Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K And Ors vs Showkat Ahmad War And Ors on 22 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 01
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 1812/2022
Dated: 22nd of October, 2024.
Union Territory of J&K and Ors.
... Petitioner(s)
Through: -
Mr Bikramdeep Singh, Dy. AG with
Ms Nowbahar Khan, Assisting Counsel.
V/s
Showkat Ahmad War and Ors.
... Respondent(s)
Through: -
Mr Bhat Fayaz Ahmad, Advocate with
Ms Nighat Amin, Advocate for R-1 to 9; and
Ms Yasmeen Jan, Advocate vice
Mr Tahir Majid Shamsi, DSGI for R-10.
CORAM:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Hon'ble Mr Justice Rajesh Sekhri, Judge
(JUDGMENT)
Sanjeev Kumar-J:
01. The Petitioners invoke extraordinary Writ jurisdiction vested
in this Court under Article 226 of the Constitution of India to throw
challenge to an Order and Judgment dated 1st of April, 2022 read with
Order dated 12th of April, 2022 passed by the Central Administrative
Tribunal, Srinagar (for short the Tribunal) in TA No. 6029/2020 titled
'Showkat Ahmad War & Ors. V. State of J&K and Ors.', whereby the
Tribunal, while allowing the TA/OA, has directed the Petitioners herein to
regularize the services of the Respondents herein in terms of the decision of
the State Administrative Council, reference of which has been made by the
Tribunal in Paragraph No.11 of the impugned Order and Judgment.
02. Before we advert to the rival submissions made on both the
sides, we deem it appropriate to give a brief resume of the factual
antecedents leading to the filing of the instant Writ Petition.
03. In the year 1997, a special Collectorate was established to
function as Collector, Land Acquisition, Northern Railways, for acquiring
land for the Railway Project. With a view to make the Collectorate
functional, the Respondents herein were engaged as Junior Assistants,
Orderlies, Drivers, etc., initially on consolidated basis. Later on, the regular
pay scales of the posts were also released in favour of the Respondents
herein, though their engagement was not against any vacant posts. After
rendering their services in temporary/ contractual capacity for long, the
Respondents herein approached the Petitioners herein for regularization of
their services on the lines of the Jammu & Kashmir Civil Services (Special
Provisions) Act, 2010 (hereinafter referred to as "the Act of 2010"), which
envisages regularization of employees working on contractual, consolidated
and temporary basis against the vacant posts. The Respondents herein were
denied the benefit of the Act of 2010 on the ground that they were not
eligible for relaxation in terms of Section 5 of the Act of 2010, in that they
were engaged against non-existent posts, that too, in a time bound Project.
04. Faced with the rejection of their claim for regularization of
their services on the part of the employer, the Respondents herein filed a
Writ Petition bearing SWP No. 1797/2018 before this Court, which, on
transfer to the Tribunal, was registered as TA No. 6029/2020.
05. The Respondents, inter alia, challenged the vires of Sections 3
and 5 of the Act of 2010 and also sought a direction to the Petitioners herein
to regularize their services, having regard to the fact that they had been
performing their duties, though in temporary capacity, for the last more than
06. Reply to the aforesaid Petition preferred by the Respondents
herein was filed by the Petitioners herein. It was stated by the Department
of Revenue, in its Reply Affidavit, that with a view to supplementing the
staff for Railway Collectorate, Srinagar to carry out the land acquisition
process, the Minister for Revenue, Relief and Rehabilitation, J&K
authorized the Divisional Commissioner, Kashmir to appoint the staff from
retired Government employees (except Junior Assistants, Orderlies and
Runners). On the strength of Order No. Rev (LAJ) 64/97 dated 21st of
November, 1997, the Divisional Commissioner appointed the Respondents
herein as Junior Assistants/ Orderlies, Drivers, etc. It was also brought to
the notice of the Tribunal by the Department of Revenue that the claim of
the Respondents herein for regularization was initiated by the Divisional
Commissioner in the year 2006 by recommending their cases to the General
Administration Department vide communication No. Div.Com/LAS-
Rep(273) dated 2nd of May, 2006 and in the year 2008, the Financial
Commissioner, Revenue, Jammu & Kashmir, vide his communication No.
FC (NC-Misc) 1301/08 dated 17th of October, 2008, made one more
recommendation for confirmation of the services of the Respondents herein
against (09) identified posts having no financial implications.
07. As a matter of fact, at one stage, the Revenue Department
prepared a memorandum for considering the cases of the Respondents
herein for confirmation/ regularization, to be submitted to the State
Administrative Council through General Administration Department. It
seems that the General Administration Department sought certain replies to
the observations/ queries made by it to the Revenue Department, but did not
eventually place the memorandum before the Administrative Council for
taking a final decision in the matter. The resolution prepared by the
Commissioner/ Secretary to the Government, Revenue Department with the
approval of the Advisor (G) to the Governor, to be submitted to the State
Administrative Council, was in the following manner:
"I. Sanction in relaxation of rules is hereby accorded to the appointment/
absorption of following nine employees of Special Railway Collectorate
Srinagar/ Budgam, with immediate effect, against the posts in the officers shown
against each: -
S. Name of the candidate Qualification Designation Name of the post Relaxation of age
No. with particulars against which as on 01.01.2018
regularization and qualification
proposed and the required.
office thereof
1 Shri Showkat Ahmad War B.A. Jr. Jr. Assistant in the 05 years, 08 months
S/o Ghulam Mustafa War Computer Assistant- office of Deputy and 01 day
R/o Zainakadal Srinagar. Sciences. cum-Typist Commissioner,
Ganderbal.
2 Shri S. J. Labroo B. Com Jr. Jr. Assistant in the 07 years, 10 months
S/o Sh. B. N. Labroo Assistant- office of Deputy and 03 days
R/o Anantnag. cum-Typist Commissioner,
Budgam (Defense Side)
3 Syed Parvaiz Hussain M.A. Jr. Assistant Jr. Assistant in the 10 years, 09 months
S/o Syed Jalal-ud-Din office of Deputy and 03 days
R/o Panzan, Chadoora Commissioner,
Kashmir (Defence
Side)
4 Sheikh Mohd. Aslam B.A. Jr. Assistant Jr. Assistant in the 09 years and 07 days
S/o Late Haji Abdul Salam office of Deputy
Sheikh Commissioner
R/o & P.O Lajoora Anantnag
Pulwama
5 Gulzar Ahmad Malik s/o Matric Driver Driver in the office of 04 years, 09 months
Mohd. Ramzan Malik r/o Deputy Commissioner, and 15 days
Mattan The & Dist. Anantnag
Anantnag.
6 Shri Javid Ahmad Wani Middle Pass Runner Runner/Orderly in the Qualification Bar
S/o Nasir Ahmad Wani office of Deputy
R/o Chatabal, Srinagar Commissioner,
Ganderbal
7 Shri Javid Ahmad Baba 10+2 Orderly Orderly in the office of 02 years, 10 months
S/o Mohammad Yasin Deputy Commissioner, and 28 days
Baba Ganderbal
R/o Alamdar Colony,
Char-i-Sharief, Chadura.
8 Shri Mushtaq Ahmad Bhat Matrix Orderly Orderly in the office of Nil
S/o Gh. Mohammad Bhat Deputy Commissioner
R/o Bemina, Nund Reshi Ganderbal
Colony, Srinagar
9 Feroz Ahmad Khan Middle Orderly Orderly in the office of 05 months and 22
S/o Mohd. Amin Khan Deputy Commissioner, days and
R/o Rainawari, Srinagar Ganderbal Qualification Bar
II. Sanction is also accorded to the relaxation in upper age limit in favour
of the engages mentioned at S. Nos. 1,2,3,4,5,7 and 9 of the aforementioned table
to the extent shown against each as on 1.1.2018.
III. Sanction is further accorded to the relaxation in qualification bar in
respect of Sr. Nos. 6 and 9 given in the aforementioned table."
08. It is further seen that the General Administration Department,
instead of placing the matter before the State Administrative Council after
having received the requisite replies to its queries, returned the file to the
Revenue Department with the observation that the Revenue Department
should act in accordance with Rules, thereby suggesting to the Revenue
Department that under the relevant Rules in vogue, it was not permissible to
regularize the services of the Respondents herein.
09. The matter was considered by the Tribunal in the aforesaid fact
situation projected by the parties and it came to the conclusion that since the
State Administrative Council had already taken a final decision and,
therefore, the Department of Revenue was duty bound to implement the
same and issue formal orders of regularization in favour of the Respondents
herein, after completing the requisite formalities.
10. Having heard the learned Counsel for the parties and perused
the material on record, we are of the considered opinion that the Tribunal
has gone factually wrong in coming to the conclusion that there is a
decision taken by the State Administrative Council in terms of the
memorandum prepared by the Department of Revenue and placed before
the Council through the General Administration Department.
11. From the examination of the record, we find that the General
Administration Department never placed the memorandum before the State
Administrative Council for taking a final decision in the matter. As is
apparent from the memorandum prepared by the Department of Revenue,
the regularization of the services of the Respondents herein required
relaxation of Rules and the relaxation of Rules falls within the domain of
the Chief Minister-in-Coordination/ State Administrative Council headed
by the Governor or Lieutenant Governor, as the case may be. At the
relevant point of time, the final decision with regard to the relaxation of
Rules and grant of sanction for regularization of the services of the
Respondents herein was to be taken by the State Administrative Council
headed by the then Governor of the State of Jammu and Kashmir.
12. Learned Counsel appearing on both the sides fairly concede
that the Tribunal has wrongly concluded that the State Administrative
Council has already taken a decision and it is the Revenue Department
which is to carry out the decision.
13. Mr Bhat Fayaz Ahmad, the learned Counsel appearing for the
Respondents herein, fairly submits that he would not be opposed to the
direction, if any, issued by this Court to the new administrative set up, i.e.,
Chief Minister-in-Coordination (Cabinet) for taking appropriate decision in
the light of the memorandum prepared by the Department of Revenue,
reference of which is made in Paragraph No.11 of the Judgment impugned
of the Tribunal and is also reproduced hereinabove.
14. We have given our thoughtful consideration to the aforesaid
aspects of the matter and we are of the view that the interests of justice
would be served, if we dispose of this Petition by providing as under:
i. That the memorandum prepared by the Revenue
Department, with the approval of the then Advisor (G) to
the then Governor of the State of Jammu and Kashmir,
shall be submitted to the Chief Minister-in-Coordination
(Cabinet) for taking appropriate decision thereupon;
ii. That the Revenue Department will put up the
memorandum before the Commissioner/ Secretary to the
Government, General Administration Department, within
two weeks from the date of receipt of this Judgment and,
thereafter, the General Administration Department will
place the memorandum, as it is, before the Chief Minister-
in-Coordination (Cabinet) for taking a final decision in this
regard;
iii. That the Chief Minister-in-Coordination (Cabinet) shall
take note of the fact that the Respondents herein have been
performing their duties on temporary basis for the last
more than two decades and have already been placed in the
regular pay scale of the posts held by them, with the
benefit of increments, as also the fact that the service
books of the Respondents herein, too, have been prepared;
and
iv. We hope and trust that the Cabinet will meet soon and take
a final decision on the recommendations of the Revenue
Department at the earliest, and in any case, within a period
of two months from the date it receives the complete
proposal.
15. Ordered accordingly.
16. Insofar as the unpaid salary of the Respondents herein is
concerned, we make it clear that the responsibility to pay the salary to the
Respondents herein lies on the Government in the Revenue Department. It
is, however, for the Revenue Department to take up the matter with the
Northern Railways for the requisite funds. It has been brought to our notice
that the Collectorate has already taken up the matter with the Northern
Railways, but no good response has been received.
17. Be that as it may, with a view to settle this issue, we direct the
Divisional Commissioner, Kashmir to convene a meeting of the Collector,
Land Acquisition, Railways and the Railway Officer, Incharge, Jammu &
Kashmir and sort out the matter. The Divisional Commissioner shall ensure
that the pending wages/ salary of the Respondents herein is disbursed to
them within one month.
18. Writ Petition shall stand disposed of on the above terms, along
with the connected CMs.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
SRINAGAR
October 22nd, 2024
"TAHIR"
