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2016 DIGILAW 451 (JK)

Rabia Shah v. State of J&K

2016-09-07

ALI MOHD.MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : Ali Mohd. Magrey, J. 1. By this common order it is proposed to decide and dispose of the petition filed by the State-authorities seeking review of the judgment dated 19.05.2015 passed by the Division Bench in SWP No. 624/2014; the condonation petition accompanying therewith; and the contempt petition filed by the writ petitioner, Mrs. Rabia Shah, alleging non-compliance with Court's judgment. The judgment of the Court, as mentioned above, was delivered on 19.05.2015, directing the respondents to issue order of regularization in favour of the petitioner within the period stipulated therein. The writ-petitioner filed the above contempt petition on 20.04.2016 alleging deliberate and intentional delay on the part of the respondents to implement the judgment, tantamounting to disobedience of the direction of the Court contained therein. 2. After issue of notice in the above contempt petition, the Government in the Forest Department issued Order No. 157-FST of 2016, dated 01.06.2016 regularizing the petitioner in the pay scale of Rs. 6500-10500 (pre-revised, now revised to Rs. 9300-34800 + 4280). Simultaneous therewith, they filed the compliance report before the Court on 02.06.2016 bringing the fact of issue of aforesaid order to the notice of the Court. 3. However, the writ-petitioner raised an issue that the order was not in consonance with the direction of the Court contained in paragraph 10 of the judgment. The writ petitioner stated that the Court in its judgment dated 19.05.2015 had directed that petitioner be regularized with effect from 23.06.2006, the date she had completed seven years' service. On this the learned State counsel sought time to address arguments. Time prayed for was granted by Court order dated 02.06.2016. 4. The contempt petition, thereafter, came up before the Court on 04.07.2016, but the writ-petitioner's counsel was not present. The State counsel made mention of a Review, which was ordered to be listed along on the next fixed date. However, due to oversight, the number of the review petition seems to have been wrongly mentioned as Revision No. 13/2016, though there has been no review petition registered under such number filed or pending. The revision petition is actually numbered as Review No. 25/2016 which is accompanied by Condonation Petition No. 159/2016 filed on 30.06.2016. Be that as it may, the three matters having been adjourned on many occasions came up for arguments before the Court on 06.09.2016 and it was posted today. 5. The revision petition is actually numbered as Review No. 25/2016 which is accompanied by Condonation Petition No. 159/2016 filed on 30.06.2016. Be that as it may, the three matters having been adjourned on many occasions came up for arguments before the Court on 06.09.2016 and it was posted today. 5. We heard the writ-petitioner, who is present in person, and Mr. M.I. Dar, the learned State counsel. 6. The review of the judgment dated 19.05.2015 is sought to the extent it directs the respondents to regularize the petitioner with effect from 23.06.2006, the date she had completed seven years' service, on the ground that the said direction is antithetic to the express provision contained in Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 [hereinafter, the 2010 Act] which enables the Government to regularize the services of ad hoc, contractual and/or consolidated appointees. The review petition is accompanied by a petition seeking condonation of 375 days delay in filing the same. 7. The petitioner fairly consented to the taking up of the review petition for consideration. Even otherwise, since the direction sought to be reviewed is said to be contrary to the relevant provisions of the 2010 Act enabling the regularization of the petitioner's services, it would be more in the interests of justice to have a review thereof on the touch stone of such enabling law. Furthermore, if the direction is found out to be really contrary to the law, it would have serious and far reaching repercussions and implications. The condonation petition is, therefore, allowed and consequently the delay in filing the review petition is condoned. 8. It may also be reiterated here that the review-petitioners have already regularized the services of the petitioner, but, obviously, prospectively. It would have to be seen and determined in the review petition whether the petitioner would be entitled to such regularization only from a date posterior to the date of commencement of the 2010 Act, not anterior thereto, and, if so, from which date? The decision in the contempt petition would naturally, therefore, hinge on the outcome of the review petition. 9. There is no dispute that the petitioner had been working in the legal section of the Forest Department and had been placed in the pay scale of Rs. 6500-10500 of the post of Law Officer on ad hoc basis in terms of Govt. 9. There is no dispute that the petitioner had been working in the legal section of the Forest Department and had been placed in the pay scale of Rs. 6500-10500 of the post of Law Officer on ad hoc basis in terms of Govt. Order No. 250-FST of 1999, dated 23.06.1999. It is also not in dispute that the State Legislature enacted the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 paving way for regularization of ad hoc, contractual and consolidated appointees. In fact, as mentioned in paragraph 8 of the judgment dated 19.05.2015, it was the case of the petitioner that Section 5 of the 2010 Act granted power to the Government to regularize the appointees who satisfied the conditions mentioned therein. The provision of Section 5 of the 2010 Act was extensively quoted in paragraph 8 of the judgment. The main provision of the Section provided that notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in Section 3 thereof shall be regularized on fulfillment of the conditions mentioned therein. One of the five conditions mentioned therein, i.e., Condition No. (v), is that the appointee must have completed seven years of service as on the appointed day. The "appointed day" in terms of Section 2(c) of the 2010 Act means 'the date of commencement of this Act'. In terms of Clause (2) of Section 1 of the Act, it would come into force from the date of its publication in the Government Gazette. The Act was published in the Government Gazette on 28.04.2010 and thus commenced with effect from that date. Then the provision of Section 5 is hedged in two provisos appended thereto which have a vital bearing on the right to regularization of such appointees so created by the Statute and, in fact, founds the grievance raised in the instant review petition. Then the provision of Section 5 is hedged in two provisos appended thereto which have a vital bearing on the right to regularization of such appointees so created by the Statute and, in fact, founds the grievance raised in the instant review petition. The two provisos are quoted hereunder: "Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter, but before such regularization; Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act." 10. Then Section 10 of the 2010 Act provides for an Empowered Committee consisting of the Administrative Secretary, Finance Department as its Convener with two Administrative Secretaries of the General Administration Department and the concerned Department; and the Director General, Accounts and Treasuries, and Director Codes, Finance Department, as its Members, to whom all the cases of such appointees would be referred for scrutiny and verification and on whose recommendations the administrative departments concerned would issue orders of regularization in accordance with the procedure mentioned therein. 11. A conjoint reading of the various provisions of the 2010 Act, especially the two above quoted provisos appended to Section 5 and Section 10 thereof, makes it unambiguously manifest that such appointees could be regularized only subject to the fulfillment of conditions stipulated in Section 5 and in accordance with the procedure prescribed in Section 10, and that such regularization could be made effective only from a date posterior to the appointed day. The 2010 Act did not have any retrospective application. It is specifically provided in the first proviso appended to Section 5, as quoted above, that the regularization of such appointees under the Act shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed day or thereafter, but before such regularization, meaning thereby the regularization could not be ordered from a date anterior to the appointed day. The requirement of possession and completion of seven years' service as such, as provided in Section 5(v) of the Act, is one of the conditions of eligibility, qualifying and entitling such an appointee for regularization on or after the appointed day, not anterior thereto. 12. Coming to the judgment under review, therein at paragraph 8, after quoting Section 5 of the 2010 Act in extenso, the Court in paragraph 10 observed as under: "10. In light of the above clarification and information furnished by the Forest Department, the petitioner is satisfying the conditions contained in Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 on completion of seven years of service. The petitioner having completed seven years of service as on 23.6.2006, the respondents are bound to regularize her service with effect from 23.6.2006." 13. Obviously, there seems to have been an oversight to notice the mandate of the first proviso to Section 5 of the 2010 Act quoted in the judgment, prescribing that the regularization shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed day or thereafter, but before such regularization. 14. Since the direction to regularize the services of the writ petitioner with effect from 23.6.2006 is antithetic to the express provisions of the 2010 Act, it constitutes an error apparent on the face of record and needs to be recalled on review and rectified. 15. The writ petitioner, respondent in the review petition, however, raised an important issue. She submitted that she having been found to have completed the prescribed seven years' service much before the appointed day and fulfilling all the conditions stipulated in Section 5 of the 2010 Act, its provisions cannot be read in a manner as to confer an unbridled discretion on the concerned functionaries to order regularization of such employees as and when they wish at their whims and caprice. She submitted that there are and can be instances where such appointees completed the seven years' service much after the appointed day and have been immediately regularized. And there may be instances where the appointees had completed such period of service prior to the appointed day but were regularized, like her, after considerable delays, or not at all. She submitted that there are and can be instances where such appointees completed the seven years' service much after the appointed day and have been immediately regularized. And there may be instances where the appointees had completed such period of service prior to the appointed day but were regularized, like her, after considerable delays, or not at all. She submitted that the Government has failed to maintain any such standard with the result that a yawning gap has been left for commission of discrimination amongst similarly placed appointees. She also submitted that she has been allowed increments right from 1999 and that if her regularization is ordered to be made from a date posterior to the appointed day, her pay would need to be protected. 16. Though the submission made by the writ petitioner is not supported by any material and can be termed only to be a hypothesis, yet the possibility of failure on the part of the functionaries of the Government to maintain a vigil that no such discrimination is meted out to any appointee cannot be ruled out. Even in the case of the petitioner, keeping in view the facts and circumstances attendant to it, it would be harsh to hold that the provisions of the Act gave the respondents a discretion to the extent of regularizing her services six years after the appointed day, despite the fact that she had completed the prescribed period of service four years prior to the appointed day. It cannot be that the 2010 Act has left a gap and so much wanting in that context. The answer would need to be found from the provisions of the 2010 Act itself. 17. In fact, one would not need to delve deep into the provisions to dig out an answer thereto. Section 10 of the 2010 Act is relevant in this regard. Sub-section (1) of Section 10 prescribes the constitution of the Empowered Committee. Sub-section (2) thereof mandates that the departments shall within sixty days from the commencement of the Act refer all the cases of ad hoc or contractual or consolidated appointees eligible for regularization under Section 5 to the Member-Secretary for being placed before the Empowered Committee for scrutiny and verification with regard to their entitlement to regularization under the Act. Sub-section (2) thereof mandates that the departments shall within sixty days from the commencement of the Act refer all the cases of ad hoc or contractual or consolidated appointees eligible for regularization under Section 5 to the Member-Secretary for being placed before the Empowered Committee for scrutiny and verification with regard to their entitlement to regularization under the Act. Sub-section (3) of Section 10 then mandates that the Empowered Committee shall examine such cases and notify the names of such ad hoc/contractual/consolidated employees who have been found eligible for regularization under Section 5 of the Act in respect of each Department within fifteen days period for filing of objections before the Committee. Sub-section (4) of Section 10 prescribes that the Empowered Committee shall thereafter examine the complaints, if any, received and make appropriate recommendations to the concerned Administrative Department with regard to regularization in respect of each case on fulfillment of the conditions specified under Section 5 or rejection of the case. Then Sub-section (5) of Section 10 says that the concerned Administrative Department shall issue orders of regularization after seeking the approval of the Chief Minister through the Chief Secretary, in coordination. 18. From a bare perusal of Section 10 of the Act, it is thus seen that whereas the processes to be undertaken in terms of Sub-sections (2) and (3) thereof are time bound, Sub-sections (4) and (5) do not speak of any limitation for completion of the process of examination of the complaints, if any, received by the Empowered Committee; making of recommendations by it and the issue of orders of regularization of the concerned appointees by the Administrative Departments. However, as becomes axiomatic, the substantial part of the processes of making references by all departments in terms of Sub-sections (2), the scrutiny and verification of each individual case with regard to their entitlement to regularization under the Act and notification of the list of such appointees by the Empowered Committee in terms of Sub-section (3) of Section 10 have to be completed within 60 days plus 15 days, respectively. This constitutes the substantial part of the whole process. This constitutes the substantial part of the whole process. If the substantial part of the processes is time bound and prescribed to be completed within 75 days from the appointed day, it by no stretch of imagination can be said that the intention of the Legislature would have been to leave an unbridled discretion with the authorities concerned to complete the remaining process of examination of the complaints, if any, received by the Empowered Committee, making of recommendations by it and the issue of orders of regularization by the Administrative Departments. The act of constitution of the "Empowered Committee" and its composition by the provision of the Act itself, clearly suggests that the Legislature intended to eliminate the possibility of lackadaisical attitude by the concerned functionaries of the State and to reduce the possibility of consumption of time in completing the processes to the minimum. The Legislature clearly seems to have empowered the prescribed Committee to complete all the process at its own level to find out the entitlement of such an appointee to regularization so that no further time is wasted in the issuance of the regularization orders. This is further fortified by the provision of Section 11 of the Act which confers a right of appeal on an aggrieved person against the recommendation of the Empowered Committee, meaning thereby that credence and importance has been attached to the decision and recommendations of the Empowered Committee, not the order of regularization. Cumulatively, therefore, from the scheme of things, as discussed above, it flows that the Legislative intent seems to have been not to leave open ended discretion with the prescribed authorities, i.e., the Empowered Committee and the Administrative Department, in the matter of examining complaints, if any, received; making of recommendations and issuance of final orders of regulations. In any case, since the Sub-sections (2) and (3) of Section 10 prescribe a limitation of 75 days for completing the substantial part of the process, it is unimaginable that the remaining part of making recommendations and issuance of regularization orders should take the prescribed authorities more than that time. 19. Now, since the petitioner had completed the prescribed seven years' service on ad hoc basis much prior to the appointed day, her case for regularization would have to be considered immediately after the appointed day in terms of Section 10 of the 2010 Act. 19. Now, since the petitioner had completed the prescribed seven years' service on ad hoc basis much prior to the appointed day, her case for regularization would have to be considered immediately after the appointed day in terms of Section 10 of the 2010 Act. As held above, the period of accord of such consideration could not be unreasonably stretched beyond 75 days to complete the processes under Sub-sections (2) and (3) of Section 10 of the 2010 Act and then a maximum of further equal period would be required for completion of the remaining part of the processes under Sub-sections (4) and (5) of the said Section. In that view, the writ-petitioner would be entitled to regularization from a date, say, at best, 150 days posterior to the appointed day, which would fall somewhere towards the end of September, 2010, to be precise 26/27.09.2010. 20. In light of the above, while recalling on review the direction of the Court contained in its judgments dated 19.05.2015 passed in SWP No. 624/2014, to regularize the services of the writ petitioner with effect from 23.6.2006, the petitioner is held to be entitled to such regularization with effect from 26/27.09.2010 instead of 23.06.2006. The judgment under review is, accordingly, rectified to the above extent. 21. It may also be specifically mentioned here that Mr. M.I. Dar, the learned AAG, fairly conceded before, and assured, the Court that the benefits of whatever kind, including increments, already released in favour of, and enjoyed by, the petitioner from time to time shall not be withdrawn from her and that the same shall stand protected, and we hereby make a specific direction in that regard, based on the consent of the learned AAG. Accordingly, her pay and emoluments as on date shall stand protected. 22. In light of the above decision in the review petition, no further proceedings are required to be taken in the contempt petition filed by the writ petition, and the same, therefore, shall stand disposed of as settled. 23. Since the exercise required to be undertaken under section 10 of the 2010 Act vis-a-vis the petitioner stands already completed and, having been found fully eligible and qualified, she, in fact, was prospectively regularized, therefore, no such further process would be requires to be undertaken in her case. 23. Since the exercise required to be undertaken under section 10 of the 2010 Act vis-a-vis the petitioner stands already completed and, having been found fully eligible and qualified, she, in fact, was prospectively regularized, therefore, no such further process would be requires to be undertaken in her case. In that view of the matter, the respondents are given fifteen days' time to implement the directions as hereinabove contained and order regularization of the petitioner's services retrospectively with effect from the date determined above, protecting her pay as already mentioned, etc. Parties to bear their respective costs.