointment order passed in favour of the petitioner by incompetent person who had and has no jurisdiction to pass such order has no efficacy under law. The Govt. taking stocks of the situation cancel all the illegal promotion orders ordered by CMO Anantnag by Govt. Order No. 114-HME of 1999 dated 15.3.1999 and consequently the beneficiaries of such illegal promotion order of the CMO were reverted back to the class IV post(s) resulting in ouster of the incumbent(s) illegally appointed in such arrangement against consequent resultant vacancies. The writ petition is therefore prayed to be dismissed. 3. Order No. 114-HME of 1999 dated 15.3.1999 and consequently the beneficiaries of such illegal promotion order of the CMO were reverted back to the class IV post(s) resulting in ouster of the incumbent(s) illegally appointed in such arrangement against consequent resultant vacancies. The writ petition is therefore prayed to be dismissed. 3. During the pendency of the writ petition, petitioner through counsel moved application (CMP No. 1890/01) praying therein that petitioners case may be dealt with and her writ petition disposed of in the light of the judgment passed by Division Bench of this court on 25.6.01 in L.P.A. No. 170/2000 on the ground that the petitioner is similarly situated as the petitioners of that writ petition. Respondents have filed their objections and contested the matter. The maintainability of writ and treatment sought by the petitioner on pari materia with the directions of L.P.A. No. 170/2000 is opposed on the ground that so many other candidates who were appointed as the petitioner is appointed by the CMO. Anantnag were subsequently cancelled under Govt. order dated: 15.3.1999. The oustees did file the writ petition titled Sardar Sauran Singh and Ors. v. State of J&K & Ors. Which writ petition has been dismissed by the Ld. Single judge. The LPA against the judgment is also dismissed on 6.9.2001. The result is that consequent on dismissal all the promotees who were reverted back to the original posting lost the jobs for non-available of post for being filled up by candidates like the petitioner. It is also alleged that petitioner had earlier to this writ petition filled SWP No. 807/99, with many other candidates which petition stands dismissed on 24.5.99. Petitioner has on self same facts filled this petition. Petitioner is as per her own case out of job and not working against any post form 31.3.1999. The submissions of the Ld. Counsel for the parties are heard. Record perused and matter is considered. So far as petitioners case is concerned in the face of the reply on affidavit of the Director Health Service at is seen that petitioners appointment as class-IV is ordered by an incompetent person with no powers to make such appointment at the relevant time. Counsel for the parties are heard. Record perused and matter is considered. So far as petitioners case is concerned in the face of the reply on affidavit of the Director Health Service at is seen that petitioners appointment as class-IV is ordered by an incompetent person with no powers to make such appointment at the relevant time. Besides the resultant vacancy against which petitioners appointment was ordered by CMO Anantnag was the post made available by promotion of he incumbent of the post to next higher grade which promotion was found made in violation of rules and beyond pale of law. Accordingly the appointment was cancelled by the Govt. in March 1999. Once the promotions were cancelled the beneficiaries of such promotion reverted back to the class-IV post and consequently petitioner who was appointed against one of such post is out. The cancellation of the above promotion order has attained finality with the pronouncement by Honble Single Judge in writ petition and the LPA Bench. The State of Affairs in place came to an end when the petitioner on ouster was not continue from 20.4.01 as reported by BMO, Yaripora to Director Health Services. This is so stated on affidavit by Director Health Services. The judgment of June 2001 in LPA No. 170/2000 on which reliance is placed to regulate the petitioners case is not in terms applicable to the petitioner. The judgment reads as :- "to consider the case of the appellants by opening the service book or regularizing them in the posts subject to their possessing requisite qualification for the post and further provided that the promotees against whose vacancy appellants has been engaged are not reverted back to their original position." 4. It is the positive case of the respondents, as supported by affidavit of Director Health Service that the promotees of the vacancies to which petitioner has made a claim have since been reverted back to the original position and thereby leaving no resultant vacancy for petitioner to continue against on the class IV post. Even circumstances pointed out in that case that the appellants of that case were holding the posts and working against class IV post is not true of this case as petitioner has been disengaged from 21.4.2001 as deposed on affidavit by Director Health Services. 5. Even circumstances pointed out in that case that the appellants of that case were holding the posts and working against class IV post is not true of this case as petitioner has been disengaged from 21.4.2001 as deposed on affidavit by Director Health Services. 5. Before court can issue direction for according treatment to a case as per the directions contained in an earlier judgement, it has to be necessarily shown that the candidates are equally circumstanced and are similarly placed in both case. This is not the case as pointed above. Para 14 of the writ petition reads as under :- "That the petitioner filed a writ petition before this Honble Court bearing SWP No. 807/99 which came for consideration before the Honble court on 24.5.99 before the Honble Justice Mr. G.L. Raina but the same was dismissed for non-prosecution of the same by the petitioner and the petitioner in this regard has to submit that the petitioner has engaged the counsel for the purpose but due to death of his mother on that day could not present himself before the Honble court as such case for filing this petition." 6. Annexure-D to the petition focuses on the position as is given in this para. Respondents in reply have averred that once the writ petition is dismissed, the second writ petition is not maintainable. Once the writ petition is dismissed for non-prosecution and no steps whatsoever have been taken to restore recall the dismissal order of the writ petition this second writ petition on the self same subject is not maintainable. In this aforesaid view of the matter petition is dismissed.