Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 519 (JK)

Mohd Anwar Bhat v. State and Ors.

2014-12-17

MUZAFFAR HUSSAIN ATTAR

body2014
JUDGMENT Muzaffar Hussain Attar, J. (Oral) – The petitioners have been working as Sweepers in the respondent-Department for a quite long time. In terms of Government Order No. 50/HE of 2012 dated 17th February, 2012, besides other persons, petitioners were appointed as Sweepers. The petitioners were not allowed to join on the ground that they failed to produce the "Khakroob Certificate". 2. It is in the above backdrop, the petitioners have filed the writ petition, praying therein that respondents be directed to give effect to the Government Order No. 50/HE of 2012 dated 17th February, 2012 to the extent of petitioners as well and post them suitably and pay them salary and other benefits attached to the post of Sweepers. 3. The respondents, in their reply affidavit, have stated that since the petitioners have failed to produce the requisite certificates so they do not belong to Sweeper Community, their services cannot be regularised against the post of Safaiwalas. 4. Learned counsel for the petitioners referred to Schedule-II of the Rules called Jammu and Kashmir Higher Education (Subordinate Service Recruitment Rules, 2009 notified vide SRO 64 dated 16th March, 2009 and submitted that post of Safaiwala is to be filled up 100% by selection out of college local fund employees belonging to Safaiwala community. 5. "Sweeper/Safaiwala community" is not defined in the rules. This is a vague expression used in the rules. It is not in dispute that the petitioners are working as Sweepers and that is how they were appointed in terms of the Government Order No. 50/HE of 2012 dated 17th February, 2012 on the post of Sweepers. 6. In the Jammu and Kashmir Reservation Act, 2004 (for short 'Act of 2004') read with Jammu and Reservation Rules, 2005 (for short 'Rules of 2005), no category is identified as " Safaiwala community/Sweeper Community". 7. Any person, who discharges or has been discharging his/her duties and is functioning as Sweeper in terms of Rules notified vide SRO 64 dated 16th March, 2009, would be eligible for being appointed by way of selection on the post of Safaiwala. The petitioners have been appointed in terms of the aforementioned Government order on the post of Safaiwala, the respondents could not deny issuance of posting orders as Safaiwala to the petitioners, merely on the ground that they failed to produce "Khakroob Certificates". The petitioners have been appointed in terms of the aforementioned Government order on the post of Safaiwala, the respondents could not deny issuance of posting orders as Safaiwala to the petitioners, merely on the ground that they failed to produce "Khakroob Certificates". Since this is not a recognised reserved category in terms of Act of 2004 read with Rules of 2005, asking the petitioners to produce the Khakroob Certificates for issuance of posting orders in their favour, is not only illegal and arbitrary, but unconstitutional as well. The petitioners, in the facts of this case, have been subjected to invidious discrimination by not issuing posting orders in their favour. 8. It is not in dispute that the petitioners have been discharging/functioning their duties as Sweepers, so they are entitled to get the salary attached to the post of Sweepers from the date other similarly circumstanced persons have been appointed on such posts. 9. For the above stated reasons this writ petition is disposed of in the following manner- By issuance of writ of Certiorari, Letter dated 22nd July, 2012 is quashed. The respondents 2 to 4 are directed to comply with the Order No. 50/HE of 2012 dated 17th February, 2012 and issue posting orders in favour of the petitioners without insisting or asking them to produce "Khakroob Certificate". Necessary consequential orders which would entitle the petitioner to reap the benefit of the Government Order No. 50/HE of 2012 dated 17th February, 2012 shall be passed within seven days from the date copy of this order is served. Since the petitioners have been illegally and arbitrarily deprived of the benefit of Order No. 50/HE of 2012 dated 17th February, 2012, they shall be entitled to get all the benefits from the date other similarly circumstanced persons have been appointed. The petitioners are also entitled to get the salary attached to the post of Sweepers from the date other persons have been appointed and posted on such posts. 10. Disposed of along with connected I.A's in the above terms.