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2018 DIGILAW 189 (JK)

Darakshan Anjum v. Commissioner Secretary

2018-03-29

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. 1. The case of the petitioner is that she was appointed as a daily wager in the year 1994 and continues to be so as on date. The petitioner filed a writ petition bearing SWP No. 1171/2002 earlier in point of time on the grounds that she has been denied the benefit of regularization by the respondent state. The writ petition was decided and determined in her favour and the respondents were directed to consider the case of the petitioner for regularization. The respondents passed an order bearing No. 88-Edu (Technical) 2012, dated 20.4.2012 by which they denied the claim of the regularization of the petitioner. The contention of the petitioner is that her case for regularization has been rejected on extraneous and irrelevant considerations which constrained her to file the instant petition challenging the vires of the order by which she has been denied this benefit. In the premises, the petitioner has implored the grant of following reliefs in her favour: (i) One in the nature of certiorari, quashing the impugned order dated 20.4.2012 as illegal, unfair, unjust, discriminatory, besides being against the mandate of law and mandate of judgment passed in SWP No. 1171/2002 and the observations made therein. (ii) One in the nature of mandamus, commanding the respondents to regularize the services of the petitioner strictly in accordance with the law as laid down by different courts including this court and as provided in the policy decision of the state issued in the form of SRO No. 64 of 1994, after the petitioner has completed seven years of service i.e. 2001. (iii) One in the nature of mandamus commanding the respondents to release all the arrears of salary after regularizing the services of the petitioner from the year 2001 till date along with 18% interest thereon. (iv) One in the nature of mandamus commanding the respondents to allow the petitioner to continue till she is regularized in the department and pay her salary regularly on due dates. 2. The respondents have pleaded in their reply that the petitioner filed SWP bearing No. 1171/2002 which was disposed of and allowed vide judgment dated 18.3.2010 in which they were directed to consider the appointment of the petitioner in the pay scale of Rs. 2. The respondents have pleaded in their reply that the petitioner filed SWP bearing No. 1171/2002 which was disposed of and allowed vide judgment dated 18.3.2010 in which they were directed to consider the appointment of the petitioner in the pay scale of Rs. 750-940 (pre-revised) with a further direction to allow the petitioner to rejoin the services as a daily wager and allow her to continue in such capacity till the appointment order is issued in her favour. It has also been stated in the reply that while deciding the aforesaid petition of the petitioner, the court had observed that the petitioner was illegally shown the door and it was accordingly directed that the period from 01.2.2001 up to the date of the passing of the judgment be counted for seniority benefits though she was not entitled to any wages for the said period for having not worked during such period. It has further been stated that the judgment dated 18.3.2010 passed in SWP No. 1171/2002 was assailed in an LPA wherein notice has been issued to the petitioner. It is further stated that in compliance of the court orders passed in the writ petition, the administrative department allowed the petitioner to join as daily wager subject to the outcome of LPA and her case was submitted for regularization in terms of Government Order No. 26-F of 1994 read with SRO 64 of 1994, to the Finance Department being the competent authority for the purpose. The Finance Department, it is submitted, considered the matter and observed as under: "The case has been examined in terms of the Jammu and Kashmir Daily Rated Workers/ Work Charged Employees (Regularisation), Rules, 1994, as modified SRO 64 dated 24.3.1994 and it has been observed that the concerned has been engaged by the Superintendent ITI Bandipora on 31.1.1994 as a leave substitute and engaged on wage basis from 4/1994. Thus the issue of engagement order on 31.1.1994 with a prospective date makes it clear that the incumbent had not been an active DRW on 31.1.1994 and thus the engagement is termed as one made after imposition of ban i.e. 31.1.1994." 3. Thus the issue of engagement order on 31.1.1994 with a prospective date makes it clear that the incumbent had not been an active DRW on 31.1.1994 and thus the engagement is termed as one made after imposition of ban i.e. 31.1.1994." 3. It is further submitted that on consideration of the matter in its entirety and strictly as per the orders of the court and keeping in view the observations of the Finance Department, a detailed and reasoned order came to be passed by the Government of J&K, Technical Education Department, vide Government Order No. 88-Edu (Tech) of 2012, dated 20.4.2012 impugned herein, where under the case of the petitioner has been rejected for the reasons spelled therein. 4. Heard and considered. 5. The Finance Department, as can be seen from the import of the order impugned, does not appear to have understood the extent and the scope of the judgment delivered by this court in SWP No. 1171/2002. The issues which have been raised by the Finance Department in the order impugned have already been settled and determined by this court and could not have been reopened by the Finance Department. The respondents have passed the order in such a manner as if they were deciding an appeal against the judgment of the writ Court. They have virtually reversed the findings of the writ court in passing the order of rejection of the claim of the petitioner. Vide order dated 18.03.2010 passed in SWP No. 1171/2002, this court had directed the respondents that the issue which requires to be decided in this writ petition is as to whether the petitioner's appointment will be treated from 31.1.1994 or with effect from 01.2.1994. The court further held that the appointment has a different connotation in service jurisprudence. A person appointed on a particular date by issuance of an appointment/adjustment order will stand adjusted/appointed from that particular date. The appointment/adjustment order may contain a condition that the person appointed will start working from the date subsequent to the issuance of the appointment order and that condition if contained in the appointment order would not denude the appointment of the effect of date of issuance thereof. In this backdrop, Government Order No. 26-F of 1994, dated 31.01.1994 would mean that petitioner has been appointed/adjusted on 31.01.1994. Petitioner was thus engaged/adjusted validity. In this backdrop, Government Order No. 26-F of 1994, dated 31.01.1994 would mean that petitioner has been appointed/adjusted on 31.01.1994. Petitioner was thus engaged/adjusted validity. Her engagement would not be said to have been made in violation of the Government Order No. 26-F of 1994, dated 31.01.1994. 6. The court also held that the contention of learned counsel for respondents that the petitioner has been engaged by the incompetent authority does not find any support from any Government order. It is not shown to the Court that Superintendent, ITI was an incompetent authority to engage the daily rated workers. Nothing is brought to the notice of the Court as to who was the authority designated by the Government to appoint daily rated workers. It will thus be presumed in law that the Superintendent, ITI at the relevant point of time was competent authority. At paragraph 3 and 4 of the reply affidavit, respondents claim that petitioner's service was dispensed with effect from 01.02.2001. Respondents have thus admitted that the petitioner had completed seven years of service as daily rated worker. In view of the paragraph 1(a) of the Government Order No. 26-F of 1994, dated 31.1.1994, a right is vested in the petitioner for being appointed in regular pay scale of Rs. 750-940 proved she satisfied the other requirements of the said order. The dispensation of the service of the petitioner with effect from 1.2.2001 is rendered illegal. Petitioner had accrued a right in terms of Government Order No. 26-F of 1994 for being appointed in the regular pay scale of Rs. 750-940 and she could not be stripped off this right without following the procedure established by law. The petitioner is held to be entitled for regularization of her services in terms of Government Order No. 26-F of 1994, dated 31.01.1994 read with SRO 64 of 1994. 7. The court proceeded to hold that for the above stated reasons, this petition is allowed and the issuance of a writ of Mandamus the respondents are directed to consider the appointment of the petitioner in the pay scale of Rs. 750-940 (pre-revised). Respondents are further directed to allow the petitioner to rejoin her services as daily wager and she will continue in such capacity till the appointment order is issued in her favour. 750-940 (pre-revised). Respondents are further directed to allow the petitioner to rejoin her services as daily wager and she will continue in such capacity till the appointment order is issued in her favour. It is further provided that as the petitioner has been illegally shown the door, the period from 01.02.2001 upto passing of this judgment will be counted for her seniority benefits and she will not be entitled for any wages for the period having not worked thereof. 8. The Court examined all the issues as would give the petitioner the right of consideration for her appointment in the pay scale of Rs. 750-940 (pre-revised) and the respondents had no authority or power to re-open the issues which had already been decided and determined in the judgment. 9. Viewed in the above context, the petition of the petitioner is allowed as a consequence of which the impugned order dated 20.4.2012 having been passed against the directions of this court extended in SWP No. 1171/2002 is quashed and the respondents are commanded to accord fresh consideration to the regularization of the petitioner strictly in accordance with the directions extended by this court in SWP No. 1171/2002.