Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K And Ors vs Mst. Suraya Jabeen on 10 February, 2025
Bench: Sanjeev Kumar, Puneet Gupta
Serial No. 12
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 1946/2024
CM No. 5243/2024
Dated: 10th of February, 2025.
Union Territory of J&K and Ors.
... Petitioner(s)
Through: -
Mr Abdul Rashid Malik, Sr. AAG with
Mr Younis Hafiz, Assisting Counsel.
V/s
Mst. Suraya Jabeen
... Respondent(s)
Through: -
Mr Shuja-ul-Haq Tantray, Advocate.
CORAM:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Hon'ble Mr Justice Puneet Gupta, Judge
(JUDGMENT)
Sanjeev Kumar-J:
01. Impugned in this Petition filed by the Union Territory of
Jammu & Kashmir, under Article 226 of the Constitution of India, is an
Order and Judgment dated 20th of March, 2023 passed by the Central
Administrative Tribunal, Srinagar Bench ["the Tribunal"] in OA No.
580/2022 and TA No. 291/2021, both titled 'Suraya Jabeen v. UT of J&K
and Ors.'.
02. Before we advert to the grounds of challenge urged by Mr
Abdul Rashid Malik, the learned Senior Additional Advocate General,
appearing for the Petitioners, we deem it appropriate to trace the chequered
history of the case, which has, now, led to the filing of this Petition.
03. Way back in the year 1988, the Respondent herein came to be
appointed as Supervisor in the Department of Social Welfare in the then
pay scale of Rs.900-1880 in ICDS Project, Karnah vide Order No.
SWK/Estt-Adh/88/239-42 dated 20th of April, 1988 passed by the Deputy
Director, Social Welfare Department, Kashmir. The Order was extended
from time to time. The Respondent herein was in adhoc service when a
policy of regularization of adhoc appointments was promulgated by the
Government vide Government Order No. 1220-GAD of 1989 dated 11th of
September, 1989. The Government Order clearly provided that all adhoc
appointees to non-gazetted posts recruited from time to time upto 29th of
December, 1988, who were still in service on the date of issuance of the
Order, would be treated to have been appointed on regular basis. This Order
was, however, subject to the incumbent fulfilling all prerequisites of
eligibility, i.e., qualification and age limit. The aforesaid Government Order
further provided that in case the post on which an incumbent proposed to be
regularized had already been referred to the Services Selection Board, the
same would be withdrawn from the Board. Ordinarily, acting in strict
compliance with the Government Order dated 11 th of September, 1989
(supra), the case of the Respondent herein, who was appointed on 20 th of
April, 1988 and was in active service as on 11th of September, 1989, should
have been considered under Government Order No. 1220-GAD of 1989.
This, however, did not happen because of deliberate omission on the part of
the Petitioners herein.
04. Constrained, the Respondent herein approached this Court by
way of SWP No. 1240/1989, which, along with subsequent Writ Petition
bearing SWP No. 4530/1996 filed by the Respondent herein as well, came
to be disposed of vide Order dated 16th of February, 2012, with a direction
to the Petitioners herein to consider the claim of the Respondent herein for
regularization of her services as per the mandate of the J&K Civil Services
(Special Provisions) Act, 2010 ["the Act of 2010"], which Act had come
into force at the time of disposal of the Writ Petitions.
05. The Respondent herein was not satisfied with the directions
issued by the Writ Court and wanted her right of regularization arising out
of Government Order of 1989 to be enforced and, therefore, filed LPA No.
76/2012 and LPA No. 78/2012 to throw challenge to the Order of the
learned Single Judge dated 16th of February, 2012 (supra). The said Letters
Patent Appeals were dismissed by a Division Bench of this Court vide
Order dated 8th of October, 2012, however, with a clarification that the
Petitioners herein, who were Respondents before the Appellate Court, were
expected to realize that the Respondent herein was appointed in the year
1989 and could not have been deprived of the rights whatever accrued to
her under the Government Orders issued by the Government prior to the
issuance of the Act of 2010.
06. The advice tendered by the Division Bench, as expected, was
ignored by the Petitioners herein, in that the case of the Respondent herein
was, instead, considered for regularization under the Act of 2010 and, as a
result, vide Government Order No. 129-SWD of 2014 dated 2nd of June,
2014, the services of the Respondent herein were regularized with
immediate effect. Thereafter, on 25th of May, 2017, an Order was passed by
the Deputy Director, refixing the pay of the Respondent herein
retrospectively w.e.f. 12th of June, 1996 and, accordingly, the seniority of
the Respondent herein was also maintained. This Order was, subsequently,
revoked by the Director, State Mission vide Order dated 4 th of October,
2018. Aggrieved, the Respondent herein challenged the Order dated 4 th of
October, 2018 passed by the Mission Director as well as the Order dated 2 nd
of June, 2014 in SWP No. 2510/2018 and SWP No. 3069/2019,
respectively.
07. While SWP No. 2510/2018 challenging the Order of Mission
Director dated 4th of October, 2018 was pending, the subsequent Writ
Petition bearing SWP No. 3069/2019, which was transferred to the
Tribunal, came to be disposed of by the Tribunal vide Order dated 30 th of
December, 2020, with a direction to the Petitioners herein to consider the
case of the Respondent herein for regularization of her services.
08. This Order was challenged by the Respondent herein before
this Court in WP (C) No. 242/2021, on the ground that the Respondent
herein already stood regularized and, therefore, there was no occasion for
the Tribunal to issue fresh direction for regularization. The Writ Petition
was disposed of by this Court on 18th of February, 2021 with a direction to
the Petitioners herein to accord consideration to the case of the Respondent
herein for regularization of her services retrospectively, on the analogy as
had been adopted in the cases of other similarly situated employees in tune
with the mandate of Government Order No. 1220-GAD of 1989, provided
the Respondent herein was similar to the said employees so regularized
under the Government Order of 1989.
09. In compliance with the aforesaid Order, the Petitioners herein
issued Order No. 177-DSWK of 2017 dated 12th of October, 2017, rejecting
the claim of the Respondent herein for retrospective regularization of her
services. This Order of rejection was called in question by the Respondent
herein in OA No. 580/2022. OA No. 580/2022 and SWP No. 2510/2018,
which was registered before the Tribunal as TA No. 291/2022, were
clubbed together and disposed of vide Order and Judgment impugned in
this Petition.
10. The impugned Order and Judgment passed by the Tribunal is
challenged by the Petitioners herein, primarily, on the ground that the
Respondent herein could not have been given the seniority and re-fixation
of her pay w.e.f. 12th of June, 1996, without there being a formal Order of
regularization passed by the competent authority to that effect.
11. It is also urged by Mr Malik, the learned Senior Additional
Advocate General, appearing on behalf of the Petitioners, that the similarly
situated persons, on the analogy whereof the benefit was given by the
Deputy Director to the Respondent herein, were not legally appointed/
regularized and, therefore, the Respondent herein was not entitled to a
similar treatment. He submits that this would have perpetuated the
illegality. The learned Senior Additional Advocate General further submits
that in terms of Section 5 of the Act of 2010, the regularization to the
Respondent herein could have been offered only prospectively.
12. Having heard the learned Counsel for the parties and perused
the material on record, we are of the considered opinion that the Order and
Judgment passed by the Tribunal is legally perfect and in consonance with
law.
13. As a matter of fact, the Respondent herein ought to have been
regularized in service in terms of Government Order No. 1220-GAD of
1989 dated 11th of September, 1989 w.e.f. 11th of September, 1989 itself.
Unfortunately, the case of the Respondent was not appreciated in correct
perspective. To the misfortune of the Respondent herein, when SWP No.
1240/1989 came up for consideration before the Writ Court, the Act of
2010 had come in force. The entire focus of the controversy got shifted to
the Act of 2010. Ignoring the fact that the Respondent herein was fully
eligible and entitled to be regularized in terms of Government Order dated
11th of September, 1989 (supra), the Writ Court disposed of the Petition of
the Respondent herein with a direction to the Petitioners herein to consider
the claim of the Respondent herein for regularization in accordance with the
mandate of Act of 2010. This was, however, later clarified by the Division
Bench in its Order dated 8th of October, 2012 passed in LPA Nos. 76/2012
and 78/2012. The Division Bench clarified that the consideration to be
accorded to the Respondent herein was not restricted to the provisions of
the Act of 2010 and that she would be entitled to be considered for
regularization under the Government Orders issued from time to time prior
to the issuance of the Act of 2010. The Petitioners herein conveniently
ignored the aforesaid clarification of the Division Bench and still
considered the case of the Respondent herein for regularization under the
Act of 2010 and, in terms of Government Order No. 129-SWD of 2014
dated 2nd of June, 2014, regularized the services of the Respondent herein
14. Thereafter, it was in the year 2017, the matter was again
considered and the Deputy Director, vide Order dated 25th of May, 2017, re-
fixed the pay of the Respondent herein on the post of Supervisor w.e.f. 12 th
of June, 1996 with consequential seniority. This Order was, admittedly,
passed by the Deputy Director without there being any formal Order of
retrospective regularization passed by the Government. Probably, because
of this irregularity, the Order dated 12th of June, 1996 was revoked by the
Mission Director on 4th of October, 2018, which was called in question by
the Respondent herein by way of SWP No. 2510/2018, reference to which
has already been made in this Judgment hereinabove.
15. Be that as it may, it seems that the Respondent herein was
given regular pay scale/ pay fixation by the Deputy Director w.e.f. 12 th of
June, 1996, for the reason that by that time the Respondent herein had
completed 07 years continuous service and had become eligible for
regularization under Government Order No. 1285-GAD of 2001. True it is
that no person can be given retrospective appointment by an authority
which is not competent to do so. There is no dispute with regard to the fact
that the regularization Order and giving it retrospective effect are the
matters within the domain of the Government and the Deputy Director was,
ex-facie, not competent to pass such order. However, having regard to the
fact that the Respondent herein was entitled to regularization w.e.f. 11th of
September, 1989 in terms of Government Order No. 1220-GAD of 1989, as
explained hereinabove, as such, her regularization w.e.f. 12 th of June, 1996
need not be found fault with. The Tribunal, in the given facts and
circumstances of the case, has taken a correct view in the matter which is
not only legally perfect, but unexceptionable.
16. For the aforesaid reasons, we find no merit in this Petition. The
same is, accordingly, dismissed, along with the connected CM(s). Interim
direction(s), if any subsisting as on date, shall stand vacated. We, however,
make it clear that the retrospective regularization of the Respondent herein
w.e.f. 12th of June, 1996, made in terms of an Order passed by the Deputy
Director, shall be deemed to be in order and in accordance with law.
(Puneet Gupta) (Sanjeev Kumar)
Judge Judge
SRINAGAR
February 10th, 2025
"TAHIR"
i. Whether the Judgment is approved for reporting? Yes/ No.
