Jammu & Kashmir High Court

Muni Devi vs State Of J&K And Others on 12 May, 2022

Author:
Moksha Khajuria Kazmi

Bench:
Chief Justice
,
Moksha Khajuria Kazmi

Sr. No. 19

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CJ Court
Reserved on:- 20.04.2022
Pronounced on:- 12.05.2022

Case: LPA No. 262 of 2019

Muni Devi .....Petitioner/Petitioner(s)

Through :- Sh. Navyug Sethi, Advocate.
v/s

State of J&K and others .....Respondent(s)
Through :- Sh. K D S Kotwal, Dy. AG.

Case: LPA No. 138 of 2020

UT of J&K and another .....Petitioner/Petitioner(s)

Through :- Sh. K D S Kotwal, Dy AG..
v/s

Muni Devi and others .....Respondent(s)
Through :- Sh. Navyug Sethi, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

JUDGMENT

MOKSHA KHAJURIA KAZMI, J

01. These two appeals have been preferred by either of the parties

challenging the judgment and order dated 08.08.2019 passed in SWP No.

371/2018 "
Muni Devi V. State of J&K and others
".

02. The petitioner-Muni Devi seeking regularization of service as Craft

Teacher was granted the relief of regularization departmentally with effect from

17.08.2017 but in the writ petition, her service has been directed to be

regularized with effect from 27.09.2010. She has preferred the appeal claiming

benefit of regularization with much anterior date i.e. 01.12.1998.

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LPA No. 138/2020

03. The Union Territory of J&K has preferred the other appeal against the

same very judgment and order of the writ court contending that the petitioner is

entitled to regularization of service from the date the order of regularization and

not from any anterior date.

04. The petitioner was initially appointed as craft teacher in the Department

of Social Welfare and was posted at Social Welfare Centre, Batote for a period

of 60 days w.e.f. 27.11.1991 and was thereafter, continued for another spell of

60 days purely on stop-gap arrangement with a break of one day till the

selection was made by the competent authority whichever was earlier, which

was done by District Development Commissioner, Doda vide his Order No.

DD/91-92/231/B dated 22.01.1992.

05. The petitioner further claims that despite the fact that she had been

continuously performing her duties of craft teacher and had completed

continuous service for more than 7 years, yet the respondent did not consider

her case for regularization in terms of Government Order No. 1285-GAD of

2001 dated 06.11.2001.

06. In terms of the aforesaid Government order, petitioner claims that she was

entitled to be regularized w.e.f. 27.11.1998 and was kept waiting for

regularization, but no action was taken by the respondents till the State

Legislature enacted an Act known as
Jammu and Kashmir Civil Services

(Special Provisions) Act, 2010
(hereinafter referred to as „the Act of 2010‟). The

petitioner was ultimately regularized by the respondents vide order No. 260-SW

of 2017 dated 17.08.2017 prospectively, though at the time of promulgation of

the Act, she had already completed more than seven years continuous service on

ad hoc basis and was fulfilling all other requirements of the Act of 2010.

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LPA No. 138/2020

07. Petitioner being aggrieved of the order dated 17.08.2017 passed by the

Government, filed the writ petition bearing SWP No. 371/2018 titled as „Smt.

Muni Devi Vs. State of J&K
and others‟ and has prayed as under:-

"the writ petition may kindly be allowed by issuing of an
appropriate writ, direction or order including in the nature of
writ of mandamus commanding the respondents to regularize the
services of the petitioner as Craft teacher with effect from
01.12.1998 instead of 17.08.2017 by modifying the Govt. Order
No. 260-SW of 2017 dated 17.08.2017 in terms of SRO 64 of
1994 read with Govt. Order No. 1285-GAD of 2001 dated
06.11.2001 with all consequential benefits including counting of
service for pensionary benefits with effect from 27.11.1991,
arrears of pay scale, revision of pay scale made from time to
time by the Government, fixation of seniority and further
promotion to the post of Social Worker (grade-I), alternatively
writ of mandamus striking down the first proviso of
Section 5
of
the J&K Civil Services (Special Provisions ) Act, 2010 as being
unconstitutional, illegal and discriminatory."

08. The learned writ court held as under:-

"What was held by the Division Bench in the
Rabia Shah Vs.
State of J&K and others
judgment is very precisely summed up
in Paragraph No. 20 of the judgment, which for facility of
reference is reproduced as under:-

"20. Now, since the petitioner had completed the
prescribed seven years' service on ad hoc basis much
prior to the appointed day, her case for regularization
would have to be considered immediately, after the
appointed day in terms of
Section 10
of the 2010 Act.
As held above, the period of accord of such
consideration could riot be unreasonably stretched
beyond 75 days to complete the processes under Sub-
section (2) and (3) m of
Section 10
of the 2010 Act6
and then a maximum of further equal period would be
required for completion of the remaining part of the
processes under Sub-sections (4) and (5) of the said
Section. In that view, the writ petitioner would be
entitled to regularization from a date, say, at least, 150
posterior to the appointed day, which would fall
somewhere towards the end of September, 2010, to be
precise 26/27.09.2010."

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LPA No. 138/2020

4. For the foregoing reasons, the petitioner is held entitled to
regularization of her services w.e.f. 27.09.2010 with all
consequential benefits. The writ petition is, accordingly, allowed
in the above terms."

08. The petitioner herein has challenged the judgment passed by the learned

writ court on the ground that the claim of the petitioner was not processed

immediately under the J&K Civil Services (Special Provisions) Act, 2010,

notwithstanding the fact that the respondents were under statutory obligation to

process the case of the petitioner. However, the respondents took 7 years to take

a decision with regard to the regularization of the services of the petitioner. The

petitioner has also stated that she was entitled to regularization w.e.f.

01.12.1998 on completion of 7 years of service in terms of SRO 64 of 1994. The

petitioner also is seeking parity as has been given to Sh. Krishan Chand, who

was appointed on temporary basis vide order dated 20.09.1995. The services of

Sh. Krishan Chand were regularised in terms of Government order No. 1423-

GAD of 2009 dated 14.10.2009 vide government order No. 129-SWD of 2014

dated 02.06.2014 under the J&K Special Provisions Act, 2010 on the basis of

the information submitted by the subordinate officers. As per record of the writ

petition, the petitioner had not raised any such plea with respect to Sh. Krishan

Chand and Smt. Sishna Devi.

09. The petitioner further states that she has been subjected to discrimination,

in as much as the services of similarly situated employees were regularized in

the year 1995, 1997 and 2000. Learned counsel for the petitioner has
placed

reliance upon
a judgment of Hon‟ble Supreme Court rendered in the case of

State of Karnataka Vs. Uma Devi and others
(2006)4 SCC1 and the judgments

of this Court passed in SWP No. 534/2016 titled as Ghulam Mohammad Malik

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LPA No. 138/2020

Vs. State of J&K and others and in SWP No. 1177/2016 titled as
Iftikhar

Ahmed Itoo and others Vs. State of J&K and others
2019(4) JKJ242.

10. We heard the learned counsel for the parties, perused the material on

record and considered the matter.

11. Admittedly, the petitioner herein was appointed on ad hoc basis on

27.11.1991 purely on stop-gap arrangement with a break of one day. The

government issued order No. 1285-GAD of 2001 dated 06.11.2001 based on the

cabinet decision No. 135/11(B) dated 10.09.2001 whereby it was inter alia

ordered that all ad hoc appointees to non-gazetted posts recruited from time to

time beyond 29.12.1988 till the date of issue of the said order i.e., 10.09.2001

who were still in service would be considered for regularisation after completing

seven years of continuous service from the date of appointment dispensing with

reference to the posts held to them to Service Selection Board subject to certain

conditions. This Government order was purportedly issued consequent upon

judgment dated 12th February, 1998 passed by one of the learned Single Judges

of this Court in SWP No. 283/1994,
Uttam Singh Vs. State of J&K
, holding that

an ad hocee cannot be worse than a daily rated worker and that the petitioner

therein would be entitled to regularization under SRO 64 of 1994 providing for

regularization of daily rated workers after completion of seven years‟

continuous service.

12. Subsequently, in 2004 the Government, in supersession of the aforesaid

Government order No. 1285-GAD of 2001, dated 06.11.2001, issued order No.

168-GAD of 2004, dated 9th February, 2004 read with two other Government

Orders, it was, inter alia, ordered that all ad hoc appointments made after

28.07.1989 and continued in service till the date of issue of the aforesaid order,

i.e., 20.02.2004, and also those ad hocees, who were appointed by the General

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LPA No. 138/2020

Administration Department or with approval from the General Administration

Department and continued in service till August 2002 or thereafter, were

ordered to be converted into contractual appointments with effect from

01.02.2004, and these contractual appointments were to subsist till 31.12.2004

or till selections against these posts were made by the concerned agencies,

whichever would be earlier.

13. This Court in a case titled Thomas Masih Vs. State of J&K and others,

2004(1) SLJ 3, has directed the government to make selections from amongst

eligible adhocees, who may apply, shall be made strictly on the basis of merit

and suitability in accordance with the rules without being influenced by the fact

of the adhocees having been previously appointed or continued on adhoc basis

or on contractual basis. While framing the scheme for selection of Class IV

adhocee/contractual appointees, the Government shall take note of the

observations and directions made and in future the Government and its various

functionaries shall ensure that no adhoc appointment is made dehors Rule 14 of

the Classification, Control and Appeal Rules, 1956. In no case such

arrangements are continued beyond the prescribed period of nine months.

It may be mentioned here that the decision in
Thomas Masih Vs. State of

J&K
(supra), was upheld by a Division Bench of this Court in LPA(SW) No.

104/2004,
Shafiqa Begum Vs. State of J&K
, and analogous appeals vide

judgment dated 19.07.2004. There was an another batch of LPAs arising out of

some judgments rendered by another learned Single Judge of the High Court.

The Division Bench hearing those LPAs was of the view that some of the points

raised therein had not been taken in LPA No. 104/2004 and the connected

LPAs. Therefore, the Division Bench referred the matter to the Full Bench. The

matter remains pending before the Full Bench for a pretty long time.

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LPA No. 138/2020

Meanwhile, the erstwhile State of Jammu and Kashmir enacted the
Jammu and

Kashmir Civil Services (Special Provisions) Act, 2010
which came into effect

from 20.04.2010.The object of the said Act was to provide for regularization of

the employees appointed on ad hoc, contractual or consolidated basis.

14. The petitioner was working as ad hocee since many decades and she was

aware of the fact that the service of similarly circumstanced ad hocees was

regularized by the government from time to time. She was also not ignorant of

the judgments passed in favour of Sh. Krishan Chand and Smt. Sishna Devi

Moreover, since she was working in the Department, she was expected to have

the knowledge of the government orders and acts enacted/issued by the

government from time to time.

15. It is a settled principle of law that fence sitters cannot be allowed to

dispute or challenge the validity of the order after having knowledge of the fact

that the similarly circumstanced persons were given benefit at one point of time.

Admittedly, it was within the knowledge of the petitioner that few of the

similarly circumstanced employees had been regularized in the year 1995, 1997

and 2000.

16. The petitioner was fully aware of the litigation being filed by Sh. Krishan

Chand and Smt. Sishna Devi and also the benefits of regularization granted to

both of them despite that the petitioner chose to be a fence sitter for more than

two decades.
In this regard the Hon‟ble Supreme Court in a case titled
Shiba

Shankar Mohapatra Vs. State of Orissa
(2010) 12 SCC has observed in

paragrapgh-29 as under:-

"29. It is settled law that fence-sitters cannot be allowed to raise
the dispute or challenge the validity of the order after its
conclusion. No party can claim the relief as a matter of right as
one of the grounds for refusing relief is that the person
approaching the Court is guilty of delay and the laches. The

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LPA No. 138/2020

Court exercising public law jurisdiction does not encourage
agitation of stale claims where the right of third parties
crystallises in the interregnum."

17. The Hon‟ble Supreme Court in another case i.e.,
State of U.P. Vs. Arvind

Kumar Srivastava
(2015) 1 SCC 347 in paragraph- 22.2 has held as under:-

"22.2. However, this principle is subject to well-recognized
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge the wrongful
action in their cases and acquiesced into the same and woke up
after long delay only because of the reason that their
counterparts who had approached the court earlier in time
succeeded in their efforts, then such employees cannot claim that
the benefit of the judgment rendered in the case of similarly
situated persons be extended to them. They would be treated as
fence-sitters and laches and delays, and/or the acquiescence,
would be a valid ground to dismiss their claim."

18. In view of the above, coupled with the fact that the petitioner claimed

benefit of regularization with effect from 01.12.1998 on the basis of the

Government order dated 06.11.2001 on her completion of requisites service of

seven years but had not staked any claim to such regularization during the

currency of the said government order and allowed it to be lapsed on

09.02.2004, she, disentitled herself from its benefit. Thereafter, the claim of

regularization of the petitioner could have only been considered under the

provisions of the Act of 2010. The writ court has duly considered the same and

instead of allowing the benefit of regularization with effect from 17.08.2017

partly accepting the claim of the petitioner allowed her the benefit of

regularization from 27.09.2010

19. We do not find any error or illegality in granting the above benefit to the

petitioner, inasmuch as, by implication she waived her right to seek

regularization under the Government order dated 06.11.2001 as no material was

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LPA No. 138/2020

produced on record that she ever made any claim for regularization thereunder

within the time it had remained in operation.

20. As far as the contention of the State counsel that the petitioner is entitled

to the benefit of regularization from the date of the order of regularization, we

find no force in it and the learned Single Judge has rightly granted the said

benefit from the back date i.e. 27.09.2010.

21. For all what has been discussed above, we are of the view that learned

Single Judge did not commit any error of law warranting interference of this

Court. These appeals lack merit and are dismissed with no order as to costs.

(MOKSHA KHAJURIA KAZMI) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE

JAMMU
12.05.2022
Abinash
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.