Jammu & Kashmir High Court
Vijay Kumar Sharma vs Union Of India on 3 October, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
S. No. 07
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- WP(C) No. 1343/2021
CM Nos. 5458 & 5459/2021
Vijay Kumar Sharma, age 58 years S/o Durga Dass,
R/o VPO Bhour Camp, Ward No.2, Jammu. .....Appellant/Petitioner(s)
Through: Mr. Vikas Mangotra, Advocate
Vs
1. Union of India, through Secretary to Government, Ministry
of Defence, Government of India,
Raksha Bhawan, New Delhi.
2. Joint Director for Adjutant General Integrated
HQIMOD(Army), Directorate General of RTGI RTG-B(E),
Adjutant General's Branch, West Block-3, R K Puram,
New Delhi, C/o 56 APO
3. Senior Record Officer, For OIC Records, Kavachit Corps
Abhilekh, Armoured Crops Record, C/o 56 APO.
4. Commandant, 49 Kavachit Regiment,
49 Armoured Regiment, C/o 56 APO.
5. Additional Officer, RTG-B, For Adjutant General,
Integrated Headquarter of MOD(Army),
Addl Dte Gen of Rtg/Rtg B, Adjutant General's Branch,
..... Respondent(s)
West Block-3, R K Puram New Delhi,
Through: Mr. Vishal Sharma, ASGI
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
(03.10.2024)
(ORAL)
01. In the instant petition, the petitioner herein is seeking direction upon the
respondents to treat the petitioner as appointed as Religious Teacher in
49 Kavachit Regiment C/o 56 APO by effectively considering the case
of the petitioner.
FACTUAL MATRIX
02. It is stated that the petitioner was appointed as a Religious Teacher in the
year 1989 against a vacant post and was recommended by the authority
of 49 Armed Regiment in the year 1990. The petitioner served as
Religious Teacher for a period of three years. It is submitted that after
performing three years of his regular service, he was not allowed to
continue without furnishing any reason or justification. It is stated that
the petitioner approached the concerned authority through many
representations and also requested for his regular appointment but no
heed was paid to the representations made by the petitioner.
03. It is further submitted that in terms of the communication dated
08.05.2014, the application of the petitioner was rejected without being
rightly considered by the respondent No.5, which constrained the
petitioner to file SWP No. 2340/2014 titled Vijay Kumar Sharma vs
Union of India and others, before this Court. The petition filed by the
petitioner was subsequently transferred to the Armed Forces Tribunal,
Regional Bench Srinagar at Jammu bearing TA No. 123 of 2017,
whereby the petitioner had sought quashment of the communications
dated 08.01.2013 and 08.05.2014 (supra). In the aforesaid writ petition,
the petitioner had made following prayers:-
i) Allow the present petition of the petitioner;
ii) Issue a Certiorari, quashing communication bearing
No.64714/Cent/Rtg-B(E) dated 08.05.2014 issued by
respondent No.2 by virtue of which the application of
the petitioner dated 09.04.2014 has been returned
back without being considered as per law as also
quashing communication No.64714/CENT/Reg-B (E)
dated 08.01.2013 issued by respondent No.5 whereby
the case of the petitioner for giving retrospective
effect to his appointment order has been rejected.
iii) Issue writ in the nature of mandamus, commanding
the respondents to treat the petitioner as appointed as
Religious Teacher in 49 Kavachit Regiment /o 56
APO and consequentially grant all service benefits in
his favour with retrospective effect.
iv) Any other writ, order or directions which this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case may also be granted n
favour of the petitioner.
04. It is stated that during pendency of the petition supra, the petitioner came
across the guidelines in the form of Government of India MOD letter No.
2(17)/51/10805/D (Civ) dated 10.09.1953, which deals with the subject
of conditions of service of workers employed in casual capacity, which,
as per the petitioner, covers his claim. The guidelines provide as under:
"With reference to this Ministry's Memorandum No.
2(23) D-11/8291/40 dated 15th July 1940, it has been
represented that besides the casual employees paid
from contingencies, referred to therein, it also
becomes frequently necessary to recruit casual
personal to be paid on regular monthly scales of pay
from regular pay or works heads of account for
specific jobs/periods, as substitutes or for a
temporarily increased work load. It has therefore
being decided that the employment of such casual
personal may be resorted to, where necessary, sub jet
to the following conditions:-
.............................
(v) if for any reason, the appointment is to continue
beyond six months, the individual will not be
discharged and re-employed from the same date.
Instead, he will be allowed to continue in service
without any break and will be treated as a regular
industrial employee from the date of his original
appointment as casual industrial employee. This
change of category from casual to regular will be
declared even before the expiry of six months as soon
as it is definitely known that the individual will
continue in service beyond six months."
05. It is stated that the learned Armed Forces Tribunal, Srinagar Bench at
Jammu, disposed of the application of the petitioner on 23.03.2018
thereby admitting that though the Tribunal has no jurisdiction to decide
the case of the petitioner, but despite that the applicant/petitioner was
directed to move the representation/application before the concerned
Military Authority in light of the MOD letter dated 10.09.1953 issued by
the Government of India Ministry of Defence and the respondents were
also directed to consider the representation of the petitioner in
accordance with law.
06. The petitioner filed a detailed representation on 14.08.2018 before the
competent authority/respondents along with all other relevant record.
Learned counsel for the petitioner states that till date despite filing
effective representation followed by repeated reminders since 2018, the
respondents have failed to consider the comprehensive representation
made by the petitioner.
07. Per Contra, the reply stands filed by the respondents, wherein it is stated
that the petitioner was engaged on temporary basis for performing
routine rituals in the morning and evening hours in the Regimental
Mandir (Temple) of 49 Armoured Regiment and has discharged his
duties between 1990 to 1993 as Religious Teacher posted with the
Regiment.
08. It is further stated that the petitioner was put through a detailed medical
examination on 03.08.1990 by the Commandant, 49 Armoured Regiment
merely to know about his own medical history which was conducted by
Unit Regimental Medical Officer of 49 Armoured Regiment. The
petitioner was permitted to work for rituals and look-after the unit
Mandir. It is stated that since the petitioner had attained Shastri degree
and he was engaged by the unit in lieu of a Religious Teacher on
temporary basis, the petitioner was also issued with an experience-cum-
character certificate by the Second-in-Command, 49 Armoured
Regiment on 02.12.1992 with an intention to help him out for any
enrolment process as a Religious Teacher in the Army if he so desires.
But instead of contacting any of the Recruiting agencies for enrolment,
the petitioner submitted a representation dated 25.08.2012 to IHQ of
MoD (Army)/Armoured Corps Records for permanent appointment as
Religious Teacher. It is stated that there is no provision existing for such
appointments, the petitioner was suitably replied by the respondents vide
communications dated 18.12.2012 and 08.01.2023 respectively. It is
stated by the respondents that the petitioner does not come under the
category of Army personnel as no Army Number has been allotted to
him as such, the Tribunal had no jurisdiction to decide the case of the
petitioner.
09. It is further stated that the representation made by the petitioner on
14.08.2018 has been considered by the respondents and speaking order
has been passed on 28.09.2018 which is annexed with the reply filed by
the respondents. The respondents have stated in the consideration order
dated 28.09.2018 that the contention made by the petitioner cannot be
corroborated or denied as no data is available on record for this duration
from 1990 to 1992. Moreover, the enrolment/selection of Religious
Teacher in the Army is done by the recruitment agencies only (i.e
Branch Recruiting Officer/Army Recruiting Office/Independent
Recruiting Office) through screening by a Board of Officers (i.e various
physical test, physical standard, written test, interview, education
qualification and finally selection based on merits of All India Level.
The candidates have to qualify the complete recruitment process,
thereafter an Army Number is allotted to the selected candidates and
they are further detailed for basic military Training and Trade Training.
Meanwhile, their character and antecedents are also required to be
verified from the District Magistrate or Deputy Commissioner. On
receipt of verification roll from Civil Authorities and successful
completion of training on oath of allegiance to Constitution of India is to
be taken by every recruits and thereafter they come under the
classification of trained soldiers. As such, the petitioner was directed to
provide all such documents i.e (a) Army Number, (b) Date of enrolment,
(c) Place and date of Physical Test, written test and interview conducted,
(d) Duration of Basic Military Training, Trade Training and name of
training institution, (e) Date of verification from District Magistrate and
(f) Date of Oath/attestation.
10. Learned counsel for the petitioner has filed a supplementary affidavit
and stated that the procedure prescribed in paragraphs 592-596 of the
Defence Service Regulations for the destruction of records has not been
followed by the respondents.
11. Learned counsel for the petitioner states that he would feel satisfied if
the instant petition is disposed of with a direction to the respondents to
consider the representation of the petitioner dated 14.08.2018 strictly in
terms of the contents of the representation filed by the petitioner.
Learned counsel for the respondents is not averse to the proposition
made by learned counsel for the petitioner.
12. In view of the above, without expressing any opinion on the merit of the
case, the instant petition is disposed of with a direction to the
respondents 2 to 5 to consider the representation filed by the petitioner
dated 14.08.2018 strictly in terms of the guidelines in the form of
Government of India communication/MOD dated 10.09.1953 and pass a
speaking orders within a period of eight weeks from the date copy of this
order and writ petition along with annexures furnished to the
respondents.
13. Disposed of.
(MOKSHA KHAJURIA KAZMI)
JUDGE
JAMMU
03.10.2024
Vijay
Whether the order is speaking: Yes
Whether the order is reportable: No
