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2012 DIGILAW 342 (JK)

Hilal Ahmad Bhat v. State & Ors.

2012-06-14

MUZAFFAR HUSSAIN ATTAR

body2012
1. Appointment notice was issued by official respondents, wherein, besides others, sixty posts of Junior Engineers Civil were also notified. From out of sixty posts, six posts under RBA category were notified. The appointment was to be on contractual basis, and initially for a period of two years. In the appointment notice it was also provided that on completion of contractual period of two years the employees shall be considered for continuation subject to their satisfactory performance. The petitioner responded to the said notification and sought consideration for being appointed under RBA category. Petitioner was selected and appointed and on 10th of Sept. 2011executed agreement with official respondents. 2. Order No. PCD/187 of 2011 dated 15th Sept. 2011 provided that in the interest of the Corporation and pursuant to the signing of Agreements, contractual Junior Engineers who had joined JKSPDC in response to notification dated 27.08.2011 were ordered to be posted in different places. The petitioner was posted with C.E (E) BHEP. 3. As per the material placed on record (annexure p-5) petitioner submitted joining report which was received by the Chief Engineer (E) Baglihar H.E. Project Chanderkote on 25th Nov. 2011. Along with the joining report as per the communication of Chief Engineer addressed to the Managing Director J&K State Power Dev Corpn. Jammu dated 05.12.2011 (annexure P-5) the petitioner had also appended prescription of Doctor and medical certificate to the effect that he was advised bed rest till 15th Nov. 2011. The Chief Engineer sought advice from the Managing Director as to whether the joining of the petitioner could be considered w.e.f 25th Nov. 2011. 4. Without considering the claim of the petitioner and without taking any decision, vide notification dated 29th Nov.2011 (annexure P-6) respondent No.4 was appointed under RBA category in place of petitioner, on the ground that he had failed to report for his duties in terms of the order dated 15th Sept. 2011. The petitioner feeling aggrieved of the said order has challenged the same in this writ petition. 5. On notice respondents 1 to 3 have filed objections. The petitioner has also filed rejoinder affidavit. 6. Mr. Haqani Id counsel for the petitioner submitted that after the petitioner was appointed on contractual basis initially for a period of two years as per the order dated 15th Sept. 5. On notice respondents 1 to 3 have filed objections. The petitioner has also filed rejoinder affidavit. 6. Mr. Haqani Id counsel for the petitioner submitted that after the petitioner was appointed on contractual basis initially for a period of two years as per the order dated 15th Sept. 2011 he joined and was in terms of the same order posted with C.E (E) BHEP. Ld counsel submitted that because of his ill health the petitioner could not immediately report at the place where he was posted and submitted joining report immediately after he recovered viz 25th Nov. 2011, but the authorities without taking any decision in the matter, ordered for appointment of respondent No.4. Ld counsel submitted that respondent No.4 has been selected and appointed as J.E Civil vide Government order No. 92-PW(R&B) of 2012 dated 31st of Jan. 2012 and has resigned from services of the respondent-corporation. Ld counsel in this behalf invited the attention of the court to the documents placed on the writ record. Ld counsel submitted that the vacancy being available the respondents are duty bound to allow the petitioner to join on the appointed post. 7. Mr. Chasoo Id counsel for the official respondents submitted that the petitioner in terms of the order dated 15th Sept. 2011 was duty bound to report at the place of posting within reasonable time. Ld counsel submitted that the petitioner's failure to join resulted in filling of the vacancy by offering the same to the candidate who was figuring in the waiting list under RBA category. Ld counsel submitted that petitioner has no right to maintain this petition and prayed for it's dismissal. 8. It is admitted that the petitioner through regular selection process was appointed on the post of Junior Engineer Civil under RBA category initially on contractual basis for a period of two years. It is also admitted that in terms of order dated 15th Sept. 2011 that after execution of the agreement petitioner joined with the respondent corporation and vide same order was posted with C.E (E) BHEP. In view of the annexure P-5 dated 05.12.2011, it is also admitted that the petitioner reported for duty on 25th Nov. 2011 at the place of posting shown in the order dated 15th Sept. 2011. 9. 2011 that after execution of the agreement petitioner joined with the respondent corporation and vide same order was posted with C.E (E) BHEP. In view of the annexure P-5 dated 05.12.2011, it is also admitted that the petitioner reported for duty on 25th Nov. 2011 at the place of posting shown in the order dated 15th Sept. 2011. 9. Without taking any decision as to whether petitioner is to be allowed to join and without cancelling his appointment, the respondents issued notification dated 29th Nov. 2011 whereunder respondent No.4 was appointed as Junior Engineer Civil in place of petitioner. The petitioner's right over the post of Junior Engineer was subsisting when the impugned notification dated 29th Nov. 2011 was issued. Without cancelling the selection/appointment of the petitioner, the respondent No.4 could not be appointed. The illegality thus committed by the official respondents is writ large on the face of the record. In this factual background the appointment of respondent No.4 as J.E Civil under RBA category was not proper and legal and would require to be quashed. 10. In view of the finding recorded that the petitioner continued in the service of the official respondents as his appointment was not cancelled and no decision was taken on his joining report, and in view of the resignation of respondent No.4 from the post of J.E civil, the selection/appointment of the petitioner is held to have remained un-disturbed. Since the respondent No.4 has resigned from services so there would be no requirement in law to quash his appointment order. 11. The resignation of respondent No.4 from the post of J.E Civil under RBA category would not in the facts and circumstances of this case result in making the post available for future selection as the petitioner's appointment has not been cancelled and he continues to hold seizen over the post. 12. For the above stated reasons, this petition is disposed of in the following manner:- The official respondents are directed to allow the petitioner to join at the place where he has been posted vide order dated 15th Sept. 2011. However, if for any reason he cannot be now allowed to join at place mentioned in order dated 15.09.2011, then he shall be allowed to join at the place where he may be posted. 2011. However, if for any reason he cannot be now allowed to join at place mentioned in order dated 15.09.2011, then he shall be allowed to join at the place where he may be posted. The official respondents to consider and take decision as to whether the petitioner would be deemed to have joined w.e.f 25th Nov. 2011 on which date he reported before C.E (E) BHEP. In the event his joining report is accepted from 25th Nov. 2011, then he shall be entitled to all service benefits in accordance with the rules of Corporation, but shall not be paid salary from 25th Nov. 2011 till date as could not perform any duty. 13. Disposed of along with connected CMPs.