Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 645 (JK)

Rumil Sharma v. State of J&K

2017-08-16

JANAK RAJ KOTWAL

body2017
JUDGMENT : 1. These are two writ petitions filed by petitioner, Rumil Sharma. 2. The common ground of both the sides is that respondents 4 to 6 (private respondents) were initially engaged by the State Road Transport Corporation, herein respondents 2 & 3, (for short to be referred to as the respondent-Corporation) on consolidated basis in January, 2002. Shortly after their engagement they were sent on deputation to the Motor Vehicles Department of the State. In the same year, respondent-Corporation by its order No. 627-JKSRTC/MD of 2002 dated 01.08.2002 regularized all the consolidated payees engaged up to ending April, 2002 as helpers in the pay scale of Rs.2550-3300 in their regular establishment. It is alleged by the petitioner that the initial engagement of the private respondents was made without inviting applications and adopting the selection process. This is not denied by the respondent-Corporation. 3. The writ petition in SWP No. 791/2002 was filed by the petitioner challenging primarily the consolidated engagement of the private respondents and their deputation to the State Government. In addition, he sought writ of mandamus directing the respondent-Corporation to appoint him also on consolidated basis on the same analogy and writ of prohibition restraining the respondent-Corporation from regularizing the services of the private respondents. 4. As the order of regularization was issued after filing of the aforementioned writ petition on 1.8.2002, the petitioner filed the other writ petition in SWP No. 07/2003, whereby, besides reiterating the reliefs sought in the earlier Writ Petition, he also challenged and sought quashing of the said regularization order. 5. Heard learned counsel for the parties and perused the record. 6. The consolidated engagement of the private respondents and their subsequent regularization is challenged by the petitioner on the ground that the said engagement was made clandestinely without inviting applications from all the eligible candidates and adopting any selection process. Their deputation to the government is challenged on the ground that under Article 52 of the Jammu and Kashmir Civil Services Regulations only a Government employee can be sent on deputation so the deputation of a consolidated payee employee is illegal. It is alleged that the impugned regularization order has been issued with mala fide intention of appointing blue eyed persons in the Corporation. It is alleged that the impugned regularization order has been issued with mala fide intention of appointing blue eyed persons in the Corporation. It is contended also that the impugned regularization order is a post dated order as, in spite of having been issued on 01.08.2002, it was given effect from 01.10.2002. 7. Learned counsel for the petitioner, Mr. Rahul Pant argued vehemently that the initial engagement of the private respondents was illegal and was aimed at giving them the benefit of regularization in near future. Learned counsel sought to point out that shortly after their consolidated engagement, the proposal for regularization of all such employees engaged up to ending April, 2002 came to be mooted. The initial engagement and regularization of the private respondents was made in violation of the right of equality guaranteed under Article 14 and 16 of the Constitution as equal opportunity of applying for such engagement was not given to all the eligible candidates, including the petitioner. Mr. Pant sought to point out that engagement on daily wages or consolidated basis is justified only in a case of the urgent requirement of the employer but in this case absence of any urgency is evident from the fact that shortly after their engagement on consolidated basis, all the private respondents were sent on deputation to the State Government. 8. Having not denied the initial engagement of the private respondents on consolidated basis, the stand of the respondent-Corporation in its reply precisely is that in the year 2002, the Corporation had regularized the services of all its consolidated payees as helpers in the pay scale of Rs.2550-3300 with the approval of the competent authority. The private respondents, who were also working as consolidated payees, were, therefore, similarly regularized. Petitioner, however, was not working with the respondent-Corporation so no benefit could be given to him. 9. Mr. R. Koul, Advocate, appearing on behalf of the respondent-Corporation, supported by Mr. F.S. Butt, Advocate, appearing on behalf of the private respondents, argued that the respondent-Corporation had engaged the private respondents on consolidated basis in the circumstances prevailing at the relevant time, the private respondents are now working with the Corporation from the last about 15 years so disturbing their employment at this stage is neither justified nor in the interest of justice. The petitioner, on the other hand, it was argued by Mr. The petitioner, on the other hand, it was argued by Mr. Koul, has no locus standi to challenge the initial engagement or the regularization of the private respondents without challenging the regularization of lot others who were similarly engaged and regularized and impleading all of them in these petitions. Mr. Koul relied upon a Division Bench Judgment of this Court in Narinder Singh and anr. v. Kartar Chand and ors., 2016 (1) SLJ 65. 10. The factum of the initial engagement of the private respondents on consolidated basis is not disputed. It has been found on scrutiny of the record produced on behalf of the respondent-Corporation that more than 200 persons working in the respondent-Corporation on consolidated basis were regularized by virtue of the impugned order dated 01.08.2002. The process of regularization started with the proposal of the than Managing Director of the Corporation to the Chairman of the corporation, who approved regularization of all of them as junior helpers against 180 available posts of junior helpers and by abolishing 65 vacant posts of sweepers. All of them were regularized. In such a factual backdrop, the petitioner’s challenge to the engagement and regularization of the three persons only cannot be upheld in absence of any challenge to the engagement and regularization of all the similarly situated persons. Examining the legality of the employment of the private respondents, which might have the possibility of throwing them out, need not be taken up also having regard to the fact that they are now working in the Corporation because of their regularization from the last more than 15 years and throwing them out at this stage would not be justified. In taking such a view, I am supported by the Division Bench judgment of this Court in Narinder Singh’s case (supra). 11. In Narinder Singh’s case, the learned Division Bench has relied upon a decision of the Supreme Court in Union of India and ors. v. K.P. Tiwari, 2002 AIR SCW 2684 in which their Lordships have held in paragraphs 4 & 5: “4. It is unnecessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been engaged now and has been in service for more than five years. v. K.P. Tiwari, 2002 AIR SCW 2684 in which their Lordships have held in paragraphs 4 & 5: “4. It is unnecessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been engaged now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood. 5. In that view of the matter, we decline to interfere with the order made by the High Court. The appeals are accordingly dismissed.” 12. The learned Division Bench has also relied upon another decision of the Supreme Court in D.M. Prem Kumari v. the Divisional Commissioner, Mysore Division and ors. (2009) 2 Supreme 271 , where their Lordships in para 11 have observed: “11. Having given our anxious consideration to the case pleaded by the learned counsel for the parties, we are of the view, that it would not be desirable to decide this case on merits. If we have to do it, we might have to tell the appellant that she might have to go out of the employment. This, in our opinion, would cause great hardship and injustice to the appellant.” 13. Likewise, no relief, much less a direction to engage/appoint the petitioner on the analogy of private respondents can be granted because this Court should not issue a direction to grant parity with an action, which is alleged to be illegal by the petitioner. Position might have been different had the petitioner at the relevant time, instead of rushing to this Court, applied to the respondent-Corporation for engaging him also on the analogy of the private respondents and his request was refused. These writ petitions, therefore, do not deserve to be granted and necessity of examining the legality of the appointment of the private respondents and returning verdict of this Court does not arise. 14. The matter, however, cannot be closed here only lest impression goes that this court has approved and upheld the action of the respondent-Corporation in first engaging such a large number of persons on consolidated basis and then regularizing them at a subsequent stage. 14. The matter, however, cannot be closed here only lest impression goes that this court has approved and upheld the action of the respondent-Corporation in first engaging such a large number of persons on consolidated basis and then regularizing them at a subsequent stage. It is noticed on scrutiny of the record produced on behalf of the respondent-Corporation that by virtue of Order No. JKSRTC/MD/C/385 dated 04.06.2001 issued by the then Managing Director of the Corporation sanction was accorded to temporary adjustment of the candidates working on consolidated wages in the pay scale of Rs. 2550-3300 against vacancies available in the Corporation. This order was made effective from 1.7.2001. By a subsequent order issued shortly thereafter by the same Managing Director on 14.07.2001, the scope of the order dated 04.06.2001, however, was restricted to those persons only who had been engaged on consolidated basis from time to time on the analogy of SRO 43. Neither of these two orders seems to have been implemented. On the other hand, after a gap of over one year the same Managing Director in the month of July, 2002 placed a proposal before the Chairman of the Corporation in reference to the order dated 04.06.2001 (supra) and 04.07.2001 (supra). In this proposal, the Managing Director proposed inter alia the conversion of all the consolidated payee employees (SRO cases engaged after 04.06.2001 and the consolidated payee engaged on need basis till ending April, 2002) as junior helpers. This proposal got approval from the Chairman on 31.07.2002 and the impugned regularization order was issued on 01.08.2002. 15. What is important to note is that the order No. JKSRTC/MD/C/385 dated 04.06.2001, whereby the consolidated payee employees working in the respondent-Corporation up to that time were to be regularized, or the order dated 14.07.2001, whereby only those consolidated payee employees were to be regularized who had been engaged on the analogy of SRO 43, was not implemented for more than a year till another proposal came to be submitted by the Managing Director in the month of July, 2002. This proposal was approved by the Chairman on 31.7.2002 and was promptly implement by issuing the impugned order of regularization on 1.8.2002. This proposal was approved by the Chairman on 31.7.2002 and was promptly implement by issuing the impugned order of regularization on 1.8.2002. Significant to note is that, whereas by virtue of the earlier order dated 04.06.2001 the benefit of regularization was given to all those consolidated payee employees who had been engaged up to that time and by the order dated 14.7.2001 the benefit was further restricted to the employees engaged on the analogy of SRO 43, by virtue of the subsequent proposal of the Managing Director and its approval by the Chairman benefit of regularization was extended to the consolidated payee employees who were engaged even after 4.6.2001 up to ending April, 2002 like the private respondents. Record produced on behalf of the respondent-Corporation does not contain the requisite information to ascertain as to how many persons were engaged after 4.6.2001 up to ending April, 2002 inasmuch as the list of the persons regularized by virtue of the impugned order dated 1.8.2002 is not lying on the record. 16. Important questions, thus, arising would be; i. Whether and, if so, how many persons were engaged in the respondent-Corporation on consolidated basis after 4.6.2001 up to ending April, 2002? ii. Whether engagement of any person in the aforementioned period was justified and was in good interest of the Corporation and should they have been given the benefit of regularization within one year of their engagement? iii. Whether the later proposal of the Managing Director of the Corporation leading to regularization of the consolidated employees engaged after 4.6.2001 was a device to pave way for more consolidated engagements after 4.6.2001 and giving them benefit of regularization? 17. It hardly needs to be stated that public employment is a national wealth in which all similarly situated citizens are equally entitled to share. No class of people can be preferred and allowed to monopolies the public employment. Equal opportunity in the matters relating to public employment is guaranteed as a Fundamental Right of all the citizens of this country. It is to ensure this Fundamental Right to every citizen, that the Government enacts laws and frames rules and regulations for regulating the recruitment to the public employment. Equal opportunity in the matters relating to public employment is guaranteed as a Fundamental Right of all the citizens of this country. It is to ensure this Fundamental Right to every citizen, that the Government enacts laws and frames rules and regulations for regulating the recruitment to the public employment. State and its instrumentalities are bound under the Constitution to provide equal opportunity to all the eligible candidates for appointment to a service on its cadre/establishment, may it be regular or otherwise, like ad hoc, consolidated basis etc. which is possible by public notification of the vacancies and impending recruitment. 18. For the aforementioned, while not finding a fit case for allowing these writ petitions for the reasons discussed above and, therefore, dismissing the same, this Court feels it apt to direct the authorities in the State Government, as they may be, to order inquiry into the questions identified above for the better health of the respondent-Corporation. Registry shall send a copy of this judgment to the State Government through the Administrative Secretary, Department of Law for necessary action. 19. Disposed of.