Jammu & Kashmir High Court
Ashok Kumar vs Union Territory Of Jammu & Kashmir on 22 February, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No. 03
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- WP(C) No. 326/2021
CM No. 3348/2021
CM No. 1695/2021
CM No. 1696/2021
CM No. 5166/2021
CM No. 5169/2021
Ashok Kumar, Aged 59 years,
S/o Sh. Jia Lal Bhat,
R/o TRT No. 23, Block-E, Purkoo Camp,
Dhami, Jammu.
.....Petitioner
Through: Mr. P. N. Goja, Sr, Advocate with
Mr. Abhinav Jamwal, Advocate
Vs
1. Union Territory of Jammu & Kashmir
Through Principal Secretary
Housing & Urban Development Department.
Jammu.
2. Directorate of Urban Local Bodies,
Jammu.
3. Executive Officer,
Municipal committee Akhnoor.
4. Joint Commissioner,
Municipal Corporation, Jammu.
..... Respondents
Through: Mr. S. S. Nanda, Sr. AAG
Case:- WP(C) No. 349/2021
CM No. 3349/2021
CM No. 1748/2021
CM No. 1750/2021
CM No. 5172/2021
CM No. 5175/2021
Pritam Lal, Aged 52 years,
S/o Sh. Girdhari Lal,
R/o Ward No. 7, Rakh Dhok,
Jourian Akhnoor, Jammu.
2 WP(C) No. 326/2021
c/w
WP(C) No. 349/2021
WP(C) No. 351/2021
.....Petitioner
Through: Mr. P. N. Goja, Sr. Advocate with
Mr. Abhinav Jamwal, Advocate
Vs
1. Union Territory of Jammu & Kashmir
Through Principal Secretary
Housing & Urban Development Department.
Jammu.
2. Directorate of Urban Local Bodies,
Jammu.
3. Executive Officer,
Municipal committee Akhnoor.
4. Joint Commissioner,
Municipal Corporation, Jammu.
..... Respondents
Through: Mr. S. S. Nanda, Sr. AAG
Case:- WP(C) No. 351/2021
CM No.3350/2021
CM No. 1752/2021
CM No. 1753/2021
CM No. 5170/2021
CM No. 5171/2021
Rakesh Sharma, Aged 40 years,
S/o Sh. Kuldeep Raj,
R/o Allah Bishnah, Jammu.
.....Petitioner
Through: Mr. P. N. Goja, Sr. Advocate with
Mr. Abhinav Jamwal, Advocate
Vs
1. Union Territory of Jammu & Kashmir
Through Principal Secretary
Housing & Urban Development Department.
Jammu.
2. Directorate of Urban Local Bodies,
Jammu.
3 WP(C) No. 326/2021
c/w
WP(C) No. 349/2021
WP(C) No. 351/2021
3. Executive Officer,
Municipal committee Akhnoor.
4. Joint Commissioner,
Municipal Corporation, Jammu.
..... Respondents
Through: Mr. S. S. Nanda, Sr. AAG
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
22.02.2024
(Oral)
The instant petitions involve issues which are analogous
and akin to each other, as such, are being disposed of by this
common judgment.
Before proceeding further in the matter, it would be
appropriate to give a brief background of the petitions hereunder:-
01. In the instant petition, the petitioner has sought the
following reliefs:-
a. Writ of Certiorari quashing order No. 164-DULBJ of 2021
dated 08.02.2021 issued by the respondent No. 2.
b. Writ of Certiorari quashing communication No.
HUD/LSG/ULBJ/35/2020 dated 25.01.2021 read with
letter No. HUD/LSG/ULBJ/35/2020 dated 22.12.2020.
c. Writ of Mandamus directing the respondents not to
terminate the services of the petitioner as Tax Collector,
Municipal Committee Akhnoor or any other post in the
department and to release the pay scale in favour of the
c/w
petitioner attached to the post of Tax Collector from
28.02.2002.
The aforesaid reliefs are prayed on the premise that the
petitioner being a graduate having six months certificate
course in computer application to his credit as also being a
member of RBA category, came to be appointed as Revenue
Assistant by the respondent 2 on consolidated salary of Rs.
950/- per month for a period of 89 days in terms of Order
No.DLBJ/97/Adm/6658-61 dated 06.05.1997 which came to
be further extended for a period of 89 days in terms of Order
No. DLJBK/97/Adm/9920-22 dated 06.08.1997 and
subsequently the services of the petitioner regularized vide
Order No. 91-HUD of 2002 dated 28.02.2002 as Sanitary
Supervisor on consolidated pay of Rs. 2000/- per month
against an available vacancy in Town Area Committee
Udhampur.
Subsequent to the aforesaid regularization of the
petitioner, since the services of the petitioner was not placed in
a proper pay-scale and that petitioner in the meantime, have
had been transferred to Municipal Committee, Akhnoor, the
case of the petitioner for placing him in a regular pay-scale
came to be considered in the Elected House of Municipal
c/w
Committee, Akhnoor in its meeting held on 19.12.2009,
wherein it came to be resolved that the petitioner's service be
placed in regular pay-scale of Rs. 3050-4590 and consequently
upon the recommendation made in this regard vide letter No.
MCA/2009/1223/24 dated 24.12.2009 followed by further
recommendation in letter No. MCA/2012/505 dated
08.10.2012, the respondent 2 in terms of Order No.
DULBJ/2013/17147 dated 22.12.2012 placed the petitioner in
the grade of Rs. 3050-4590 against the post of Tax Collector,
Municipal Committee, Akhnoor.
Since the petitioner was not extended the benefit of his
past service after he was placed in the regular pay-scale by the
respondents, the petitioner approached this court through
SWP No. 745-A/2002 for seeking redressal of his grievances.
There were no recruitment rules in the respondents-
department in place and the same came into being on
18.12.2008 as the Jammu & Kashmir Urban Local Bodies
Institution (Management)Service Recruitment Rules, 2008 (for
short „the Rules of 2008‟).
An FIR came to be registered being FIR No. 08/2014 by
the then Vigilance Organization, Jammu against various
c/w
persons on the ground that the appointments had been
secured and made in the respondents-department without
following the rules which FIR came to be challenged by some of
the accused persons before this court in CRMC No. 409/2018
pending before this court.
The respondent 2 in the year 2020 issued a show cause
notice No. DUDLJ/2019-20/18083-84 dated 02.03.2020 to
the petitioner, calling upon him to explain as to why his
services be not terminated being illegal and made in
contravention of rules/law, which show cause notice was
replied by the petitioner, justifying his appointment and
regularization in the department, while relying upon similar
engagements and regularizations of various other persons in
the respondents-department as also the report of a committee
to enquire into the said illegal appointments, which committee
had opined in its report that no permanent illegal
appointments had been made.
The respondents in terms of Order No. 164-DULBJ of
2021 dated 08.02.2021 terminated the services of the
petitioner.
c/w
The impugned order dated 08.02.2021 is being challenged
by the petitioner inter-alia on the grounds that the same came
to be issued by the respondents at his back in breach and
violation of the rules of principal of natural justice and
overlooking the facts and law.
02. Objections to the instant petition have been filed by the
respondents, wherein the petition of the petitioner is being opposed
on the premise that the petitioner entered into the service of the
respondents-department in breach of the procedure prescribed by
law at the instance of an authority lacking competence and upon
taking cognizance of the same, an FIR in the matter came to be
registered being FIR No. 08/2014 by the then Vigilance
Organization Jammu implicating the then Director Urban Local
Bodies, Jammu as an accused besides the beneficiaries and that an
in-depth enquiry was also conducted by the department under the
directions of the respondent 1, which enquiry established that the
engagements/appointments made in the department including that
of the petitioner have had been made without following due
procedure of law.
03. In the instant petition, the petitioner has implored for the
following reliefs:-
c/w
a. Writ of Certiorari quashing order No. 163-DULBJ of 2021
dated 08.02.2021 issued by respondent No. 2.
b. Writ of Certiorari quashing communication
No. HUD/LSG/ ULBJ/35/2020 dated 25.01.2021 read
with letter No. HUD/LSG/ULBJ/35/2020 dated
22.12.2020.
c. Writ of Mandamus directing the respondents not to
terminate the services of the petitioner as Driver,
Municipal Committee Akhnoor or any other post in the
department.
The aforesaid reliefs are being prayed on the premise that
the petitioner came to be appointed as a Driver by the
respondents for a period of 89 days in terms of Order No.
DLBY/98/9564 dated 22.12.1998 read with Order
No.WAC/98-99/A/740/41 dated 24.12.1998 and
subsequently was placed in the pay-scale of Rs. 3000/- per
month whereafter his case was recommended for
regularization on 15.06.2004, yet his services were not
regularized and instead consolidated salary of the petitioner
came to be enhanced from Rs. 3000/- to Rs. 5000/- per
month in terms of Order No.DULBJ/2011/9027 dated
13.06.2011 and thereafter the petitioner came to be
regularized vide Order No. DULBJ/2023/4249 dated
04.04.2013 with effect from 04.04.2013, though the petitioner
was entitled to be regularized with effect from 2004 and that
there were no recruitment rules in place in the respondents-
c/w
department, which, however, came into being on 18.12.2008
under the name and style of the Jammu & Kashmir Urban
Local Bodies Institution (Management)Service Recruitment
Rules, 2008.
That the respondents got an FIR No. 08/2014 registered
on the allegations that the appointments/engagements in the
department have had been made without following the
procedure prescribed by law, inasmuch as, the recruitment
rules and that the petitioner was wrongly shown to be
beneficiary in the said FIR and that the said FIR came to be
challenged by one of the persons accused in the said FIR
before this Court in CRMC No. 409/2018.
That the respondent 2 issued a show cause notice No.
DUBLJ/2019-20/18085-86 dated 02.03.2020 to the petitioner
calling upon him to explain as to why his services be not
terminated having been obtained illegally and in contravention
of the rules, which show cause notice came to be replied by
the petitioner, justifying therein his engagement /appointment
and regularization inter-alia on the strength of the
engagement/regularization of some similarly situated
employees as also be a report of a committee constituted for
enquiring into the allegation of illegal appointments made in
c/w
Urban Local Bodies, Jammu which reported provided that no
permanent illegal appointments were made in the Urban Local
Bodies Jammu Division.
That the respondents yet proceeded to issue Order No.
163-DULBJ of 2021 dated 08.02.2021 terminating the services
of the petitioner, which is impugned in the instant petition.
The impugned order is being challenged in the instant
petition almost on similar contentions and grounds as are
urged in WP(C) No. 326/2021 supra, as such, in order to avoid
repetition and for the sake of brevity, the said grounds of
challenge are not being referred herein and would be
considered as grounds of challenge in the instant petition as
well.
04. Objections to the petition have been filed by the
respondents, wherein the respondents have opposed the petition on
similar and identical grounds on which WP(C) No. 326/2021 supra
has been opposed, as such in order to avoid repetition and for the
sake of brevity, the said objections as well are not referred herein
and the said objections would be considered as the objections to the
instant petition as well.
c/w
05. In the instant petition, the petitioner has sought the
following reliefs:-
a. Writ of Certiorari quashing order No. 165-DULBJ of 2021
dated 08.02.2021 issued by the respondent No. 2.
b. Writ of Certiorari quashing communication
No.HUD/LSG/ULBJ/35/2020dated 25.01.2021 read
with letter No.HUD/LSG/ULBJ/35/2020 dated
22.12.2020.
c. Writ of Mandamus directing the' respondents not to
terminate the services of the petitioner as Computer
Assistant, Local Bodies Division-I, Jammu.
The aforesaid reliefs are being sought by the petitioner on
the premise that the petitioner being a graduate and having
one year diploma in computer application to his credit came to
be appointed as a Casual Labourer/Daily Wager in the
respondents-department in terms of Order No.
DULBJ/2004/6762 dated 08.11.2004 pursuant to a proposal
forwarded by the respondent 3 to respondent 2 vide No.
LB/Tech/2004/J-1/1186 dated 06.11.2004, whereafter the
petitioner in terms of Order No. LB/Tech/J/2007/Estt/270-72
dated 24.04.2007 came to be assigned the duties of Computer
Assistant by respondent 3 and also in terms of Order No.
LB/Tech/J-1/2009/4807-08 dated 12.12.2009 assigned the
c/w
additional charge of accounts being dealt by one Mr. Varinder
Koul.
That pursuant to the recommendations made by the
respondent 3, case of the petitioner came to be recommended
for regularization as Computer Operator in the pay-scale of
Rs. 3050-4590 against the vacant post on which post the
petitioner has been working, which recommendation followed
by other recommendations made by respondent 3 vide letters
dated 08.04.2011 and 24.09.2011, the services of the
petitioner came to be regularized as Computer Assistant by
respondent 2 in terms of Order No. LB/Tech/J-1/2013/4783-
85 dated 06.03.2013.
That the petitioner prior to the filing of the instant petition
and while working in the respondents-department filed SWP
No. 960/2017 before this Court seeking release of payment of
salary which came to be disposed of vide order dated
09.05.2017 with a direction to the respondents to release the
salary of the petitioner for the period he has rendered his
services which salary came to be released by the respondents
vide Order No.DULBJ/2018/16834 dated 20.02.2018.
c/w
That there were no recruitment rules in place in the
respondents-department and same came into being on
18.12.2008 as the Jammu & Kashmir Urban Local Bodies
Institution (Management)Service Recruitment Rules, 2008.
That an FIR being FIR No. 04/2014 came to be got
registered by the respondents on the allegations that the
appointments/engagements have had been made in the
department without following the procedure prescribed by law,
as also the recruitment rules and the petitioner was wrongly
shown to be beneficiary in the said FIR which FIR came to be
challenged by one of the accused persons before this Court in
CRMC No. 409/2018.
That the respondent 2 issued a show cause notice No.
DUBLJ/2019-20/18081-82 dated 02.03.2020 to the petitioner
calling upon him to show cause as to why his services be not
terminated having been obtained illegally and in contravention
of the rules, which show cause notice came to be replied by
the petitioner, justifying therein his engagement/appointment
and regularization inter-alia on the strength of the
engagement/ regularization of some similarly situated
employees as also report of a committee constituted for
enquiring into the allegation of illegal appointments made in
c/w
Urban Local Bodies, Jammu which committee in its report
opined that no permanent legal appointments were made in
the Urban Local Bodies Jammu Division.
That respondent 2 yet proceeded to issue Order No. 165-
DULBJ of 2021 dated 08.02.2021 terminating the services of
the petitioner, which is impugned in the instant petition.
The impugned order is being challenged in the instant
petition almost on similar and identical grounds as are urged
in WP(C) No. 326/2021 supra & WP(C) No. 349/2021 supra,
as such, in order to avoid repetition and for the sake of brevity,
the said grounds of challenge are not being referred herein and
would be considered as grounds of challenge in the instant
petition as well.
06. Objections to the petition have been filed by the
respondents, wherein the respondents also have opposed the
petition on similar and identical grounds on which the aforesaid
petitions WP(C) No. 326/2021 & WP(C) No. 349/2021 have been
opposed, as such, in order to avoid repetition and for the sake of
brevity, the said objections are not referred herein and the said
objections would be considered as the objections in the instant
petition as well.
c/w
Heard learned counsel for the parties and perused the
record.
07. The core issue involved in the aforesaid petitions that falls
for consideration of this Court would be as to whether the orders
impugned in the instant petitions have been issued by the
respondents in breach of the procedure prescribed by law,
inasmuch as, in violation of the rights and interests of the
petitioners.
08. Before proceeding to address to the said issue, it is
pertinent to note here that Article 16 of the Constitution which finds
its place in part-III of the Constitution relating to the fundamental
rights provides that there shall be an equality of opportunity for all
citizens in all matters relating to employment or appointment to any
office under the State, the main object whereof is to create a
constitutional right to equality and opportunity of employment in
public offices. Based on the said constitutional right of equality of
opportunity to public employment, law has also been laid down by
the Apex Court in series of judgments that the appointments to any
post under the State can be made after proper advertisement has
been made inviting applications from eligible candidates and holding
of a selection process by a body of experts or specially constituted
committee, through a written examination or interview or some
c/w
other rational criteria for judging the inter-se merit of the candidates
who have applied in response to the advertisement made, thus,
indisputably suggesting that the regular appointment to a post
under the State or Union cannot be made without issuing
advertisement in the prescribed manner and that any appointment
made on a post under the State or Union without issuance of
advertisement inviting applications from eligible candidates and
without holding a proper selection where all eligible candidates get a
fair chance to compete would be violative of the guarantee enshrined
in Article 16 of the Constitution.
09. Keeping in mind the aforesaid fundamental proposition
and principles of law and reverting back to the case/s in hand,
admittedly the petitioners herein have entered in the respondents-
department without following the aforesaid procedure prescribed by
law irrespective of the fact that the Rules of 2008 came into being
thereafter therein the said appointments. The petitioners could not
have been engaged/appointed and regularized by the respondents
without taking recourse to a proper selection process by issuance of
advertisement providing a fair opportunity to all eligible candidates
to participate in the said selection process.
The claim of the petitioners that they came to be
appointed by the Govt./Higher Authority possessed with a power to
c/w
appoint cannot be accepted in view of the aforesaid position of law
as the appointment made by any authority, howsoever high it may
be, without conducting selection process cannot, but, said to be
arbitrary, illegal and violative of Article 16 of the Constitution.
10. The petitioners under these circumstances cannot be said
to have any right much less a legal, statutory or fundamental
enforceable against the respondents in the instant petitions on any
grounds including that they have had been working for a
considerable period of time with the respondents. A reference in this
regard to the judgment of the Apex Court passed in case
"Secretary, State of Karnataka and others Vs Uma Devi (3) and
others" reported in (2006)4 SCC 1 would be relevant, wherein
"absorption, regularization, or permanent continuance of
temporary, contractual, casual, daily -wage or ad hoc
employees appointed/recruited dehors the constitutional
scheme of public employment has been deprecated."
11. Viewed thus, in the light of the aforesaid analysis, it can
safely be said and held that the impugned orders have been issued
by the respondents against the petitioners validly and legally after
following the principles of natural justice without there being
violation of the rights and interests of the petitioners in the process.
c/w
12. Resultantly, the petitions fail and are accordingly
dismissed along with all connected applications.
(JAVED IQBAL WANI)
JUDGE
JAMMU
22.02.2024
Muneesh
Whether the order is speaking : Yes
Whether the order is reportable: Yes
