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2016 DIGILAW 139 (JK)

Mohd. Shafi Attu v. State of J&K

2016-03-28

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. The petitioners claimed to have been appointed on ad hoc basis in the year 1992-93 against the posts as shown in detail herein-below:- S. No. Petitioner Qualification Date of Appointment Post on which appointed. 1. Petitioner No. 1 B.A 1993 Health Educator 2. Petitioner No. 2 B.A 1993 Health Educator 3. Petitioner No. 3 B.A 29.4.1993 Health Educator 4 Petitioner No. 4 Matric 16.11.1992 Jr. Assistant 5 Petitioner No. 5 Matric 10.12.1993 Jr. Assistant 6 Petitioner No. 6 Matric 25.1.1993 Nursing Orderly 7 Petitioner No. 7 Middle Pass 28.6.1992 Nursing Orderly 2. Their claim is that they were entitled to regularization in pursuance to Government Order No. 1285-GAD of 2001 dated 06.11.2001 3. It is further claimed by the petitioners that now petitioners No. 1 to 3 and 4 have been regularised, as a matter of course in terms to the provisions of J&K Civil Services (Special Provisions) Act, 2010 in the year 2012 but such a regularization will not deprive them of the benefit which had accrued to them in pursuance to Government Order No. 1285-GAD of 2001 dated 06.01.2001 4. The respondents in their reply have stated that the services of the petitioner Nos. 1 to 3 and 7 have been regularised vide Government Order No. 435-HME of 2012 dated 06.07.2012 and petitioner Nos. 4 and 6 have been regularised vide Government Order No. 297-HME of 2013 dated 25.04.2013 in terms of J and K Civil Services (Special Provisions) Act, 2010. The petitioner No. 5 had expired on 03.03.2009 i.e before the Act of 2010 came into force. 5. It is further stated in the objections that the petitioners are seeking benefit of Government Order No. 1285-GAD of 2001 dated 06.11.2001 but the said order was superseded vide Government Order No. 168-GAD of 2004j dated 09.02.2004 whereunder all adhoc employees as after 28.07.1989 who had continued shall be converted into contractual appointments w.e.f 01.02.2004 and these contractual employees shall subsist till 31.12.2004 or till selection against these posts are made by the concerned agency whichever is earlier. 6. 6. When the aforesaid position was taken note of on the hearing of the matter on 23.02.2016, learned counsel for the petitioner had made a submission to the effect that Government Order No. 168-GAD of 2004 dated 09.02.2004 has been quashed, matter was deferred so as to enable learned counsel to produce the order pursuant to which said order was quashed. When the matter was taken again on 24.02.2016, learned counsel made clear that due to mistake it was stated that the said Government Order No. 168-GAD of 2004 dated 09.02.2004 has been quashed when same was neither challenged nor has been quashed but at the same time contended that the right which had accrued to the petitioners for regularisation in the year 2001 and guaranteed pursuant to Government Order No. 1285-GAD of 2001 dated 06.11.2001 cannot be taken away, is without any force. It is a fact that the petitioners had completed requisite seven years of continuous service as ad hocs on 06.11.2001 but no order of regularisation had been issued against any one. The said Order No. 1285-GAD of 2001 dated 06.11.2001 has been superseded vide Government Order No. 168-GAD of 2004 dated 09.02.2004 wherein after noticing details, it has been concluded that in super-session of the said order, the ad hoc appointments made after 28.07.1989 onwards and which continued in service till date of issue of the order dated 09.02.2004 shall be converted into contractual appointments w.e.f 01.02.2004 and such appointments shall subsist till 31.12.2004 or till selection against these posts are made. 7. The matter remained as it is. The Government came up with new policy in pursuance whereof for protecting the interest of contractual and ad hoc employees, J and K Civil Services (Special Provisions) Act, 2010 came into force on 28.04.2010 Same provides for regularisation of the employees appointed on ad hoc, contractual or consolidated basis subject to the fulfilment of the conditions as made mention of in Section 5. In terms of the provisions of the Act, all such cases were to be examined by the empowered committee and it is only in pursuance of the said Act, the petitioners position has been saved and their position of being ad hoc employees has been taken note of and finally on finding them eligible, their services have been regularized pursuant to Government Order No. 435-HME of 2012 dated 06.07.2012 and Government Order No. 297-HME of 2013 dated 25.04.2013 That position has been accepted by them. They have not challenged the same but now instead it is claimed that as a matter of course their services have been regularised, same will not deprive them of the benefit as had accrued to them in pursuance to Government Order No. 1285-GAD of 2001 dated 06.11.2001 Such an assertion is totally unacceptable because the Government Order No. 1285-GAD of 2001 dated 06.11.2001 stands superseded. The order No. 168-GAD of 2004 dated 09.02.2004 has not been challenged as such neither revoked nor quashed. Therefore they cannot claim the benefit of 2001 order. Even though they had completed seven years of regular service as ad hoc in the year 2001 because order was not given effect vis-a-vis petitioners until same was re-examined and superseded. Petitioners have entered into service by Ad hoc mode without facing any selection, so in an irregular manner, they cannot claim infringement of any right. Their irregular mode of appointment has been protected under policy decision taken to their advantage otherwise their position could be worst. Thus it can safely be concluded that the contention of the petitioners is without any substance, as such rejected. 8. Next, it was contended that communication dated 10.02.1998 addressed to Principal Government Medical College Jammu may be quashed in terms of said communication Director (Codes), Finance Department had conveyed that provisions of Rule 2 of J & K Civil Services (Medical Attendance Cum Allowance) Rules may be referred to medical allowance, HRA, CCA are not admissible to such cases i.e to ad hoc and leave chance employees. Based on such communication, the Director, Health Services Jammu issued circular dated 20.07.2002 wherein Chief Medical officers were directed to stop payment of the allowances i.e HRA, MA, CCA etc. to the ad hoc employees with immediate effect. The amount already paid on such count shall be worked out and recovered. Based on such communication, the Director, Health Services Jammu issued circular dated 20.07.2002 wherein Chief Medical officers were directed to stop payment of the allowances i.e HRA, MA, CCA etc. to the ad hoc employees with immediate effect. The amount already paid on such count shall be worked out and recovered. When the rules do not provide for grant of such allowances, how can they be permitted. The position of the said Rule 2 of J and K Civil Services Rules has not been challenged. The communication dated 10.02.1998 and circular dated 20.07.2002 is based on the Rule 2 of the J and K Civil Services Rules. Same position has been highlighted by the respondents in their reply also. Nothing opposite to the position of rule 2 has been brought to the notice of the court, therefore, there is no justification for quashing the said communication and the circular. 9. The writ petition has been filed in the year 2001. The petitioners have continued on the strength of the order of status quo passed by this Court dated 27.09.2002 as ad hoc employees. Therefore, their position of being ad hoc employees has been taken note of when the decision was taken by the Government in pursuance of the J and K Civil Services (Special Provisions) Act, 2010. They have been extended the benefit under the provisions of the said Act. Now to claim benefit of 2001 order which stands superseded is not available. 10. Viewed thus, this petition for the stated reasons being without merit is dismissed.