High Court Of Jammu & Kashmir And Ladakh vs Respondent(S)
2024 Latest Caselaw 322 j&K

Jammu & Kashmir High Court

High Court Of Jammu & Kashmir And Ladakh vs Respondent(S) on 2 March, 2024

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                                                    Sr. No. 2

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU


                                                 WP(C ) No. 36/2021

                                                           ..... petitioner (s)
Sh. Nand Kumar Singh Age 62 years S/0 Sh. Sukhal Singh R/0 village
Paloura Tehsil and District Jammu
                               Through :- Mr. R.K.S.Thakur Advocate.

                            V/s

                                                           .....Respondent(s)
1 Union Territory of Jammu and Kashmir through Commissioner-Secretary,
Department of Home Civil Sectt. Srinagar.
2. Director General of Police (Prison) J&K, Ambphalla, Jammu.
3. Superintendent District Jail. Ambphalla, Jammu.
                                 Through :- Ms. Monika Kohli Sr. AAG

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


                               JUDGMENT(ORAL)

(02.03.2024)

1 The petitioner is aggrieved of and has called in question

Government Order No.1775-Home of 2017 dated 14.12.2017 whereby the case

of the petitioner for regularization as Warder in the Prisons Department, in

terms of order dated 06.08.2010 passed by this Court in SWP No. 802/2008,

has been considered and rejected.

2 Before adverting to the arguments addressed by learned counsel

appearing for the parties, it would be appropriate to notice material facts

leading to filing of this petition.

(a) In the year 1995-97, some ex-servicemen were engaged by the Department of Prisons and Fire Services as Warders on consolidated monthly emolument of Rs.1500/-. Vide order No. 17 of 1997 dated 10.04.1997, the petitioner, who too was an ex-serviceman, was engaged as Warder in the Prisons Department on similar terms. In the year 1998, the Department of Prisons and Fire Services took a decision to regularize the services of aforesaid

ex-servicemen as Warders and, accordingly, Additional Director, Prisons and Fire Services, J&K vide his order No.80 of 1998 dated 18.06.1998 directed regularization of five ex-servicemen engaged as Warders on a consolidated basis. This was, however, subject to the confirmation by the Home Department.

The Home Department did not confirm the action of Additional Director, Prisons and Fire Services directing regularization of five ex- servicemen. This made the aforesaid five ex-servicemen to approach this Court by way of SWP No. 1234/2000 titled 'Parhlad Singh and others Vs State of J&K and others'. The said writ petition was allowed by this Court vide judgment dated 30.11.2002, the operative portion whereof reads as under:

"For the aforesaid reasons and under such circumstances, the petition is allowed. The appointments of petitioners are held valid. The respondents are directed to release salary from the date of the appointment of the petitioners in the pay scale in which they have been appointed".

(b)Pursuant to the aforesaid judgment passed by this Court in favour of the petitioners of SWP No. 1234/2000, a formal order of regularization of all the five ex-servicemen appointed in the year 1995-96 was issued on 14.12.2002. The petitioner, who was appointed in the year 1997, was somehow ignored and his case was not taken up by the respondents for regularization. After having found that his colleagues, though appointed a year or two before him, have been regularized with the intervention of the Court, the petitioner also approached this Court by way of SWP No. 802/2008 seeking, inter alia, a direction to the respondents to treat him to have been appointed as Warder w.e.f. 18.06.1998. The said writ petition was allowed by a Bench of this court vide order dated 06.08.2010 with the following directions:

"This petition is disposed of with a direction to the respondents to consider the claim of the petitioner in terms of judgment passed in SWP No. 1234/2000 titled Parhlad Singh and others vs. State and others decided on 30.11.2002 and if found similar and covered by the rules consider grant of same benefit to him.

(c) In compliance with the aforesaid judgment, the case of the petitioner has been considered by the Government and vide Government order impugned, the same has been rejected on the following two grounds:

(i) That the petitioner has not been found similarly situated with the writ petitioners of SWP No. 1234/2000 on the ground that the said petitioners were appointed prior to the petitioner and that their services were regularized under the orders of this court; and,

(ii) That the case of the petitioner for regularization was not covered under J&K Civil Services (Special Provisions) Act, 2010 ['the Act of 2010'] on the ground that on the date of his engagement as Warder on consolidated basis, he was lacking basic eligibility vis-à-vis maximum age prescribed for entering into the Government service. It is stated that the petitioner, at the time of his engagement, was over-aged by 02 years, 01 month and 25 days.

3 Feeling aggrieved, the petitioner has once again approached this

Court through the medium of this petition to throw challenge to the

consideration order dated 14.12.2017 impugned in this petition.

4 Having heard learned counsel for the parties and perused the

material on record, I am of the considered view that the Government order

impugned is contrary to facts and law and, therefore, cannot sustain.

5 Indisputably, the writ petitioners of SWP No. 1234/2000 titled

'Parhlad Singh and others Vs State of J&K and others and the petitioner herein

were similarly appointed as Warders on consolidated basis. They were all

ex-servicemen. It is because of their experience of handling arms and

ammunition, they were initially engaged as Warders. It is also not in dispute

that the ex-servicemen, who were engaged as Warders in the year 1995-96,

were regularized by the Additional Director of Prisons and Fire Services vide

order dated 18.06.1998 subject to confirmation by the Home Department. As

noticed above, the Home Department did not confirm the regularization

proposed by the Additional Director. The writ petition i.e SWP No. 1234/2000

was filed by the aforesaid five ex-servicemen which was allowed vide order

dated 30.11.2002. The petitioners therein were held to be validly appointed as

Warders and, accordingly, a direction was issued to the respondents to release

the pay scale in their favour from the date they had been appointed. The

petitioner herein, who was similarly situated, though appointed a year later i.e

in the year 1997, also approached this Court and succeeded in getting a

direction from this Court to consider his case also, provided he was similarly

situated with the writ petitioners of SWP No. 1234/2000. It may be pertinent to

note here that the writ petition filed by the petitioner herein i.e SWP

No. 802/2008 was disposed of by this Court on the basis of statement made by

the then AAG appearing for the respondents that the petitioner's case was

similar to the case of the writ petitioners of SWP No. 1234/2000.

6 In view of the aforesaid position emerging from the judgment of

this Court dated 06.08.2010 passed in SWP No. 802/2018, the respondents

have no option, but to extend the relief to the petitioner herein as was granted

to the writ petitioners of SWP No. 1234/2000.

7 From a reading of the impugned Government order, it clearly

transpires that the respondents have not been able to find out any distinction

between the case of the petitioner herein and the case of the petitioners of

SWP No. 1234/2000 who were ex-servicemen and were engaged as Warders

on consolidated basis under similar set of circumstances except that the

petitioners of SWP No. 1234/2000 were appointed in the year 1995-96,

whereas the petitioner herein was appointed in the year 1997. The plea of the

respondents taken in the impugned Government order that the petitioners of

SWP No. 1234/2000 were regularized as Warders on the basis of and in

compliance with the directions of this Court and, therefore, they are class apart,

cannot be accepted in the face of the fact that the petitioner too has obtained

similar direction from the Court. The very basis of rejection of claim of the

petitioner for regularization on the analogy of writ petitioners of SWP

No. 1234/2000 is founded on wrong premise.

8 On being asked, Ms Kohli, learned Sr. AAG appearing on behalf

of the respondents could not point out any distinction between the case of the

petitioner and the case of the writ petitioners of SWP No. 1234/2000 to justify

the plea of the respondents taken in the Government Order impugned to reject

the claim of the petitioner herein. The other ground taken by the respondents to

reject the case of the petitioner for regularization under the Act of 2010 is also

factually incorrect. The claim of the petitioner for regularization under the Act

of 2010 has been rejected on the ground that on the date of his engagement as

Warder on consolidated basis, he was over-aged by two years, one month and

twenty-five days, is factually incorrect. In terms of Section 6(1) of the Act of

2010, the upper age limit for entering into Government service is provided to

be the same as provided under the Jammu and Kashmir Civil Service

Regulations Volume-I. In terms of SRO 302 dated 17-9-1990, the upper age

limit prescribed for entering into Government service was 35 years which was

extendable to 37 years vide SRO 47 dated 29.01.1997 up to 31.12.1998. There

is no quarrel with regard to the position as indicated in SRO 302 read with

SRO 47, but the fact remains that the upper age limit for entering into

Government service i.e 35 and 37 years is with regard to the candidates

belonging to open category, whereas in the case of ex-serviceman, the upper

age limit prescribed for entering into Government service is 48 years.

9 Indisputably, the petitioner herein and the petitioners of SWP

No. 1234/2000 were ex-servicemen and were engaged as Warders as such and,

therefore, for considering the upper age limit prescribed, the prescription for

ex-servicemen in Article 37 Note-5 is required to be taken note of. There is,

thus, inherent fallacy in applying the provisions of Article 37 to the case of the

petitioner. On both the counts, the order impugned is bad and, therefore, cannot

sustain.

10 For the foregoing reasons and the discussion made, this petition is

allowed. The order impugned is set aside and a direction is issued to the

respondents to regularize the services of the petitioner as Warder w.e.f

18.06.1998 when the writ petitioners of SWP No. 1234/2000 titled 'Parhlad

Singh and others vs State and others were so regularized. This would be

followed by all the consequential benefits that would inure to the petitioner.

Needless to say that the consequential benefits would include the arrears of

salary, payment of pension and other service benefits available to the petitioner

under relevant service rules.

Disposed of accordingly.

(SANJEEV KUMAR) JUDGE Jammu 02.03.2024 Sanjeev

whether order is reportable:Yes/No