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2016 DIGILAW 587 (JK)

Tariq Haffiz v. State of J&K

2016-11-10

ALOK ARADHE

body2016
JUDGMENT : ALOK ARADHE, J. 1. With the consent of the parties, the matter is taken on board. In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir, the petitioner inter alia has assailed the validity of the order dated 10.05.2003 by which the claim of the petitioner for regularization of the services has been rejected. The petitioner has also prayed for Writ of Mandamus directing the respondents to regularize the services of the petitioner in terms of SRO 64 of 1994 and to accord him all consequential benefits with effect from 01.04.2001. Facts giving rise to the filing of this writ petition briefly stated are that the petitioner was engaged as daily wager on 01.12.1993. The Divisional Forest Officer, Social Forestry Division, District Ramban in the list which was forwarded to higher authorities showed the date of engagement of the petitioner as 01.04.1994. Thereupon, the petitioner including 12 other employees submitted representation pursuant to which an enquiry was held by the Division Forest Officer and date of engagement of the petitioner was verified. It was found that the petitioner was engaged in the month of December, 1993. The petitioner filed the writ petition namely SWP No. 108/2002, in which he sought relief of regularization of services on the ground that the petitioner had rendered seven years of service, therefore, his is entitled to regularization of his services. The aforesaid writ petition was disposed of by a bench of this Court on 11.07.2002 with the direction to the respondents to consider the case of the petitioner for regularization within a period of three months failing which it was directed that the petitioner shall stand re-engaged after the expiry of the aforementioned period. The Divisional Forest Officer by impugned order dated 10.05.2003 rejected the claim of the petitioner for regularization on the ground that on close scrutiny of the vouchers, it was found that there is an over writing in the vouchers and the case of the petitioner is one of tempering with regard to the date of the engagement as well as the date of attendance of the duties. In the aforesaid factual background, the petitioner has approached this Court. 2. In the aforesaid factual background, the petitioner has approached this Court. 2. Learned counsel for the petitioner while inviting the attention of this court to order dated 11.7.2002 passed in SWP No. 108/2002, has submitted that the categorical finding has been recorded in the aforesaid order which has attained finality. That the petitioner has completed seven years of service and therefore cannot be termed as casual labour. It is further submitted that in the objections filed to the aforesaid SWP in para No. 5, the respondents have admitted the month of engagement of the petitioner as December, 1993. It is further submitted that in the objections filed in previous round of litigation, no objection was ever taken that the petitioner has tempered with the record of his date of engagement. Therefore such plea cannot be permitted to be raised at this stage. Lastly, it is urged that the impugned order has been passed in contravention of the order passed in SWP No. 108/2002, dated 11.07.2002 by this Court. 3. On the other hand, learned counsel for the respondents has submitted that the instant case is a case of tempering with record and on enquiry, Muster Rolls have been found to be tempered with regard to date of attendance of duties as well as the date of engagement. It is further submitted that the case of the petitioner is not covered under SRO 64 of 1994 and the order passed by the DFO is perfectly justified. I have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, in Para 5 of the objections filed in SWP No. 108/2002, the respondents have admitted that petitioner was engaged in December, 1993. From perusal of order dated 11.07.2002, the bench of this Court has held that petitioner is not a casual worker and he has rendered seven years of service and is entitled to protection of SRO 64 of 1994. It is not in dispute that the aforesaid order has attained finality. It is trite law that an order which has been passed by an authority inter se between the parties is binding on them until and unless the same is successfully challenged before the higher authority (See: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) & Ors., (1996) 1 SCC 435 . It is trite law that an order which has been passed by an authority inter se between the parties is binding on them until and unless the same is successfully challenged before the higher authority (See: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) & Ors., (1996) 1 SCC 435 . In the instant case, admittedly respondents have not challenged the aforesaid order before the Division Bench. Therefore, the aforesaid order binds them. In view of the finding recorded in the order dated 11.07.2002 which binds inter se between the parties, the impugned order dated 10.05.2003 cannot be sustained in the eyes of law as the same has been passed in contravention of the order passed by this Court in SWP No. 108/2002. In view of the finding recorded in the order dated 11.7.2002, the petitioner having completed seven years of service is entitled to benefit of SRO 64 of 1994, the impugned order is hereby quashed. At this stage, I deem it appropriate to refer to the relevant extract of the order dated 11.7.2002. "A decision would be taken within a period of three months from today. In case no decision is taken, then the petitioner shall stand re-engaged after the expiry of the aforementioned period." Admittedly the respondents have passed the order on 10.05.2003, that is, beyond the period of three months. Therefore, the petitioner is entitled to salary for a period from 11.10.2002 till 10.05.2003. Therefore, he is entitled to all consequential benefits. Respondents are directed to regularize the services of the petitioner from the date he completed seven years of service and to accord him all consequential benefits. The aforesaid exercise shall be carried out by the respondents within a period of four months from today. With the aforesaid directions, the petition stands disposed of alongwith connected MP.