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2018 DIGILAW 828 (JK)

Nirmala Devi v. J&K State Board of School Edu.

2018-10-24

SANJEEV KUMAR

body2018
JUDGMENT : 1. Employment Notice No. F(Admn-B)CU/13 dated 09.02.2013 issued by respondent No. 1 is under challenge in both the writ petitions and Advertisement Notice No. F(Admn-B)CU/16 dated 22.01.2016 issued by the respondent No. 5 for calling the candidates for written test has also been called in question by the petitioners in SWP No. 157/2016. The grievance of the petitioners in both the petitions is same and the reliefs sought are similar and identical. These petitions were, therefore, heard together and are being decided by this common judgment. 2. Facts in brief as narrated in these petitions are that pursuant to Advertisement Notification No. F(Admn-B)CU/2004 dated 17.02.2004 issued by respondent No. 1, the petitioners came to be selected and engaged as Desk Job Workers on consolidated wages initially for a period of 60 days. Their engagement, however, was later on extended from time to time in view of the their satisfactory service. One Parvinder Kumar Lehria who had competed along with the petitioners in the selection process conducted in pursuance of Advertisement Notice dated 17.02.2004 but had not been selected by the selection committee, challenged the selection and engagement of the petitioners in SWP No. 1520/2004. The writ petition was disposed of by a Single Bench of this Court while holding that extension given to the services of the petitioners beyond 60 days was unjustified and unwarranted. The Court further directed the respondents to hold the fresh selection process for engagement of persons for Desk Job within a period of one month. The respondent No. 1 was also directed to discontinue the engagement of the petitioners. 3. Feeling aggrieved, the petitioners challenged the order of learned Single Judge in LPASW No. 64/2007 and LPASW No. 61/2007. Both the appeals were dismissed by a common judgment dated 11.10.2010. However, while dismissing the appeals, the Division Bench of this Court directed that the entire process of fresh selection as directed by the Writ Court shall be undertaken and completed within three months and till such fresh selection was made, the petitioners would not be disengaged. 4. Pursuant to the Division Bench judgment dated 11.10.2010 (supra), respondent No. 1 vide his order dated 07.01.2011 directed the disengagement of the petitioners as Desk Job/Consolidated Workers. 4. Pursuant to the Division Bench judgment dated 11.10.2010 (supra), respondent No. 1 vide his order dated 07.01.2011 directed the disengagement of the petitioners as Desk Job/Consolidated Workers. The order dated 07.01.2011 was challenged by the petitioners in SWP No. 56/2011 in which a Bench of this Court vide its interim order dated 14.01.2011 directed the respondents not to disengage the services of the petitioners till the process of selection in terms of the Division Bench judgment dated 11.10.2010 was completed. It may be noted that the judgment was passed by the Division Bench on 11.10.2010 and respondents had been given three months’ time to conclude the entire selection process within three months but the same was not even initiated for pretty long time. It was only on 09.02.2013 the impugned Employment Notice was issued by the respondent No. 1 inviting applications for making selection of Desk Job Workers on consolidated wages of Rs. 3750/- per month for a transitory period of 60 days only extendable at the option and the requirement of the respondent-Board. The petitioners claim that the impugned employment Notice is not inconformity with the directions issued by the LPA Bench in LPASW No. 64/2007 and LPASW No. 61/2007 and therefore, seek to challenge the same on several grounds which shall be adverted to hereinafter. The petitioners in these petitions are also praying for a direction to allow them to serve in their respective place of postings till regular selection as directed by the Division Bench is made. There is also a challenge thrown to various appointments made by the respondents from time to time from the year, 2002 onward along with their regularization order, though the beneficiaries of such irregular appointments have not been arrayed as party respondents. 5. The respondents have filed their objections. In the objections the stand taken to justify the impugned Employment Notice is that it has been issued by the respondents in compliance to the directions of the Division Bench dated 11.10.2010. There is, however, no rebuttal by the respondents with regard to the specific contention raised by the petitioners that some of the consolidated workers who had been engaged by the Board without any selection process have been regularized by the Board. 6. There is, however, no rebuttal by the respondents with regard to the specific contention raised by the petitioners that some of the consolidated workers who had been engaged by the Board without any selection process have been regularized by the Board. 6. Having heard learned counsel for the parties and perused the record, I am of the view that the decision of these petitions primarily turns upon the interpretation of the Division Bench judgment of this Court dated 11.10.2010. The contention of the learned counsel for the petitioners is that the clear mandate of the Division Bench judgment is to hold the fresh selection process for making the regular selection against the posts held by the petitioners and till such fresh selection is made, not to disengage the petitioners. On the contrary, the argument of the respondents is that the Division Bench had directed only to conduct the fresh selection after it concurred with the Single Bench that the earlier selection process was lacking transparency, fairness and reasonableness and that the petitioners are liable to be replaced by the candidates who are ultimately selected in the fresh selection process initiated by the respondents in terms of the employment notice impugned in these petitions. From perusal of the judgment of the Single Judge dated 10.04.2007 passed in SWP No. 1520/2004 filed by the Parvinder Kumar Lehria which was subject matter of challenge in LPASW No.64/2007 and LPASW No. 61/2007, it transpires that writ petitioner, Parvinder Kumar Lehria, who was not selected by the respondents in the selection process initiated pursuant to Advertisement Notification dated 17.02.2004, challenged the selection of the petitioners inter alia on the ground that the selection process conducted by the respondents was not fair and transparent. Learned Single Judge after considering the rival contentions and going through the selection record held that the process of selection was unfair and held the selection of the petitioners herein unjustified. The other aspect which was considered by the Writ Court was that even the extension given to the engagements of the petitioners was not in consonance with law, in that, the initial engagement was only for a transitory period of 60 days and provision of extension incorporated in the appointment orders of the petitioners was contrary to what was contained in the Advertisement Notification. It is in this factual background, the Writ Court quashed the engagement of the petitioners and directed the respondents to conduct the fresh selection. On appeal by the petitioners, the LPA Bench upheld the judgment passed by the Writ Court after finding that the selection to the post of Desk Job lacked transparency, fairness and reasonableness. However, the Division Bench varied the schedule fixed by the Writ Court for making fresh selection and instead of one month’s time given by the Writ Court, the Division Bench granted three months’ time to the respondents to complete the fresh selection process. The Division Bench further provided that till such selection was made, the petitioners would not be disengaged. A careful reading of the judgment of the Writ Court as well as Division Bench referred to above makes it abundantly clear that the selection process in which the petitioners had been engaged as Desk Job Workers on consolidated basis for a period of 60 days was held to be bad. The Court also found the provision in the order of engagement of the petitioners for extension of their engagement beyond the period of 60 days illegal and not in conformity with the stipulation contained in the Advertisement Notification. The observations of the Writ Court which are reproduced herein below are noteworthy to appreciate the point in issue in these writ petitions: “Yet another thing which come up for discussion at the time of hearing of this petition was that the respondent-Board of School of Education had been continuing the engagements meant only for a transitory period of 60 days and it was admitted by the learned counsel for the parties that the engagement of the private respondents was still continuing. This appears to be a device employed by the Board of School Education to continue casual/temporary, engagements thereby sacrificing the Rules, Guidelines and Instructions governing engagement of permanent, temporary or casual employees. Casual, ad hoc or temporary engagements cannot be a substitute for regular employment de hors the Rules in force governing such recruitment and appointments. Casual, ad hoc or temporary engagements are permissible only for a short period. These engagements, cannot be continued beyond the prescribed period lest these engagements may deprive all those who may be entitled to seek permanent employment to these positions in accordance with the Rules. Casual, ad hoc or temporary engagements are permissible only for a short period. These engagements, cannot be continued beyond the prescribed period lest these engagements may deprive all those who may be entitled to seek permanent employment to these positions in accordance with the Rules. Engagement of private respondents beyond a period of 60 days too in this unjustified. Appointment order of the private respondents incorporating a clause that their engagements would be extendable on the basis of their satisfactory performance, was contrary to what was contained in the Notification of the Board of School Education. This clause in the impugned Notification is, therefore, un-warranted” 7. The Division Bench has concurred with the judgment of the Writ Court in-toto except that instead of one month it has granted a period of three months from the date of judgment to complete the fair selection process and it also protected the engagements of the petitioners till such selection was made. 8. Viewed in this context, it is clear that the true mandate of the directions passed by the Single Bench and upheld by the Division Bench was to initiate and conclude a fresh selection process for filling up the posts of Desk Job Workers including those held by the petitioners on substantive basis. It is not understandable as to whether the respondents failed to appreciate the true import of the directions passed by this Court or deliberately resorted to the same device of making temporary engagements for 60 days with provision for extension which had already been deprecated by the Writ Court as well as the LPA Bench, while rendering the aforesaid judgments. 9. In this view of the matter, this Court is inclined to accept the argument of learned counsel for the petitioners that the respondents could not have resorted to a fresh selection process for once again making the temporary engagements for a transitory period of 60 days with a provision for extension subject to satisfactory performance of the incumbents. The petitioners are right in their submission that in terms of the directions issued by the Division Bench they are entitled to continue till a fresh selection process is conducted and the posts held by them are regularly filled up. The petitioners are right in their submission that in terms of the directions issued by the Division Bench they are entitled to continue till a fresh selection process is conducted and the posts held by them are regularly filled up. Admittedly, the respondents have not conducted any fresh selection process for filling up the posts on regular basis and therefore, as per the mandate of the directions of the Division Bench, the petitioners are entitled to continue till they are replaced by the incumbents substantively appointed pursuant to such selection process. The employment Notice impugned in these writ petitions is, on the face of it, contrary to and in violation of the Division Bench judgment dated 11.10.2010 (supra). 10. Insofar as the plea of the petitioners that by afflux of time and their continuous officiation on the posts for the last fourteen years, the petitioners have acquired a mantle of permanency, is concerned, it may be noted that it is true that due to the developments that have taken place subsequent to the Division Bench judgment and which are purely attributable to the respondents who failed to appreciate the import of the directions of the Division Bench, the petitioners have continued in their engagements for the last fourteen years. It is also not the case of the respondents that they do not require the services of the petitioners. They issued the impugned employment notice only because they needed Desk Job Workers to carry out the official work of the respondent-Board. Job of Desk Job Workers in the Board is perennial in nature. Respondents have also not disputed the fact that many workers who were similarly engaged and even those who had been engaged without even following any selection process have been regularized by the Board from time to time. In such circumstances denying the similar relief of regularization to the petitioners who, admittedly, came to be engaged after they competed in a selection process initiated by issuing a public notice may not be justified. It is, however, true, that the selection process pursuant to which the petitioners came to be engaged was found to be lacking fairness and transparency by this Court and thus held to be bad. There is also a direction by the Division Bench to initiate process of selection afresh. 11. It is, however, true, that the selection process pursuant to which the petitioners came to be engaged was found to be lacking fairness and transparency by this Court and thus held to be bad. There is also a direction by the Division Bench to initiate process of selection afresh. 11. Be that as it is, the respondents have not complied with the Division Bench judgment dated 11.10.2010 till date and have rather acted contrary thereto. They have not come up with any advertisement notification to make the regular selection but have resorted to the device of regularizing the services of temporary and consolidated workers. By their sheer neglect and by not complying with the directions issued by the Division Bench to undertake and complete the selection within three months, the respondents have created a situation where the petitioners have been continued in their engagements for the last fourteen years. Resultantly most of them have by now become overaged for Government employment. Had the respondents initiated the fresh process of selection within the time stipulated by the Division Bench, the petitioners would have, at least, got the opportunity to compete and who knows, maybe all or some of them would have been selected. In such situation and in the circumstances narrated above, this Court cannot afford to be mute spectator to the injustice perpetrated on the petitioners and is of considered view that substantial justice in the matter can only be done through innovative interpretative process. It is, thus, held that failure of the respondents to adhere to the time schedule fixed by the Division Bench for conducting selection process has given new dimension to the rights of the petitioners. The continuation of the petitioners beyond the period of three months fixed by the Division Bench for making regular selection, would, therefore, be deemed to be a fresh engagement. That being so, the petitioners are entitled to be considered for regularization of their services in terms of the provisions of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 on completion of seven years of their services. 12. For the forgoing reasons, these writ petitions are allowed. The petitioners shall be deemed to have been engaged afresh on consolidated basis with effect from 08.01.2011 i.e. immediately on the expiry of three months from the date of Division Bench judgment dated 11.10.2010 (supra) rendered in LPASW Nos. 64/2007 and 61/2007. 12. For the forgoing reasons, these writ petitions are allowed. The petitioners shall be deemed to have been engaged afresh on consolidated basis with effect from 08.01.2011 i.e. immediately on the expiry of three months from the date of Division Bench judgment dated 11.10.2010 (supra) rendered in LPASW Nos. 64/2007 and 61/2007. The petitioners are also held entitled to regularization of their services in terms of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 on the completion of seven years services to be reckoned with effect from 08.11.2011 with all consequential benefits. Respondent-Board to consider the case of the petitioners as directed hereinabove and pass appropriate orders of their regularization within a period of two months from the date a certified copy of this judgment is made available to the respondents. Respondent-Board shall also take into consideration that persons similarly engaged as Desk Job Workers (some even engaged without any selection process) have been regularized by the Board from time to time.