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2018 DIGILAW 955 (JK)

Khazir Mohammad Dar v. Mohammad Afzal Bhat

2018-12-06

RASHID ALI DAR

body2018
JUDGMENT : 1. Petitioner had filed the writ petition bearing SWP No.1202/2002, which came to be disposed of vide order dated 14.03.2012 with the following direction:- “...Viewed thus, this writ petition succeeds. Respondents are directed to count services of the petitioner as rendered in the Forest Department on regular basis towards his service in the Revenue Department and to fix the seniority and to pay him all the consequential benefits as shall be permissible.” 2. According to the petitioner herein, when the respondents failed to implement the said order he was constrained to launch contempt proceedings against them in terms of the instant petition. Averments in this regard in the petition have been made precisely as:- 3. Petitioner, after passing LLB examination, was appointed as Prosecuting Forest Ranger for a period of one year in the Forest Department vide order dated 05.02.1969 and he joined the said post on 14.02.1969 but after expiry of one year he was allowed to continue in service, thereafter was regularized vide order dated 15.03.1973. According to the petitioner, while he was working as Prosecuting Forest Ranger, a number of posts of Naib Tehsildars were advertised by the Revenue Department. He being eligible also submitted his application form through proper channel, which was entertained and accordingly was called for interview. On the basis of merit he was selected and appointed as Naib Tehsildar on 08.10.1973. According to the petitioner, before joining the post of Naib Tehsildar, he had obtained consent from the Forest Department and it was only thereafter he joined the services as Naib Tehsildar in the Revenue Department. Accordingly, the petitioner requested the respondents to count his services rendered by him in the Forest Department towards his seniority in the Revenue Department, which process took a long time. Vide letter dated 10.05.1997, addressed by the Additional Commissioner Kashmir to the Financial Commissioner, recommended that the services of the officer rendered by the petitioner in the Forest Department be counted towards his seniority in the Revenue Department. The respondents, instead of considering the said letter dated 10.05.1997, informed the Divisional Commissioner, Kashmir, that as the said officer was appointed on contractual basis, as such, it cannot be counted as regular appointment and the question of counting his services, therefore, does not arise. The respondents, instead of considering the said letter dated 10.05.1997, informed the Divisional Commissioner, Kashmir, that as the said officer was appointed on contractual basis, as such, it cannot be counted as regular appointment and the question of counting his services, therefore, does not arise. The petitioner approached the Court and filed the writ petition SWP No. 1202/2002, which was allowed vide order dated 14.03.2012 with the direction to the respondents to count the services of the petitioner as rendered by him in the Forest Department on regular basis towards his service in the Revenue Department and to fix his seniority and to give him all the consequential benefits as shall be permissible under rules. Respondents, however, failed to implement the said judgment constraining the petitioner to file the instant contempt petition. The respondents were accordingly asked to file statement of facts/compliance report. 4. Earlier, respondent No.2-Financial Commissioner (Revenue) had filed statement of facts on 05.10.2013, wherein it is stated that the said respondent has the highest regard for the court directions and can never indulge in an activity that can be construed as violation or disrespect of the Court. It is further stated that the case of the petitioner is in progress and the concerned authority has already recommended to Administrative Department (Revenue) to come forward with the tenure of the regularized service of the petitioner rendered by him in the Forest Department, and without knowing the factual position it is not possible to implement the directions of the court in its true spirit. However, in the statement of facts filed on 18.02.2014 on behalf of respondent No.3-Divisional Commissioner, Kashmir, it is contended that the matter of the petitioner’s service which he rendered in Forest Department for seniority in Revenue Department as Naib Tehsildar is to be fixed by Financial Commissioner (Revenue) and as Tehsildar by Administrative Department, as such, the said respondent No.3 has no role to play in the matter. 5. Mr. 5. Mr. Qayoom, learned counsel for the petitioner has invited the attention of this Court towards the order dated 15.07.2017 passed in the instant Contempt petition No.438/2013, wherein it was noticed that by one pretext or the other the implementation of the judgment in real spirit is being avoided perhaps respondents are waiting for framing of Rule against them, but on the request of learned Government Advocate some time was granted to the respondents for implementing the judgment in its letter and spirit. However, it was made clear that further default may be at the peril of the respondents and framing of a Rule for disobedience shall be imperative. Learned counsel further submitted that by virtue of another court order dated 10.10.2017, when it was noticed that nothing has been done by the respondents, personal appearance of Secretary to Government, Revenue Department was directed to explain as to why judgment was not implemented and as to why Rule shall not be framed against them for disobedience of the judgment. 6. Thereafter, in terms of the Government order No.345 of 2017 dated 22.11.2017, passed in compliance to the court orders passed from time to time, sanction was accorded to the counting of the services of the petitioner (Khazir Mohammad Dar), the then Prosecuting Forest Ranger as rendered by him in the Forest Department on regular basis w.e.f. 05.02.1969 to 23.10.1973 towards his services in the Revenue Department. Then, vide Government order No. 138-Rev(NG) 2018 dated 27.07.2018, sanction was accorded to the grant of consequential benefits viz. pay fixation/pensionary benefits, accruing as per rules on account of counting of services of the petitioner (Khazir Mohammad Dar) rendered by him in the Forest Department w.e.f. 05.02.1969 to 23.10.1973, towards his service in the Revenue Department. 7. Respondents, however, in terms of the latest compliance report dated 13.09.2018, have contended that in compliance to the Court judgment, the respondents have issued the Government order No.138-Rev(NG) of 2018 dated 27.07.2018, whereby sanction has been accorded to the grant of the consequential benefits viz. pay fixation/pensionary benefits, accruing as per rules on account of counting of services of the petitioner rendered by him in the Forest Department w.e.f. 05.02.1969 to 23.10.1973 towards his service in the Revenue Department. pay fixation/pensionary benefits, accruing as per rules on account of counting of services of the petitioner rendered by him in the Forest Department w.e.f. 05.02.1969 to 23.10.1973 towards his service in the Revenue Department. But, it is contended by the respondents that since re-fixation of seniority in a new service on the basis of the service rendered by the petitioner in the previous department and placing him above his counterparts who joined the department earlier to him, from a date when he was not even borne in the department is not covered under any of the provisions of service law, same is therefore, not permissible under rules, cannot be allowed. It is further stated that since the petitioner has already retired from service, a copy of the said order dated 27.07.2018 has been forwarded to the Accountant General, J&K, Srinagar for further necessary action. Copy of the order dated 27.07.2018 is annexed with the compliance report. 8. Response to the aforesaid compliance report filed by the respondents, stand also filed by the learned counsel for the petitioner, wherein it is stated that the directions contained in the Court order dated 14.03.2012 were required to be implemented in its entirety, however, respondents have issued the Government order dated 27.07.2018 which is not in tune with the directions of the Court. The relevant portion of the said Government order dated 27.07.2018 reads as under:- “.... Since re-fixation of seniority in a new service on the basis of the service rendered by the petitioner in the previous department and placing him above his counterparts who joined the department earlier to him, from a date when he was not even borne in the department is not covered under any of the provisions of service law, same is therefore not permissible under rules, cannot be allowed. However, the incidental benefits like pay fixation/pensionary benefits which may accrue to the petitioner on account of enhanced length of service in view of counting of his service rendered in the Forest Department towards the Revenue Department is extended in favour of the petitioner....” 9. It shall be apt here to reproduce the Article 201 of J&K CSR:- “201. However, the incidental benefits like pay fixation/pensionary benefits which may accrue to the petitioner on account of enhanced length of service in view of counting of his service rendered in the Forest Department towards the Revenue Department is extended in favour of the petitioner....” 9. It shall be apt here to reproduce the Article 201 of J&K CSR:- “201. Resignation of an appointment to take up another appointment in which service counts, is not to be held to be a resignation of the Government service, provided the consent of the former departmental superior is obtained to accepting such employment.” 10. The contention put-forth vehemently by the learned counsel is that the petitioner is entitled to all the consequential benefits consequent upon his service being counted when he joined the Forest Department. Reliance in this regard was placed on the judgment Javaid Balwan & Ors. Vs. State & Ors. decided on 21.09.2006, reported in 2006(3) JKJ 533 (HC). The respondents, according to him, cannot nullify the judgment passed in SWP No.1202/2002 on 14.03.2012 by stating that the case of the petitioner is not covered by the rules in terms of which seniority is to be fixed along-with other service benefits. 11. In the Javaid Balwan’s judgment (supra) referred by Mr. Qayoom, learned counsel for the petitioner, their lordships’ have observed as:- “179. We find the main issue raised in almost all the petitions is regarding the proper placement of the promotees and the direct recruits in the seniority lists. Once the seniority is properly fixed, the consequent benefits of higher grade, promotion and induction into the KAS will become available to the eligible officers. Thus a proper seniority list in accordance with the rules is required to be framed afresh.” 12. Mr. N.H. Shah, AAG, on the other hand contended that the order passed by the respondents regarding implementation, of which reference is found in the statement of facts filed from time to time is not in any way in breach of the judgment dated 14.03.2012 passed in SWP No.1202/2002. 13. Considered. 14. Mr. N.H. Shah, AAG, on the other hand contended that the order passed by the respondents regarding implementation, of which reference is found in the statement of facts filed from time to time is not in any way in breach of the judgment dated 14.03.2012 passed in SWP No.1202/2002. 13. Considered. 14. As seen above, the Government order No. 138 Rev (NG) 2018 dated 27.07.2018 is clearly suggestive of the fact that the respondents have not given the benefit of seniority to the petitioner from the date from which he is to be treated to be on the cadre of the Revenue Service while computing his earlier service in the Forest Department. This is clearly antithesis of the judgment dated 14.03.2012 passed in SWP No. 1202/2002. The stand taken by the respondents that seniority cannot be fixed from the time when the petitioner had not borne on the cadre of Revenue Service, cannot be accepted and needs to be turned down. Once the petitioner is held to be a member of the Revenue Service from the date when he entered into the Forest Service, he has to be treated with all the consequential benefits of being in the service including seniority, promotion, on induction in the Administrative Service in which his counterparts, who are similarly situated, have been taken. Respondents, as such, are directed and impressed upon to implement the judgment dated 14.03.2012 passed in SWP No.1202/2002 in letter and spirit. Any further attempt to thwart the implementation of the judgment will be at the peril of the respondents, as also conveyed earlier. The exercise regarding implementation be concluded thus, expeditiously as far as practicable, preferably within a period of ten weeks from today. 15. Disposed of as above.