Jammu & Kashmir High Court - Srinagar Bench
Reserved On 17.05.2022 vs Mohammad Ashraf Bhat And Others on 25 May, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
LPASW no. 128/2018
Reserved on 17.05.2022
Pronounced on 25.05.2022
Union of India and others
.... Appellant(s)
Through: Mr M. M. Dar, Advocate
V/s
Mohammad Ashraf Bhat and others
... Respondent(s)
Through: Mr R. A. Jan, Sr. Advocate with
Mr Syed M. Murtaza Rizvi, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
Per Moksha, J
1. This Letters Patent Appeal, LPA, is directed against the judgment and final
order passed by the Writ court on 19.7.2018, for short impugned judgment, in a
writ petition, SWP no. 1086/2017, in terms whereof the writ petition filed by the
respondents/ petitioners has been allowed with a direction to the appellants/
respondents to regularize the services of the petitioners in the respondent
department strictly in tune with the directions passed by the Writ Court in terms of
judgment dated 5th April, 2014 passed in SWP No. 398/2014 as upheld by the
Division Bench, in LPA No. 102/2016 expeditiously, preferably within a period of
two months from the date of receipt of certified copy of the order, seeking setting
aside of the impugned judgment and dismissing the writ petition.
BRIEF FACTS
2. It is stated in the memo of appeal that owing to the hardships faced by the
appellants, on the outbreak of militancy in the Valley in 1990, many employees
migrated from the Valley, thereby, constraining the appellants to hire employees at
the Srinagar Airport through a Contractor.
3. It is further stated in the appeal that the Parliamentary Standing Committee
on Transport, Tourism and Culture "Demand for Grants-2010-2011 of the Ministry
of Civil Aviation in its 158th report under Para 75, recommended regularization of
the employees working through Contractors in NACIL, AAI and Hotel
AMJAD AHMAD LONE
2022.05.26 12:08
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integrity of this document
Corporation of India as one time measure". The recommendation was made in
recognition of the contribution of the employees having worked during the peak of
militancy at Srinagar Airport. Twenty-three (23) workers were working at the time
of such recommendations, out of whom only 12 were found to have worked during
the peak of militancy viz. 1990-1999, accordingly, only twelve (12) workers came
to be regularized.
4. Aggrieved of the regularization of only 12 workers, the respondents 1 to 12
filed a writ petition, SWP no. 398/2014 claiming regularization on the analogy of
regularized workers on the ground that they too, having worked during the peak of
militancy, deserve to be regularized. The said writ petition came to be disposed of
in terms of judgment dated 5th April, 2016, wherein the Writ Court directed the
appellants/ respondents therein to accord consideration to the case of the
petitioners/ respondents 1 to 12 herein, for regularization of their services in the
same manner the respondents 4 to 15 therein, have been regularized.
5. The appellants, thereafter, preferred an appeal, LPA No. 102/2016, against
the judgment of the Writ Court dated 5th April, 2016, passed in SWP no. 398/2014,
which has been dismissed in terms of order dated 01.06.2016 by the Division
Bench holding that there is no merit in the appeal and the judgment was affirmed.
6. It appears that the appellants/ respondents therein have subsequently
accorded consideration to the case of the respondents 1 to 12/ petitioners therein,
and rejected their claim in terms of Order dated 4th May, 2017, constraining the
respondents 1 to 12/ petitioners therein, to again approach the Writ Court with a
writ petition, SWP no. 1086/2017, which stands allowed in terms of the impugned
judgment.
7. We heard learned counsel for the parties.
8. Mr M. M. Dar, learned counsel for the appellants, submits that the impugned
judgment is bad in law as it suffers from non-application of mind. The learned
counsel for the petitioner submits that the stand taken by the appellants in the reply
filed in opposition to the writ petition has not been appreciated as no finding has
been returned on the grounds taken therein.
9. The learned counsel further submits that the Writ Court has got swayed by
the fact that a judgment has already been passed in the earlier writ petition and the
appeal preferred against such judgment has also been dismissed, therefore, the
impugned judgment deserves to be set-aside as the merit of the matter has not at all
been considered.
AMJAD AHMAD LONE
2022.05.26 12:08
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integrity of this document
10. Mr M. M. Dar, learned Counsel for the appellants, submits that the
impugned judgment is in conflict with its own terms as the appellants, by the said
judgment, have been directed to regularize the services of the respondents 1 to 12/
petitioners therein, in tune with the directions passed on 5 th April, 2016 in SWP no.
398/2014, whereby the appellants had been directed to consider regularization of
the petitioners/ respondents 1 to 12 herein. The learned counsel, therefore, submits
that the appellants have, in essence, been only directed to consider the case of the
respondents 1 to 12 for their regularization which already stands complied with.
11. Mr M. M. Dar, learned counsel for the appellants, submits that the appellants
have, as duty bound in law, accorded due consideration to the case of the
respondents 1 to 12, in compliance to the judgment dated 5 th April, 2016, and
found them not entitled to regularization, therefore, rejected their claim. He
submits that since the impugned judgment directs the appellants to regularize the
services of the respondents 1 to 12 in tune with the judgment dated 5 th April, 2016,
therefore, the appellants are not required to do anything more in the matter as the
said judgment has already been complied with.
11. Mr M. M. Dar, learned counsel for the appellants, submits that the impugned
judgment deserves to be set-aside inasmuch as it directs the appellants to regularize
the services of the petitioners/ respondents 1 to 12 herein, rather than directing for
according consideration for such regularization. The learned counsel further
submits that the Writ Court was not justified in passing such a direction as it goes
beyond the scope of writ jurisdiction.
12. The learned counsel for the appellants referred to and relied upon the Apex
Court judgments delivered in cases reported as i) SCC 2009 (2) p. 479 titled S. S.
Balu and anr., v. State of Kerala and others; ii) AIR 1987 SC 311 titled Frank
Anthony Public School Employees' Association v. Union of India and others; iii)
AIR 1977 SC 276 titled Mani Subrat Jain and others v. State of Haryana and
others; and iv) AIR 1984 SC 1850 titled Jatinder Kumar and others v. State of
Punjab and others, and prayed for setting aside of the impugned judgment/ final
order and dismissing the writ petition of the respondents 1 to 12.
13. Mr R. A. Jan, learned Sr. Counsel, on the other hand, defended the
impugned judgment by submitting that the impugned judgment is quite in tune
with the mandate of law.
14. Mr Jan, learned Sr. Counsel, submits that the appellants have passed the
consideration order in disregard of the directions passed by the Writ Court in SWP
no. 398/2014 and of the Division Bench in LPA no. 102/2016. Learned senior
AMJAD AHMAD LONE
2022.05.26 12:08
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counsel submits that the Writ Court in terms of its judgment dated 5 th April, 2016,
allowed the writ petition of the petitioners/ respondents 1 to 12 herein, while
holding them entitled to regularization on the analogy of the similarly placed
persons which view later came to be affirmed by the Division Bench also. He
submits that the consideration accorded to the case of the respondents 1 to 12 was
not in tune with the directions passed in the writ petition, therefore, in the
subsequent writ petition the Writ Court, in terms of impugned judgment, directed
for regularizing the services of the petitioners/ respondents 1 to 12 herein.
15. Learned Senior Counsel further submits that the Writ Court was within its
rights to pass the direction for regularization in favour of petitioners/ respondents 1
to 12 herein, in view of the peculiar circumstances of the case and by doing so the
Writ Court has not traversed beyond its jurisdiction or competence.
16. The learned senior counsel in support of his submissions, referred to and
relied upon the judgments of the Apex Court delivered in cases reported as i) SCC
2016 (14) 49 titled Satyendra Kumar and others v. Raj Nath Dubey and others;
and ii) SCC 2014 (5) 75 titled Dr Subramanian Swamy v. State of Tamil Nadu &
others and prayed that the appeal be dismissed upholding the impugned judgment.
17. Considered the submissions made by the learned counsel for the parties and
perused the material made available.
18. Admittedly, the appellants had hired the services of the respondents 1 to 12
and the later have worked with them. It is further admitted that a recommendation
had been made by the Standing Parliamentary Committee in favour of employees
of the appellants who had worked under disturbed conditions pursuant to which
certain employees were given the benefit of regularization in exclusion of the
respondents 1 to 12 who contend that they too are similarly placed, therefore, their
exclusion is discriminatory. The plea raised by the appellants in support of the
denial of similar treatment is as regards the period for which the employees have
worked. Those who have been regularized are stated to have worked during the
period 1990-1999 which the appellants believe to be the militancy peak period in
the Valley, therefore, only those were required to be given the benefit in terms of
the recommendations of the Standing Parliamentary Committee. The further
discourse is with regard to the direction granted by the writ court. The contention
of the appellants is that the Writ Court should have directed for according
consideration for regularization in favour of respondents 1 to 12 and not directing
for clear regularization as ordered by the Writ Court in terms of the impugned
judgment.
AMJAD AHMAD LONE
2022.05.26 12:08
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19. The judgments referred to and relied upon by the learned counsel for the
appellants are noted to be rejected only, for, none of the cases cited are anyways
closer to the facts of the case not to speak of being, in any case, favouring the stand
taken by the appellants.
20. The issue raised by the appellants as regards the entitlement of the
respondents 1 to 12 herein, for regularization of their services is unfounded as the
respondents 1 to 12 have been able to carve out a case in their favour initially in
the Writ Petition, SWP no. 398/2014 which was allowed in their favour, affirmed
by the Division Bench and later on in the writ petition, SWP no. 1086/2017, in
which the impugned judgment has been passed, holding them yet again entitled to
regularization on the analogy of the similarly placed persons. The yardstick
adopted by the appellants in fixing a cut off date and dividing the employees in two
groups is lacking reasonable logic. The respondents 1 to 12 have been able to
prove before the Writ Court that they have also worked with the appellants in
difficult times, therefore, entitled to the benefit of Parliamentary Standing
Committee recommendations which cannot be denied to them merely on the
wishes of the appellants.
21. In the above background, the appeal being without any merit, is dismissed
along with all CMs. The impugned judgment dated 19.07.2018 is upheld.
22. No order as to costs.
(MOKSHA KHAJURIA KAZMI) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
25.05.2022
Amjad Lone, Secretary
Whether the judgment is reportable: Yes/ No.
AMJAD AHMAD LONE
2022.05.26 12:08
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integrity of this document
