Ut Of J&K And Others vs Balkees Begum
2023 Latest Caselaw 328 j&K

                                                                      S.No.02



             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU

                                                   RP No.91/2022
                                                   CM No.3891/2022

UT of J&K and others                                        ...Petitioner(s)
                          Through: Mr.Amit Gupta, AAG
      V/s
Balkees Begum                                             ...Respondent(s)
                          Through:

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                      ORDER

Sanjeev Kumar-J

CM No.3891/2022 This is an application seeking condonation of delay in filing the

review petition.

The application, for the reasons stated therein, is allowed and the

delay in filing the review petition is condoned.

RP No.91/2022

1. The Union Territory of Jammu and Kashmir and its officers in the

department of Health and Medical Education have filed this petition to seek

review of the judgment dated 21.08.2021 passed by this Court in LPA

No.16/2019 titled Balkees Begum v. State of Jammu and Kashmir and

others.

2. Before we advert to the grounds of challenge urged in this review

petition, a brief reference to the factual antecedents leading to the filing of

this review petition is necessary.

3. The respondent-Balkees Begum was appointed as Junior Assistant on

ad hoc basis by the Director Health Services, Jammu vide order dated

31.03.1998 and was subsequently adjusted in Primary Health Centre,

Manjakote against an available vacancy. On the allegation that the then

Director Health Services, Jammu, on the eve of his retirement, had issued

the order of appointment in favour of the respondent and few others, the

appellants vide order dated 12.05.1998 cancelled all the appointments so

made by the said Director Health Services, Jammu. The respondent herein

challenged the cancellation of her appointment in SWP No.770/1998. The

writ petition was entertained and the learned Single Judge while issuing

notice to the petitioners herein to file objections also directed that the

respondent shall be allowed to continue to work, if her services had not been

already terminated. The writ petition was contested by the petitioners and

the same was disposed of by the learned Single Judge vide order dated

12.03.2001 directing the petitioners to consider the claim of the respondent

along with others when regular process of selection was to be undertaken.

There was further direction by the learned Single Judge not to bring to an

end the engagement of the respondent. The judgment of the Single Bench,

which was not assailed further, attained finality and the respondent

continued in service.

4. There was one more petition i.e. SWP No.2213/2002 filed by one

Hanifa Akhter throwing challenge to the appointment of respondent on stop

gap basis. She also prayed for similar treatment as was given to the

respondent. The writ petition was disposed of by a Single Bench of this

Court vide judgment dated 28.04.2011 directing the petitioners herein to

take requisite steps for filling up the post held by the respondent in

accordance with Rules by issuing public notice and inviting applications

from all eligible candidates. The respondent was allowed to continue till the

selection was made by way of regular selection process. The judgment of the

Single Bench was assailed by the respondent in LPASW No.232/2011,

which was allowed by a Division Bench of this Court primarily on the

ground that the learned Single Judge had allowed the writ petition without

hearing the respondent and the Court had not appreciated that the process for

considering the case of the respondent for regularization in accordance with

the provisions of J&K Civil Services (Special Provisions) Act, 2010 ["the

Act of 2010"] had already been set in motion.

5. The Division Bench while allowing the appeal and setting aside the

judgment of the learned Single Bench dated 28.04.2011 issued a direction to

the petitioners to accord consideration to the case of the respondent and take

decision in accordance with law. Pursuant to the representation made by the

respondent and the directions passed by the Division Bench dated

04.04.2013, case of the respondent for regularization was considered under

the Act of 2010 but the same was rejected on the ground that the case of the

respondent was not covered under the Act of 2010. It was stated in the

consideration order that since the initial appointment of the respondent was

not in accordance with law, as such, her case was not liable to be considered

under the Act of 2010.

6. Aggrieved by the consideration order issued by the petitioners, the

respondent filed SWP No.964/2015. The writ petition came to be dismissed

by a Single Bench vide judgment dated 28.12.2018. It was this judgment of

the Single Bench passed in SWP No.964/2015, which was subject matter of

challenge in LPA No.16/2019.

7. This Court, after hearing learned counsel appearing for the parties and

perusing the relevant material on record, came to the conclusion that the

very premise on which the case of the respondent for regularization had been

rejected by the petitioners was totally illegal and arbitrary. It was opined by

this Court that the Writ Court had not appreciated that the engagement of the

respondent was subject matter of scrutiny before this Court twice and this

Court had not found any fault with the manner in which the

engagement/appointment of the respondent on ad hoc basis had been made.

The appeal was allowed and the judgment of the Single Bench was set aside

vide judgment dated 21.08.2021.

8. Feeling aggrieved, the petitioners approached Hon'ble the Supreme

Court of India by filing SLP No.872/2022, which SLP has been disposed by

the Supreme Court vide order dated 06.05.2022. From a reading of the order

passed by the Supreme Court, it transpires that the petitioners for the first

time raised a new plea before the Supreme Court that the Act of 2010 stood

repealed with the coming into force of Jammu & Kashmir Reorganization

Act, 2019 and, therefore, no direction could have been issued by the

Division Bench to consider the respondent for her regularization under the

Act of 2010. Recording the aforesaid statement made by the learned counsel

appearing for the petitioners, Hon'ble the Supreme Court disposed of the

SLP by giving liberty to the petitioners to file review petition within a period

of six weeks and, therefore, this review petition by the petitioners. Having

regard to the aforesaid facts, we have already condoned the delay in filing

the review petition.

9. Having heard Mr. Amit Gupta, learned AAG, appearing for the

review petitioners, we are of the view that this review petition is grossly

misconceived and deserves to be dismissed. The only point, which requires

to be considered and vehemently argued by Mr. Amit Gupta, learned AAG

is that with the coming into force of the J&K Reorganization Act, 2019, the

Act of 2010 has been repealed and, therefore, no direction could have been

issued to consider the respondent for regularization under the Act of 2010.

There is inherent fallacy in the argument made by Mr. Gupta, learned

counsel appearing for the petitioners.

10. Right to seek consideration accrued to the respondent pursuant to the

directions issued by a Division Bench of this Court on 4.4.2013 in LPASW

No.232/2011. As a matter of fact, the case of the respondent for

regularization was considered by the Government in compliance with the

judgment of the Division Bench in the year 2015 and was rejected vide

Government Order No.87-HME dated 30.03.215. Both, at the time of

passing of the judgment by the Division Bench and at the time when case of

the respondent was considered and rejected, the Act of 2010 was in

operation. It is no doubt true that by J&K Reorganization Act, 2019 read

with J&K Reorganization (Adaptation of State Laws) Order, 2020 ["Order

of 2020"], the Act of 2010 has been repealed but the rights, which had

accrued under the Act of 2010 prior to the coming into force of the J&K

Reorganization Act and the Order of 2020 are not, wiped off or taken away.

Reference in this regard is made to Jammu & Kashmir Reorganization

(Adaptation of State Laws) Order, 2020 issued by the Central Government

in the exercise of the powers conferred by Section 96 of the J&K

Reorganization Act, 2019, whereby apart from others, Jammu & Kashmir

Civil Services (Special Provisions) Act, 2010 figuring at Serial No.15 of the

Schedule to the Order of 2020 has been wholly repealed. However, any

right, privilege, obligation or liability acquired, accrued or incurred under

the aforesaid Act has been saved by Clause 6 of the Order of 2020. Clauses

5 and 6 of the Order of 2020 are relevant and are, therefore, reproduced

hereunder:-

"5. The provisions of this Order which adapt or modify or repeal any law so as to alter the manner in which, the authority by which or the law under or in accordance with which, any powers are exercisable, shall not render invalid any notification, order, commitment, attachment, bye-law, rule or regulation duly made or issued, or anything duly done before the 31st October, 2019; and any such notification, order, commitment, attachment, bye-law, rule, regulation or anything may be revoked, varied or undone in the like manner, to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and in accordance with the provisions then applicable to such case.

6. The repeal or amendment of any law specified in the Schedule to this Order shall not affect--

(a) the previous operation of any law so repealed or anything duly done or suffered thereunder;

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed;

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty,

forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019) or this Order had not been passed."

11. From a reading of Clause 5 and 6 of the Order of 2020, it becomes

abundantly clear that notwithstanding the repeal of the 2010 Act, any right,

privilege, obligation or liability acquired, accrued or incurred thereunder has

remained unaffected.

12. Viewed thus, there is no substance in the contention of the review

petitioners that with the repeal of the Act of 2010 by Jammu & Kashmir

Reorganization Act, 2019 read with the Order of 2020, acquired or incurred

rights of the respondent have also been taken away. In view of Clause 6 of

the Order of 2020, any right, privilege, obligation or liability acquired,

accrued or incurred under the Act of 2010 repealed by J&K Reorganization

Act, 2019 shall remain unaffected.

13. In the instant case, indisputably, right to be regularized under the Act

of 2010 accrued to the respondent on completion of seven years of

continuous service on ad hoc basis. Though, this right was denied to the

respondent, yet with the intervention of this Court and pursuant to the

directions passed by the Division Bench in LPASW No.232/2011, claim of

the respondent came to be considered and rejected by the review petitioners

vide Government Order No.87-HME dated 30.03.2015. All this happened

much prior to the coming into operation of the J&K Reorganization Act,

2019 or the Order of 2020.

14. The other plea of Mr. Amit Gupta, learned AAG that since the very

appointment of the respondent on ad hoc basis was not in consonance with

law and, therefore, no benefit of regularization could be conferred upon her

under the Act of 2010 is noticed only for outright rejection. The issue, as

rightly observed in the judgment of which review is sought, is no longer res

integra and has already been set at rest in the earlier round of litigation.

Otherwise also, the petitioners have not very clearly indicated as to how

initial appointment of the respondent as Junior Assistant on ad hoc basis was

not in consonance with law. This Court can take judicial notice of the fact

that thousands of persons appointed on contractual, ad hoc and consolidated

basis without any advertisement notice or holding any selection process have

been regularized by the petitioners by giving them the benefit of the Act of

2010. The petitioners cannot be permitted to provide discriminatory

treatment to the respondent only for the reason that she dared to challenge

the action of the petitioners in the Court of law. We find no error of fact or

law apparent on the face of record or any other sufficient reason to persuade

us to exercise review jurisdiction.

15. For all these reasons, we find no merit in this review petition, the

same is, accordingly, dismissed.

                                 (Puneet Gupta)                   (Sanjeev Kumar)
                                     Judge                              Judge
JAMMU:
22.02.2023
Vinod, Pvt. Secy.
                            Whether order is speaking: Yes/No
                            Whether order is reportable: Yes/No