Jammu & Kashmir High Court
J&K Service Selection Board & Anr vs Pawan Kumar And Others on 10 February, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Pronounced on 10.02.2021.
LPA No. 224/2019
CM Nos. 6873/2019 &
6874/2019
J&K Service Selection Board & anr. ....Appellant(s)/Petitioner(s)
Through :- Mr. Amit Gupta, AAG
V/s
Pawan Kumar and others ....Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
Per : Thakur-J
01. The present Letters Patent Appeal has been preferred against the
judgement and order dated 27.12.2018 passed in SWP No. 556/2015.
02. Since there is a delay of 167 days in preferring the appeal, an
application seeking condonation of delay has been filed by the appellant. In the
application, the applicant has tried to explain the delay by stating that on receipt
of copy of the judgement dated 27.12.2018 from the Court, the record of the
case was processed at different levels for the implementation or otherwise of
the judgment.
03. It is further stated that after the matter was examined at different
levels, the issue was referred to the Law Department for its examination and
opinion and that the Law Department vide communication dated 16.04.2019
sanctioned the filing of the present appeal. It is further stated that upon receipt
of communication dated 16.04.2019, the counsel took steps for drafting the
LPA and that considerable time was consumed in preparing the same, as the
documents were not legible and some of the records had to be obtained from
Srinagar.
04. On a bare perusal of the condonation application, it transpires that
the averments made in the application are general in character and do not at all
explain as to how and at which level the delay took place.
05. While delay is bound to take place in the normal functioning at the
different levels of the governmental hierarchy and further that it may not be
necessary to explain each and everyday‟s delay, yet the explanation should be
one which inspires confidence that the delay was indeed, such, which could not
have been avoided.
06. The communication dated 16.04.2019 addressed to the learned
counsel for the appellant does not at all refer to any communication which was
addressed to the Law Department for its opinion. In our opinion, the delay has
not been satisfactorily explained. However, considering the fact that the
learned counsel for the appellant emphasized that an important question of law
arises in the present LPA, we decided to examine the matter on merits along
with the condonation of delay application.
07. The case of the petitioner/respondent No. 1 before the Writ Court
was that he had responded to an advertisement No. 01 of 2011 dated
31.01.2011 for the post of Cultural Assistant, as an in-service candidate. At this
stage, it is necessary to reproduce the relevant clause from the advertisement
notice prescribing the age of eligibility :-
"I (D) Age as on 01.01.2011 should not be :-
(i) below the age of 18 years
(ii) above the age of:
a. 37 years in case of Open Merit.
b. 40 years in case of SC/ST/RBA/ALC/OSC
candidates.
c. 39 years in case of Physically challenged
candidates.
d. 48 years in case of Ex-Servicemen.
e. 40 years in case of candidates already in
Government Service/ Contractual
employees."
The petitioner perhaps wanted the benefit of Clause I(D)(ii)(e),
which prescribed the maximum age of 40 years in case of in-service
Government employees/ contractual employees.
08. To show that the petitioner was an in-service candidate, reliance was
placed upon the initial order of engagement dated 03.06.2006 issued by the
Chief Education Officer, Doda, appointing inter alia the petitioner whose name
was figuring at Sr. No. 3 in the said order, wherein the petitioner was engaged
as Teacher in the subject of Botany on a consolidated pay @ Rs.7,000/- per
month on contractual basis for a period of sixty days.
09. Subsequently vide order dated 05.08.2006, the CEO, Doda issued an
extension order indicating that the candidates already engaged on contractual
basis be permitted to work for a period of sixty days more with a break of two
days with the same terms and conditions.
10. Vide order dated 10.10.2006, the terms of petitioner/respondent No.
1 was further extended, which reads as follow:-
"All Post-Graduate candidates already engaged on
contractual basis (on academic arrangement basis) in
your school in various subject for a period of sixty
days may be allowed work for further a period of
sixty days more with a break of two days with the
same terms and conditions laid down in previous
orders, except those candidate engaged on
rationalized posts."
11. Subsequent orders of extension appear to have omitted the phrase „on
contractual basis‟ and substituted the same with „on academic arrangement
basis‟. The reason why the petitioner was trying to establish his case as an in-
service candidate working on contractual basis was the advertisement notice,
which prescribed the age of eligibility as 40 years.
12. Much before the issuance of the advertisement notice dated
31.01.2011 there was in existence the Government order No. 102 GAD of 2007
dated 27.01.2007, which clarified that the contractual employees would be
deemed to be in-service candidates for grant of relaxation in the upper age
limit.
13. The petitioner‟s/respondent No‟s. 1 application was, accordingly,
forwarded by his parent department and on the basis of merit found his name at
Sr. No. 1 in the select list in the Open Merit category. However, the
recommendation for appointment was withheld for the following reasons:-
"Recommendation withheld subject to the production of
order mentioning that the applicant was appointed as
contractual Lecturer."
14. It appears that the Directorate of School Education, Jammu
responded to the communication dated 10.02.2014 issued by the Secretary,
Service Selection Board, which is as under:-
" Kindly refer to the subject/reference cited above. In
this context, I am directed to enclose the order copy and
experience certificate issued by the Principal HSS
Malanoo, District Doda in favour of Sh. Pawan Kumar,
S/o Hans Raj Gupta worked as contractual basis on
academic arrangement Lecturer since 06.06.2006 to
20.12.2013 vide Director School Education Jammu's No.
DSEJ/Gen/Acad/3334-40 dated 23.05.2006, now
appointed as Cultural Assistant (Jr. Scale) forwarded
by CEO Doda's No. CEO/D/Estt/27880-81 dated
20.12.2013 for favour of further necessary action."
15. Failure to get appointed the petitioner was forced to file the writ
petition, which was allowed by the Writ Court by virtue of judgement and order
impugned dated 27.12.2018. The Writ Court held that there was no reason not
to consider the petitioner‟s engagement on contractual basis, especially when
the Education Department‟s communication dated 25.02.2014 had specifically
clarified that the petitioner had been working on contractual basis from
06.06.2006 to 20.12.2013. It was further held that while the initial orders of
appointment and extension did not mention the words „academic arrangement‟,
the same were incorporated in the subsequent communications. It was thus held
that any candidate appointed on contractual basis for teaching would be for
academic purposes only and therefore, would not make any difference to the
nature of appointment of the petitioner.
16. The controversy thus revolves around as to whether the respondent
No. 1 was entitled to be categorized as a contractual employee with a view to
enable him to get the benefit of Clause I(D)(ii)(e) of the advertisement notice
in regard to age and whether there was at all any difference between a
contractual employee and one engaged on academic arrangement basis.
17. Learned counsel for the appellant could not satisfy us as to how the
Jammu & Kashmir Civil Services (Special Provisions) Act, 2010 (in short the
Act of 2010) and in particular definition of contractual appointee under Section
2(f) therein could be read to disentitle the respondent No. 1 from claiming
himself to be an in-service candidate. Section 2(f) of the Act of 2010 inter alia
defines "contractual appointee" to mean a person who has been appointed on
contract basis against any post under the Government.
18. Since reliance has been placed upon the Act of 2010, we may briefly
refer to the same.
19. Section 5 of the aforementioned act is the charging section, which
envisages the regularization of adhoc or contractual or consolidated appointees
subject to the following conditions:-
(i) that he has been appointed against a clear vacancy or
post;
(ii) that he continues as such on the appointed day;
(iii) that he possessed the requisite qualification and
eligibility of the post on the date of his initial
appointment on adhoc or contractual or consolidated
basis as prescribed under the recruitment rules
governing the service or post;
(iv) ............................
(v) ............................
............................"
20. A reference to the initial order of engagement of the respondent No.
1 issued as early as in the year 2006 reflects that the petitioner was engaged on
contractual basis against an available vacancy, although on a consolidated pay
of Rs. 7,000/- per month and with nominal breaks. Even the Act of 2010 does
not in any manner disentitle the respondent No. 1 to claim the status of a
contractual employee.
21. The respondent No. 1 has competed on his own strength in the Open
Merit category and figured at Sr. No. 1 in the merit list. To deny him the benefit
as an in-service candidate, in our opinion, would be thus not only unjust but
even contrary to the initial term of engagement of the petitioner as also the
clarification issued by the General Administration Department dated
27.01.2007.
22. Having considered the matter, in our opinion, we cannot persuade
ourselves to allow either the application, seeking condonation of delay or for
that matter, the Letters Patent Appeal, which is also found to be without any
merit and is accordingly dismissed along with connected application.
23. Disposed of accordingly.
(Rajnesh Oswal) (Dhiraj Singh Thakur)
Judge Judge
JAMMU
10..02.2021
(Muneesh)
MUNEESH SHARMA
2021.02.10 18:02
I attest to the accuracy and
integrity of this document
