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2010 DIGILAW 439 (JK)

Prita Masih v. State Of J&K

2010-08-11

Hakim Imtiyaz Hussain

body2010
1. Petitioner-Prita Masih S/o Late Sh. Surjan Masih R/o Village Darsupur, Miran Sahib, Jammu, was engaged as Safaiwalla on daily wage basis in the office of Principal, Forest Guard Training School, Doomi, Akhnoor. His services were later on regularized as Safai Karamchari vide order no. 46 of 2001 dated 9.1.2001. Vide impugned order no. 137 of 2009 dated May 30, 2009, his services stand cancelled/revoked. The ground shown in the order for such revocation/cancellation, is that the petitioner is a non-State Subject, as such, his employment as Safai Karamchari, allegedly managed by him fraudulently, cannot sustain. The petitioner is aggrieved of the same. He has filed this petition seeking a writ of certiorari quashing order no. 137 of 2009 dated 30.5.2009. He also seeks a writ of mandamus directing the respondents to allow him to perform the duties as Safai Karamchari in the office of respondent no. 3. 2. Respondents have filed their objections wherein it is stated that the petitioner is a non-State Subject. He produced a fake State Subject to get the engagement and that being a non-State Subject, he cannot be allowed to work in the government employment. They further state that regularization of petitioner's services has not been done in accordance with rules. 3. Heard. Considered. 4. Learned counsel for the petitioner urges that under the rules there is no requirement for State Subject Certificate in case of a Safai Karamchari. In this behalf he relies on Article 35-B, Exception 1, of the Jammu and Kashmir Civil Service Regulations. The Article deals with the condition of employment and provides that in respect of every new entrant into Government service, the authority empowered to make the appointment should certify that the person appointed is a hereditary State subject. Exception 1 of the Article, however, is an exception to this rule. It provides that retired Gurkhas enlisted as Chowkidars and Sweepers are exempted from producing State Subject Certificates. It means that the requirement of being a State Subject, as prescribed under Article 35-B of the Jammu and Kashmir Civil Service Regulations, has been dispensed with in respect of retired Gurkhas who are appointed as chowkidars and sweepers. 5. Learned counsel for the petitioner states that since a Safai Karamchari is not required to produce State Subject certificate, the petitioner did not produce any such certificate. Cancellation/ revocation of his engagement/regularization on this ground is not, therefore, proper. 6. 5. Learned counsel for the petitioner states that since a Safai Karamchari is not required to produce State Subject certificate, the petitioner did not produce any such certificate. Cancellation/ revocation of his engagement/regularization on this ground is not, therefore, proper. 6. On going through the provisions cited above, I find due merit in the submissions of learned counsel for the petitioner. I have gone through the impugned order. I find the respondents have, while, considering the matter and issuing the said order, not looked into this aspect at all. The matter, therefore, needs re-consideration in light of Exception: 1 to Article 35-B of the Jammu and Kashmir Civil Service Regulations. 7. Accordingly, this petition is allowed and order impugned is set aside. Respondent- Principal Chief Conservator of Forests is directed to re-consider the matter afresh and examine the case of the petitioner in light of Article 35-B of the Jammu and Kashmir Civil Service Regulations. 8. Till the matter is considered again, the petitioner shall be permitted to join the duty and shall be paid the wages for the period he has worked from the date the same were stopped, as indicated by him in the petition.