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2012 DIGILAW 108 (JK)

Khazir Mohammad Dar v. State of J&K & Ors.

2012-03-14

MOHAMMAD YAQOOB MIR

body2012
1. Petitioner has been clamouring for redressal of his grievances for quite long time. In the process hectic correspondences, then intervention of the Court and then again legal notice could not fructify as finally his representation has been rejected vide Govt. order No. 179 of 2001 dated 21.9.2001 which is now subject matter of this writ petition. 2. Petitioner initially vide P.O. No.266/CC of 1968-69 dated 05.02.1969 has been appointed as Temporary Prosecuting Forest Manager along with others on contract basis for a period of one year in the first instance and thereafter he has been appointed on regular basis vide Forest Order No.201 of 1972-73 dated 15.2.1973. 3. Subsequently petitioner had applied through proper channel for the post of Naib Tehsildar, he was selected and appointed as such in the Revenue Department on 24.10.1973 so joined there, as such, after tendering resignation in the Forest Department. Thereafter petitioner represented before the authorities concerned for counting his past service in the Forest Department. When representations did not yield any result, petitioner filed SWP No. 1148/99 which was disposed of with the direction to the Financial Commissioner, Administration Department to consider the representation of the petitioner and take decision thereon in accordance with law and in the process letter of Additional Commissioner dated 10.5.1997 was directed to be taken into consideration. 4. Despite said direction when the respondents did not respond, petitioner filed contempt No.231/2001. Responding to the notice as issued in the contempt petition, counsel for the respondents produced copy of the Govt. order No. 179 of 2001 dated 21.9.2001. taking note of the same it was observed that the direction for consideration of representation has been complied with, therefore, contempt petition has been dismissed but it has been further observed that if the said Govt. order violates any of the legal or constitutional rights of the petitioner, dismissal of the contempt petition shall not debar him from invoking appropriate remedy. It is only thereafter the petitioner has filed the instant petition challenging the validity of the Govt. order No. 179 of 2001 dated 21.9.2001. 5. In the said Govt. order it has been observed that earlier services are to be considered only when it comes within the ambit of "in which service counts", contractual service cannot be construed as regular appointment. The Financial Commissioner Revenue is said to have decided so. order No. 179 of 2001 dated 21.9.2001. 5. In the said Govt. order it has been observed that earlier services are to be considered only when it comes within the ambit of "in which service counts", contractual service cannot be construed as regular appointment. The Financial Commissioner Revenue is said to have decided so. Finally it has been concluded that the benefit of services rendered by the petitioner on contractual basis in the Forest Department shall not count for purposes of seniority in the cadre of Naib Tehsildar in the Revenue Department, representation accordingly rejected. 6. The star question for consideration is as to whether the earlier appointment in Forest Department can be termed to be regular appointment. Answer has to be in affirmative. In this connection it shall be quite relevant to quote the said order: FOREST ORDER No.201 OF 1972-73 DATED: 15-3-1973 The appointment of Forest Prosecutors viz. S/Shri Khazir Mohd Dar, Ghulam Nabi Basu and Pridman Krishan made under Forest Order No.266/CC of 1968-69 dated 5-2-1969 on contract basis for a period of one year is hereby sanctioned on regular basis as these appointees have successfully undergone the period of probation. Sd/- CHIEF CONSERVATOR OF FORESTS" 7. The language of the order is quite clear that the petitioner along with others were on contract basis for a period of one year and thereafter having successfully undergone the period of probation, their appointment has been sanctioned on regular basis. The said order till date has not been rescinded. When it is so, contention of the learned counsel for the respondents that the appointment of the petitioner was contractual, cannot stand. The appointment of the petitioner in Forest Department, in effect, in view of the aforequoted order was on regular basis. Same position has been correctly highlighted by the Additional Commissioner, Kashmir in his communication No.Div.com/2-K/T/ESTT dated 10.5.1997, addressed to the Financial Commissioner, J&K Jammu, wherein, amongst other things, Additional Commissioner has recorded as under:- "As laid down in article 201 of J&K CSR resignation of an appointment to take up another appointment in which services count is not to be held to be a resignation of the Govt. services provided the consent of the former departmental superior is obtained to accept such employment. Shri Dar has obtained the requisite consent from the former department as is evident from the representation submitted to you previously." 8. services provided the consent of the former departmental superior is obtained to accept such employment. Shri Dar has obtained the requisite consent from the former department as is evident from the representation submitted to you previously." 8. This position has not been taken note of while passing the impugned order when in the earlier disposed 6f writ petition it was specifically directed that while considering the representation this letter of Additional Commissioner shall be taken note of. 9. It shall be quite relevant to reproduce Article 201 of J&K C. S. R: "201. Resignation of an appointment to take up another appointment in which service counts, is not to be held to be a resignation of the Government service, provided the consent of the former departmental superior is obtained to accepting such employment." 10. The position of the petitioner having applied through proper channel and having joined revenue services after prior consent of the Forest Department is not now disputed. The position of the petitioner having been appointed in the Forest Department on regular basis is also established by the order of Forest Department as quoted above, therefore, benefit is available to the petitioner i.e. to count his previous regular service towards his service in the revenue department is permissible. 11. Viewed thus, this writ petition succeeds. Respondents are directed to count services of the petitioner as rendered in the Forest Department on regular basis towards his service in the Revenue Department and to fix the seniority and to pay him all the consequential benefits as shall be permissible under rules.