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2012 DIGILAW 567 (JK)

Nissar Ahmad Wani v. State & Ors.

2012-09-11

MANSOOR AHMAD MIR

body2012
1. Petitioner along with two other persons filed a writ petition being SWP No. 1407/2010 and sought following relief:- "I One in the nature of mandamus commanding the respondents to release the salary in favour of the petitioners from the month of the June 2010 without any hedge and hindrance and for the future as well II. One in the nature of mandamus commanding the respondents to allow the petitioner to continue in the respondent department against the post held by them pursuant to their order of appointment and not to disturb their present status in the department. III. One in the nature of the mandamus commanding the respondents to treat the petitioners at par with the other employees of the department and not to harass them in future." 2. The writ petition appears to have been disposed of by this court vide judgment dated 26th April, 2011 while holding that basic appointment of the petitioner is not in accordance with Rules and respondents were directed to initiate fresh selection process as per the law and the rules occupying the field and petitioner be also permitted to participate, if otherwise found eligible, and till selection process is complete and eligible and suitable candidates are selected for the post, respondents shall be at liberty to allow the petitioner to continue on the post. 3. It appears that in the said judgment name of only Nissar Ahmad is given in the title clause and reference is made to the petitioner and not other petitioners. It is apt to reproduce the entire judgment herein:- "Heard I have considered the matter. During the consideration of the matter, I found the basic appointment of the petitioner is not in accordance with the rules as a proper process of selection has not been initiated and undertaken by the competent authority in making engagement of the petitioner. In these circumstances, the petition is disposed of on the following terms:- 1. Respondents shall initiate a fresh process of selection for the posts at present occupied by the petitioner. 2. Respondents shall permit the petitioner also to participate in the process of selection if he is other wise found eligible for the post 3. Till the process of selection is complete and eligible and suitable candidates are selected for the post, respondents shall be at liberty to allow the petitioner to continue on the post. 4. 2. Respondents shall permit the petitioner also to participate in the process of selection if he is other wise found eligible for the post 3. Till the process of selection is complete and eligible and suitable candidates are selected for the post, respondents shall be at liberty to allow the petitioner to continue on the post. 4. Wages for the period the petitioner has worked on the post shall be paid to him in accordance with the rules." 4. No reference is made vis-a-vis other petitioners and accordingly writ petition came to be disposed of in ex-parte. 5. Respondents have resisted the petition. 6. Considered. 7. It appears that petitioner did not serve the copy of the judgment upon respondents and after having remained mum for some time, the petitioner invoked the jurisdiction of this court by the medium of writ petition being SWP No. 2134/2011 and sought relief which is virtually the same which had been sought in the earlier writ petition. 8. The writ petition came up for consideration before this court and notice was issued to respondents and the CMP No. 3530/2011 was disposed of vide order dated 29th September, 2011, and respondents were directed to consider the case of the petitioner for release of wages for the period he has actually worked provided he has been appointed against a valid and genuine order. 9. Petitioner served this order upon respondents. 10. The respondents considered the case and held that petitioner is not entitled to any relief and has been appointed fraudulently, constraining the petitioner to question the same by the medium of a writ petition No. 254/2012. The consideration order was questioned without seeking amendment of writ petition No. 2134/2011. 11. Court issued notice and directed the respondents to allow the petitioner to continue the service notwithstanding the issuance of impugned order provided he was in service till the date of issuance of impugned order. 12. Writ petition No. 2134/2011 was posted on 9th December, 2011 when Mr. Naik sought and was granted two weeks' time to file reply and respondents were directed to report compliance in terms of order dated 29th September, 2011, supra. 13. Respondents filed reply and vide order dated 31st January, 2012, respondents were directed to furnish copy of the reply to learned counsel for petitioner within one week and file compliance report in terms of order dated 9th December, 2011. 13. Respondents filed reply and vide order dated 31st January, 2012, respondents were directed to furnish copy of the reply to learned counsel for petitioner within one week and file compliance report in terms of order dated 9th December, 2011. 14. Vide order dated 13th June, 2012, respondents were directed to file compliance report and in default, respondent No. 4 had to appear in person. On 20th July, 2012, a notice was issued to respondent No. 4 for causing appearance. 15. Writ petition, thereafter, came up for consideration on 31st July, 2012 and Registry was directed to attach record of SWP No. 1407/2010 and SWP No. 254/2012 with this writ petition. In the meantime, petitioner was asked to indicate the mode of obtaining the Photostat copy of the attendance register before the court on the next date and also CMO) was directed to file supplementary affidavit indicating under what circumstances, the Photostat copy of the attendance register was provided and also what steps they have taken in terms of judgment dated 26th April, 2011 passed in SWP No. 1407/2010. 16. It is recorded in the impugned order that SWP No. 1407/2010 is still pending. It is apt to reproduce relevant portion of the impugned order herein:- "... 16. It is recorded in the impugned order that SWP No. 1407/2010 is still pending. It is apt to reproduce relevant portion of the impugned order herein:- "... Whereas, the case of the petitioner was examined in the department pursuant to the above said order of the Hon'ble High Court and it was found that the appointment of the petitioner as Driver has been made by an officer having no authority and competence to make such appointment and that too in violation of recruitment rules governing the post which provide for the following procedure for filing up the post of Driver in the health and family Welfare Department Class Category Designation with grade Qualification Mode of recruitment G Driver/Transport unit Driver/Driver cum-Mechanic 900-1830 Middle pass with Hill Driving Licence and Exp as mechanic 100% by direct Recruitment Whereas, the above rule position would make it clear that the post of Driver in the Health and Medical Education Department being 100% direct recruitment post is required to be filed up by advertising the post through services selection board to provide a chance for the eligible candidates to complete in the selection process which has not been done in the case of the petitioner and the appointment being dehorse rules and by an incompetent officer, the petitioner cannot be allowed to continue. Now, therefore in view of the position explained hereinabove, the claim of the petitioner of salary has belong genuine and valid is disallowed." 17. It appears that petitioner has not furnished copy of the judgment to them or informed them about the decision of said petition. 18. It is emphatically clear that had the writ petitioner served copy of the judgment upon them, they would have gone through it and processed the selection. 19. Respondents have even filed reply in the said petition. And it is specifically averred in Para 4 of the impugned order that the petitioner has not been appointed as per law and his selection is in violation of recruitment rules; has been made by incompetent officer and Govt. has already issued order No. 56-HME of 2012 dated 24.01.2012 and order of appointment being dehors of rules, cannot be allowed to continue and that is why he was disallowed. 20. Admittedly, petitioner in writ petition No. 2134/2011 has sought direction to the respondents to release the salary from June, 2010. has already issued order No. 56-HME of 2012 dated 24.01.2012 and order of appointment being dehors of rules, cannot be allowed to continue and that is why he was disallowed. 20. Admittedly, petitioner in writ petition No. 2134/2011 has sought direction to the respondents to release the salary from June, 2010. This is suggestive of the fact that petitioner was not paid the salary right from June, 2010 and this relief has been sought in SWP No. 1407/2010 also, thus is caught by resjudicata. If the petitioner was at all aggrieved, he should have questioned the said judgment. Instead the petitioner accepted that judgment and has not questioned the same. 21. In the given circumstances, the petitioner has concealed so many facts and has misused the jurisdiction of this court by filing SWP No. 2134/2011 knowing the fact that writ petition about the same subject matter was disposed of vide order dated 26th April, 2011, virtually granting no relief in his favour. It is apt to record herein that Mr. L A. Latief, was the counsel in SWP No. 1407/2010 and is also the counsel in the present two writ petitions. 22. The order passed by the respondents in terms of the direction dated 24th January, 2011 which is subject matter of SWP No. 254/2012 is correct and in accordance with the judgment passed by this court. 23. Accordingly, the writ petitions merit to be dismissed. However, it needs to be spelled out that why the official respondents, i.e. Chief Medical Officer, Deputy Chief Medical Officer and other officers, have not pursued SWP No. 1407/2010 and what were the reasons for not taking the requisite steps in the matter, is an eye opener for the Chief Secretary of the State and Commissioner Secretary to Govt. Health Department, who must take steps to curb such activities. 24. For all what has been stated hereinbefore, both the writ petitions are dismissed along with connected CMPs. Interim direction, if any, passed in any of the petitions, shall stand vacated. 25. Registry to convey this order to the Chief Secretary of the State, Commissioner-Secretary to Health Department and Director Health Services, Kashmir, for information and compliance.