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2013 DIGILAW 184 (JK)

Mohd. Tufail & Anr. v. State of J&K & Ors.

2013-04-04

DHIRAJ SINGH THAKUR, MUZAFFAR HUSSAIN ATTAR

body2013
JUDGMENT 1. The appellant No. 1 was appointed as Washer-cum-Packer and No. 2 as Bottler-cum-Sealer in the respondents' department in the year 1998 and 1999 respectively. The appointments of class-IV employees, including the appellants were called in question in the writ petition before the Writ Court. The writ Court quashed all the appointments and directed the respondents to initiate process for making selection and appointments on these posts in accordance with the rules. The judgment of the learned Single Judge was challenged before the Letters Patent Bench. The Letters Patent Bench upheld the order of quashment of the appointments. The SLPs were filed before Hon'ble the Supreme Court by some of the aggrieved persons. The appellants, however, did not challenge the order of the Letters Patent Bench of this Court. 2. The posts of Class-IV were notified by the respondents, appellants participated in the selection process, were not selected as they could not make the grade. The petitioners filed SWP No. 880/2007 in which sought the following relief: "Writ of mandamus: directing the respondents to allow the petitioners to perform their duties as Washer-cum-Packer and Bottler-cum-Sealer uninterruptedly and without any hindrance whatsoever in the light of the directions issued by the Hon'ble Supreme Court coupled with the direction issued by the concerned minister, as admittedly, the posts of Washer-cum-Packer and Bottler-cum-Sealer till date have not been notified by the respondents; with a further direction to the respondents to release salary of the petitioners w.e.f. 12.2.2007 till date along with 15% interest and future salary be also released." 3. Respondents FILED objections to the writ petition. Paragraph 10 of the objections is taken note of: "Para 10 is misconceived and without any merit. It may be submitted here that the Hon'ble Supreme Court while upholding the quashing of appointments made in the department of Excise and Sales Tax without following the proper procedure, directed to allow the appellants to continue in service till proper selection against the posts is made as per norms. In view of these directions, all the appointees were allowed to continue, which include the petitioners herein also till the regular selection was made. As such, the petitioners herein along with other were paid their salary upto 11.02.2007. As already submitted, since the department does not require the services of Washer-cum-Packer and Bottler-cum-Sealer due to closure of Warehouses, therefore, these posts were not advertised. As such, the petitioners herein along with other were paid their salary upto 11.02.2007. As already submitted, since the department does not require the services of Washer-cum-Packer and Bottler-cum-Sealer due to closure of Warehouses, therefore, these posts were not advertised. However, pursuant to direction of the Hon'ble Supreme Court, the petitioners along with others were allowed to continue till selection against Class IV posts was made by the selection Committees in accordance with norms." 4. Learned Writ Court dismissed the writ petition. The appellants feeling aggrieved have challenged the same in this Letters Patent Appeal. 5. We have heard learned counsel for the appellants. Learned counsel for the appellants submitted that the posts on which the appellants were appointed were not advertised by the respondents, as such, the appellants have right to continue on the said posts till such time they are advertised and appointments made thereon. Learned counsel also referred to the rejoinder-affidavit filed by the appellants before the Writ Court and submitted that services of some of the persons, who are similarly circumstanced with the appellants have been regularized but appellants have been subjected to invidious discrimination. 6. Learned counsel also referred to the interim order passed by the writ Court whereby ex parte order passed earlier, was made absolute. Learned counsel submitted that the stand taken by the respondents before the writ Court that because of closure of Warehouses, the services of Washer-cum-Packer and Bottler-cum-Sealer were not required, cannot be accepted in the face of stand taken by petitioners in the rejoinder affidavit. 7. For the following reasons, we find that there is no merit in this appeal: (a) Admittedly the appointment of the appellants was quashed by the writ Court and confirmed by the Letters Patent Bench. The appellants did not challenge the order of the Letters Patent Bench which attained finality and the said decision binds the appellants. After quashment of the appointments, they lost status of being member of the service. The quashment of their appointments resulted in cessation of relationship of the appellants with the respondents. The writ petition filed in the year 2007 by the appellants was misconceived and misconstrued, inasmuch as, they sought directions for continuation in service on the ground that posts which were earlier held by them were not notified by the respondents. Since their appointments were quashed, they could not seek such relief from the writ Court. The writ petition filed in the year 2007 by the appellants was misconceived and misconstrued, inasmuch as, they sought directions for continuation in service on the ground that posts which were earlier held by them were not notified by the respondents. Since their appointments were quashed, they could not seek such relief from the writ Court. (b) In view of the stand taken by the respondents in paragraph 10 of the objections, no relief could be granted to the writ petitioners by the writ Court, inasmuch as, the Warehouse was closed thus there was no post available. The petitioners have no right in these circumstances to seek directions to work in a non-existent establishment. (c) The stand taken by the appellants in the rejoinder affidavit cannot come basis to mould relief in their favour, inasmuch as, no such pleas were taken in the writ petition and a new case was set up in the rejoinder affidavit. Respondents had thus no opportunity to meet the new case set up by appellants. In the writ petition, petitioners have to plead the facts and annex evidence therewith. The appellants in this case should have amended the writ petition, if they had to plead further facts so as to enable the respondents to take a stand. The pleas taken in the rejoinder affidavit thus could not be considered by the writ Court and for same reasoning cannot be considered by this Bench also. The appeal along with connected CMA is, accordingly, dismissed.