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J&K High Court · body

2009 DIGILAW 303 (JK)

Mubarik Ahmad Mir v. State Of J. &K.

2009-06-05

MOHAMMAD YAQOOB MIR

body2009
1. Closure of Watch Case Project of J&K State Industrial Development Corporation Limited (for short SIDCO) resulted in subjecting the petitioner to an uncertain situation and his fate has been hanging in the balance for want of finalization of his case of absorption. 2. Petitioner admittedly vide order No.IDC/WCP/84/25 dated 13th of June, 1984 issued on approval by Project Manager Watch Case Project has been appointed, as Engineer Trainee and subsequently regularized in the grade of Rs. 1200-2040, therefore, was permanently on the establishment of SIDCO. 3. The Industries & Commerce Department vide its communication No.41-PAC/99-NS dated 19.3.1992 addressed to Commissioner/Secretary to Government General Administration Department, has conveyed that the Advisor (Z) (as then was under Governors Rule) has desired the staff of the factory be adjusted in Various departments/ corporations after taking into consideration their suitability and utility, therefore, list of surplus staff of the Watch Case Project for their adjustment in various departments/corporations has been sent to the General Administration Department. 4. Petitioner had moved an application for his adjustment in Mechanical Engineering Department or in Science & Technology Department. Same has been sent to Commissioner/Secretary to Public Works Department and also to Science & Technology Department by the Industries Department with the request to explore the possibility of utilizing the services of the petitioner in their department. Public Works Department has taken up the matter with Chief Engineer Mechanical Engineering Department vide its No.PaG.Estt/2/93-JE dated 3.2.1993 requesting therein as to whether services of the petitioner can be utilized as Mechanical Engineer in Engineering Department. Chief Engineer Mechanical Engineering Department vide his No.CEM/CO/5339 dated 1.3.1993 has responded by stating that the department has shortage of technical hands at Assistant Engineers level, as an exception in the interests of government work, petitioner may be considered for appointment in Mechanical circle on standard terms and conditions. 5. The aforesaid correspondence culminated in issuance of Govt. order No.188-PW of 1993 dated 26.3.1993 where-under petitioner has been appointed against the post of Assistant Engineer (Mechanical) on deputation basis for a period of two years in the first instance. 6. 5. The aforesaid correspondence culminated in issuance of Govt. order No.188-PW of 1993 dated 26.3.1993 where-under petitioner has been appointed against the post of Assistant Engineer (Mechanical) on deputation basis for a period of two years in the first instance. 6. The petitioner continued to work as an Assistant Engineer continuously though the period has not been extended beyond two years which shall be for a specific reason i.e. the High Level Committee held a meeting wherein the issue of adjustment of surplus staff also figured and the surplus staff was decided to be adjusted against the vacancies where-ever occur in government departments. Immediately on adjustment elsewhere the post held by an employee in PSE would stand abolished. In this connection it is quite relevant to quote sub-item No. 10.02 and the decision taken thereon by the committee in its 10th meeting of BPE under the Chairmanship of Chief Secretary of the J&K Government held on 11.10.1993: "Sub-item No. 10.02/9.10/8.03/6.03: Pool of Surplus Staff/Adjustment/Absorption thereof: The BPE decided that a category wise list of the surplus staff be prepared by the GAD indicating therein the qualification of each and every member declared surplus for adjustment where-ever vacancies occur in Govt. Deptts. The corresponding post held by an employee in the PSE shall stand abolished as soon as he is adjusted else-where. In this behalf the Chairman wanted to ascertain whether there are proper rules for protection of pay, service and G.P. Fund etc. of the employees of the Corporation on their adjustment in Govt. Deptts and for the Govt. employees on their opting for the services of the PSES and vise-versa. The A.C.S. (F) assured the Chairman that proper rules are already existing in this behalf." 7. The petitioner in the process of getting himself absorbed on permanent basis was caught in the hectic inter-departmental correspondences. Finally the case of the petitioner had been submitted for adjustment on permanent basis for approval to the Competent Authority through GAD but GAD desired to consult Public Service Commission in the first instance. The work of the petitioner has been appreciated by the Works Department who has strongly recommended absorption of the petitioner against the post held by him with effect from 27.3.1993. Works Department has also mentioned in their correspondence dated 17.7.2000 that the petitioner has passed degree in Mechanical Engineering in 1983. The work of the petitioner has been appreciated by the Works Department who has strongly recommended absorption of the petitioner against the post held by him with effect from 27.3.1993. Works Department has also mentioned in their correspondence dated 17.7.2000 that the petitioner has passed degree in Mechanical Engineering in 1983. He was holding the post in Watch Case Project carrying higher scale than the AE of Mechanical Engineering Department. 8. After addressing the issue of seniority, the Public Service Commission vide its No.PSC/DPC/AE/Mech/10/2000 dated 4.10.2000 addressed to Principal Secretary Public Works Department, has conveyed approval of the Commission to the adjustment of the petitioner as Assistant Engineer (Mechanical in Mechanical Engineering Department with effect from 27.3.1993, furthermore it is conveyed that seniority shall be fixed by the Public Works Department at the bottom of the seniority list as it stood on 27.3.1993 (i.e. the date of his joining the said service). After completing all requisite formalities case of the petitioner has again been submitted for approval through GAD but has not been approved, as a result thereof, petitioner has filed the instant petition for issuance of mandamus so as to command the respondent State to absorb the petitioner on permanent basis as Assistant Engineer (Mechanical wing) with effect from his initial order of appointment dated 26th of March, 1993, furthermore a writ in the nature of certiorari so as to quash the order where-under case of the petitioner has not been approved. 9. Administrative decisions must be logical and shall not suffer from arbitrariness. Short of reasons administrative action becomes illegal. The performance of the petitioner has been appreciated by the Mechanical Engineering Department where the petitioner has been working from the year 1993. Unfortunate closure of the Watch Case Project where the petitioner was holding a post higher in scale than the Assistant Engineer in Mechanical Engineer Department, made the petitioner to work on such scale and his adjustment rather absorption on permanent basis in terms of the decision of High Level Committee chaired by Chief Secretary as referred to hereinabove cannot be avoided. Petitioner has been working as Assistant Engineer and his adjustment in seniority has also been taken note of. Public Service Commission in terms of Section 133 of the Constitution of J&K has also conveyed its approval. Petitioner has been working as Assistant Engineer and his adjustment in seniority has also been taken note of. Public Service Commission in terms of Section 133 of the Constitution of J&K has also conveyed its approval. The position of the petitioner having been working with dedication as Assistant Engineer against a vacant post from the year 1993 is admitted, the stand of the Engineer Department that they had the shortage of technical hands and petitioner has been adjusted on that score, is also clear. 10. Now at this stage what will happen to the petitioner and where will he go. There is no fault attributable to him. He has also crossed the age bar and cant get any job anywhere now. Adjustment of surplus staff on permanent basis was a policy decision of the government in deviation of that policy decision the petitioner cannot be thrown on roadside. It is true that for appointment on a gazetted post, post has to be referred to the Public Service Commission as has been done in keeping with the position of this case. It is in the peculiar facts and circumstances of this particular case that the matter has been referred for approval to the Public Service Commission in terms of Section 133(2) of the Constitution of J&K and the Commission has conveyed its approval. In this connection it shall be quite relevant to quote Section 133: "133. Functions of the Commission: (1) It shall be the duty of the Commission to conduct examinations for appointments to the services of the State. (2) The Commission shall be consulted-- (a) on all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers; (c) on all disciplinary matters affecting a person serving under the Government including memorials or petitions relating to such matters, and it shall be the duty of the commission to advise on any matter so referred to them or on any other matter which the Governor may refer to them. Provided that the Governor may make regulations specifying the matters in which either generally, or in any particular class of cases or in any particular circumstances, it shall not be necessary for e Commission to be consulted. (3) Nothing in sub-section (2) shall require the Commission to be consulted as respects the manner in which a provision may be made by the State for the reservation of appointments or posts in favour of any class of permanent residents which in the opinion of the Government is not adequately represented in the services under the State. (4) All regulations made under the proviso to sub-section (2) by the Governor shall be laid for not less than Fourteen days before each House of the Legislature as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as the Legislative Assembly may make during the session in which they are so laid." 11. Further contention of the petitioner that he has been subjected to hostile discrimination appears to be plausible because the surplus staff of the Watch Case Project of SIDCO has been adjusted according to their suitability and rank which fact is borne out by Govt. order No.313 dated 17.7.1998 placed on record. Petitioner in order to show the discrimination meted out to him has placed on record Govt. order No.59 dated 29.2.2000 where-under Shri Laiq Parveez Senior Assistant-Manager JKI has been appointed on prospective basis as Project Manager in Industries & Commerce Department in relaxation of rules in the pay scale of Rs.7500-12000. Govt. order No.1517-GAD of 2006 dated 13.12.2006 has been placed on record where-under it is shown that vide cabinet decision No.68/5 dated 13.2.2004, staff of the erstwhile wound up Milk Federation has been adjusted in Government Departments and two engineers of the said Federation who were holding the posts of Assistant Managers `have been adjusted as Assistant Engineers (Mechanical) in Mechanical Engineering Department and their seniority has been ordered to figure at the bottom of the seniority list of the Assistant Engineers (Mechanical) as it existed on the date of issue of the order. 12. The case of the petitioner is identical with the persons covered by the aforesaid Govt. order No.1517-GAD of 2006 but has not been treated alike, so the discrimination is quite apparent. 13. 12. The case of the petitioner is identical with the persons covered by the aforesaid Govt. order No.1517-GAD of 2006 but has not been treated alike, so the discrimination is quite apparent. 13. Appearing counsel for the petitioner rightly placed reliance on the judgment Singara Singh & Ors Vs. State of Punjab & Ors reported in AIR 1984 Supreme Court 1499. In the reported case members of the police force for participation in agitation were dismissed from service but subsequently large number of such police personnel were reinstated but the petitioners therein were not reinstated. After referring to the position of the reinstated officials and that of the petitioners, it has been held "logically the appellants must receive the same benefit which those reinstated received in the absence of any distinguishing feature in their case. Accordingly, the appellants would be entitled to the reinstatement in service." 14. Applying the ratio of the said judgment to the present case, the position of the petitioner compared with the identical persons who have been adjusted vide Govt. order No.1517-GAD dated 13.12.2006 and having similar features, should get similar treatment of permanent adjustment. 15. In the judgment S.N. Mukherjee Vs. Union of India reported in AIR 1990 Supreme Court 1984, the object of rules of natural justice has been discussed. It shall be quite relevant to quote para 38 and 39 of the said judgment: "38. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this objection by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement of record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where-under jurisdiction has been conferred on the administrative authority. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where-under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. 39. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision." 16. The admitted position of the petitioner having been the employee of the Watch Case Project of SIDCO and with the closure of the said project having become surplus staff along with other staff members, as per policy decision of the Government followed by hectic correspondences among the concerned departments i.e. Industries & Commerce Department, Public Works Department and Mechanical Engineering Wing, performance of the petitioner as an Assistant Engineer and then the approval of the Public Service Commission, should have finally resulted in approval of the case of the petitioner for having been permanently absorbed as Assistant Engineer (Mechanical) in Mechanical Engineering Department with effect from his appointment dated 26.3.1993 and shall have to figure at the bottom of the seniority list of Assistant Engineers in the year 1993. 17. 17. The stance of respondent No.1 & 4 as projected in their reply affidavit to justify the rejection of the case of petitioners absorption is the direction (c) issued by the Apex Court in Suraj Prakash Gupta vs. State of J&K which reads as under: ".......The State of Jammu and Kashmir will ensure that no relaxation of basic recruitment rules is made for direct recruitment through P.S.C or for purposes of regular promotions/ recruitment by transfer. The recommendations of the Commission referred to above may be considered by the Government and implemented in accordance with the rules and in accordance with law without unreasonable delay....." 18. Every case has its own facts and features so has to be considered in the same background. The features of the case of Suraj Prakash Gupta Vs. State of J&K were altogether different i.e. in the said case reported in AIR 2000 SC 2386, the points for consideration are categorized in para 17. Para 17 reads as under: - "17. On the basis of the various submissions, the following points arise for consideration: The points (1) Can the promotees, for recruitment to the gazetted service, avoid the Service Commission? Can the Government order that the entire adhoc/stop gap service for Assistant Engineers and Assistant Executive Engineers is to be counted for seniority and can the order of regularization dated 2-1-98 passed by Government (in respect of the Electrical wing) be treated as amounting to an implied relaxation of the rules of recruitment requiring consultation with the Service Commission? Whether relaxation of recruitment rule is permissible? (2) Whether the quota rule had broken down? Whether excess promotees are to be pushed down? Whether there is a quota-rota rule? (3) Whether the ad hoc/stop gap promotion of Assistant Engineers (and Assistant Executive Engineers) could be made beyond six months and till regularization, by Government without consulting the Public Service Commission? Whether Government could have regularized the ad hoc service by executive order dated 2-1.98? whether, the point raised in para IX of written submissions by the direct recruits that retrospective regularization cannot be made in respect of the ad hoc stop gap service and could be made only if the initial appointment as Assistant Engineers or Assistant Executive Engineers was "in accordance with rules", is correct? whether, the point raised in para IX of written submissions by the direct recruits that retrospective regularization cannot be made in respect of the ad hoc stop gap service and could be made only if the initial appointment as Assistant Engineers or Assistant Executive Engineers was "in accordance with rules", is correct? (4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter? (5) To what relief?" 19. In the said reported case promotees were recruited to the gazette service without consulting the Public Service commission. The promotion was also made in respect of 10% out of 20% quota of direct recruits and thereafter without any recommendation of Public Service Commission for retrospective regularization, government had issued the order thereby regularizing services of the officers in various categories (starting (sic) Junior Engineers to Superintending Engineers). There was (sic) violation of the basic rules of recruitment, all the rules were ignored. Adhoc promotions were made against the quota of promotees and also in respect of 10% out of 20% quota of direct recruits and recruitment even for remaining 10% was delayed. It was in the backdrop of said particular facts and features various directions were issued by the Honble Apex Court to the State of J&K for observance in future. It shall be quite apt to quote para 82 of the said judgment: "82. Apart from the above specific directions, we think this is an occasion to issue certain general directions to the State of Jammu & Kashmir. As pointed out earlier, the State of Jammu and Kashmir has been flouting basic rules of recruitment by granting relaxation of the rules of direct recruitment as also the rules requiring consultation with PSC/DPC for promotions/ recruitment by transfer. In order to ensure that this is not done in future, the following directions shall also issue. (A) The State of Jammu and Kashmir shall appoint a high level Committee within a month from today to go into the question as to whether in any department in Government service, direct recruitment of existing vacancies has not been made and (sic) if there was unreasonable delay. The State will consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. The State will consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. But it will ensure that no promotees are put in the direct recruitment quota, temporarily or on stop gap or ad hoc basis unless simultaneously proceedings are initiated for direct recruitment through the Service Commission. The Committee will recommend in what manner the direct recruitment could keep pace with promotions as contemplated by rules. (B) Similarly, the Committee will find out in which department the ad hoc/stopgap promotees are languishing without their cases being referred to the Service Commission/DPC for regularization within their quota. (C) The State of Jammu and Kashmir will ensure that no relaxation of basic recruitment rules is made for direct recruitment through P.S.C., or for purposes of regular promotions/ recruitment by transfer. The recommendations of the Committee referred to above may be considered by Government and implemented in accordance with the rules and in accordance with law without unreasonable delay." 20. It is para 82(c) which has been quoted by the respondent No.1 and 4 in their reply so as to justify the rejection of the case of the petitioner when the case of the petitioner stands on a different footing. Petitioners appointment in any case cannot be termed to be a backdoor appointment. It is an individuals hard hit case which was required to be considered in the light of the judgment J.C. Yadhav & Ors. Vs. State of Haryana & Ors, reported in AIR 1990 Supreme Court 857. 21. In the reported judgment Rule 22 of the Service Rules applicable therein providing for power to relax has been interpreted. The said Rule reads as under: - "Rule 22: Power to relax: - Where Government is satisfied that the operation of any of these Rules causes undue hardship to any particular case, it may, by order, dispense with or relax the requirements of that Rule to such extent, and subject to such conditions, as it may consider necessary, for dealing with the case in a just and equitable manner." 22. In this context it shall be apt to quote para 6 of the Judgment: "6. In this context it shall be apt to quote para 6 of the Judgment: "6. The Rule Confers power on the Government to dispense with or to relax the requirement of any of the Rules to the extent, and with such conditions as to may consider necessary for dealing with the case in a just and equitable manner. The object and purpose of conferring this power on the Government is to mitigate undue hardship in any particular case, and to deal with a case in a just and equitable manner. If the Rules cause undue hardship or Rules operate in an inequitable manner in that event the State Government has power to dispense with or to relax the requirement of Rules. The Rule does not restrict the exercise of power to individual cases. The Government may in certain circumstances relax the requirement of Rules to meet a particular situation. The expression "in any particular case" does not mean that the relaxation should be confined only to an individual case. One of the meanings of the expression "particular" means peculiar or pertaining, to a specified person - thing, time or place not common or general" The meaning of the word particular in relation to law means separate or special, limited or specific. The word `case in ordinary usage means `event, `happening, `situation, `circumstances. The expression `case in legal sense means `a case, `suit or `proceeding in court or Tribunal. Having regard to these meanings of the words "particular" and "case" the expression in any particular case would mean: in a particular or pertaining to an event, situation or circumstance. Rule 22 postulates relaxation of Rules to meet a particular event or situation, if the, operation of the Rules causes hardship. The relaxation of the Rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of Rule is wide, enough to confer power on the State Government to relax the requirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a times strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons, may not be available for appointment to, the service. In such a situation the Government has power to relax requirement of Rules. The State Government may in exercise of its powers issue a general order relaxing any particular Rule with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would ensure to the benefit of individual officers." 23. The principle as has been laid down is applicable to the case of the petitioner. 24. Rule 5 of the Jammu & Kashmir Engineering (Gazetted) Recruitment Rules, 1978, provide for qualifications and method of recruitment by appointment or promotion to any class, category or grade subject to fulfillment of other requirements. Rule 13 of the said Rules provide for residuary matters. Same reads as under: - "Residuary matters: In regard to matters not specifically covered by these rules, the members of the service shall be governed by the rules, regulations and orders applicable to the State Civil Services in general." 25. This Rule is applicable to the present case as the said rules do not provide for relaxation vis-a-vis recruitment by appointment/promotion/transfer. So in view of Rules 13 support in view the peculiar stated features of the case. Refusal to do so has to result in making the petitioner to suffer undue hardship. It is true that power to relax shall not be tainted with malafides or shall not be on considerations for achieving an ulterior motive. Exercise of such power in the instant case shall be legal as well as in consonance with the object of rule 5 of Civil Service (Classification, Control and Appeal) Rules. 26. The Law Department, keeping in view entire gamut of the case, had rightly framed the opinion and conveyed to the Competent Authority to the following effect: "that the case of the petitioner in any manner cannot be linked with the directions passed by Apex Court in Suraj Prakash Guptas case because the petitioner has been working against a clear vacancy for last many years. The Engineer (petitioner) in fact should have been in such an exigency appointed by transfer as he was not at all at fault in any manner for closure of the Watch Case Project. There being approval of Public Service Commission, as such, there shall be no difficulty for absorption of the Engineer (petitioner) in the Public Works Department. There is no alternative but to allow his absorption on permanent basis as Assistant Engineer has to be taken from Rule 5 of Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Rule 5 of these Rules read as under:- "5. Any of these rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him." 27. So in terms of Rule 5 (supra) petitioner was entitled to relaxation because his case originated from the unfortunate closure of Watch Case Project and in view of policy decision it was the obligation for the government to absorb him for the reasons as detailed hereinabove. 28. Case of the petitioner relate to a particular event/situation. Operation of the Jammu & Kashmir Engineering (Gazetted) Recruitment Rules, 1978 would definitely cause hardship in absence of resort to Rule 13 read with Rule 5 of the J&K Civil Services (Classification, Control and Appeal) rules. The special reasons for relaxation are and were available. There was no difficulty in recording the special reasons for relaxation keeping (Mechanical) as against the post held by him with effect from 1993 and his seniority has to be fixed as aforesaid." 29. The requisite requirements for absorption of the petitioner have been completed as is clearly demonstrated by various communications referred to hereinabove which are available on the file. There was no difficulty in accepting the case of the petitioner when all the connected departments had favoured absorption, then opinion of the Law Department coupled with advice/approval/recommendation of Public Service Commission, was also in favour of the petitioner. 30. Cumulative effect of the afore-stated position is that the petitioner is entitled to the directions as sought for. Refusal of approval to the case of petitioner is quashed. 30. Cumulative effect of the afore-stated position is that the petitioner is entitled to the directions as sought for. Refusal of approval to the case of petitioner is quashed. Respondents are commanded that in tune with the policy decision afore quoted, facts and law detailed above, petitioners case for absorption on permanent and substantive basis in the Assistant Engineering cadre of the Mechanical Engineering wing with effect from the date petitioner has been working as such pursuant to Govt. order No.188-PW of 1993 dated 26.3.1993 shall be accepted. Requisite order for permanent absorption in favour of the petitioner shall be issued within four weeks. Seniority of the petitioner shall be fixed in terms of the recommendations made by the Mechanical Engineering Department as also approved by Public Service Commission vide communication dated 4.10.2000 i.e. at the bottom of the seniority list of the Assistant Engineers as on the date of his first appointment in the Mechanical Engineering Department i.e. 26th of March, 1993 and all consequential service benefits as must have accrued and were available to the petitioner strictly in accordance with the rules shall also be granted to the petitioner. Parties shall bear their own costs. Writ petition accordingly succeeds and is disposed of as above along with connected CMPs.