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2016 DIGILAW 151 (JK)

Bhola Ram Sharma v. State

2016-03-29

DHIRAJ SINGH THAKUR

body2016
ORDER : 1. The present petition has been filed seeking inter alia the issuance of a writ of certiorari for quashing order dated 30.12.2010 issued by respondent No. 3-Chief Engineer, Irrigation and Flood Control Department, Jammu whereby the case of the petitioner for regularisation as Electrician w.e.f. December, 1989 has been rejected. 2. The material facts as they are seen from the record are as under. 3. The petitioner claims to be an ITI diploma in Electrician Trade, who was engaged vide order dated 30.5.1985 on ad hoc basis for three months on consolidated pay of Rs. 650/- per month in the Rajal Lift Irrigation Scheme of the Irrigation Department. This engagement was extended from time to time subsequently. 4. The Govt. issued an order bearing No. 1220-GAD of 1989 dated 11.9.1989, which envisages regularisation of ad hoc appointees to non-gazetted posts recruited from time to time up to 29.12.1988. 5. What was envisaged by Govt. Order No. 1220-GAD of 1989 dated 11.9.1989 is reproduced hereunder: "It is hereby ordered that: All ad hoc appointees to non-gazetted posts recruited from time to time up to 29.12.1988 who are still in service be treated to have been appointed on regular basis on probation or trial, as the case may be, with effect from the date of issue of this order, dispensing with reference of posts held by them to the Services Selection Board or the District Level Committees in the case of Class-IV posts constituted in pursuance of General Administration Departments Circular No. 64-GAD of 1988 dated 29.12.1988, provided that..........." 6. By virtue of Govt. Order No. 1008-PW (I&PHE) of 1989 dated 18.12.1989, the Govt. ordered the creation inter alia of two posts of Electricians in the pay scale of Rs. 900-1830/-. 7. By virtue of office order dated 24.11.1990 issued by the Superintending Engineer, Irrigation and Flood Control Department, Jammu, the petitioner along with others was converted into regular temporary establishment as Helper Grade-m in the pay scale of Rs. 630-940 against the available posts with the department. The entire case of the petitioner is that he ought not to have been regularised as Helper Grade III in the pay scale of Rs. 630-940 but ought to have been regularised as Electrician in view of Govt. Order No. 1220-GAD of 1989 dated 11.9.1989 against the two posts of Electrician, which was created by virtue of Govt. Order dated 18.12.1989. 630-940 but ought to have been regularised as Electrician in view of Govt. Order No. 1220-GAD of 1989 dated 11.9.1989 against the two posts of Electrician, which was created by virtue of Govt. Order dated 18.12.1989. First round of litigation 8. The petitioner earlier had filed SWP No. 1313/1994, which came to be decided vide order dated 3.6.1999 with the following directions: "This petition is disposed of with a directions that respondents would look into the following claims of the petitioner: (i) Whether he is performing duties of Electrician. (ii) Whether two posts were created in December, 1989. (iii) Whether petitioner was appointed against the posts said to have been created in December, 1989. (iv) Whether petitioner was asked to work against one of the posts, which is said to have been created in December, 1989. These are the questions, which respondents would take note of. Let a decision be taken and communicated to the petitioner within a period of three months.............." 9. It is based upon these directions that the case of the petitioner was considered by the official respondents and rejected vide order dated 30.12.2010, which is challenged in the present writ petition. 10. Objections have been filed by the State wherein a general stand has been taken that the posts of Electricians created in December, 1989 belong to the higher category carrying pay scale of Rs. 900-1830 and could be filled up only as per service regulations and rules and further that the case of the petitioner was considered and having not been found admissible under rules was rejected. 11. From a perusal of the order impugned, it appears that the basis of the order of rejection issued by the Chief Engineer Irrigation and Flood Control Department was the opinion obtained by him from the Law department, a portion of which gets reflected in one of the communications dated 22.6.2005 issued by the Public Law Officer of the Public Works Department, which is on record. 12. From a reading of the aforementioned communication, it transpires that the law department had opined that the petitioner was not entitled to regularisation as Electrician against the posts created after his appointment. The Law department had even contradicted the reply submitted by the Chief Engineer as being vague and self-contradictory. 13. 12. From a reading of the aforementioned communication, it transpires that the law department had opined that the petitioner was not entitled to regularisation as Electrician against the posts created after his appointment. The Law department had even contradicted the reply submitted by the Chief Engineer as being vague and self-contradictory. 13. It is not out of place to mention here that the Chief Engineer vide his communication dated 28.12.2004 addressed to the Secretary to Govt. PHE department had submitted a point wise reply as under: "(i) Both the officials are performing the duty of Electrician. (ii) Two posts of Electrician in the pay scale of Rs. 900-1830 were created for Rajal Canal Irrigation Division Noshera of this department vide Govt. Order No. 1008-PW Irrigation and PHE of 1989. (iii) Petitioners were regularised as Helper in the grade of Rs. 630-940 (old) in November, 1990 against the posts said to have been created in December, 1989. (iv) The petitioners were asked to work against the posts, which are said to have been created in December, 1989 which are lying vacant at present." 14. From a reading of the aforementioned communication as also the order impugned, it becomes clear that the regularisation of the petitioner against the post of Helper was, in fact, in November, 1990 was possible only after the two posts of Electricians had been created in December, 1989. This fact has not been contradicted in the order impugned, rejecting the case of the petitioner. Not only this, the Chief Engineer, Irrigation and Flood Control Department had specifically stated in the aforementioned communication that the petitioners were asked to work against the posts which are stated to have been created in December, 1989, which according to the Chief Engineer, were lying vacant then. If that be so, then what is stated by the petitioner needs to be accepted. If the posts of Electricians were created in December, 1989 then the only way the petitioner could have been regularised was against one of the two posts of Electricians in terms of Govt. Order No. 1220-GAD of 1989 dated 11.9.1989. 15. Neither the opinion of the law department nor the order impugned dated 30.12.2010 justifies in law the rejection of the case set up by the petitioner. 16. For the reasons mentioned above, this petition is allowed. Order No. 1220-GAD of 1989 dated 11.9.1989. 15. Neither the opinion of the law department nor the order impugned dated 30.12.2010 justifies in law the rejection of the case set up by the petitioner. 16. For the reasons mentioned above, this petition is allowed. The petitioner is held entitled to regularisation as Electrician in the pay scale of Rs. 900-1830 against one of the posts created in the year 1989 and shall be given effect of the same w.e.f. the date when he was originally regularised as Helper in the pay scale of Rs. 630-940. He shall also be entitled to arrears from the said date. 17. Disposed of accordingly along with connected applications, if any.