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2009 DIGILAW 138 (JK)

Bilal Ahmad Lone v. State Of J. &K.

2009-04-01

MUZAFFAR HUSSAIN ATTAR

body2009
1. Heard. Admit. Notice. Notice accepted by M/s A.M. Magray, AAG and N.H. Shah, Dy. AG. Learned counsel for respondents submits that objections already filed be treated as counter affidavit. Ordered accordingly. Learned counsel for petitioner submits that he does not want to file any rejoinder affidavit. His statement is taken on record. Prayer is allowed. With the consent of learned counsel for parties this petition is taken up for final disposal. 2. Petitioner in this writ petition states that he had filed SWP No. 1077/2005 praying therein for issuance of writ of Mandamus commanding the respondents to deem the deceased father of the petitioner to have been regularized under SRO-64 of 1994 from the year 1992 and petitioner being his son be appointed under SRO-43 of 1994. Petitioner has further projected that pending disposal of the said writ petition, respondents had filed their objections in the year 2006 in which it was stated that the case of the deceased father of the petitioner was submitted for regularization under SRO-64 of 1994 along with other daily wagers in the year 1995. Excepting father of the petitioner other daily wagers were brought on Regular Temporary establishment. In view of the objection raised that the father of the petitioner being ex-serviceman, would not be entitled to benefit of regularization under SRO-64 of 1994, the Chief Engineer vide his communication no. GE-30 5902-03 dated 15th of July, 1995 addressed to Commissioner / Secretary to Government Public Works Department, Srinagar, informed him that the father of the petitioner was one of those daily wagers who have been brought on regular temporary establishment as per Govt. order but no formal order was passed in favour of the father of the petitioner as he belongs to the category of ex-serviceman. The clarification was sought as to whether he is entitled for regularization under SRO-64 of 1994. The communication of Chief Engineer is reproduced as under: "As reported by the Superintending Engineer Mech. I&FC Circle Srinagar vide his letter No. NCO/510-11 dated 5.6.1995 (copy enclosed) one Said-Ullah S/o Ahmadullah R/o Khanjikhul Anantnag is amongst the daily wagers who have been brought on R/T establishment as per Govt. order No. quoted above with effect from 1.4.1994. The daily wagers is an ex-serviceman and on this ground formal order have not been issue in his favour by the Executive Engineer. order No. quoted above with effect from 1.4.1994. The daily wagers is an ex-serviceman and on this ground formal order have not been issue in his favour by the Executive Engineer. It may kindly be clarified if the category of the ex-service man also falls under the provision of item (4d) of the SRO-64 dated 24.3.1994 or otherwise." 3. The Under Secretary to Government I&FC/HE Department, Srinagar vide his communication No. PW (IFK) 51/98 dated 18th of August, 1998 informed the Chief Engineer, Irrigation and PC Department, Srinagar that father of the petitioner Sh. Saidullah Lone being ex-serviceman cannot be regularized on the present post. The copy of this communication is reproduced as under: "I am directed to refer your letter NO. GE/IC 1089 dated 25.04.1998 regarding the subject cited above and to say that Sh Saidullah Lone being an ex-serviceman cannot be regularized on the present post." 4. Petitioner accordingly sought amendment of the writ petition to challenge the said communication. Respondents have filed their objections and have taken the same stand that petitioner could not be regularized under SRO-64 of 1994 for the reason that he was ex-serviceman. In the amended writ petition, petitioner has placed on record annexure-H, a document / circular of the finance department issued by Additional Chief Secretary Finance. The subject matter of the said document is "regularization of ex-serviceman engaged as daily wagers in Government Departments-clarification thereof." At paragraph-4 of the said document it has been clarified that ex-serviceman engaged as daily rated workers / work charged employee shall not be treated as retired employee for the purpose of SRO-64 of 1994. The said clarification is reproduced as under: "Under Rule 4(d) of Jammu and Kashmir Daily Rated Workers/work Charged Employees (Regularisation) Rules, 1994, promulgated vide SRO-64 dated 24th March, 1994, it has been provided that a daily rated worker / work charged employee shall be eligible for regularization on fulfillment of, inter alia the following conditions; - 1. "That he is not a retire from any State or Central Government Service or any local body, Public Sector Undertaking or Autonomous body in or outside the State" 2. There is also a provision under Rule 9(2) of Rules ibid that: "If any retired person has been engaged as daily rated worker, his/her services/engagement as such shall be terminated forthwith." 3. There is also a provision under Rule 9(2) of Rules ibid that: "If any retired person has been engaged as daily rated worker, his/her services/engagement as such shall be terminated forthwith." 3. A doubt has been expressed whether an ex-serviceman engaged as Daily Rated Worker / Work Charged Employee also comes within the ambit of the term `retired employee as stipulated in the above quoted provisions of the said Rules. 4. The matter has been examined in the Finance Department in the light of a substantive provision contained in the J&K Civil Service Regulations under Note 5 below Article 37 and the back-drop wherein the said provision has been made, prescribing the maximum age limit for appointment of ex-serviceman in Government Service as 48 years. It is clarified that the Ex-serviceman engaged as Daily Rated Worker / Work Charged Employee shall not be treated as retired employee for purpose of rules ibid. 5. All the Addl. Chief Secretaries/Commissioners/Secretaries to Government/ Heads of the Department are requested to convey the aforementioned clarification to their subordinate offices for taking appropriate action in the matter." 5. Father of the petitioner was ordered to be brought on temporary establishment under SRO-64 of 1994 by the Government Order No. 165 of 1995 dated 27th of March, 1995 but formal appointment order could not be issued by the concerned Executive Engineer as he wanted to seek clarification from superior authorities as to whether the formal appointment order could be issued in favour of father of the petitioner being ex-serviceman. The impugned communication provided that he cannot be regularized, being ex-serviceman. The impugned order in view of the clarification given by the finance department is rendered bad in law. The father of the petitioner is entitled for being brought on Regular Temporary establishment under SRO-64 of 1994 notwithstanding the fact that he was ex-serviceman. The non issuance of formal appointment order in favour of the father of the petitioner on a ground not available in law is not only illegal, unreasonable but has worked harshly to the interest of the father of the petitioner who during his life time has been deprived to reap the benefits of such regularization. The communication impugned in this writ petition otherwise is bad in law as no reason has been recorded and the same suffers from non application of mind. 6. The communication impugned in this writ petition otherwise is bad in law as no reason has been recorded and the same suffers from non application of mind. 6. Learned counsel for respondents submits that the writ petition suffers from delay and latches. This objection is countered by the learned counsel for the petitioner by submitting that the petitioner learnt about the impugned communication for the first time when objections were filed in the un-amended writ petition by the respondents. Even otherwise the ground of delay and latches would not be attracted in the fact and circumstances of this case as the father of the petitioner has been subjected to invidious discrimination by the respondents because other similarly situated persons were brought on regular temporary establishment and petitioner was denied the said benefit. The father of the petitioner because of illegal and arbitrary acts of the respondents has been deprived to get the benefits of the post during his life time. The plea so taken pales into insignificance in view of the fact situation obtaining in this case. 7. This petition is allowed and impugned communication is quashed. Respondents are directed to give all benefits to the petitioner treating the father of the petitioner having been brought on regular / temporary establishment. Respondents are further directed to consider the case of the petitioner for being appointed under SRO-43 of 1994.