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2018 DIGILAW 1031 (JK)

Balkees Begum v. State of J&K

2018-12-28

RAJESH BINDAL

body2018
JUDGMENT : 1. Writ petition has been filed by the petitioner praying for quashing of Order No. 87-HME of 2015 dated 30.03.2015, vide which the claim of the petitioner for regularization has been rejected. Further a direction has been sought to regularize the services of the petitioner. 2. Learned counsel for the petitioner submitted that petitioner was appointed as Junior Assistant on ad hoc basis vide order dated 31.03.1998. As the services of the petitioner were sought to be discontinued, she approached this Court by filing SWP No. 770/1998. Vide interim order dated 29.05.1998 she was allowed to continue. The writ petition was disposed of on 12.03.2001 with a direction that claim of the petitioner be considered along with others when regular selection is made and, if she is in service, she be allowed to continue. Even since her appointment she is continuing in service. At present she has more than 20 years of service to her credit but still vide impugned order her claim for regularization has been rejected for the reasons, which are totally alien to the provisions of the Jammu and Kashmir Civil Services Special Provisions Act, 2010 ( hereinafter referred to as ‘the Act’). He further submitted that appointment of the petitioner as such was challenged by one Hanifa Akhter by filing SWP No. 2213/2002 which was allowed without notice to the present writ petitioner, with a direction that steps be taken for filling up the post held by the petitioner. However, in LPASW No. 232/2011 filed by the present petitioner the aforesaid order was set aside. The writ petition was dismissed and direction was given for considering her claim in terms of the Act. Despite this order, the claim of the petitioner for regularization has been wrongly rejected. The impugned order does not suggest as to which of the conditions the petitioner does not fulfil in terms of the Act. The claim was rejected despite positive recommendations made by the concerned authorities. 3. On the other hand, learned counsel for the respondents submitted that it was not a case of normal appointment rather fraudulent entry in Government service. The than Director Health Services, Jammu, on the date of his retirement i.e. 31.03.1998 appointed as many as 56 candidates by adopting illegal methods. 3. On the other hand, learned counsel for the respondents submitted that it was not a case of normal appointment rather fraudulent entry in Government service. The than Director Health Services, Jammu, on the date of his retirement i.e. 31.03.1998 appointed as many as 56 candidates by adopting illegal methods. Immediately after the order came to the notice of the higher authorities in the department, on 01.04.1998, i.e. the very next day, order of appointment was directed to be kept in abeyance. The appointment of the petitioner was specifically cancelled vide Order dated 12.05.1998. In fact, all other candidates who were appointed along with the petitioner by adopting illegal means by the than Director Health Services, were either removed from service or not allowed to join. Number of writ petitions were filed in this Court challenging the orders dated 01.04.1998 and 12.05.1998, which were dismissed by this Court. It was a backdoor entry. The petitioner had been continuing in service because of interim order passed by this Court. As the petitioner was illegally appointed, no benefit will accrue to her. The illegality cannot be allowed to be perpetuated especially when the petitioner is continuing in service because of interim orders passed by this Court as the authorities cannot be made to suffer by order passed by this Court. Even if the petitioner fulfills the conditions laid down for regularization under the Act, it is because of the protection granted by the Court and not otherwise. 4. Heard learned counsel for the parties and pursued the paper book. 5. A perusal of the impugned order passed by Commissioner-Secretary to Government, Health and Medical Education Department shows that the claim of the petitioner has been rejected for the reason that she entered the service by fraudulent means. It states that the then Director Health Services, on the date of his superannuation, appointed 56 candidates by adopting illegal means. Immediately vide order dated 01.04.1998 passed by the Director Health Services, Jammu, the order of appointment dated 31.03.1998 was directed to be kept in abeyance. No one could possibly join when the order was directed to be kept in abeyance the very next day, especially when the petitioner claims that she was appointed in District Rajouri, which is about 150 kilometers from Jammu. But it is claimed that the petitioner managed to join. No one could possibly join when the order was directed to be kept in abeyance the very next day, especially when the petitioner claims that she was appointed in District Rajouri, which is about 150 kilometers from Jammu. But it is claimed that the petitioner managed to join. Vide order passed by the department on 12.05.1998 all the appointments made by the than Director Health Services vide order dated 31.03.1998, were cancelled. The impugned order records that number of writ petitions were filed in this Court challenging orders dated 01.04.1998 and 12.05.1998, which were dismissed by this Court. The same was the stand taken by the learned counsel for the respondents. 6. The petitioner had earlier approached this Court on 29.05.1998 by filing SWP No. 770/1998, much after order dated 12.05.1998 was passed cancelling her appointment order dated 31.03.1998. As an interim measure this Court directed that petitioner be allowed to continue, if her service have not been terminated as on date. The writ petition was disposed of on 12.03.2001 by passing the following order: “This petition is disposed of with the direction that the claim of the petitioner be considered along with others when regular selection is made. If the petitioner is in service her service be not brought to an end." 7. Despite this fact the department slept over the matter. Regular selection was also not made and the petitioner continued in service. One Hanifa Akhter filed SWP No.2213/2002 challenging continuation of the petitioner in service, which was disposed of on 28.04.2011, directing the authorities to fill up the post held by the petitioner by following due process as per Rules. The aforesaid order passed by the learned Single Judge was challenged by the petitioner by filing LPASW No. 232/2011. Vide order dated 04.04.2013 the aforesaid order passed by the learned Single Judge was set aside and respondents were directed to consider the case of the present petitioner for regularization and take a decision in accordance with law. It is thereafter that the case of the petitioner for regularization was taken up and taking into consideration the fact that her initial appointment was illegal, the same was rejected. 8. I do not find any error in the order passed. It is thereafter that the case of the petitioner for regularization was taken up and taking into consideration the fact that her initial appointment was illegal, the same was rejected. 8. I do not find any error in the order passed. It is not in dispute that initial appointment of the petitioner by the then Director Health Services, Jammu, on the date of his superannuation, when he appointed 56 candidates by adopting illegal means, was illegal. The very next day the order of appointment was directed to be kept in abeyance and the appointment was finally cancelled vide order dated 12.05.1998. Writ petitions challenging the aforesaid orders by the candidates were dismissed. How the petitioner got copy of the order dated 31.03.1998 and managed to join the very next day at a distance of 150 kilometers, is a mystery. The petitioner had been continuing in service because of various orders passed by this Court, which will not come to her rescue because no one can be prejudiced with any interim order passed by the Court. As petitioner’s entry into service was in view of illegal appointment, it cannot be said that the petitioner fulfill the conditions laid down under the 2010 Act, where one of the conditions is that the candidate must have been appointed against a clear vacancy/ post. Appointment would definitely mean by adopting proper procedure and not by adopting illegal means. An illegality cannot be allowed to be perpetuated. 9. For the reasons mentioned above, I do not find any merit in this writ petition and the same is, accordingly, dismissed.