Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Another vs Aijaz Muzaffar on 15 September, 2021
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
LPA No.134/2019
State of J&K and another ....Appellants.
Through: Mr. D. C. Raina, AG, with Mr. Sajad Ashraf, GA.
Vs.
Aijaz Muzaffar ....Respondent(s)
Through: Mr. N. A. Ronga, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
15.09.2021
Pankaj Mithal, CJ
01. Under challenge in this appeal is the judgment and order dated
16.10.2018 by which the learned single Judge has allowed/ disposed of
SWP No.1833/2016 : Dr. Aijaz Muzaffar v. State of J&K and anr.
02. The writ court by the impugned judgment and order quashed the
orders dated 5th September, 2014, issued by the Secretary to the
Government General Administration Department, Jammu/ Srinagar, and
also the order dated 4th June, 2015 issued by the Commissioner/
Secretary to the Government, Health and Medical Education
Department, Jammu/ Srinagar. In addition to quashing of the above two
orders, the Court directed for according fresh consideration to the case
of the petitioner/ respondent for regularization of his services in terms of
the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010, on
the same parameters as had been laid down in the select list dated 25 th
October, 2008. It further directed to give all consequential benefits as
might have accrued to the petitioner/ respondent in respect thereof and
post him in the same district for which the notification was issued. The
above exercise was expected to be completed within a period of two
months.
03. We have heard Mr. D. C. Raina, learned Advocate General,
assisted by Mr. Sajad Ashraf, GA, for the appellants and Mr. N. A.
Ronga, learned counsel for the respondent.
04. Learned Advocate General submitted that the relief granted by
the writ court is conflicting in nature. At one place it quashes the order
of granting age relaxation to the petitioner/ respondent for the purposes
of appointment as well as the appointment order and at the same time
directs for regularization of his services. Secondly, straightway
directions for granting consequential benefits and for posting the
petitioner/ respondent at a particular district could not have been issued
by the writ court except directing for such consideration.
05. Mr. N. A. Ronga, learned counsel for the respondent, in defence
contends that there is no error or illegality in the impugned judgment.
The petitioner/ respondent figured in the select list dated 25 th October,
2008 at Sr.No.5 and was entitled to appointment in pursuance thereof
along with other candidates on contract basis. The other appointees have
been regularized and as such petitioner/ respondent is also entitled for
the same benefit with retrospective effect.
06. The facts of the case reveal that the Deputy Commissioner,
Budgam, vide notification dated 1st January, 2008 invited applications
from the permanent residents of the Jammu & Kashmir State to fill up
the vacancies of Dental Surgeons in the department of Health at
Budgam on contractual basis. On exhausting the selection process, a
select list was prepared which included the name of the petitioner/
respondent at Sr. No. 5 but he was not appointed on the ground that he
is overage as on the cut of date of 1st January, 2008 by about 02 years 04
months and 10 days.
07. The petitioner/ respondent thus preferred a representation to the
Government referring to instances of the candidates in whose favour
relaxation in the upper age limit was granted and were appointed. In the
absence of any response to the said representation, the petitioner filed
SWP No.1738/2009 which was finally disposed of vide order dated 28th
February, 2011, with the direction to the State respondents to consider
the claim of the petitioner for according relaxation in the upper age
limit. In pursuance of the said order, the representation of the petitioner/
respondent was rejected on 3rd January, 2012 stating that the petitioner/
respondent do not have any exceptional qualification as was possessed
by the other candidates to whom age relaxation was granted.
08. The aforesaid order rejecting the representation of the petitioner/
respondent was challenged by him by filing yet another writ petition
being SWP No.1431/2012 which was also disposed of vide order dated
10th October, 2013 quashing the order rejecting his representation and
directing to issue appointment in favour of the petitioner/ respondent in
accordance with the select list notified on 25th October, 2008 after
granting relaxation in the upper age limit. The said order of the writ
court was assailed by the Government by means of LPA no.04/2014.
The Division Bench vide judgment and order dated 23 rd May, 2014
disposed of the appeal holding that the consideration accorded to the
grant of relaxation to the petitioner/ respondent was not appropriate and
has to be reconsidered afresh.
09. In compliance with the judgment and order of the Division
Bench of the High Court, the case of the petitioner/ respondent for grant
of age relaxation was reconsidered and in terms of the Government
order dated 5th September, 2014, sanction was accorded to grant him
relaxation in the upper age limit by 02 years 04 months and 10 days as
on 1st January, 2008 and directions were issued to issue a formal
appointment order in favour of the petitioner/ respondent. Accordingly,
petitioner/ respondent was appointed as Dental Surgeon on contractual
basis vide order dated 4th June, 2015.
10. In view of the aforesaid facts and circumstances, the basic
grievance of the petitioner/ respondent that as he was in the select list
should be given appointment after grant of age relaxation was duly
satisfied but he still remained dis-satisfied and moved a representation
to the Government for giving effect to his appointment from the date
when other persons of the same select list were appointed and to
regularize his services. When the said representation did not evoke any
response, the instant writ petition was filed by him for quashing of the
order dated 5th September, 2014 to the extent it directs for issuing
formal appointment order in his favour with immediate effect and also
for quashing of the appointment order dated 04.06.2015 to the extent it
appoints him with effect from 04.06.2015. At the same time, he sought
direction that he should be appointed as Dental Surgeon on contractual
basis with effect from 10.06.2009 the date from which similarly situate
candidates were appointed and consequentially to regularize his services
in terms of the Jammu & Kashmir Civil Services (Special Provisions)
Act, 2010.
11. The writ court in the absence of the counter affidavit filed on
behalf of the Government proceeded to decide the writ petition holding
that the State Government cannot discriminate between the candidates
of the same select list and he should be treated at par with them.
Accordingly, writ of certiorari quashing the order of relaxation of age
and directing for his appointment was issued and simultaneously a
further writ of mandamus was issued directing for considering the case
of the petitioner/ respondent for regularization of his services in terms of
the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010. In
addition to it, directions were issued to give all consequential benefits as
may have accrued to him and to post him in the same district for which
the notification was issued.
12. Apparently, the question of according fresh consideration to the
case of the petitioner/ respondent for regularization does not arise when
the very order granting age relaxation to the petitioner/ respondent for
the purposes of contractual appointment and the appointment itself have
been quashed. Consequently, the petitioner/ respondent became dis-
entitled even to all consequential benefits or any post in any district.
13. If we consider the relief granted by the writ court in the light of
the reliefs claimed by the petitioner/ respondent in the writ petition, it
appears that as in the writ petition prayers were made for quashing of
the above orders but to a limited extent, the writ court ignoring the same
granted the relief of quashing of the said orders which has worked
detrimental to the petitioner/ respondent. In effect the writ court ought to
have modified the order dated 5th September, 2014 which allowed age
relaxation to the petitioner/ respondent and directed for issuing formal
order of appointment with immediately effect by stating that he is
entitled to appointment with effect from 10.06.2009 as some other
candidates from the same select list were appointed on the said date. It
would be in the above circumstances that the petitioner/ respondent
would have completed seven years of continuous service from
10.06.2009 to make him entitled for consideration of regularization in
accordance with the Jammu & Kashmir Civil Services (Special
Provisions) Act, 2010, but unfortunately the said relief has not been
granted to the petitioner/ respondent.
14. It is pertinent to mention here that under Section 5 of the
aforesaid Act, all ad-hoc or contractual or consolidated appointees
referred to in Section 6 of the said Act, are entitled to be regularized on
fulfillment of certain conditions, one of which happens to be that such
an employee must have completed seven years of service on the
appointed date i.e. 28th April, 2010 provided those who have not
completed seven years on the said date, shall continue till such
completion of seven years and shall thereafter be entitled to
regularization under the Act.
15. In view of the aforesaid facts and circumstances, the writ court
instead of quashing the above orders ought to have modified the same as
mentioned above and then could have directed for consideration of the
regularization of his services in terms of the aforesaid Act and for grant
of consequential benefits if he is so regularized.
16. Secondly, the writ court, instead of directing for consideration of
grant of consequential benefits, has directly granted the consequential
benefits beyond the scope of its jurisdiction. The court could not have
taken over the task of granting the consequential relief to the petitioner/
respondent and ought to have left if for the authority to consider in
accordance with law.
17. The petitioner/ respondent has not challenged the above order by
filing any separate appeal or through a counter claim and, as such, has
accepted quashing of the orders. Once the said are no longer in
existence, the petitioner/ respondent looses right to remain in service
and for being regularized.
18. Notwithstanding the above in the ends of justice, we treat the
above orders to be in existence without any modification as the writ
court has not granted the relief for the modification of the same and has
not even referred to any reason for such modification. Thus, maintaining
the above orders dated 5th September, 2014 and 4th June, 2015, we
provide that the matter of regularization of the petitioner/ respondent in
terms of the Act may be considered by the competent authority and if he
is so regularized to consider even the grant of all consequential benefits
as may be available to him in law.
19. The appeal is disposed of, accordingly.
(VINOD CHATTERJI KOUL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
15.09.2021
Abdul Qayoom, PS
Whether the order is speaking? Yes.
Whether the order is reportable?
ABDUL QAYOOM LONE
2021.09.17 14:39
I attest to the accuracy and
integrity of this document
