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2015 DIGILAW 554 (JK)

Shakeel Ahmad Dar v. State of J&K

2015-10-16

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : ALI MOHAMMAD MAGREY, J. 1. This petition was heard on 23.09.2015 and the judgment was reserved. This Court, while preparing to dictate the judgment, on perusal of the pleadings of the parties and the documents placed on record, noticed some discrepancy with regard to the relevant facts. Accordingly, in the interest of justice, by order dated 29.09.2015, the Court ordered as under: "6. Thus, there is a discrepancy: whether the petitioner is holding the post of Driver Grade-II which became available on account of promotion of Shri Gulzar Ahmad as Driver Grade-I or he is holding the post which cropped up on account of death in harness of Suresh Kumar; second, whether the post held by the petitioner is actually available at Srinagar under the Deputy Director, Hospital and Protocol, Kashmir, or is available on the establishment of Joint Director, Hospital and Protocol, Jammu. 7........ 8. The other part concerns the petitioner, which is this: As seen above, the petitioner seems to be aggrieved of reference of the vacancy of the post of Driver borne on the establishment of Joint Director, Jammu, to the Selection Board. That communication as such has not been challenged in this petition. Even the communication placed on record addressed by the Director, Hospital and Protocol to his subordinate officers informing them about reference by him of the vacancies identified by them to the Selection Board, is not challenged, since no certiorari is prayed for. Instead, it is prayed that respondents be directed to delete the vacancy of one post of driver from the said communication. It is not comprehendible how would that redress the grievance of the petitioner. Even if all the posts are deleted from the said communication, how would that tantamount to withdrawing the posts from the Recruitment Board. Counsel for the petitioner may need to appropriately amend the prayer clause of the petition. 9. In the interests of justice, the parties are afforded opportunity to take necessary measures in this regard...." 2. Despite the above clear and unambiguous order, instead of filing a supplementary affidavit and instead of furnishing the information as sought in terms of order dated 29.09.2015, Mr. Mehraj-ud-Din Bhat, Deputy Advocate General, under his signatures filed objections on behalf of the answering respondents supported by an affidavit signed by Mr. Tariq Hussain Ganai, Director, Hospitality and Protocol. 3. Despite the above clear and unambiguous order, instead of filing a supplementary affidavit and instead of furnishing the information as sought in terms of order dated 29.09.2015, Mr. Mehraj-ud-Din Bhat, Deputy Advocate General, under his signatures filed objections on behalf of the answering respondents supported by an affidavit signed by Mr. Tariq Hussain Ganai, Director, Hospitality and Protocol. 3. On behalf of the petitioner, it was stated at the Bar that the petitioner does not want to amend the writ petition. 4. As already mentioned, the learned counsel for the parties were heard. I have considered the matter. 5. On the basis of what the respondents have averred in the two sets of objections plus the pleadings made by the petitioner in his writ petition, it comes to fore that one Mohd. Shafi Sofi, who was working as Driver Grade-1 in the Hospitality and Protocol Department, died in harness somewhere prior to 24.04.2006. In order to meet the exigency, the Deputy Director, Hospitality and Protocol, Kashmir, vide his order no. 03 of 2006 dated 24.04.2006, required the petitioner, who was working as a Earash in the Department and was holding a driving license, to ply the departmental vehicle. Thereafter, pursuant to order no. DHP/115 dated 12.08.2006, issued by Director, Hospitality and Protocol, the petitioner was allowed to function as Driver in his own pay and grade. 6. More than three years thereafter, one Gulzar Ahmad Bhat, working as Driver Grade-II in the Department, was promoted as Driver Grade-1 against the post which was earlier held by deceased Mohd. Shafi Sot. Consequent thereto, the petitioner, by order no. 42/2009 dated 26.09.2009. was adjusted against the vacancy of Driver Grade-II thus vacated Dy Gulzar Ahmad Bhat, in the grade of Rs. 3050-4590 (pre-revised) for a period of six months. 7. Mean while, one Suresh Kumar , Who had been working as Driver in the office of Joint Director, Hospitality and Protocol, Jammu died in harness in 2009. Thus in 2009, after the petitioner had been adjusted as Driver Grade-II in a regular scale of pay, another vacancy of Driver in the Department had cropped up due to death in harness of Suresh Kumar. 8. After the expiry of the period of six months, pursuant to communication no. DIIP/1979-85 dated 04.03.2010 of respondent no. 2, the Deputy Director, Hospitality and Protocol, in continuation to order no. 8. After the expiry of the period of six months, pursuant to communication no. DIIP/1979-85 dated 04.03.2010 of respondent no. 2, the Deputy Director, Hospitality and Protocol, in continuation to order no. 42/2009 dated 26.09.2009, referred to in paragraph no. 6 above, issued order no. 107 dated 05.04.2010, directing that the petitioner would continue to function as Driver in the Pay Band + Grade Pay of Rs. 5200-20200+1900 with effect from 01.02.2010. 9. It, thus, becomes axiomatic that the petitioner, being eligible, stood adjusted/appointed on stop-gap/ad hoc basis as Driver Grade-II with effect from 24.04.2006 in terms of order no. 03 of 2006 issued by the Deputy Director, Hospitality and Protocol, Kashmir, against a clear vacancy. This order was confirmed by the competent authority, i.e. the Director, Hospital and Protocol, in terms of order no. DHP/115 dated 12.08.2006, whereby the petitioner was allowed to function as Driver in his own pay and grade. This arrangement continued till 26.09.2009 when, by order no. 42/2009, the petitioner was adjusted against the vacancy of Driver Grade-II in the grade of Rs. 3050-4590 (pre-revised) for a period of six months, again in a stopgap/ad hoc arrangement. 10. As mentioned above, another vacancy of Driver cropped up in 2009 in the department due to death in harness of one Suresh Kumar. The arrangement made by order dated 26.09.2009, whereby the petitioner was appointed in a regular scale of pay, of course, on ad hoc basis, was continued by order no. 107 dated 05.04.2010. 11. Now, it is sought to be stated on behalf of the respondents that the post on which the petitioner had been engaged/adjusted/appointed initially on 24.04.2006 and continued, thereafter, by orders dated 12.08.2006, 26.09.2009 and 05.04.2010, was filled up by appointment of one Shri Jan Muhammad Sheikh. Whereas there can be no denial to the fact that Shri Jan Muhammad Sheikh was appointed as Driver in the Department on 25.07.2011 pursuant to selection made by the Recruitment Board, nothing has been brought on record to indicate that said Shri Jan Muhammad Sheikh was, in fact, appointed on the vacancy of Driver held by the petitioner. This is one aspect of the matter. 12. This is one aspect of the matter. 12. The second most crucial aspect of the matter is that on 29.04.2010, i.e. five months prior to the release of the regular scale of pay in favour of the petitioner, and almost 15 months prior to the appointment of aforesaid Shri Jan Muhammad Sheikh as Driver, stated to be against the post held by the petitioner, the Government promulgated the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (for short, Special Provisions Act). The Special Provisions Act provided for regularisation of the employees appointed on ad hoc, contractual or consolidated basis. 13. Section 3 of the Special Provisions Act prescribed that its provisions would apply to such posts under the Government as were held by any person having been appointed on ad hoc or contractual basis, including those appointed on consolidated pay against clear vacancies. 14. Section 4 of the Special Provisions Act excluded the posts referred to in Section 3 from the purview of the recruiting agencies. 15. Section 5 of the Special Provisions Act provided for regularisation of the ad hoc, contractual or consolidated appointees referred to in Section 3 thereof subject to fulfilment of the conditions mentioned in Section 5. Section 5 thereof, is quoted hereunder: "5. Regularisation of ad hoc or contractual or consolidated appointees: Notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in section 3 shall be regularised on fulfilment of the following conditions, namely:- (i) that he has been appointed against a clear vacancy or post. (ii) that he continues as such on the appointed day. (iii) that he possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post. (iv) that no disciplinary or criminal proceedings are pending against him on the appointed day. (v) that he has completed seven years of service as such on the appointed day. (iv) that no disciplinary or criminal proceedings are pending against him on the appointed day. (v) that he has completed seven years of service as such on the appointed day. Provided that the regularisation of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularisation, irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization: Provided further that any ad hoc, or contractual or consolidated appointee, who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularisation under this Act." It is thus seen that the provisions of the Special Provisions Act, especially Section 5 thereof, provided a statutory protection to an ad hoc employee, like the petitioner, and conferred a right on him to be regularised against the post held by him on ad hoc or contractual basis or as a consolidated appointee subject, of course, to the conditions laid down in Section 5 of the Special Provisions Act. It is, however, nobody's case that the petitioner did not fulfil the conditions mentioned therein. Consequently, in terms of the second proviso under Section 5 of the Act a right accrued to the petitioner to continue on the post held by him and, thereafter, on completion of seven years, to be regularised thereon. That being the legal position, it is incomprehensible that either the Recruiting Board or the respondents would have acted contrary to the provisions of the Special Provisions Act and selected/appointed said Shri Jan Muhammad Sheikh as Driver against the post held by the petitioner. The post held by the petitioner stood taken away and excluded from the purview of the Recruiting Board in terms of Section 4 of the Special Provisions Act. It is not the case of the respondents that they or the Recruitment Board were totally oblivious of the law so enacted and promulgated by the State Legislature. As a necessary corollary, the contention of the respondents that the post held by the petitioner on ad hoc basis since 24.04.2006 was filled up pursuant to selections made by the Recruitment Board in July, 2011 clearly is preposterous and, therefore, untenable. As a necessary corollary, the contention of the respondents that the post held by the petitioner on ad hoc basis since 24.04.2006 was filled up pursuant to selections made by the Recruitment Board in July, 2011 clearly is preposterous and, therefore, untenable. If the respondents in their records have shown it to be so, they would need to correct the records, since neither the Recruitment Board could have made any selections against a post which, by an Act of the Legislature, had been taken out of its purview, nor could have any appointment been made by the respondents on the basis of such selection made by the Recruitment Board. It is reiterated that at the relevant point of time, another post of Driver had remained vacant for quite some years. This vacancy had occurred on account of death of Suresh Kumar in 2009 and was not held by any person. Any selection to be made by the Recruitment Board could be made only with respect to the vacancy that had cropped up by reason of death of Suresh Kumar and, consequently, appointment pursuant to the selection made by the Recruitment Board could be made only against the said post, not against the post which was, admittedly, held by the petitioner. 16. Besides, the petitioner having been appointed as Driver on stop-gap arrangement/ad hoc basis on 24.04.2006, his continuation on the post was protected by the Act. Not only that, after completion of 7 years of such service on the post, the provisions of the Special Provisions Act, as referred to here in above, mandated his regularisation thereon. The respondents seem to be totally oblivious of the legal position as prescribed and mandated by the Special Provisions Act of 2010. However, that fact would not affect and impact the right of the petitioner to claim regularisation on the post held by him. Since the date of his initial appointment on 24.04.2006, the petitioner has put in more than nine years of service. As a matter of fact, pay of the post stands released in his favour way back in 2009 by order no. 42/2009 dated 26.09.2009. Even if that were not so, petitioner has a right to be regularised on the post held by him on completion of 7 years to be counted from the date of his initial appointment on ad hoc basis thereon. 17. 42/2009 dated 26.09.2009. Even if that were not so, petitioner has a right to be regularised on the post held by him on completion of 7 years to be counted from the date of his initial appointment on ad hoc basis thereon. 17. Coming to the reliefs prayed for in this writ petition, the petitioner seems to have awakened to file this writ petition by reason of the fact that respondent no. 2, vide his communication dated 28.02.2013, addressed, inter-alia, to the Deputy Directors, Hospitality and Protocol, Jammu and Kashmir, informed them of having referred the posts mentioned therein to the Administrative Department for filling up the same in the Department, which included one post of Driver in the office of Joint Director, Hospitality and Protocol, Jammu. The petitioner has prayed for a mandamus to command the respondents to delete the vacancy of one post of driver in the aforesaid communication. It is notice worthy that this writ petition was filed on 12.04.2013. It appears that the Administrative Department in the meanwhile referred the post to the Recruitment Board. The Recruitment Board, in turn, advertised the post in terms of notification no. 06 of 2013 dated 10.05.2013 at item no. 347 thereof. This is reflected in order dated 16.05.2013 passed by the Court, whereby the Service Selection Board was directed not to act upon the advertisement notice in question till further orders from the Court. It may be observed here that the petitioner has neither challenged the communication whereby the post was referred by the Administrative Department of the Department to the Selection Board, nor the advertisement notice in question to the extent it related to the post in question. Instead, the petitioner has sought a direction to the respondents to delete the post of Driver from communication dated 28.02.2013 which is only an informative letter addressed by the Director to the two Deputy Directors at Srinagar and at Jammu. Even if the prayer made is granted and the post of Driver is deleted from the said communication dated 28.02.2013, that by no standards would tantamount to withdrawing the post from the referral letter addressed by the Administrative Department to the Recruitment Board, or from the Recruitment Board or the Advertisement notice. Even if the prayer made is granted and the post of Driver is deleted from the said communication dated 28.02.2013, that by no standards would tantamount to withdrawing the post from the referral letter addressed by the Administrative Department to the Recruitment Board, or from the Recruitment Board or the Advertisement notice. The best course for the petitioner was to challenge the communication whereby the post had been referred by the Administrative Department to the Recruitment Board as well as the advertisement notice so issued by the Recruitment Board to the extent of inclusion therein of the post in question. The petitioner, despite the fact that an opportunity was granted to him in terms of order dated 29.09.2015 did not opt to amend the writ petition to seek the appropriate relief. This Court will not issue a writ, direction or order which would prove to be inconsequential. Though in the third prayer made in the writ petition, the petitioner has prayed for a writ of Mandamus commanding respondent no. 3, i.e. the Chairman, Services Selection Recruitment Board "for not showing any advertisement notice of the post of driver under head non-gazetted in case the respondent department namely Respondent no. 2 may happen to make such reference" but such a relief in absence of a proper and specific challenge to the act of reference of the post to the Board cannot be granted. It is to be borne in mind that a mandamus will issue only when it is shown that a duty is cast on a government functionary to do or not to do a thing which he is seeking not to do or to do against the mandate of the duty so cast on him. 18. However, notwithstanding the inappropriate prayers made in the writ petition, as shown and held above, in terms of the provisions of the Special Provisions Act, 2010, the petitioner has a right to continue on the post held by him and to be regularised thereon. This right of the petitioner is protected and mandated by the provisions of the said Act, and such right of the petitioner cannot be abridged, abrogated or taken away from him by any person, process or reason. 19. This right of the petitioner is protected and mandated by the provisions of the said Act, and such right of the petitioner cannot be abridged, abrogated or taken away from him by any person, process or reason. 19. In light of all what has been discussed above, this writ petition is allowed to the extent that the respondents are directed to regularise the petitioner as Driver in terms of the provisions of the Special Provisions Act, 2010 against the post held by him pursuant to and since the issuance of order no. 03 of 2006, dated 24.04.2006, and, consequently, to grant him all service benefits on the post which would accrue to him on account of such regularisation seven years after 24.04.2006, including retrospective fixation of pay in the appropriate scale of pay, arrears of pay and of increments; promotion, if any, due and fixation of seniority. 20. So far as the withdrawal of the post from the Recruitment Board is concerned, in order to rectify the anomaly the respondents have allowed to creep in on account of their apathy and ignorance about the provisions of the Special Provisions Act, 2010, it is left to them to take necessary steps in that behalf so that the wrong done by them by referring the post to the Recruitment Board is undone. Obviously, therefore, it would be prudent on the part of the Recruitment Board not to proceed ahead with the process initiated by them vis-a-vis the post in terms of item no. 347 of Advertisement notification no. 06 of 2013 dated 10.05.2013. 21. In paragraph 11 of the objections lately filed on behalf of the respondents, it is averred that another vacancy of the post of Driver Grade-II has cropped up on account of promotion of Shri Jan Muhammad Sheikh as Driver Grade-I in terms of order dated 26.08.2015. Obviously, keeping the provisions of the Special Provisions Act in mind, occurrence of this vacancy, insofar as the rights, claims and interests of the petitioner are concerned, is inconsequential. 22. This also disposes of the connected CMP.