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2016 DIGILAW 168 (JK)

Shaheena Rasool v. State of J&K

2016-04-05

MUZAFFAR HUSSAIN ATTAR

body2016
JUDGMENT : Muzaffar Hussain Attar, J. 1. The issues involved in both the petitions are not only common but are overlapping. These petitions are taken up together for final disposal. 2. Petitioner was appointed as Computer Assistant in the then Agricultural Production and Rural Development Department against the available vacancy by the Government vide office order no. 70-Agri of 1995 dated 28th July, 1995. Petitioner was initially appointed for a period of two months on contractual basis and was ordered to be paid consolidated salary of Rs. 1000/- per month. Petitioner in terms of series of orders subsequently was allowed to continue in service. 3. The State Government in order to mitigate the hardships of those persons who were appointed on contractual, adhoc and on consolidated basis against clear vacancies for regularization/absorption of their service enacted J&K Civil Services (Special Provisions), Act. 2010 (for short Act of 2010). In terms of the said Act, the cases of those persons who are covered by the said Act, were to be considered by a statutory Empowered Committee for their permanent appointment/absorption/regularization in the Government services. The Empowered Committee in its 29th Meeting held under the Convener ship of Principal Secretary to Government Finance Department on 18th July, 2012 and 25th July, 2012 considered the cases of aforesaid classes of employees of different departments. The case of the petitioner was also considered and the Empowered Committee decided to recommend her case for her permanent absorption/regularization of her services as she was appointed against a clear vacancy and was continuing ever since her initial appointment. The Principal Secretary, Empowered Committee issued a public notice whereunder objections were invited in respect of the recommendations made by the Empowered Committee. Notifications was published in the newspaper (Annexure P-5). In terms of communication dated 19th October, 2012, Director (Codes) Finance Department, Member Secretary, Empowered Committee after discussing of objections, referred the case of the petitioner and one other person for regularization of their services. The documents placed on writ record, in unequivocal terms, would show that the petitioner has continued on contractual basis against clear vacancy from 29th July, 1995. 4. Government Order no. 142 RD & PR of 2014 dated 28th March, 2014 came to be issued, whereunder the petitioner was ordered to be appointed on contractual basis against one of the post of Computer Assistant, which post was created by Government Order no. 4. Government Order no. 142 RD & PR of 2014 dated 28th March, 2014 came to be issued, whereunder the petitioner was ordered to be appointed on contractual basis against one of the post of Computer Assistant, which post was created by Government Order no. 223-RD of 2008 dated 21st August, 2008. The effect of the order being adverse to the legal rights of the petitioner. She challenged the same in SWP no. 961/2014. 5. During the pendency of the aforesaid writ petition the Empowered Committee reconsidered the claim of the petitioner for regularization of her service and treating her to have been appointed on 28th March, 2014, observed in the minutes of 41st Meeting 2014, that the petitioner has been adjusted against the post of Computer Assistant in the year 2008 and would complete seven years of service in the year 2015. 6. In the reply affidavit filed in the second writ petition, respondent no. 1, has stated that the Government Order no. 142-Rd & PR of 2014 dated 28th March, 2014, has been rescinded vide Government Order no. 10 RD & PR of 2015 dated 15th January, 2015. Copy of the order has also been placed along with reply affidavit. 7. Petitioner has been appointed against available vacancy of Computer Assistant on contractual basis on consolidated salary of Rs. 1000/- per month on 28th July, 1995. Her regularization/absorption in services is governed by the provision of Act of 2002. The Empowered Committee in its deliberations held on 18th July, 2012 and 25th July, 2012 after according consideration to the case of various employees including the petitioner and after entering into satisfaction that she satisfied the prescribed parameters laid down in that Act of 2002 recommended her case for her permanent absorption/regularization of her services. Even after objections were filed her case was cleared. The only formality which was required to be completed in her case was issuance of the order in terms of the Section 6 of the Act of 2010 for grant of relaxation in upper age limit. 8. It appears that the authorities thereafter have completely misdirected themselves by appointing her against the post which was created in the year 2008 in terms of Government Order no. 142 RD & PR of 2014 dated 28th March, 2014, which order now stands revoked by the Government itself. 8. It appears that the authorities thereafter have completely misdirected themselves by appointing her against the post which was created in the year 2008 in terms of Government Order no. 142 RD & PR of 2014 dated 28th March, 2014, which order now stands revoked by the Government itself. In terms of the Act of 2010, the rights of the petitioner stand crystallized for her permanent absorption in the Government service. The matter could have not been referred again to Empowered Committee for review of the earlier decision, that action on the part of respondent is held to be illegal. Even appointing the petitioner in terms of Order dated 28th March, 2014, in the facts of this case is also held to be illegal. Though the said order stands revoked, so nothing further would require to be said on it. The recommendations of the Empowered Committee dated 8th May, 2014, in respect of the petitioner, which recommendation was passed by the Government vide order no. 142 RD & PR of 2014 dated 28th March, 2014, looses all the Sheen, even otherwise in the facts and circumstances of this case the Empowered Committee could not review its earlier decision. The earlier decision was a well thought out decision and the second decision was passed on erroneous Government Order dated 28th March, 2014. 9. Petitioner has been illegally deprived to relieve the benefits of regular services. The rights guaranteed to the petitioner under Article 14 and 16 of Constitution of India have been infringed. 10. For the above stated reasons these writ petitions along with connected MP(s) are disposed of in the following manner: 11. The respondent no. 1 is directed to recommend the case of the petitioner to respondent no. 2 for passing of formal order for grant of relaxation in upper age limit of the petitioner as is the mandate contained in J&K Civil Services (Special Provision) Act of 2010. The respondent no. 1 to make necessary recommendations to respondent no. 2 within one week from the date copy of this order is served on him. The respondent no. 2, on receipt of recommendation of respondent no. 1, to pass the order of relaxation in upper age limit in favour of the petitioner within one week thereafter. The respondent no. 1 thereafter to pass order of regularization/permanent absorption in favour of petitioner. The respondent no. 2, on receipt of recommendation of respondent no. 1, to pass the order of relaxation in upper age limit in favour of the petitioner within one week thereafter. The respondent no. 1 thereafter to pass order of regularization/permanent absorption in favour of petitioner. The effect to the service for permanent absorption of petitioner in service shall be given from the date she became eligible in terms of the aforesaid Act. The petitioner shall also be given all the consequential service benefits from the said date. 12. Disposed of.