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2015 DIGILAW 181 (JK)

State of Jammu and Kashmir v. Vishno Devi

2015-04-16

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
Judgment : N. Paul Vasantha kumar C.J. 1. This appeal is filed against the order of learned Single Judge dated 02.04.2009 made in SWP No.1233 of 2005, allowing the writ petition filed by the respondent in cancelling the order dated 09.09.1995 with a direction to treat the respondent as helper with effect from 01.05.1995 with salary and other benefits till July 2004 with a further direction that he will not be entitled to receive any monetary benefit for the period he has not worked and the said period will be counted towards seniority with cost of Rs.3000/-. 2. During the pendency of this LP Appeal, the first respondent died and his legal heirs, namely, widow and son are impleaded as respondents. 3. The case of the respondent before the learned Single Judge was to quash the order dated 09.09.1995 passed by the 2nd respondent and for directions to regularize the services of the writ petitioner as per Forest Order No.128 of 1995-96 dated 01.05.1995. According to the writ petitioner, he was engaged as a daily wager in the year 1987 and he continued to work in forest nursery which was situated in a remote area. The State of Jammu and Kashmir evolved a policy for regularization of daily wagers working in the forest department and the writ petitioner having been working as daily wager for more than 7 years as on 31.01.1994, the Divisional Forest Officer recommended regularization of the writ petitioner in terms of SRO 64 of 1994. The Government accepted the said recommendations and passed order in Forest Order No.128 of 1995-96 dated 01.05.1995, regularizing the services of the writ petitioner. The second respondent cancelled the said order on 09.09.1995 and the said cancellation came to the knowledge of the writ petitioner only in the year 2004 through the office of Divisional Forest Officer as he was serving in a remote area. The Writ petitioner after knowing about the said order passed on 09.09.1995 challenged the said order by contending that the order of cancellation of regularization was passed without any notice to the writ petitioner and the regularization order having been attached with civil consequences, the same cannot be cancelled without issuing notice to him and therefore, the order has to be set aside. The learned Single Judge, taking note of the records produced by the writ petitioner to show that he was engaged as daily wager from 1987, allowed the writ petition. 4. The said order is challenged in this L.P appeal by contending that the writ petitioner was engaged as a labourer on need basis from March 1987 and at no point of time, he continuously worked, therefore, the regularization under SRO 64 of 1994 on completion of seven years of service is not applicable to the writ petitioner and the order of regularization having been issued on mistaken grounds, the same was cancelled by order dated 09.09.1995 and the eligibility of the petitioner having been ascertained only in terms of SRO 64 of 1994, there is no error in the order cancelling the regularization. 5. During the pendency of this appeal, an interim order was passed on 20.09.2011 stating that the casual engagement of the respondent shall be maintained and whatever wages payable for such casual engagement shall also be paid without any default. The respondent-writ petitioner having not been given casual engagement, he filed the contempt petition to punish the appellants and when the contempt petition was posted for hearing, the main appeal itself was directed to be posted and both the matters are heard together. 6. The point raised for consideration in this appeal is as to whether the order granting regularization dated 01.05.1995, which was acted upon, can be allowed to be cancelled without issuing notice to the writ petitioner. The order dated 01.05.1995 was passed by the Chief Conservator of Forest, Project Director Social Forestry Project Jammu, based on the recommendations of the lower officers stating that the petitioner has served as a daily wager continuously for seven years as on 31.01.1994 as certified by Divisional Forest Officer Social Forestry Division Kathua, which was duly verified by Regional Director Social Forestry Project Jammu and therefore, he was appointed as a Helper in the pay scale of Rs.720-12-870-EB-14-940 with usual allowances w.e.f 01.04.1994 and the petitioner was directed to report before the Divisional Forest Officer Social Forestry Division Kathua along with seven documents. The petitioner reported and joined, therefore, right was given to the petitioner to serve as helper w.e.f. 01.04.1994 . The petitioner reported and joined, therefore, right was given to the petitioner to serve as helper w.e.f. 01.04.1994 . It is seen from the record that a report was sent by the Regional Director, Social Forestry Project, Talab Tillo Jammu on 23.08.1995 stating that the writ petitioner s name was included for regularization by over sight by the office staff and the order passed may be modified. Based on the said communication, the cancellation order was passed admittedly without issuing any notice to the writ petitioner, who was granted regularization with effect from 01.04.1994. By the time the impugned order was passed which was set aside by the learned Single Judge, the services of the writ petitioner stood regularized for more than one year and five months. In such circumstances even assuming that there is no continuity of engagement of the writ petitioner from 1987 and he was casually employed, the principles of natural justice required that writ petitioner should have been put to notice calling upon him to produce the record or the record available with the department could have been verified in presence of the writ petitioner. The said procedure has not been followed while passing the order dated 09.09.1995, cancelling the order of regularization, and the same was rightly set aside by the learned Single Judge by denying the arrears of salary, as he has not worked. The writ petitioner died on 16.01.2015 without getting any benefit, therefore, there is no chance to remand the matter to hear the writ petitioner as of now as his service record cannot be put before him to verify as to whether he served continuously or casually. In such circumstances the order of the learned Single Judge is modified, holding that as the order passed by the appellant dated 09.09.1995 having been set aside by the learned Single Judge, the writ petitioner shall be deemed to be in service for the purposes of sanctioning arrears of pension and family pension to the widow of the writ petitioner. 7. 7. The appeal is disposed of with direction to the appellants to sanction the pension in favour of the 1st respondent by treating the writ petitioner having been regularized with effect from 01.04.1994 till his date of superannuation and pay arrears of pension and other terminal benefits to the 1st respondent and sanction and pay family pension to the 1st respondent from 17.01.2015, within a period of two months from the date of receipt of copy of this order. 8. The appeal as well as the contempt petition, along with connected CMA, stands disposed of.