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2017 DIGILAW 996 (JK)

Swarn Lal v. State of J&K

2017-11-10

SANJEEV KUMAR

body2017
JUDGMENT : Sanjeev Kumar, J. 1. Through the medium of this writ petition, the petitioners seek issuance of writ of mandamus directing the respondents to issue corrigendum to the order dated 13.05.2010 treating the petitioners in service from 2002 or in the alternative from 2005 with all consequential benefits, besides a writ of mandamus directing the respondents not to compel the petitioner to fill up the form under new SRO wherein their services are being treated as non-pensionable and to implement the judgment dated 31.12.2007 passed in SWP No. 961/2003 along with batch of writ petitions in letter and spirit, which stands upheld by the Division Bench. The brief facts leading to the filing of this writ petition are that in the year 1998, respondent No. 2 invited applications from eligible candidates of Jammu Division for the post of Library Bearers/Gasmen/Orderlies and Safaiwallas vide advertisement notice No. 1 of 1998, dated 21.04.1998. The petitioners applied in response to the said advertisement notice and their application forms were found in order. Select Committee was constituted vide order No. DSEJ/910-17, dated 08.08.1998, besides laying down the criteria for selection. According to the petitioners, a fraudulent list was prepared and submitted to respondent No. 2 seeking approval, who on finding the selection illegal and in contravention of the prescribed procedure and instructions, vide order No. DSEJ/Gen/7566-7826, dated 28.06.1999 cancelled the appointments made by the Chief Education Officers, Jammu, Kathua, Poonch, Udhampur and Rajouri. When this fact came to the notice of respondent No. 1, he vide his order No. 906-Edu. of 1999, dated 05.07.1999 kept the order of respondent No. 2 in abeyance. Subsequently, on thorough examination vide No. 309-Edu. of 2000, dated 24.04.2000 appointments made by the Chief Education Officers were found to have been made not in consonance with the provisions of law and accordingly, order of respondent No. 2, dated 28.06.1999, whereby appointment orders issued by the Chief Education Officers were cancelled, was allowed to operate. 2. Various writ petitions came to be filed against the aforesaid orders dated 28.06.1999 and 05.07.1999, which came to be disposed of by a common judgment, directing the State Government to re-examine the whole case and issue the list before 31.07.2000. 2. Various writ petitions came to be filed against the aforesaid orders dated 28.06.1999 and 05.07.1999, which came to be disposed of by a common judgment, directing the State Government to re-examine the whole case and issue the list before 31.07.2000. In compliance to the directions of this Court, the Government on examination of the matter decided to initiate fresh selection process and accordingly, respondent No. 2 issued advertisement No. 1, dated 26.04.2000 inviting applications from all districts of Jammu Division for the aforesaid posts. During currency of the selection process, Government vide order No. 556-Edu. of 2002, dated 11.04.2002 ordered that Class-TV employees shall be considered for appointment against the vacancies in the District to which they belong temporarily on consolidated salary of Rs. 1200/- per month till such time the fresh merit list is drawn after completing the selection process. According to the petitioners, all the ousted Class-IV employees were re-inducted in service by an illegal order. Subsequently, vide order No. 383-Edu. of 2003, dated 04.04.2003 all the aforesaid employees were regularized in regular pay scale of Rs. 2550-3200 with immediate effect but the cases of the petitioners were not considered at all. 3. Against order dated 04.04.2003, various writ petitions came to be filed and this Hon'ble Court disposed of all the writ petitions by a common judgment dated 31.12.2007 passed in SWP No. 961/2003 along with connected matters. The appointment of private respondents was found not proper. However, the matter was left the matter to the official respondents to consider the cases of the petitioners therein on the parity of the petitioners in SWP No. 1476 of 2003, who had been offered job by the official respondents. The official respondents instead of according consideration to the case of the petitioners decided to file appeal against the judgment dated 31.12.2007. A Division Bench of this Court disposed of LPASW No. 49/2008 vide order dated 30.07.2009 and directed that exercise in terms of the judgment and order under appeal be completed within a period of six months. 4. Thereafter in compliance to the directions of the Writ Court and the Division Bench issued Order No. 440-Edu. of 2010, dated 13.05.2010 thereby according sanction to the appointment of 243 petitioners. The petitioners in pursuance of the orders of appointments, submitted their joining reports and have been working in the respective schools, where they have been posted. 4. Thereafter in compliance to the directions of the Writ Court and the Division Bench issued Order No. 440-Edu. of 2010, dated 13.05.2010 thereby according sanction to the appointment of 243 petitioners. The petitioners in pursuance of the orders of appointments, submitted their joining reports and have been working in the respective schools, where they have been posted. Thereafter, petitioners again represented before the respondents that their appointments should have been given at least from 11.04.2002, when the illegal appointees were re-inducted in service. 5. The respondents in their objections have stated that as per the factual as well as legal position, the petitioners cannot claim for giving effect of appointment retrospectively w.e.f., 11.04.2002 or from the date writ petitioner in Basharat Hussain's case were appointed especially when the appointment of petitioners has been issued in pursuance of the directions of Court. It has been further submitted that as per the mandate of law, the seniority including the monetary benefits accrue to an incumbent with reference to the date the post is offered to an incumbent in pursuance of the appointment order. It is further stated that once the appointment offered has been duly accepted by the petitioner, they cannot claim retrospective effect to their appointment from the date when they were not selected either legally or illegally nor were holding the posts even on temporary basis. It is stated that since the petitioners have not challenged the benefit given to the petitioners in Basharat Hussain's case (supra), they cannot claim analogy. Lastly, respondents stated that for all practical purposes the petitioners shall be deemed to be the appointee of 2010 and not of the year 2000 or when the petitioners in Basharat Hussain's case (supra) were offered appointment, as such, the petitioners being appointees of 2010 are governed by the new pension scheme. 6. In response to the objections filed by the respondents, the petitioners have filed rejoinder in which it has been stated that because of the illegal action of the official respondents, the petitioners cannot be victimized by denying them the appointment retrospectively, though notionally. 7. Heard learned counsel for the parties and perused the record. 8. 6. In response to the objections filed by the respondents, the petitioners have filed rejoinder in which it has been stated that because of the illegal action of the official respondents, the petitioners cannot be victimized by denying them the appointment retrospectively, though notionally. 7. Heard learned counsel for the parties and perused the record. 8. Before proceeding further, it would be appropriate to take note of the concluding para of the judgment dated 30.07.2009 (supra), which reads thus:- "In the circumstances, for all practical purposes, it must be deemed that by way of a policy decision, the State Government created 417 more posts and in those posts, by the order dated 04.04.2003 those 417 persons, who were permitted to work on temporary basis by the order dated 11.04.2002, were regularized. In consequence thereof, it must be deemed that there are still 417 posts available. The number of writ petitioners is less than 417. Accordingly, all of them can be accommodated. There will, therefore, be no occasion to take recourse to upsetting the orders of the Government dated 11.04.2002 and 04.04.2003. In the circumstances, the exercise to be undertaken in terms of the judgment and order under appeal be completed within a period of six months from today and to that extent the judgments and order under appeal is modified with clarifications." 9. From the careful perusal of the operative portion of the judgment reproduced herein above and in the context of controversy involved in the letters patent appeal, it would transpire beyond any doubt that the appointment of 417 persons, who were initially engaged on consolidated basis and later on regularized, was saved by the Division Bench of this Court by holding that for the purpose of accommodating the aforesaid 417 persons, equal number of Class-IV posts, i.e., 417 shall be deemed to have been created by way of policy decision and consequently 417 posts, which had been actually occupied by the aforesaid incumbents appointed initially on consolidated basis and then regularized shall be deemed to have become available. It is against these 417 posts, which became available consequent upon the judgment of the Division Bench; the writ petitioners in all the writ petitions from where LPA had been arisen including the petitioners in this petition were ultimately accommodated. It is against these 417 posts, which became available consequent upon the judgment of the Division Bench; the writ petitioners in all the writ petitions from where LPA had been arisen including the petitioners in this petition were ultimately accommodated. It, therefore, can be said that 417 posts became available for filling up only on the date of passing of the judgment by the Division Bench on 30.07.2009. Since the petitioners were accommodated against the aforesaid posts, therefore, the plea of the petitioners that they were entitled to appointment from retrospective date, as prayed for by them in this writ petition, is misconceived and cannot be accepted. 10. Right to appointment accrued to the petitioners in terms of the judgment of the Division Bench dated 30.07.2009 only, which the Division Bench had directed to be implemented within a period of six months. The petitioners at the most can claim their appointment with effect from 30.01.2010. The petitioners, however, still be governed by the provisions of SRO 400, dated 24.12.2009, which, inter alia, provides that all the State Government Employees appointed on or after 01.01.2010 shall be governed by "New Pension Scheme" and the pension rules, which were applicable to the employees appointed or brought on regular establishment before 01.01.2010 shall not be available to such employees. It is noted that the petitioners in this case were appointed subsequent to the issuance of Government Order No. 440-Edu. of 2010, dated 13.05.2010, granting sanction to appointment of petitioners, passed by respondent No. 1 in compliance to the direction issued by the Division Bench. 11. Learned counsel for the petitioners as well as respondents cited case laws in support of their rival contentions raised in this writ petition. 12. I have gone through the judgments cited at bar and found that the same have been passed in different context and have, therefore, no application facts and circumstances of this case. The appointment has been offered to the petitioners pursuant to the directions issued by the Division Bench vide judgment dated 30.07.2009. That being the position, this Court cannot issue any direction, which is not in consonance with the judgment of the Division Bench. The Division Bench held the petitioners entitled to appointment, to be offered to them by the respondents, within a period of six months from the date of judgment. That being the position, this Court cannot issue any direction, which is not in consonance with the judgment of the Division Bench. The Division Bench held the petitioners entitled to appointment, to be offered to them by the respondents, within a period of six months from the date of judgment. As already stated since the judgment was passed on 30.07.2009, the petitioner could have been offered appointment at any time up to 30.01.2010. There was, however, some delay on the part of the respondents to comply with the directions, as such; appointment orders in the case of petitioners were issued after issuance of order dated 13.05.2010, whereby sanction for their appointment had been accorded. 13. In view of the aforesaid analysis and the reasons given herein above, this writ petition is disposed of by directing the respondents to treat the petitioners to have been appointed w.e.f. 30.01.2010 and would be governed by the New Pension Scheme in terms of the provisions of SRO 400, dated 24.12.2009. Writ petition along with connected MP stands disposed of.