Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 147 (JK)

State v. Anoop Kumar

2016-03-29

B.S.WALIA, MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : 1. Letter Patent Appeal is directed against the judgment dated 31.07.2000 passed by learned Single Judge and also against the order dated 02.09.2002 where-under review petition has been dismissed. 2. Vide Government Order No. 198-PWD of 1989 dated 04.04.1989, the State Government had adopted a policy to employ the degree and diploma holder engineers, as Stipendaries w.e.f 01.05.1989 3. All the degree/diploma holders who had cleared their respective degree/diploma examination during the period commencing April 1988 to December, 1988 were to approach the concerned chief engineers. Initially the said appointment was allowed to the candidates who had cleared respective examination up to April 1988, later vide Order No. GR-97 (PWD) of 1990 dated March 20, 1990, it was extended upto end of 1987-88 academic session with a condition that the candidate must have passed their examination before the end of December, 1988. 4. The appellant admittedly had passed the examination of Bachelor of Engineering in the month of June, 1989. Therefore, as per the policy decision, was ineligible. 5. Batch of petitions were filed which included petition of the respondent i.e. SWP No. 1058/95 titled Anoop Kumar v. State, same has been decided vide judgment dated 31.07.2000 which is impugned. Learned Single Judge relied on the judgment rendered by this Court in LPA No. 449/99 decided on 01.05.2000 titiled Surinder Singh v. State. The position of the policy in the said judgment has been referred to. In the said judgment, it was noticed that two persons namely Sh. Lakwant Singh and Sh. Gurnam Singh had passed the examination in the same course in which appellant therein (Surinder Singh) had passed, noticing him to be similar, was directed to be extended the same benefit. 6. Learned writ court while noticing the position of the said judgment has disposed of the writ petition of the respondent by directing grant of relief and to settle his claim within a period of three months. Aggrieved therewith, instant appeal has been filed. The respondent despite notice has not chosen to appear, therefore has been proceeded in ex-parte. 7. Learned Sr. AAG submits that the learned writ court while disposing of the writ petition has relied upon the judgment as was rendered in the case of Surinder Singh v. State. LPA No. 449/99 decided on 01.05.2000 but the facts of that case were all together different. 8. 7. Learned Sr. AAG submits that the learned writ court while disposing of the writ petition has relied upon the judgment as was rendered in the case of Surinder Singh v. State. LPA No. 449/99 decided on 01.05.2000 but the facts of that case were all together different. 8. On the own showing of the petitioner, the petitioner was not eligible that is why in the writ petition he had prayed for a direction to the respondents (appellants therein) to extend the benefit of Stipendiary appointment irrespective of the last date prescribed. 9. The petitioner (respondent herein) had prayed for quashing the Government Order No. 198-PWD of 1989 dated 04.04.1989 to the extent it restricts the benefit of Stipendiary appointment only to such degree/diploma holders who had cleared the examination by or before December, 1988. With a further direction to the respondent therein to extend the benefit of Government Order No. 198-PWD of 1989 dated 04.04.1989 read with Government Order No. 97-GR (PWD) of 90 dated 20.03.1990 to the petitioner (respondent herein) irrespective of the date of his passing the qualifying examination, with a further direction to the respondents, to treat the petitioner (respondent herein) as having been appointed as Stipendiary w.e.f the date other stipendiaris have been appointed and to release all consequential benefits in his favour. 10. Learned Single Judge while disposing of the writ petition has not quashed the Order No. 198-PWD of 1989 dated 04.04.1989 providing for having passed examination up to April 1988 modified to December, 1988 but has simply issued the direction that petitioner is covered by the judgment as rendered in LPA referred to therein. 11. The respondent admittedly had passed his Bachelor of Engineering in the month of June, 1989. Therefore, admittedly after the cut off date which was December, 1988. The Judgment as referred to and relied upon was on different facts was not applicable. Therefore, the case of the respondent was not covered by the said Judgment. 12. The said position is further substantiated by the fact that the Division Bench of this Court while disposing of SWP No. 703/93 captioned Afaq Ahmed Qadri v. State has declined to extend the cut off date beyond December, 1988. Therefore, the case of the respondent was not covered by the said Judgment. 12. The said position is further substantiated by the fact that the Division Bench of this Court while disposing of SWP No. 703/93 captioned Afaq Ahmed Qadri v. State has declined to extend the cut off date beyond December, 1988. It has been observed therein that the benefit as per policy was initially allowed up to April 1988 by Government Order No. 198-PW of 1988 dated 04.04.1989 and then vide Order No. SR No. 97-PWD of 1990 dated March 20, 1990, it has been extended to the end of 1987-88 Academic Session, with a condition that the candidates must have passed their final examination before end of December, 1988. The Division Bench has observed that the spirit behind the order dated March 20, 1990 was that the benefit had to be confined to Session 1987-88 closing before the end of December, 1988. The contention of the petitioners therein, that they had passed the course in November-December, 1989 and had qualified by the time Order dated March 20, 1990 was passed by the Government, therefore are to be treated at par with the candidates to whom benefit of Government Order dated 20.03.1990 was extended, has no force. It has been further observed in the said judgment that the benefit of the Government Orders has been confined to academic session 1987-88. Thereafter it has been scrapped for the reasons that the state government could no longer bear the burden due to financial crunch and allowing the benefit to the petitioners would amount to expenditure of Rs. 84 lacs annually apart from future batches of degree/diploma holders and other sections of society. It has been further observed therein as to whether petitioners can legally sustain the claim? Certainly not. Policy of Government cannot be successfully assailed before the court, unless it is grossly unreasonable and patently unconstitutional. The Division Bench of this Court has further observed that the petitioners fall under different group having passed the course in 1989 batch for which and afterwards the government policy stood scrapped. Finally, the writ petition has been dismissed. 13. The case of respondent No. 1 is on similar footing i.e. on the same grounds as were projected in SWP No. 703/93 titled Afaq Ahmad Qadri v. State of J&K which the Division Bench has dismissed. Finally, the writ petition has been dismissed. 13. The case of respondent No. 1 is on similar footing i.e. on the same grounds as were projected in SWP No. 703/93 titled Afaq Ahmad Qadri v. State of J&K which the Division Bench has dismissed. Said judgment if would have been brought to the notice of learned Single Judge, writ petition of the respondent would have been dismissed. 14. Viewed thus, the judgment impugned, ‘for the reasons stated hereinabove and particularly on the basis of law as has been laid down by the Division Bench of this court while disposing of SWP No. 703/93, is unsustainable, as such set-aside, as a result whereof writ petition filed by the respondent (herein) shall stand dismissed. 15. Appeal succeeds, shall stand disposed of, as above alongwith connected MP.