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2016 DIGILAW 254 (JK)

State of J&K v. Kusum Bala

2016-05-09

B.S.WALIA, DHIRAJ SINGH THAKUR

body2016
JUDGMENT : B.S. Walia, J. 1. Instant Letters Patent Appeal has been filed against judgment dated 24.09.2015 passed by the learned Single Judge in SWP No. 651/2004, in case titled Kusum Bala v. State & Ors. with a prayer for setting aside the same and dismissing the writ petition. However, at the time of arguments, learned counsel for the appellants confined arguments qua waiver of costs only and prayed for modification of order of the learned Writ Court to that extent only. Brief facts of the case leading to the filing of the instant Letters Patent Appeal are that vide order Annexure A-3, dated 29.04.1985 i.e., the respondent was appointed as Junior Assistant in GHSS, Basohli on a vacant post for a period 89 days or till final selection by the selection committee whichever was earlier. On termination of services of the respondent w.e.f. 15.03.1986, SWP No. 795/1986, which was filed by the respondent, came to be decided vide order dated 25.04.1989 with a direction to the appellants to treat the respondent in continuous service till regular selection was made by the selection committee. LPASW No. 19/1989, which was filed challenging aforementioned decision dated 25.04.1989 came to be dismissed vide order AnnexureA-4, dated 18.05.1993. Thereafter, SWP No. 1397/1997 filed by the respondent was disposed of vide order Annexure A-5, dated 04.02.1998 directing that, the writ petition be treated as a representation and the Government take a decision in the matter while taking note of Govt. Order No. 1220-GAL) of 1989, dated 11.09.1989. In compliance with the order of the learned Single Judge in SWP No. 1397/1997, Order No. DSEJ/writ/890-95, dated 08.08.1998 was passed rejecting the claim of the respondent. Thereupon, the respondent filed SWP No. 145/1999 challenging order dated 08.08.1998. The aforesaid SWP was decided vide order Annex-ure A-6, dated 06.08.2001 holding that the respondent would be deemed to be in service as on 29.12.1988 and entitled to all the benefits as per aforesaid Government order dated 11.09.1989. 2. That a perusal of order Annexure A-6, dated 06.08.2001 reveals that the respondent came to be appointed as Jr. Assistant on 29.04.1985 and continued in service on the basis of orders passed from time to time, but the same was not extended beyond 15.03.1986 and vide telegraphic communication dated 13.03.1986, the services of the respondent were brought to an end. That a perusal of order Annexure A-6, dated 06.08.2001 reveals that the respondent came to be appointed as Jr. Assistant on 29.04.1985 and continued in service on the basis of orders passed from time to time, but the same was not extended beyond 15.03.1986 and vide telegraphic communication dated 13.03.1986, the services of the respondent were brought to an end. Thereupon, the respondent challenged the said communication by way of SWP No. 795/1986 which was decided on 25.04.1989 quashing the aforesaid communication dated 13.03.1986 and directing the authorities to treat the respondent in continuous service till regular selection was made by the selecting agency for the post of Jr. Assistant for which the respondent was also permitted to compete along with all other eligible candidates subject to eligibility. It was further ordered that in view of the writ petition filed by the respondent having been allowed, the respondent would be entitled to reinstatement on the post till the selection was made as directed. 3. That appeal filed by the State against the aforesaid order was dismissed vide order dated 18.05.1993. However, despite the aforesaid order, the respondent was not allowed to join. In the circumstances, the respondent filed SWP No. 1397/1997 which was disposed of vide order dated 04.02.1998 directing the appellants to treat the writ petition as representation while taking note of Government Order dated 11.09.1989. Thereafter, the Director School Education passed an order to the effect that as regular selection stood made in pursuance to Advertisement Notice issued in April, 1987 and February, 1988, there was no obligation on part of the appellants to reinstate the respondent. The aforementioned order was challenged by way of SWP No. 145/1999. The said SWP was decided vide order dated 06.08.2001, holding that as on 11.09.1989, certain rights as claimed were conferred on the respondent and that any employee, who was in service up to 29.12.1988, his case was required to be considered in terms of Government order dated 11.09.1989 and that in view of the factual position on account of deeming fiction of law, the respondent would be deemed to be in service on 29.12.1988, therefore, entitled to all the benefits which were given by the aforementioned Government Order. 4. That in the aforementioned circumstances, the respondent was allowed the benefit of Government Order dated 11.09.1989. 4. That in the aforementioned circumstances, the respondent was allowed the benefit of Government Order dated 11.09.1989. It was further ordered that the claim of the respondent would be considered and she was held entitled to all the consequential benefits. Pursuant thereto, the appellants, in terms of order Annexure A-6, dated 06.08.2001 passed an order dated 08.07.2002, rejecting the claim of the respondent on the ground that she had become overage as on 01.01.1990. The said order dated 08.07.2002 rejecting the claim of the respondent on account of her being overage was challenged by way of SWP No. 651/2004 which was decided by this Court vide order dated 24.09.2015, directing the appellants to create a supernumerary post for the respondent while imposing cost of Rs. 50,000/- on the ground that despite clear cut directions from this Court in different writ petitions, the appellants had not complied with the directions of the Court, rather rejected the claim-of the respondent on one or the other pretext. 5. That a perusal of paragraph No. 7 of the impugned judgment reveals that the learned Writ Court took into account that the judgment passed by this Court in SWP No. 145/1999 had attained finality, therefore, the appellants were legally bound to regularize the services of the respondent in terms of the aforesaid judgment and since the respondent had been held entitled to the benefit of Government Order dated 11.09.1989, the appellants could not raise the plea that the services of the respondent could not be regularized as she had become overage as on 01.01.1990. The learned Writ Court also took into account submission on behalf of the respondent that as on 01.01.1990, respondent was 32 years of age which was well within the prescribed age limit. 6. That a perusal of Paragraph No. 16 of the impugned judgment reveals that the learned Writ Court took into account the fact that vide order dated 25.04.1989, this Court had directed the appellants to treat the respondent in continuous service till a regular selection was made by the selecting agency and the said order was upheld by the Letters Patent Bench, meaning thereby that the respondent was to be treated to be in continuous service without any break against the post of Jr. Assistant till the post was filled up by regular selection. 7. Assistant till the post was filled up by regular selection. 7. That a perusal of Paragraph No. 17 of the impugned judgment reveals that the Government issued Order No. 1220-GAD of 1989, dated 11.09.1989 to the effect that all ad hoc appointees to non-gazetted posts recruited from time to time up to 29.12.1988 and who were still in service be treated to have been appointed on regular basis with effect from the date of issuance of order dated 11.09.1989. The learned Writ Court also held that since the judgment passed in SWP No. 795/1986 had attained finality, the respondent was to be treated to have been appointed on regular basis w.e.f. 11.09.1989. However, the appellants taking shelter of judgment passed in SWP No. 795/1986, rejected the claim of the respondent vide order dated 08.08.1998 on the ground that with the appointment of regularly selected candidates, the respondent was not entitled to the benefit of order dated 11.09.1989, meaning thereby that the stand of the appellants was that since the post of Jr. Assistant had been filled up by regularly selected candidates, therefore, in terms of the Court order, there was no reason for the appellants to treat the respondent to be in continuous service but to terminate her services. In the said order, although the appellants have asserted that the respondent was treated to be in service up to 18.11.1987, but very intelligently no mention has been made of the date the posts came to be filled up by the regularly selected candidates. 8. The learned Writ Court also took into account in Paragraph No. 19 of the impugned judgment that perusal of the objections filed by the appellants on 06.02.2013 revealed the specific stand of the appellants in SWP No. 795/1986 that a post of Jr. Assistant remained vacant from 16.03.1986 to 04.01.1994. 9. 8. The learned Writ Court also took into account in Paragraph No. 19 of the impugned judgment that perusal of the objections filed by the appellants on 06.02.2013 revealed the specific stand of the appellants in SWP No. 795/1986 that a post of Jr. Assistant remained vacant from 16.03.1986 to 04.01.1994. 9. That in Paragraph No. 22 of the impugned judgment, the learned Writ Court held that the appellants had failed to indicate as to how the respondent was overage as on 01.01.1990 and if the age of the respondent was taken as 44 years in the year 2002 when the contempt petition was filed, the respondent was admittedly 32 years of age as on 01.01.1990, meaning thereby that when order dated 11.09.1989 came to be passed, the respondent was just 31 years of age and the aforementioned Government Order dated 11.09.1989 stipulated that "all ad hoc appointees to non gazetted posts recruited from time to time up to 29.12.1988 who were still in service were to be treated to have been appointed on regular basis", meaning thereby that as on 29.12.1988, the respondent was just 30 years of age. In the aforementioned background, the learned Writ Court observed that as to how the appellants had come to the conclusion that respondent had become overage as on 01.01.1990. Even otherwise, the age of the respondent was to be considered with effect from 11.09.1989 when the said order was passed and not from 01.01.1990 which the appellants had wrongly taken. 10. That in the aforementioned background, the learned Writ Court held that the appellants had not taken into account the crucial facts of the case as also the directions passed by this Court from time to time and had rejected the claim of the respondent on flimsy grounds. The learned Writ Court also took into account that the appellants rejected the claim of the respondent on 08.08.1998 on the ground that the posts of Jr. Assistant had already been filled up by regularly selected candidates, but the said stand was belied by the appellants on 06.02.2013 when after more than 14 years, the appellants took a specific stand in the writ petition that a post of Jr. Assistant remained vacant from 16.03.1986 to 04.01.1994. Assistant had already been filled up by regularly selected candidates, but the said stand was belied by the appellants on 06.02.2013 when after more than 14 years, the appellants took a specific stand in the writ petition that a post of Jr. Assistant remained vacant from 16.03.1986 to 04.01.1994. In the circumstances, the learned Writ Court observed that as to why the appellants did not treat the respondent to have been appointed on regular basis against the vacant post of Jr. Assistant in terms of Government Order dated 11.09.1989 and why for all these years the appellants misled the Court and further that subsequently they had changed their earlier stand and eventually, rejected the claim of the respondent on 08.07.2002 on altogether a different ground by stating that the respondent had become overage as on 01.01.1990, whereas the fact of the matter was that the respondent was only 31 years of age when the Government Order dated 11.09.1989 came to be passed. The learned Writ Court further observed that once judgment dated 25.04.1989 passed in SWP No. 795/1986 had already attained finality and as per the admission of the appellants, a post of Jr. Assistant remained vacant with effect from 16.03.1986 to 04.01.1994, then how could the respondent be treated to be in service up to 18.11.1987. The learned Writ Court further observed that it seemed that the appellants were not honest in dealing with the case of the respondent and that their main thrust was to reject her claim by all means and it was distressing to note that instead of mitigating the grievance of the respondent, the approach of the appellants in dealing with the case of the respondent was all along very callous and casual, but the respondent could not be made to suffer for the lackluster approach of the appellants and that the appellants had been neglecting the directions passed by this Court in SWP No. 795/1986 which had since attained finality. In the circumstances, while expressing displeasure over the conduct of the appellants and the manner in which they had dealt with the case of the respondent, the learned Writ Court while imposing costs of Rs. 50,000/- directed the appellants to create a supernumerary post for the respondent within a period of two months from the date of passing of the judgment. 11. 50,000/- directed the appellants to create a supernumerary post for the respondent within a period of two months from the date of passing of the judgment. 11. That as mentioned at the outset, at the time of hearing, learned counsel for the appellants confined his arguments qua imposition of costs only and prayed for modification of the order of the learned Writ Court to that extent only. However, on consideration of the matter, we are unable to agree with the submission of learned counsel for the appellants in view of the fact that the costs were imposed in the background of the respondent having to approach this Court a number of times over a period of close to three decades and despite clear cut directions from this Court in different writ petitions, the appellants not having complied with the orders, rather rejected the claim of the respondent on flimsy grounds. In fact the Coordinate Bench of this Court in SWP No. 145/1999 vide order dated 06.08.2001 observed: "...the respondent has not been reengaged. Without commenting upon the conduct of the appellants, whether this amounts to contempt of court or not, merits of controversy are being examined. The appellants were not taking any action in the matter.....". Thus, it is apparent, the findings of the learned Writ Court that the appellants were not honest in dealing with the case of the respondent and their main thrust was to reject her claim by all means has not been shown to be contrary to the record. In the circumstances, we do not find any merit in the submission of learned counsel for the appellant to modify the order imposing costs. No other point has been argued. Finding no merit in the submission of learned counsel for the appellants, appeal is dismissed and order of the learned Single Judge is upheld.