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2017 DIGILAW 129 (JK)

Parvinder Singh v. State of J&K

2017-03-14

TASHI RABSTAN

body2017
JUDGMENT : Tashi Rabstan, J. Through the medium of this writ petition the petitioner is seeking quashment of Communication No. HD/NG/06/2013 dated May 2013 issued by the Secretary to Government Health and Medical Education Department, respondent No. 2 herein, whereby it has been requested to the Director Health Services, Jammu to process the case of compensation in lieu of land donated for construction of Hospital Building instead of appointing the petitioner against Class IV post in the Health Department. Accordingly, the petitioner is seeking a direction to the respondents to appoint him against Class IV post in the Health Department as has been done in case of other persons, namely, Razia Bi and Wasim Ahmed Khan. 2. While issuing notice on 11.09.2013, this Court had also directed the official respondents to consider the petitioner's case. However, during the pendency of this writ petition, learned counsel for official respondents had placed on record copy of Government Order No. 145-HME of 2014 dated 10.03.2014 issued by the Deputy Secretary to Government, Health & Medical Education Department, disallowing the case of petitioner. 3. The facts-in-brief, as averred in the writ petition, are that in the year 1981 the father of petitioner donated one kanal land comprised under Khasra No. 987, situate at Village Chhajala. Tehsil Mendhar, District Poonch to the Health Department for construction of Primary Health Centre. It is averred that the donated land was more than fifty percent of his agriculture land, but his father did not receive any compensation for the same. Further, it is averred that SRO 181 dated 03.06.1988 provided appointment of one member of the family who are left with 50% or less of their agriculture land on account of the same having been acquired by the Government for public purposes, shall be made without any reference to the Recruitment Board concerned, against a post available at the lowest rank of the cadre for which such a person is eligible. It is averred that the petitioner has passed 10+2 from Government Higher Secondary School, Mendhar in Science subjects. It is further averred that the Health Department vide Order No. 622-HME of 2010 dated 28.12.2010 has appointed respondents 4 & 5. It is averred that the petitioner has passed 10+2 from Government Higher Secondary School, Mendhar in Science subjects. It is further averred that the Health Department vide Order No. 622-HME of 2010 dated 28.12.2010 has appointed respondents 4 & 5. namely, Waseem Ahmad Khan and Razia Bi against Class-IV post in relaxation of qualification bar in lieu of the land acquired by the department in the year 1989 for construction of hospital building/residential quarter at PHC Chatryal (Poonch) in terms of provisions of SRO 181 dated 03.06.1988. Further, it is averred that the petitioner also applied for his appointment in terms of SRO 181 in January, 2012, but respondent No. 2 instead of appointing him against an available vacancy in the department in terms of said SRO and on the analogy of respondents 4 & 5, vide impugned communication directed the Director Health Services, Jammu to process the case for compensation under rules. Hence, the present writ petition. 4. Notice to respondents was issued on 11.09.2013. Thereafter, the matter was taken up on 26.11.2013, 11.03.2014, 01.04.2014, 23.04.2014, 22.08.2014 and 21.10.2014. Since the respondents did not file objections despite granting last and final opportunity, their right to file the same came to be closed on 21.11.2014. However, again on 17.12.2014 respondents were given another opportunity to file objections. Accordingly, objections on behalf of official respondents 1 to 3 came to be filed on 05.02.2015 averring therein that since the petitioner's father had himself donated one kanal land for public cause, the case of petitioner in such circumstances does not come under the purview of SRO 181 of 1988. 5. Heard learned counsel appearing for the parties, perused the file as well as the record produced by learned AAG. 6. It has not been disputed by the official respondents that in the year 1981 the father of petitioner, namely, Balwant Singh had donated one kanal of land to the Health Department for construction of Primary Health Centre. Official respondents have also not disputed about appointment of one member of the family in terms of SRO 181 dated 03.06.1988, provided the family is left with 50% or less of their agriculture land on account of the same having been acquired by the Government for public purposes. 7. Official respondents have also not disputed about appointment of one member of the family in terms of SRO 181 dated 03.06.1988, provided the family is left with 50% or less of their agriculture land on account of the same having been acquired by the Government for public purposes. 7. One of the grounds taken by the official respondents in the objections so as to oppose the claim of petitioner is that since the father of petitioner had donated the land for public cause, therefore, the petitioner was not entitled for appointment in terms of SRO 181. The Court is unable to assimilate this argument for the simple reason that the Health Department of the State is not an Orphanage where the father of petitioner would have gone on his own and donated his land then and there. Obviously, he might have been approached by the officials of the department as well as elderly/respectable members of the area for donating his land for public purpose and being convinced he had agreed to donate his agriculture land for construction of Primary Health Centre after following certain procedure. Although the father of petitioner had a petty agricultural land, yet more than fifty percent out of the said land he donated to the Health Department for a public cause. Therefore, as a welfare State, the official respondents were bound to give appointment to the petitioner in terms of SRO 181. 8. The next ground taken by the official respondents in paragraph "C" of the objections is that the petitioner's father was having much more than 11 kanals of land at the relevant time, therefore, the petitioner has wrongly averred in the writ petition that his father had donated more than fifty percent of his agriculture land; meaning thereby it seems the official respondents have wanted to plead that had the petitioner's father donated more than fifty percent of his land, the petitioner would have certainly been absorbed in the Health Department in terms of SRO 181, otherwise there is no fun of arguing such a point. 9. 9. In response to the said contention, the petitioner has filed affidavit dated 19.07.2016 along with copy of Khasra Girdawari issued by the concerned revenue authority on 13.01.2012, a perusal whereof reveals that out of 11 kanals and 06 marlas of land, only 01 kanal and 2.5 marlas of land had actually fallen in the share of father of petitioner and the rest had gone to other sharers. Thus, out of 01 kanal and 2.5 marlas of land, the father of petitioner had donated one kanal to the Health Department for construction of Primary Health Centre; meaning thereby the father of petitioner had actually donated more than fifty percent of his agriculture land to the Health Department. Therefore, on this count too, the petitioner was required to be given appointment by the official respondents in terms of SRO 181. Even the official respondents have neither opposed nor denied the said document. 10. Further, the petitioner has specifically averred in paragraphs 9 and 15 of the writ petition that two persons of same family, namely, Wasim Ahmed Khan and Razia Bi, respondents 4 & 5 herein, were given appointment against Class IV post in the Health Department in lieu of the land donated in the year 1989 for construction of hospital building/residential quarter at PHC Chatriyal, Poonch. However, the official respondents have whispered nothing regarding this in their objections; meaning thereby the respondents were not having clean mind when they filed objections and they have averred only such things in their objections which suited them. However, one of the communications annexed with the record produced by the official respondents, bearing No. ES-5/NG/8/52 dated 29.01.2010, reveals that two persons, namely, Nazir Hussain Khan and Mohd. Rafiq Khan both sons of Mohd. Aslam Khan had donated the land in the year 1989 for construction of PHC Chatriyal, and after more than twenty one years, Wasim Ahmed - respondent No. 4 son of Mohd. Rafiq Khan and Razia Bi - respondent No. 5 wife of Nazir Hussain Khan, both members of one family, came to be appointed against Class-IV post vide Order No. 622-HME of 2010 dated 28.12.2010 issued by the Principal Secretary to Government, Health & Medical Education Department in relaxation of qualification bar in lieu of the land acquired by the Health Department in the year 1989. The record further reveals that when Wasim Ahmed - respondent No. 4 came to be appointed he was simply 9th pass, whereas Razia Bi - respondent No. 5 was only middle pass. Whereas, in case of petitioner - Parvinder Singh, a perusal of writ petition reveals that when he applied for his appointment in the year 2012. he was 10+2 in science subjects, besides having light as well as commercial driving license with five years experience in driving, which fact has also not been disputed by the official respondents. Therefore, on this count too, the petitioner was fully eligible to be appointed by the respondents in terms of SRO 181, whereas respondents 4 and 5 came to be appointed in relaxation of qualification bar, which clearly reveals that the official respondents had been discriminating in making appointments in terms of SRO 181. A perusal of documents annexed with the writ reveals that even the then Health Minister, Director Health Services, Jammu, Chief Medical Officer, Poonch as well as Block Medical Officer. Mendhar had recommended for employment of the petitioner in the Health Department in lieu of the land donated by his father. It has also been admitted by the official respondents that the father of petitioner did not receive any compensation for the land donated by them in the year 1981 and now, after more than three and a half decades, the market value of the said land must have risen to many folds. 11. While allowing the appeal, what is held by a Division Bench of this Court in Bashir Ahmad Lone v. State of Jammu and Kashmir. 2009 (1) JKJ 12, filed by the appellant - writ petitioner therein, is reproduced hereunder: "We may also notice that SRO 181 is couched in mandatory terms. It talks of granting employment/appointment being made to one member without any reference to the Recruitment Board concerned, against a post available in the lowest rank of the cadre for which such a person is eligible. It further provides that in case vacancy is not available in the department which is acquiring the land, the General Department is enjoined to make such an appointment in a department where the vacancy may be available." 12. The judgment relied upon by the learned counsel for official respondents is not applicable to the facts of present case. 13. It further provides that in case vacancy is not available in the department which is acquiring the land, the General Department is enjoined to make such an appointment in a department where the vacancy may be available." 12. The judgment relied upon by the learned counsel for official respondents is not applicable to the facts of present case. 13. Therefore, in view of what has been discussed above, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed and Communication No. HD/NG/06/2013 dated May 2013 issued by the Secretary to Government, Health & Medical Education Department, respondent No. 2 herein, as well as Government Order No. 145-HME of 2014 dated 10.03.2014 issued by the Deputy Secretary to Government, Health & Medical Education Department are hereby set aside/quashed. Official respondents are directed to offer employment to the petitioner within a period of eight weeks from today in terms of SRO 181 (supra). While offering employment, official respondents would also take into consideration that besides, requisite qualification, the petitioner also possess light as well as commercial driving license with five years experience in driving. Miscellaneous petitions, accordingly, stands disposed of. 14. Before parting, I would like to project the concern of Court that such like matters ought to have been settled by the State functionaries at their own level taking the genuineness of the same. It not only wastes the time of the Court, but also unnecessary burdens the State exchequer while dealing with such cases in the Courts, besides the aggrieved persons have also to go through acute mental torture/harassment not only at the hands of persons sitting at the helm of affairs, but also while dealing with such matters in the Courts and they are also forced to spend their hard earned money to get justice. Being a welfare State, it ought to have been fair enough for every person and not to indulge in pick and choose policy. Being a welfare State, it ought to have been fair enough for every person and not to indulge in pick and choose policy. The present case is a clear example of this where on one hand the official respondents have appointed two persons of the same family in December 2010 in relaxation of qualification bar for the land acquired by them in the year 1089 and, on the other hand, they disallowed the case of petitioner despite being fully eligible in terms of SRO 181 (supra), that too when his case was being recommended by the then Health Minister, Director Health Services, Jammu, Chief Medical Officer, Poonch as well as Block Medical Officer, Mendhar. Therefore, in the given circumstances, the State is directed to bear and pay the costs to petitioner within a period of eight weeks from today after proper verification and identification, which is quantified at rupees thirty thousand. It is made clear that in case the official respondents fail to deposit the costs within the aforesaid period, Registrar (Judicial) is directed to frame a separate Robkar against them, and after issuing notice to them, list the same before the Court. 15. Registry is directed to return the record to the learned AAG against proper receipt.