Shafat Husseen And Ors vs Ut Of Jk And Ors
2023 Latest Caselaw 97 j&K/2

                                                             S. No. 80
                                                             Suppl. List 1
         IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                            AT SRINAGAR
                               WP(C) No. 301/2023
                                CM No. 618/2023

    Shafat Husseen and Ors.                                      ...Petitioner(s)

    Through: Mr. Janhagir Iqbal Ganaie, Sr. Adv, with Mr. Wasil Rasool, Adv.

                                        Vs.
     UT of JK and Ors.                                         ...Respondent(s)

    Through:

    CORAM:
               HON'BLE MR JUSTICE WASIM SADIQ NARGAL, JUDGE

                                   ORDER

17.02.2023

The short submission which has been made by learned counsel for the

petitioners is that petitioners are aggrieved of the Communication dated 9th

February, 2023, by virtue of which, the recommendation already made in their

favour for continuation of service, has been rejected and respondent no. 3 was

directed to proceed according to the office Letter dated 3 rd March, 2022,

wherein it was directed that the engagements shall be re-advertised next time

and no further extension shall be sought/given. Learned counsel further

submits that petitioners being eligible for various posts have applied in

pursuance to the Advertisement and the competent Authority thereafter was pleased to constitute a Selection Committee and on the basis of eligibility and

merit recommended the petitioners for being engaged against the post in

pursuance to the Advertisement and in terms of recommendations made, the

petitioners were appointed against the post of Nutrition and Health Mobilizer

and that of the Programme Manager and consultant respectively. It is further

pleaded that before the efflux of two years, the respondent no. 3 was pleased

to recommend the case of the petitioners No. 1 to 12 for extension of contract

till further orders and in acceptance to the recommendation made, the

respondent no. 1 vide Communication dated 20 th March, 2020, conveyed the

administrative approval for extension of the services of the petitioners 1 to 12

for a period of one year. It is further pleaded that pursuant to the approval

conveyed, the respondent no. 3 vide Order No. 412 MD of 2020 dated

26.06.2020 was pleased to accord sanction to the extension of services in

favour of the petitioners No. 1 to 12 for a period of one year from the date of

expiry of previous tenure under same terms and conditions. It is further case

of the petitioners that the approval for extension of services with regard to the

petitioners 13 to 114 was accorded by the respondent no. 1 vide

Communication dated 24th July, 2020 and as a sequel thereto vide Order No.

446-MD of 2020 dated 3rd August, 2020, sanction was accorded to the

extension of services in favour of the petitioners 13 to 114 for a further period of one year from the date of expiry of previous tenure under same terms and

conditions.

Learned Senior Counsel, appearing for the petitioners submits that

before the expiry of extension of services of the petitioners no. 1 and 12, the

respondent no. 3 vide Communication dated 11th January, 2021, was in view

of the satisfactory performance, work and conduct and availability of funds,

strongly recommended for extension of service for second year and thereafter

the recommendation was accepted and administrative approval for extension

of service for further one year was conveyed with the condition that no further

extension will be granted. It is further submitted that in acceptance to the

approval conveyed, vide Order No. 187-MD of 2021 dated 26.04.2021,

sanction was accorded to the extension of services of the petitioners No. 1 to

12 for a period of one year w.e.f. 20.12.20.2022 and in the case of petitioners

13 to 114 on the basis of overall performance/work and conduct, the

respondent no. 3 was pleased to recommend the case of petitioners no. 13 to

114 for extension of service for second year vide Communication dated

23.02.2021. However, the recommendation accepted and the respondent no. 1

vide Communication 22.03.2021 was pleased to convey approval for

extension of service for further one year from the date of expiry of the

previous order with the condition that no further extension will be granted.

With a view to fortify his claim, learned counsel for the petitioners has

referred to the communication dated 16th March, 2023, which has been

placed on record along with present writ petition, and submitted that

respondent no. 1 instead of considering the recommendation made in favour

of the petitioners in accordance with law on its own merits, has under the

guise of the impugned communication, rejected the said recommendation and

directed the respondent no. 3 to proceed in the light of the Communication

dated 12th March, 2022, which, however, was objected by the petitioners at

the relevant point of time. Learned counsel for the petitioners has further

argued that the effect of the impugned communication and that of the

Condition-f would tantamount to replacing a person appointed on contractual

basis by another similarly arrangement, which is not permissible under law as

laid down by the Hon'ble Supreme Court in catena of judgments. It is settled

proposition of law that a person appointed on contractual basis cannot be

replaced by another contractual employee.

Heard learned counsel for the petitioner at length and prima facie case

for indulgence of this Court is made out.

Notice in the main petition as well as in CM, returnable within four

weeks.

Requisite steps for service within two weeks.

List again on 27th April, 2023.

In the meanwhile, subject to objections and till next date of hearing

before the Bench, the operation of the impugned Communication dated 9 th

February, 2023, shall remain stayed. It is further provided that the petitioners

shall be allowed to continue on the posts which are presently held by them

and their present status shall not be disturbed till next date of hearing.

(WASIM SADIQ NARGAL) JUDGE SRINAGAR 17.02.2023 "Shamim Dar"