J&K Power Development ... vs Jai Krishan And Others
2021 Latest Caselaw 1692 j&K

                                                                            Sr. No. 44



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
CJ Court

Case: LPA No. 98 of 2021

J&K Power Development Corporation and                                .....Appellant(s)
another

                                 Through :- Sh. F.A. Natnoo, AAG.

                          v/s

Jai Krishan and others                                             .....Respondent(s)
                                 Through :- Ms. Shivani Jalali, Advocate.


       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                    ORDER

1. The J&K Power Development Corporation (J&K PDC) and its Chief

Manager have preferred this letters patent appeal assailing the judgment and

order dated 04.05.2017 passed by the writ court deciding SWP No. 2443/2010,

Jai Krishan and others v. State of Jammu and Kashmir and others.

2. The writ court by the impugned judgment and order, inter alia, has

directed the appellants to regularize the services of the petitioners/respondents

as helpers with effect from the date the services of Junior Engineers came to be

regularized i.e. 16.01.2010.

3. The short controversy which has been raised in this appeal is not

with regard to regularization of the petitioners/respondents who were working

as helpers but the date from which they are entitled to the said regularization.

4. Sh. F. A. Natnoo, learned AAG appearing for the appellants submits

that the petitioners/respondents are not entitled to regularization with

retrospective effect from 16.01.2010 and they do not stand in parity with the

junior engineers who were regularized from the aforesaid date. The

petitioners/respondents, in fact, were not entitled to regularization from the

aforesaid date in the absence of any Rules and Regulations for such

regularization. They were appointed temporarily on need basis and not on

contractual basis.

5. Sh. Natnoo, AAG in connection with his submissions has drawn the

attention of the court to the prayers made by the petitioners/respondents in the

writ petition. A perusal of the reliefs sought by the petitioners/respondents in

the writ petition reveals that they sought regularization of their services w.e.f

16.01.2010 since the junior engineers appointed along with them or

subsequently were regularized from the said date. A prayer for regularization

was also made in view of Government Order No. 1423-GAD of 2009 dated

14.10.2009 on the basis of which the Junior Engineers appointed with the

petitioners/respondents were regularized. They also claimed direction for

regularization on the basis of Section 10 of Jammu and Kashmir Civil Services

(Special Provisions) Act, 2010 (for short 'the Act of 2010') again w.e.f

16.01.2010 the date on which the Junior Engineers appointed with them or

subsequently were regularized.

6. Sh. Natnoo in view of prayers so made submits that as neither the

Government order dated 14.10.2009 nor the Act of 2010 was applicable to the

JKPDC, the petitioners/respondents were not entitled for any regularization

thereunder.

7. A perusal of the reliefs or the directions sought in the writ petition

reveals that the petitioners/respondents wanted regularization of their services

on the posts of helpers w.e.f 16.01.2010. This regularization has been claimed

by them for two reasons; first, persons appointed along with them or later on,

such as, Junior Engineers were regularized from the aforesaid date and they

were left out for no rhyme or reason. Second, they are entitled to regularization

in service in the light of Government order dated 14.10.2009 and the Act of

2010. In substance, the petitioners/respondents have claimed regularization in

service w.e.f 16.01.2010. So we have to examine if they are entitled to

regularization from the said date for any reason whether on account of the

Government order or the Act of 2010 or independently.

8. Even if we assume for the sake of argument that the Government

order dated 14.10.2009 and the Act of 2010 are not applicable to the employees

of the J&KPDC, nonetheless it is evident from the record that the

petitioners/respondents were appointed in August 2002 and vide order dated

06.08.2004, their engagement as casual staff was extended till 31.03.2005

along with four Shift Engineers and five Junior Technicians on consolidated

monthly emoluments.

9. The said engagement of the petitioner/respondents and the junior

engineers, etc was continued from time to time with revision in their

emoluments. Thus, the record clearly reveals that the appointments of all the

aforesaid persons were by the same order on the same date. The J&KPDC in

response to the writ petition has accepted that they do not have their own Rules

and Regulations regarding the service/regularization of service of the

employees and that they are following the Rules and Regulations of the

Government.

10. It is also admitted that vide order dated 16.01.2010, sanction was

accorded to the regular appointment of the junior engineers giving the benefit

of the government order dated 14.10.2009. If the said government order was

not applicable to the Corporations such as J&KPDC, it is beyond

comprehension how the benefit of the said Government order was extended to

the junior engineers. The government order dated 14.10.2009, inter alia,

provides that employees appointed against clear vacancy/post and are

continuing to work as such without any break with requisite qualification and

eligibility either on adhoc or contractual or consolidated basis shall be

considered for regularization for which purpose information was required to be

furnished by the concerned departments.

11. The said Government order was circulated by the Administrative

Officer, J&KSPDC Ltd to all Chief Engineers and Chief Project Officers vide

letter dated 11.11.2009 for providing necessary information for further action,

meaning thereby, that J&KPDC consciously proceeded to apply the said

government order to its staff also. In pursuance of the said letter, requisite

information was furnished and the name of the respondents were shown at

Serial numbers 7 to 17 in the proforma furnished regarding employees working

on consolidated pay against the clear vacancy. The said proforma clearly

reveals that the petitioners/respondents were appointed on the same date as the

junior engineers and that their date of initial appointment happened to be

02.08.2002 which was against the clear vacancy and that they are continuing in

service.

12. In view of information so furnished by the J&KPDC itself, it is

amply clear that the petitioners/respondents and the aforesaid junior engineers

were appointed together on the same date against clear vacancies and all of

them have continued to function, but the service of the junior engineers alone

were regularized on 16.01.2010 leaving the petitioners/respondents. No

discrimination could not have been meted out to the petitioners/respondents

merely for the reason that they were holding different posts. The government

order dated 14.10.2009 made no distinction on the ground of post for the

regularization of services. Therefore, if the benefit of regularization under the

said government order could be extended to junior engineers, there is no reason

why the same could not have been extended to the petitioners/respondents who

were working against the posts of helpers.

13. The learned Single Judge repelled the submission of the J&KPDC

that the appointment of the petitioners/respondents was on need basis and has

recorded a clear finding of fact that they were engaged in August 2002 along

with the junior engineers purely on contractual basis on consolidated monthly

emoluments and not on need basis. It was further observed that the Chief

Engineer, JKPDC, Jammu had filed a false affidavit in this regard on account

of which costs of ₹55,000/- was imposed. In view of above finding of the

Single Judge, the petitioners/respondents stand in parity with the junior

engineers.

14. It may not be out of context to mention here that the documents on

record reveal that the Committee consisting of Financial Commission,

Commissioner/Secretary, JKPDD and the Managing Director, JKSPDC all

through had been recommending for the continuation of the

petitioners/respondents in service on contractual basis on consolidated monthly

emoluments.

15. The learned Single Judge even turned down the submission that the

junior engineers were regularized as they were doing commendable jobs and

recorded a finding that in view of continued requirement of man-power for the

operation and maintenance of the Grid Station as extensions were given in

favour of the petitioners/respondents without any break since their engagement

in 2002, it clearly means that they were also performing well and their services

were imperative and, therefore, they cannot be distinguished from the junior

engineers.

16. In the light of the facts and circumstances stated above, we do not

find any justification on part of the appellants in not regularizing the services

of the petitioners/respondents w.e.f 16.01.2010 the date on which junior

engineers appointed along with them in the same manner and even those

appointed three years later were regularized.

17. Accordingly, we find no merit in the appeal and same is dismissed.

                         (JAVED IQBAL WANI)                       (PANKAJ MITHAL)
                                    JUDGE                            CHIEF JUSTICE
JAMMU
16.12.2021
Raj Kumar

                         Whether the order is speaking?     : Yes/No.

                         Whether the order is reportable?   : Yes/No.