In the absence of any statutory remedy against an order, the writ petition is the only remedy, if any, available: High Court of J&K and Ladakh

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPAOW No. 123 2018 Reserved on 30.09.2021 Decided on 28.10.2021 Bashir Ahmad Dar Through: Mr Syed Manzoor Adv. State of JK & Ors. Through: Ms. Asifa Padroo AAG CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE JUDGMENT PANKAJ MITHAL CJ Ors. Under challenge in this Letters Patent Appeal is the judgment and order dated 22nd November 2018 passed by the learned Single Judge dismissing SWP No. 657 2018 Bashir Ahmad Dar vs. State of JK & The petitioner appellant in the aforesaid writ petition claimed regularization of his services in terms of SRO 694 and to accord him the same treatment as was given to one Ali Mohammad Bhat vide order dated 10th August 2012. At the same time he prayed for the quashing of the order dated 12th February 2018 by which his claim for regularization as aforesaid was rejected. The writ court in dismissing the petition held that in exercise of writ jurisdiction the court cannot enter into any fact finding mission so as to ascertain the disputed questions regarding continuous discharge of duties by the petitioner appellant for a continuous period of seven years which is one of the conditions for regularization in terms of SRO 64 of 1994. LPAOW No. 123 2018 The facts as revealed are that the petitioner appellant was allegedly appointed as a daily wager in the Agriculture Sericulture Development Department sometime in the year 1986. On completion of seven years of continuous service he claimed regularization in terms of SRO 64 of 1994. Since his case was not considered for regularization he preferred SWP No. 624 1995 but the said writ petition was disposed of on 12th February 1996 with the direction to the respondent department to consider the case of the petitioner appellant for regularization. In pursuance to the above direction the case of the petitioner appellant for regularization was considered by the department and it was rejected vide order dated 24th August 1998. The petitioner appellant challenged the above rejection order by filing SWP No. 297 2002 which came to be disposed of vide order dated 7th April 2008 with the direction to the respondent department to reconsider the case of the petitioner appellant for regularization afresh. Since as per the above direction the case of the petitioner appellant was not considered afresh the petitioner appellant initiated proceedings for contempt by filing a contempt petition No. 311 2008 wherein the respondents had produced the consideration order dated 25th October 2008 rejecting the claim of the petitioner appellant. Accordingly the contempt proceedings were closed on 12th March 2009 giving liberty to the petitioner to challenge the aforesaid consideration order. The petitioner appellant accordingly filed SWP No. 1883 2009 challenging the order dated 25th October 2008 whereby his claim had been rejected. The aforesaid petition was disposed of vide order dated 4th April 2016 with the direction to the respondents to extend the benefit of the judgment and order dated 17th March 2016 passed in SWP No. 519 2016 to the petitioner appellant also provided he is similarly circumstanced with the petitioner of the said writ petition. Since again no consideration was accorded as directed petitioner appellant initiated fresh contempt proceedings No. 491 2016 wherein LPAOW No. 123 2018 the consideration order dated 8th October 2016 was produced rejecting the claim of the petitioner appellant. 10. Aggrieved by the aforesaid order dated 8th October 2016 the petitioner appellant filed SWP No. 1711 2016 which upon consideration was disposed of on 10th August 2018 with the direction to the respondents to consider the case of the petitioner appellant afresh after examining the entire records as to whether the petitioner appellant has completed seven years of continuous service or not. In pursuance of the above directions of this Court the respondent department reconsidered the matter and vide order dated 12th February 2018 refused to regularize the services of the petitioner appellant on the ground that he is not eligible for regularization under the aforesaid SRO 694. 12. The submission of learned counsel for the petitioner appellant is that the learned Single Judge manifestly erred in law in dismissing the writ petition when similar other petitions were allowed the petitioner appellant was entitled to the same benefit as was extended to other employees and as such the court erred in relegating the petitioner appellant to file civil suit as the matter involves disputed questions of law. 13. A perusal of the order dated 12th February 2018 which was impugned in the writ petition reveals that the Director of Sericulture Development Department J&K has considered the entire facts and circumstances of the case pertaining to the petitioner appellant and by a detailed and comprehensive order has refused to regularize the services of the petitioner. The averments made in the said order also reveals that the Director Sericulture Development Department had even constituted a committee to find out the correctness of the facts and the said committee had even examined the ex officers of the department so as to ascertain the truth. It was upon undertaking of the above exercise of in depth enquiry it was concluded that the engagement of the petitioner appellant is in contravention of the records available there is no evidence on recording of any certificate alleged to have been issued to LPAOW No. 123 2018 the petitioner appellant and that the documents relied upon by the petitioner appellant appears to be manipulated. The order further records that on the basis of the records available with the department the status of the petitioner appellant is that of a casual labourer who is not entitled to benefit of any regularization under SRO 694. 14. The aforesaid SRO obliges regularization of only daily rated workers work charged employees provided inter alia he has completed seven years of continuous service as a daily rated worker work charged employees. The petitioner appellant has failed to substantiate that he has seven years of continuous service at his back and as such does not fulfill the minimum eligibility criteria. 15. The aforesaid findings returned by the Director are all findings of fact and the learned Single Judge is right in observing that the writ court cannot go into those fact finding mission so as to verify their veracity or the genuineness by making a roving enquiry. The argument that few other employees have been extended the benefit of regularization is completely misconceived inasmuch as they may be similarly situated but their regularization appears to have been ordered on being satisfied that they have completed seven years of continuous service which fact is lacking in the present case. The department upon verification of the aforesaid fact alone ordered for their regularization pursuant to the direction of the court. Moreover extension of benefit of regularization incorrectly to any employee would not entitle the petitioner appellant to the same benefit until and unless the petitioner appellant is able to make out a case for regularization in terms of SRO 694. 16. The aforesaid SRO 64 of 1994 promulgates J&K Daily Rated Workers Work Charged Employees Rules 1994 which have been framed in exercise of powers under Section 124 of the then Constitution of Jammu and Kashmir. The said rules vide Rule 4 provides for the eligibility for regularization. It categorically lays down that a daily rated worker work charged employee shall be eligible for regularization on fulfilment of certain conditions one of which happens to be that the person must have completed seven years continuous LPAOW No. 123 2018 period of work as daily rated worker work charged employee. Rule 4 of the aforesaid Rules is reproduced herein below: “4. Eligibility for regularization. A Daily Rated Workers Work Charged Employee shall be eligible for regularization on fulfilment of the following conditions namely: a) that he is a permanent resident of the State b) that on the date of his initial appointment his age was within the minimum and maximum age limit as prescribed for appointment in Government Service c) that he possesses the prescribed academic and or technical qualification for the post against which he is required to be regularized: Provided that in case of eligible Daily Rated Workers to be regularized against Class relaxation of qualification and or age shall be considered on merits by the concerned Administrative Department IV posts d) that he is not retiree from any State or Central Government service or any Local Body Public Sector Undertaking or Autonomous Body in or outside the State e) that his work and conduct has remained satisfactory during the period he worked as Daily Rated Worker or Work charge Employee and no disciplinary proceedings are pending against him and f) that he has completed seven years continuous period of working as Daily Rated Worker or Work charged Employee or partly as Daily Rated Worker and partly as Work charged Employee.” In view of the aforesaid provisions for the purposes of regularization for our purposes two conditions are essential i.e. a person seeking regularization must be a daily rated worker work charged employee and that he has completed seven years of continuous period of work as daily rated worker or work charged employee. 18. The definition clause of the aforesaid rules defines daily rated worker work charged employee as well as the continuous working. It has been held repeatedly by this Court that SRO 694 does not apply to casual labour workers or seasonal labour workers inasmuch as there is a difference between the daily rated worker work charged employee and casual workers as defined under the Rules. It has also been held in several decisions that break in service upto two days in a period of 90 calendar days would not affect the continuous working LPAOW No. 123 2018 but the break of long terms for weeks and months would disrupt the continuous service. The petitioner appellant in the entire writ petition filed before the courthas not uttered a single word alleging that he has uninterrupted continuous seven years of continuous service to his credit as a daily rated worker work charged employee. He has not even brought on record any material document to substantiate his claim to the above effect. Thus in the absence of any pleadings or the material to establish that the petitioner appellant was eligible for regularization we are of the opinion that the writ court has not committed any error in dismissing the writ petition. 19. On the request of the counsel for the petitioner appellant we have also directed the learned counsel for the respondents to produce the service record of the petitioner appellant to establish if there were breaks in his service. 20. we have perused the record. It contains the monthly attendance sheet of the petitioner appellant as Casual Seasonal Labourer from 1986 onwards prepared under the signatures of Deputy Director Sericulture Development Department Budgam. In the said chart petitioner appellant has been shown as having working for the month of January 1987 and thereafter in the month of March onwards but with a complete break in the month of February 1987. In the year 1988 he has not worked for the full month of August. Again in the year 1991 he has not worked in the month of March April May June and December. In 1983 he has not worked in the month of January to August November and December so on and so forth. 21. A glance at the above chart clearly reveals that there are enough breaks in service of the petitioner appellant in almost all the years and he has not worked for months together. In this view of the matter the findings that the petitioner appellant has not put in seven years of continuous service is not against the record or incorrect. It may not be out of context to mention here that in these matters of regularization of services based upon factual aspects it is not always LPAOW No. 123 2018 possible for the writ court to verify the factual aspects on the basis of the record produced or the documents on record. Moreover when repeatedly a consideration has been accorded in the matter of regularization by the authorities and every time the claim has been rejected on the factual aspects the court cannot permit the person to keep invoking the extraordinary jurisdiction of the court pleading for justice and in such circumstances it is always better that the recourse to the appropriate forum be allowed to be taken so that the parties may lead evidence on the disputed aspects of the facts and get the matter adjudicated upon. The repeated filing of successive writ petitions virtually for the same cause of action in seeking regularization after rejection of their claim by the authorities time and again is more or less the abuse of the process of law and in these circumstances the writ court may be justified in refusing to exercise discretionary powers. 23. Thus in the overall facts and circumstances of the case we do not find it to be a fit case for interfering with the decision of the learned Single Judge. 24. The appeal lacks merit and is accordingly dismissed. 25. Record is returned to Ms. Asifa Padroo learned AAG in the open court. JUDGE CHIEF JUSTICE SRINAGAR 28.10.2021 Altaf Whether the order is reportable LPAOW No. 123 2018 

Summary: No appeal lies under Section 260-A of the Income Tax Act against an order rejecting the application filed under Section 254(2) of the Income Tax Act. Therefore, in the absence of any statutory remedy against it, the writ petition is the only remedy, if any, available. This was held by the Hon’ble High Court of J&amp;K, while relying on the Judgment in the case of Lachman Dass Bhatia vs. Assistant Commissioner of Income Tax &amp; connected appeals (2011) 330 ITR 243 Del, through a learned bench of The Chief Justice and Justice Vinod Chatterji Koul in the case of M/s Kashmir Fabric Industries Vs Income Tax Appellate Tribunal &amp; Anr [OWP No. 1127/2009]. The petitioner had preferred this petition under Article 226 of the Constitution of India so as to challenge the judgment and order of the Income Tax Appellate Tribunal dated 30.12.2008 in respect to the assessment year 2005-2006 and the subsequent order dated 24.04.2009 again passed by the Tribunal rejecting the application of the petitioner for rectifying the earlier order. Brief facts of the case are that the assessing authority for the relevant year denied benefit under Section 80IB of the Income Tax Act as the petitioner could not produce evidence regarding consumption of electricity to establish actual production. The appeal against the said order was dismissed by the Commissioner of Income Tax and so was the further appeal by the tribunal by the impugned order. The petitioner filed application under Section 254(2) of the Income Tax Act for the rectification of the order of the tribunal on the ground that the tribunal has failed to consider the certificate of payment of electricity dues for the year 2004- 2005 to establish the electricity consumption to prove production. The said application was also rejected as the tribunal opining that in the garb of rectification. Mr Z. A. Shah, counsel for the petitioner, submitted that the orders of the tribunal stands vitiated for non-consideration of the certificate of payment of electricity dues for the year 2004-2005. On the other hand Mr Kawoosa, counsel for the respondent, submitted that the writ petition is not maintainable as the petitioner has an alternative remedy of filing a statutory appeal under Section 260-A of the Act. The Hon’ble High Court after hearing both the parties and a perusal of the facts on the record observed that an appeal is provided to the High Court from every order passed in appeal by the appellate tribunal on the substantial question of law. One of the orders challenged in this writ petition was the order dated 30th December 2008 passed by the tribunal in an appeal preferred by the petitioner against the order of the Commissioner, Income Tax (Appeals), and, as such, is an order passed in appeal which is certainly appealable. In conclusion, it was stated that “No appeal lies under Section 260-A of the Act against an order rejecting the application filed under Section 254(2) of the Act. Therefore, in the absence of any statutory remedy against it, the writ petition is the only remedy, if any, available. Accordingly, the petitioner has rightly invoked the writ jurisdiction of the court so as to challenge the order dated 24th April 2009 passed by the tribunal.”