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2015 DIGILAW 446 (JK)

Iqbal Zarger v. State of J&K

2015-08-27

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. By medium of instant writ petition, as many as, eight (08) petitioners have sought direction in the name of the respondents so as to command them to regularize their services in the manner and on the analogy service of one Ms. Sabina Chilo in terms of Government Order No. 470-HE of 1999, dated 29th November, 1999 retrospectively in relaxation of rules has been regularized or in accordance with the opinion of the Law Minister dated 29th July, 1999 with all consequential benefits. According to the learned counsel for the petitioners, the petitioner No. 2, 3, 5 to 8 have lost the interest, it being so, petition to their extent shall stand dismissed as not pressed. Therefore, petition survives vis-a-vis claim of the petitioners No. 1 and 4. 2. This case has chequered history, vicious circle has been operating, in the process, a situation has emerged which entangled the petitioners into hectic litigation. 3. For appreciating the actual controversy in its right perspective, factual background is required to be noticed briefly. 4. Petitioners alongwith other candidates have been temporarily appointed as Lecturers in view of academic necessity in the colleges against the clear vacancies, initially for a period of sixty days or till posts were filled under rules whichever earlier. Subsequently, like other candidates, petitioners too were disengaged, aggrieved whereof, petitioners filed two writ petitions bearing SWP No. 2102/1991 and SWP No. 2177/1991 wherein continuation was sought. The said petitions were disposed of vide order dated 09.09.1998 but prior thereto vide interim direction dated 19.11.1991, it was directed that till the writs are considered for admission, petitioners shall be allowed to continue on the posts against which they have been appointed. 5. Vide final judgment rendered thereon dated 09.09.1998, various directions were issued which was challenged by medium of LPA No. 312/1998, LPA has been disposed of on 22nd July, 2004 in the following manner: "The learned Single Judge observed that the stand of the State was fair to which petitioner could not have any objection. However, in later part of the judgment, the learned Judge observed that till regular selection is made, the petitioners who are in service would continue in service. In case, any adverse order is to be passed, the petitioners be heard. In case any adverse order is actually passed that be kept in abeyance for fifteen days. However, in later part of the judgment, the learned Judge observed that till regular selection is made, the petitioners who are in service would continue in service. In case, any adverse order is to be passed, the petitioners be heard. In case any adverse order is actually passed that be kept in abeyance for fifteen days. The learned Judge further held that as the petitioners are performing similar duties, they are entitled to the same pay as is being given to their counterpart regular lecturers in Government College. Further, the petitioners would be entitled to relaxation of age for consideration of their cases by the Public Service Commission. 6. We find no error in the order directing relaxation of age. If such relaxation is not allowed, giving, opportunity to the petitioners to participate in the selection process would be meaningless and futile. However, we make it clear that such relaxations should be one time relaxation and limited to the period of service rendered by the persons concerned. In other words, if a person has worked for say 8 years, he would be entitled to only 8 years age relaxation. 7. Learned counsel for the State took exception to the direction of the learned Judge for the continuance of the writ petitioners till regular selection. It was stated that the petitioners were appointed for fixed tenure, on fixed pay, on contractual basis. They thus cannot claim continuance as a matter of right. The submission of the state counsel, to some extent, is ill founded. But, considering that the petitioners have continued on the post for about a decade rightly or wrongly, it may not be proper to allow the respondents to abruptly terminate their employment at this stage. It is noticed that the initial appointment, made for a fixed tenure with artificial breaks was confirmed by the State Government and continued from for 2/3 years until interim orders of this court, their continuance was subject to the selection by the Public Service Commission. In fact, the stand of the State was that vacancies had been referred to the Public Service Commission. Nothing prevented the State or the Commission to take necessary steps to take the selection process to its logical end in the intervening period. In fact, the stand of the State was that vacancies had been referred to the Public Service Commission. Nothing prevented the State or the Commission to take necessary steps to take the selection process to its logical end in the intervening period. In the circumstances, at this stage, it will not be proper to set aside the direction of the learned Judge for continuance of the writ petitioners till regular selection. The State/Commission, it is expected, will take necessary steps in this regard, if not already taken within a time frame. 8. We, however, do not find any justification in the direction to give opportunity of hearing or keeping the order (of termination after completion of selection process) in abeyance. Having participated in the selection process, and failed to make the grade, the unsuccessful candidates cannot seek further opportunity of hearing. That part of the order is set aside. 9. We also do not subscribe to the view that the petitioners should be allowed the same salary as admissible to regular Lecturer in Government College. Having been appointed on ad-hoc basis without undergoing any selection process they cannot claim parity with those appointed on regular basis. Merely because they are performing similar duties, they cannot be held entitled to parity of pay. That part of the order of learned Single Judge is also set aside. 10. As regards LPA No. 312/1998, by three writ petitioners, none appeared on their behalf at the time of hearing. From perusal of the memo, it appears that they are not satisfied with the directions issued by the learned Single Judge. They seek direction for their outright regularization. Such a course would be contrary to the rules which envisage appointment on the basis of the selection by the Public Service Commission. Rules of recruitment cannot be relaxed and therefore, it is difficult to issue direction for their outright regularization as prayed for. The observations/orders made above while considering the appeals of the State, would otherwise govern their cases too and the direction of the learned Single Judge would stand modified. 11. The order of learned Single Judge stands modified to the extent and in the manner indicated above. The appeals are accordingly disposed of without any order as to cost. 12. The observations/orders made above while considering the appeals of the State, would otherwise govern their cases too and the direction of the learned Single Judge would stand modified. 11. The order of learned Single Judge stands modified to the extent and in the manner indicated above. The appeals are accordingly disposed of without any order as to cost. 12. In compliance to the said judgment of the Division Bench, matter had been reconsidered which culminated in issue of order No. 121-HE of 2006, dated 19th May, 2006. The concluding Para of the said order is as under: "Now therefore, subject to outcome of the writ petition No. 487/2000, titled Mohammad Iqbal Zargar and others v. state and Ors. and as per the orders of Hon'ble Division Bench dated 22.07.2007 and advice of the Law Department and the General Administrative Department sanction is hereby accorded to the re-engagement of Sh. Mohd. Iqbal Zargar S/o Sh. Sonuallah Zargar R/o Bogund Kulgam and Sh. Showkat Ahmad Gilkar S/o Mohammad Ibrahim Gilkar R/o Anantnag, Kashmir in Government Degree College (Boys) Anantnag as Lecturers in Discipline of Mathematics and Zoology respectively on the same terms and conditions as were laid down in their earlier Order No. ASC/747-49, dated 08.10.1991 and Order No. ASC/683, dated 05.10.1991." 13. There has been a development in between i.e. a similarly circumstanced candidate namely Ms. Sabina Chilo had also challenged her disengagement on similar grounds. She had also represented before the Chief Minister, based on the various recommendations her services have been regularized in relaxation of rules vide Government Order No. 470-HE of 1999, dated 29th November, 1999, and for that purpose, one post of lecturer as was referred to the Public Service Commission for selection was withdrawn. Subsequently the said order was rescinded vide Government Order No. 1127-HE of 1997, dated 08.08.1997. 14. As against the said Government order No. 1127-HE of 1997, dated 08.08.1997, Ms. Sabina Chilo had filed writ petition bearing SWP No. 3553/1997. Vide order dated 5th October, 1997 passed thereon, it was observed that the order has been issued without affording her any opportunity, as such, the said order was quashed but respondent-State was left free to pass fresh order in accordance with the law, if they so desire, until then it was directed that order dated 08.08.1997 providing for revocation of the order of regularization shall not be given effect. What happened thereafter is that vide Government Order No. 470-HE of 1999, dated 29.11.1999, after noticing all developments, the government had withdrawn the revocation Order No. 1127-HE of 1997, dated 08.08.1997. 15. Noticing the said development, the petitioners filed the fresh instant petition No. 487/2000 claiming the same treatment on parity basis. 16. It is an admitted fact that Ms. Sabina Chilo was appointed initially for a period of sixty days vide Government Order No. 385-HE of 1993, dated 06.09.1993 on the similar conditions, i.e. as were contained in Government Order No. 339-HE of 1991, dated 16th August, 1991, pursuant to which petitioners and some other candidates were similarly temporarily appointed for a period of sixty days. 17. Now, it is also an admitted fact that petitioners have been continuing and discharging their duties but for the period May 2000 to September 2006 as according to the respondents they were out of service when according to the records, the interim direction was passed on 4th May, 2000 providing that the respondents shall consider the cases of the petitioners for regularization as is stated to have been done in the similarly situated candidate namely Ms. Sabina Chilo. Furthermore, it has been directed that present status of the petitioners be protected, their services be not terminated. Stand of the respondents is that the order of stay was received after the petitioners were disengaged, that is why for the intervening period, wages were not paid to them and that is why vide Government Order No. 121-HE of 2006, dated 19th May, 2006, sanction has been accorded to the re-engagement of the petitioner Mr. Mohammad Iqbal Zargar as well as Mr. Showkat Ahmad Gilkar on the terms and conditions laid in the Order No. ASC/747-49, dated 8th October, 1991 and the order dated 5th October, 1991. 18. During the pendency of this writ petition, there has been another development i.e. petitioners filed SWP 2829/2011, challenging communication dated 26th December, 2011 in terms whereof ad hoc appointees were deprived of their entitlement to receive HRA, CCA and Medical Allowances. The recovery as against those who had already drawn such allowances has been ordered. 18. During the pendency of this writ petition, there has been another development i.e. petitioners filed SWP 2829/2011, challenging communication dated 26th December, 2011 in terms whereof ad hoc appointees were deprived of their entitlement to receive HRA, CCA and Medical Allowances. The recovery as against those who had already drawn such allowances has been ordered. The said petition has been disposed of vide order dated 21st October, 2013 wherein the impugned order dated 26th December, 2011 has been quashed and the respondents have been directed to reconsider the whole issue in the light of observations made in the said order. The observation are relevant to be quoted: "The appointment orders of the petitioners would show that they have been temporarily appointed against the clear vacancies. Their appointments are, thus, covered by Jammu and Kashmir Civil Services (Temporary Service) Rules, 1961. Even if, it is assumed that their services are governed by Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal Rules, 1956), the nature of their appointment would remain temporary in view of the language used in the appointment orders." 19. The case of the petitioners earlier had also been considered by the State Based on the report dated 27th January, 1997 of the then Law Secretary, Law Minister has observed as under: "That brings us to the second Important Matter of reference though not directly arising from the aforementioned paras in the departmental file dealing with the references about the waiting list but from another file No. EDU-Coll/Ad-hoc-91/6000, dealing with representation of ad-hoc lecturers who were/are shown to be serving as ad-hoc Lecturers. Since 1989 the mere fact that we have had our schools manned by ad-hoc Lecturers since 1989 should have obviated the necessity of having had to make reference to Public Service Commission. In fact their regularization should have itself been an agenda case after long time of service they have rendered in ad-hoc capacity 1989 to 1999 is a decade, a period of 10 years. To say no to substantive appointment to an ad-hoc lecturer 10 years after may be. hypo technically legal but in a practice that makes much of, entire service jurisprudence. To say no to substantive appointment to an ad-hoc lecturer 10 years after may be. hypo technically legal but in a practice that makes much of, entire service jurisprudence. Ad-hoc appointment is less than a temporary arrangement and normally should not have lasted for more than three months and thereafter if its continuance had become necessary it had to be for exceptional reasons by due exercise of mind and for a relevant cause. It is now more or less an axiom in service jurisprudence that if the initial appointment is by incompetent person against a non-existent post the question of its regularization can never arise howsoever long the initial recruitment might have become where the appointment is against a clear vacancy and by a competent authority on ad-hoc basis even and this appointment is continued for quite a length of time like ten years in the present case, there is no escape from the regularization of the services. One subject to go travelling for to find relevant law on the subject only a reference to celebrate case decided by their Lordships of Supreme Court will be sufficient in this regard and this case is State of Haryana v. Piara Singh reported in 1992 AIR (SCW) 2315." 20. It has been highlighted that in the case of Ms. Sabina Chilo, there has been a deviation rather departure from the normal rule of law, on such basis benefit cannot be extended to the similarly situated candidates but such contention pales into insignificance because the order of regularization in favour of Ms. Sabina Chilo was rescinded, that order was challenged. Why the State has not contested that case gives rise to another serious situation i.e. thereafter the respondent-State has withdrawn the said order of revocation. 21. When petitioners and Ms. Sabina Chilo were similarly circumstanced and when the State had noticed that the order of Ms. Sabina Chilo is not in consonance with the rules then why they have not defended the action which they had taken while revoking that order. Under such circumstances, the cases of the petitioners have to be looked into with some sort of sympathy. The petitioners for now have been working and discharging their duties for more than a decade, they shall not be in a position to get any job anywhere as they have crossed the age bar. 22. Under such circumstances, the cases of the petitioners have to be looked into with some sort of sympathy. The petitioners for now have been working and discharging their duties for more than a decade, they shall not be in a position to get any job anywhere as they have crossed the age bar. 22. The submission that the petitioners have not been working from the year 2000 to 2006 is negated by the report of the Principal Government Degree College (Boys), Anantnag as he, vide his communication No. DCBA/PF/13/1196, dated 8th July, 2013 addressed to the Financial Advisor/CAO, Higher Education Department, Civil Secretariat, Srinagar, has made position ambiguous by stating therein that ex-Heads of the Mathematics Department have certified that the petitioner No. 1-Mohammad Iqbal Zargar has been taking the classes during the period and has also requested that his case shall be settled on the analogy of the similar case of Mr. Jalal-ud-din Trag i.e. as per No. Edu-Coll/WP/2224/97, dated 09th February, 2011. 23. The last limb of the arguments of the learned counsel for the petitioners is that the petitioner's position is covered by the provisions of Jammu and Kashmir, Civil Services (Temporary Service) Rules, 1961 as has been also observed by this court while rendering judgment in SWP No. 2829/2011 as quoted hereinabove. 24. In the totality of the facts and circumstances of the case, the respondent authorities are required to accord fresh consideration to the case of the petitioner No. 1 and 4 and in the process shall keep in view the terms and conditions of appointment of Ms. Sabina Chilo, further to consider them for benefits as shall be available under Jammu and Kashmir, Civil Services (Temporary Service) Rules, 1961. This exercise shall be undertaken and completed within a period of six weeks from the date copy of this order is served upon the respondents. In the process, the period commencing May 2000 to September, 2006 for which the petitioners have not been paid shall also be verified. In case they have discharged their duties, they shall be paid for that period and even if they may not have discharged their duties for that period, still on the strength of their services, they shall be considered for the benefits under the Temporary Services Recruitment Rules. In case they have discharged their duties, they shall be paid for that period and even if they may not have discharged their duties for that period, still on the strength of their services, they shall be considered for the benefits under the Temporary Services Recruitment Rules. Until, finalization of the exercise as shall be undertaken, the position of the petitioners as it exists today shall not be disturbed. Petition accordingly disposed of alongwith connected CMPs.