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2015 DIGILAW 150 (JK)

State of Jammu & Kashmir v. Jaspreet Kour

2015-04-06

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
Judgment : N. Paul Vasantha kumar, C.J. 1. These L. P appeals are filed by the appellants challenging the common order dated 12.04.2007 passed by the learned Single Judge in SWP no. 747/2006 and SWP no. 964/2006 wherein the respondent has challenged the Corrigendum dated 22.04.2006 issued by the Registrar of Co-operative Societies as well as the reversion order dated 24.04.2006 with further directions. 2. Brief facts necessary for disposal of these appeals are as follows:- (a) The respondent’s mother, namely, Surinder Kour, while working as Junior Assistant in the Agriculture and Cooperative Department, Civil Secretariat, Jammu, died and the respondent was appointed as Junior Assistant on compassionate grounds in terms of SRO 43 of 1994 in the pay scale of Rs. 3050-4590 vide order No. 289- Adm of 2006 dated 11.03.2006. The qualification of the respondent at the time of getting appointment on compassionate grounds was 10+2. The respondent joined as Junior Assistant. By order dated 22.04.2006 the Registrar Cooperative Societies J&K issued a Corrigendum stating that appointment of the respondent was to be treated as orderly in the pay scale of Rs. 2550-3200 against the post available in the office of Deputy Registrar Cooperatives Poonch. (b) Aggrieved by the Corrigendum, respondent filed SWP no. 747/2006. Another writ petition SWP no. 964/2006 was filed by the respondent for quashing order dated 24.04.2006 issued by Registrar Cooperative Societies whereby her appointment as Junior Assistant was rescinded. (c) The contention of the respondent before the learned Single Judge was that after having been appointed in terms of SRO 43 of 1994 in the post of Junior Assistant, her appointment could not be legally withdrawn and she cannot be appointed in the post of Orderly. The said stand was opposed by the appellants and relying on SRO 82 dated 22.03.2004, which prescribed qualification of graduation for appointment to the post of Junior Assistant from any recognized University with knowledge of typewriting having not less than 35 words speed per minute and six months certificate course in computer applications from a recognized institute, it was contended that since the respondent was having only 10+2 qualification, she was not eligible to be appointed in the post of Junior Assistant. 3. 3. In the said SRO the power is given to the Government in General Administration to appoint at its discretion a candidate to a higher post i.e. non-gazetted service if he/she is a family member of a deceased Government employee or a civilian killed in militancy related actions. 4. The learned Single Judge, relying upon the said rule contained in SRO 82, allowed the writ petition with a direction to restore the respondent back to her original position/post in which she was appointed vide order dated 11.03.2006 and shall be given all consequential benefits including monetary benefits. The said order has been challenged in the L. P. appeals after delay. The delay was condoned on 25.04.2008. Even though interim stay was sought for, the judgment was not stayed, however, it was observed that the appointment of the respondent shall be subject to the outcome of the appeal. 5. Mr. H. A. Sidiqui, learned Additional Advocate General, submitted that if the judgment of the learned Single Judge is allowed to stand it will create a wrong precedent to claim appointment on compassionate grounds for the higher post even though the person is not qualified and the learned Single Judge was not right in setting aside the order issued in Corrigendum as well as the reversion order and the respondent having been qualified only in 10+2 on the date when she was appointed on compassionate grounds, the mistake committed by the appellants cannot be allowed to be taken advantage of by the respondent as the mistake itself was rectified within a month. 6. Mr. S. K. Puri, learned counsel for the respondent, on the other hand, submitted that even though the respondent was not having the required qualification of graduation on the date when she was appointed in the year 2006, the respondent qualified herself with graduation and post graduation also and as on date the respondent cannot be reverted. 7. When this submission was made on 18.03.2015, the learned counsel for the respondent was directed to place on record the degree certificate of the respondent. Based on the said direction issued, an affidavit was filed by the respondent along with a copy of the degree certificate obtained by the respondent to show that respondent has passed the three years Degree (General) course from the University of Jammu in March, 2008 under Roll No. 4610173. Based on the said direction issued, an affidavit was filed by the respondent along with a copy of the degree certificate obtained by the respondent to show that respondent has passed the three years Degree (General) course from the University of Jammu in March, 2008 under Roll No. 4610173. The respondent has also passed her Masters of Arts (Sociology) from Indira Gandhi National Open University in the year 2013. 8. The learned counsel for the respondent, based on the said possession of graduation in the year 2008 and post graduation in the year 2013, argued that even assuming that the appointment of the respondent was irregular on any reason in the year 2006, she having qualified with graduation in the year 2008, the same gets validated and in such circumstances the relief can be moulded by this Court by considering the subsequent events. 9. The learned Additional Advocate General fairly submitted that the appellants intend is to settle correct law and not to harm the respondent and this Court may mould the relief in appropriate manner. 10. We have considered the rival submissions. 11. It is not in dispute that as respondent’s mother died while in service, respondent is entitled to get appointment on compassionate grounds. It is also an admitted fact that while submitting application and on the date of appointment the respondent was possessing the qualification of 10+2 and not graduation. The qualification required for the post of Junior Assistant is graduation. Though SRO 82 states about the power of the Government to appoint a person with lesser qualification to a higher post on compassionate grounds, the said power was not exercised in favour of the respondent. Hence the appointment given to the respondent on 11.03.2006 is not in accordance with rules, for which the respondent cannot be blamed. Admittedly it is the mistake committed by the appellants. The appellants having realized the mistake, issued the Corrigendum followed by reversion order. The said order of reversion is proper. The learned Single Judge was therefore not right in holding that the respondent having been appointed as Junior Assistant, and there being a provision for appointing a lesser qualified person to the post of Junior Assistant, the appointment given to the respondent can be treated as valid appointment. The said order of reversion is proper. The learned Single Judge was therefore not right in holding that the respondent having been appointed as Junior Assistant, and there being a provision for appointing a lesser qualified person to the post of Junior Assistant, the appointment given to the respondent can be treated as valid appointment. On facts, the respondents has passed her graduation from Jammu University only in March 2008, therefore, from the date of passing of the graduation her appointment is bound to be treated in the post of Junior Assistant. It may be stated at this juncture that even though the appointment order issued was irregular due to the acquisition of the required qualification in March, 2008, the said appointment can be regularized. A similar issue was raised before Hon’ble the Supreme Court in AIR 1978 SC 1536 ( Ram Sarup v. State of Haryana) as to whether a person who was not having required number of years of experience is entitled to continue in the promoted post after he gained 9 years of experience after the grant of promotion. In paragraph 3 it is held thus:- We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of labour laws in any one of the three capacities mentioned in Clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked as Labour-cum-Conciliation Officer from 1st January, 1968 and that being a post higher than that of Labour Inspector or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post of Labour-cum Conciliation Officer must be regarded as sufficient to constitute fulfilment of the requirement of five years experience provided in Clause (1) of Rule 4. The appointment of the appellant to the post of Labour cum Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. The appointment of the appellant to the post of Labour cum Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer arid becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was therefore, clearly illegal and it must be set aside. 12. Applying the said judgment to the facts of this case, we are of the view that the respondent is entitled to be appointed as Orderly from 11.03.2006 till passing of the graduation in March, 2008 and from the date of passing of the graduation her appointment to the post of Junior Assistant gets regularised. The appellants are directed to pay the benefits payable to the respondent as Junior Assistant from April, 2008 with all consequential benefits, if not already given, within a period of six weeks. 13. Both the appeals shall stand disposed of. No costs.