Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K And Ors vs Firdous Ahmad Kumar on 23 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 42
Supplementary-1 Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 2142/2024
CM No. 5761/2024
Union Territory of J&K and Ors.
... Petitioner(s)
Through: -
Mr Abdul Rashid Malik, Sr. AAG with
Mr Younis Hafiz, Assisting Counsel.
V/s
Firdous Ahmad Kumar
... Respondent(s)
Through: -
Mr Bhat Fayaz Ahmad, Advocate.
CORAM:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Hon'ble Mr Justice Rajesh Sekhri, Judge
(ORDER)
23.10.2024
Sanjeev Kumar-J:
01. The Union Territory of Jammu & Kashmir and five others are
before this Court invoking extraordinary jurisdiction of this Court vested
under Article 226 of the Constitution of India to assail an Order and
Judgment dated 30th of May, 2024 passed by the Central Administrative
Tribunal, Srinagar (hereinafter referred to as "the Tribunal") in OA No.
20/2023 filed by the Applicant/ Respondent herein titled 'Firdous Ahmad
Kumar v. UT of J&K and Ors.', whereby the Tribunal has allowed the
OA of the Respondent herein and directed the Petitioners herein to
regularize the services of the Respondent, either against a vacant post or by
creating a post including a supernumerary post, within a period of eight
weeks.
02. Briefly stated, the facts leading to the filing of this Petition are
that vide Government Order No. 233-GAD of 2007 dated 6th of March,
2007, sanction was accorded to the creation of posts and appointment of
staff in the newly approved Districts, including District Bandipora. The
Respondent herein was appointed against the available post as Stenographer
on contractual basis vide Order No. 419 DDCB of 2007 dated 26th of
October, 2007, along with some other candidates, by the District
Development Commissioner, Bandipora. The Order of engagement clearly
provided that the appointment shall be on consolidated monthly salary and
that the Respondent herein shall not claim any preferential treatment in the
matter of regular appointment, which shall be made by following normal
process of selection.
03. While the Respondent herein was continuing on the aforesaid
contractual appointment as Stenographer, the Government of Jammu &
Kashmir promulgated the Jammu & Kashmir Civil Services (Special
Provisions) Act, 2010 (for short "the Act of 2010") providing for
regularization of employees appointed on ad hoc, contractual or
consolidated basis, subject to their eligibility as laid down in the Act of
2010. The case of the Respondent herein was considered and the Petitioners
herein, having found him eligible in all respects, recommended his case for
regularization as Junior Stenographer vide Order No. DDC.BPR/2014-
15/6511-15 dated 20th of January, 2015.
04. While the case of the Respondent herein was pending
consideration of the competent authority for regularization, the Department
of Planning referred some posts, including the six posts of Junior Scale
Stenographer, to the Services Selection Board for filling up the same by
making selection of suitable candidates vide communication dated 20th of
May, 2015.
05. It is the case of the Petitioners herein that the post held by the
Respondent herein was amongst the six posts of Junior Scale Stenographer
referred for selection to the Services Selection Board. It has also come on
record that the Empowered Committee constituted under the Act of 2010
examined the case of the Respondent herein and found him eligible for
regularization and, accordingly, forwarded its recommendations to the
Planning Department for issuing formal order of regularization. Since, six
posts of Junior Scale Stenographer, including the one held by the
Respondent herein, were referred to the Services Selection Board for
recruitment, as such, the Director General of Economics took up the matter
with the Services Selection Board for withdrawal of five posts of Junior
Scale Stenographer. However, the request was not acceded to by the Board.
The matter was also taken up with the Finance Department for creation of
supernumerary post, but the case was returned by the Finance Department
with certain observations. In the meanwhile, another employee, namely,
Gowhar-ul-Haq, appointed in the similar capacity along with the
Respondent herein by virtue of the same engagement order, came to be
regularized.
06. The Respondent herein, feeling discriminated, filed OA No.
105/2021 before the Tribunal, which was disposed of vide Order dated 27th
of January, 2021, thereby directing the Petitioners herein to consider the
case of the Respondent herein for regularization, provided he is eligible for
the same in accordance with the relevant Schemes and Acts applicable to
the case. This Order was ultimately implemented and a consideration order
was passed, whereby the case of the Respondent herein for regularization
was rejected. The case of the Respondent herein was rejected on the ground
that there was no post of Junior Scale Stenographer available in the
Department to accommodate the Respondent herein and also on the ground
that with the issuance of the Jammu & Kashmir Reorganization (Adoption
of State Laws) Order, 2020 dated 31st of March, 2020, the Act of 2010
stood repealed. This is how the Respondent herein, again, approached the
Tribunal through OA No. 20/2023, which came to be disposed of by the
Tribunal vide the Order and Judgment impugned in this Petition.
07. Having heard the learned Counsel for the parties and perused
the pleadings on record, we are of the considered opinion that the impugned
Order and Judgment passed by the Tribunal is perfectly legal and does not
call for any interference by us, that too, in exercise of extraordinary
jurisdiction under Article 226 of the Constitution of India.
08. The reply to the arguments raised by Mr Abdul Rashid Malik,
the learned Senior Additional Advocate General, appearing for the
Petitioners, lies in Section 13 of the J&K Civil Services (Special
Provisions) Act, 2010, which, for facility of reference, is set out below:
"13. Creation of additional posts: Additional posts of equal
number as are required for regularization and continuation of ad hoc
or contractual or consolidated appointees may be created if the posts
are not available in the Department when the regular appointments
on the basis of the recommendations of recruiting agencies, to which
the posts held by the ad hoc or contractual or consolidated
appointees have been referred for making selection, are made against
such posts and the additional posts so created shall cease to exist
once posts become available in the concerned Department of the
Government:
Provided that no additional post shall be created without
prior concurrence of the Finance Department."
From reading of Section 13 of the Act of 2010, it clearly
transpires that in a situation where a post held by an ad hoc or contractual
or consolidated appointee has been filled up on the recommendations of a
selection agency, such ad hoc or contractual or consolidated appointee is
required to be accommodated by creating an additional post, which post
shall cease to exist once a post in the concerned Department of the
Government becomes available. Needless to say, Section 13 of the Act of
2010 would be attracted only in a case where the ad hoc, contractual or
consolidated appointee is otherwise eligible in terms of the Act of 2010 for
regularization.
09. The plea of the learned Senior Additional Advocate General
that the Act of 2010 came to be repealed by the Jammu & Kashmir
Reorganization (Adoption of State Laws) Order, 2020 is without substance,
for the right to regularization stood vested in the Respondent herein
immediately on completion of seven years of contractual service, which he
completed in the year 2017. The repeal of the Act of 2010 took place on 31 st
of March, 2020, which repeal, by no stretch of reason, can be held to be
10. The next argument of Mr Malik that the initial Order of
engagement of the Respondent herein was contractual in nature and subject
to the condition that he shall have no preferential right to seek
regularization is also devoid of merit. This argument would have been
available to the Petitioners herein had the Government not come up with the
Act of 2010 which created a statutory right in favour of the ad hoc,
contractual or consolidated appointees to seek their regularization, subject
to fulfilment of eligibility conditions laid down in the Act of 2010.
11. Viewed from any angle, the Order and Judgment impugned
passed by the Tribunal cannot be found fault with and, therefore, the same
is upheld. That being so, we find no merit in this Petition, which is,
accordingly, dismissed, along with the connected CM.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
SRINAGAR
October 23rd, 2024
"TAHIR"
