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2018 DIGILAW 241 (JK)

Ab. Latief wani v. State of J & K

2018-04-19

ALOK ARADHE

body2018
JUDGMENT : Alok Aradhe, J. The petition is admitted for hearing. With the consent of the learned counsel for the parties, the matter is heard finally. 2. In this petition, the petitioner, inter alia, has assailed the validity of 1st Proviso to Section 5 of the J&K Civil Service (Special Provisions) Act, 2010. The petitioner further seeks writ of mandamus commanding the respondents to regularize the services of the petitioner as Driver with effect from 01.04.1998 instead of 25.07.2013 with all consequential benefits, i.e., arrears of pay, revision of pay made from time to time and seniority. 3. The facts giving rise to the filing of the present writ petition briefly stated are that the petitioner was appointed as Driver against the clear vacancy on Casual Basis by respondent No. 3 vide order dated 01.03.1991 for a period of 89 days. The period of engagement was extended from time to time. The respondent No. 3 vide order dated 03.07.1992 accorded sanction for the appointment of the petitioner as Driver on adhoc basis for a period of 89 days against a clear vacancy. The aforesaid arrangement was continued by granting extensions from time to time. The respondent No. 4, thereafter issued an order dated 07.07.1993 whereby the petitioner was allowed to continue as Driver against the vacant post of Driver in the office of Block Development Officer, Bhaderwah till further orders or till the post was filled up by the competent authority. Even since his appointment, the petitioner is performing the duties on the post of Driver. 4. The respondent No. 3 vide his communication dated 02.02.2010 addressed to respondent No. 2 submitted the requisite information in respect of adhoc/contractual/consolidated salaried employees working in Rural Development Department, Jammu Division as per the prescribed proforma. In the aforesaid proforma “A” the petitioner figures at serial No. 2 and his date of appointment has been rightly shown as 01.03.1991 and it has also been clearly stated that the petitioner has been appointed against a clear vacancy. Subsequently, the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (herein-after to be referred as the 'Act of 2010') came into force and in pursuance of Section 5 of the aforesaid Act, the services of the petitioner have been regularized vide Government order dated 25.07.2013 prospectively. In the aforesaid factual background, the petitioner has approached this Court. 5. Subsequently, the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (herein-after to be referred as the 'Act of 2010') came into force and in pursuance of Section 5 of the aforesaid Act, the services of the petitioner have been regularized vide Government order dated 25.07.2013 prospectively. In the aforesaid factual background, the petitioner has approached this Court. 5. Learned counsel for the petitioner while referring to paragraph 6 of the objections filed on behalf of the respondents, submitted that the respondents have virtually admitted the claim of the petitioner. It is also claimed that the petitioner is giving up the relief with regard to challenge of 1st Proviso to Section 5 of the Act of 2010, in lieu of Government Order No. 1285-GAD of 2001, dated 06.11.2001. It is also submitted that in terms of Government Order dated 06.11.2001 the petitioner's services are entitled to be regularized with effect from 01.04.1998 with all consequential benefits, i.e., arrears of pay, revision of pay made from time to time and seniority. 6. On the other hand, learned Deputy Advocate General submitted that under Section 5 of the Act of 2010, the services of the petitioner have rightly been regularized with effect from 25.07.2013 and the case of the petitioner is covered under the new pension scheme. 7. I have considered the submissions made by the learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of relevant extract of Government order No. 1285-GAD of 2001, dated 06.11.2001, which reads as under:- “Now, therefore, it is hereby ordered that-all-adhoc appointees to non-gazetted posts recruited from time to time beyond 29.12.1988 till the date of issue of this order who are still in service be considered for regularisation after completing seven years of continuous service from the date of appointment dispensing with reference of posts, held by them to Service Selection Board subject to the following conditions that:- (1) he/she is a permanent resident of J&K State. (2) on the date of his/her initial appointment his/her age was within the minimum and maximum age limit as prescribed for appointment in Government Service. (3) he/she possesses the prescribed academic and/or technical qualification for the post against which he/she is required to be regularized. (2) on the date of his/her initial appointment his/her age was within the minimum and maximum age limit as prescribed for appointment in Government Service. (3) he/she possesses the prescribed academic and/or technical qualification for the post against which he/she is required to be regularized. (4) he/she is not retiree from any State or Central Government Service or any local body, Public Sector Undertaking or Autonomous Body in or outside the State. (5) His/her work and conduct has remained satisfactory during the period he/she worked as adhoc appointee and no disciplinary proceedings or vigilance case is pending against him/her, and (6) He/she has completed seven years continuous period of working as adhoc employee; (7) The orders of regularization of adhocees will be issued by the concerned administrative departments after getting the cases screened/cleared by the Committee constituted for regularization of daily rated workers. (8) The regularization will apply only in respect of appointments made against direct quota posts. It is further ordered that:- (a) All administrative Departments shall communicate to the Services Selection Board the particulars of all such posts Occupied by the adhoc appointees which stand already referred to the SSRB and inform the Board that all such posts shall be deemed to have been withdrawn from it after particulars of such posts are received by them. (b) Henceforth no department shall make adhoc appointment without explicit approval of the HCM in coordination as required in terms of Rule 14 of the J&K CCA Rules, 1956. Any officer found to have violated the rules shall be dealt with severely. (c) In respect of all cases of Gazetted Officers appointed on adhoc basis the posts may be referred immediately to/the Public Service Commission, if not already done, after, however, seeking prior clearance from the standing Screening committee constituted vide Government Order No. 129-F of 2001, dated 7.4.2001.” Admittedly, the petitioner fulfils the criteria laid down in the aforesaid Government order and, therefore, is entitled to regularization of his services on completion of 7 years of continuous services with effect from 01.04.1998 and is entitled to all consequential benefits. Needless to state that the petitioner's case shall be governed under the old pension scheme, as he has been regularized with effect from 01.04.1998. Let this exercise be carried out within a period of two months from the date of receipt of a certified copy of the order passed today. 8. Needless to state that the petitioner's case shall be governed under the old pension scheme, as he has been regularized with effect from 01.04.1998. Let this exercise be carried out within a period of two months from the date of receipt of a certified copy of the order passed today. 8. With the aforesaid directions, the writ petition is disposed of along with connected MP. Petition disposed of.