Jammu, Feb 01: In TA 5528/2021 with TA 5609/2021 titled Amir Hussain Age Versus State of Jammu & Kashmir Through its Commissioner/Secretary to Government Revenue Department, Civil Secretariat. 2. The Financial Commissioner ( Revenue ), J&K & ors after hearing & legal submissions of Advocate F.A Natnoo CAT bench ordered as under:-
1. The instant petitions filed by the applicants initially before the Hon’ble High Court of Jammu & Kashmir came to be transferred to this Tribunal in view of Notification No. GSR.267(E) dated 29-04-2020 read with Notification No. G.S.R 317(E) dated 28-05-2020 issued by the Ministry of Personnel, Public Grievances & Pensions(Department of personnel & Training).
2. The short question involved in the instant TAs/ petitions filed by the applicant is that as to whether the respondents- authorities can discriminate viz-a-viz similarly placed employees for the purpose of regularization of their services and if not weather the action impugned of the respondent- Divisional Commissioner, Jammu in withdrawing the order of regularization of the applicant allowed vide order No.101/3045/8385-89 dated 27-02-2015 as Junior Assistant notionally w.e.f 20-08-2007 and monetarily with immediate effect vide order impugned bearing No. 101/3045/8519-22 dated 09-03-2015 is legally tenable and justified.
3. The facts of the case in nutshell are that the applicant with requisite educational and technical qualification was initially engaged as orderly in the office of Dy. Commissioner Doda on temporary basis along with seven more persons for a period of six months w.e.f 01/01/1998, thereafter the applicant came to be promoted/engaged as junior assistant by the Dy. Commissioner, Doda keeping in view the technical qualification of the applicant vide order no. 731-34/PA(T) dated 06/05/2000 and since then the applicant is discharging his duties in the office of Deputy Commissioner, Doda against clear vacancy of junior assistant initially being paid out of funds available for army cantonment staff and thereafter against the available vacancy of junior assistant in the office/organization of Deputy Commissioner, Doda in regular pay scale.
4. Mr. F.A.Natnoo learned counsel appearing for the applicant submitted that since the similarly situated person including one Sh. Pawan Kumar Sharma engaged in District Jammu have approached the Hon’ble high Court by way of filing SWP No. 1400/1996 seeking direction to treat him as permanent employee and allow him benefits , as such the writ petition was finally disposed of by the Hon’ble High Court vide judgment dated 06-09-2000 by observing that since the petitioner therein is continuously allowed to work thus cannot be termed as working on a temporary basis and has thus directed for allowing him the benefits of in-situ promotion in terms of SRO 14 of 1996.
It is profitable to reproduce the relevant extract of the judgment referred by the learned counsel as under:- “ If that being so ,the contention of the petitioner stands reinforced that he is working against a permanent vacancy. This being the position, the grievance of the petitioner is justified and he cannot be termed as temporary employee, specially having worked for more than three years, which earns him the status of quasi- permanent.
I make the order accordingly” . Learned counsel has submitted that the applicant being similarly situated employee of district Doda has thus also approached the Hon’ble High Court by way of filing SWP No. 2025/2009 which has been transferred to this Tribunal and numbered as TA 5528/2021 wherein the applicant has interalia sought for the following reliefs:-
i. Respondents be directed to treat the petitioner as permanent/quasi permanent employee in the Revenue Department of State of J&K holding the status of Junior Assistant and entitled to all the service benefits which are available to other Junior Assistants; ii. That the respondent be directed to grant In-situ promotion to the petitioner in terms of SRO 14 of 1996. The respondents be also directed to prepare service book of the petitioner. iii. Respondents be also directed by a writ of mandamus to grant all consequential benefits to the petitioner to which he is entitled to under law; iv. By writ of prohibition respondents be restrained from treating the petitioner otherwise than as holding permanent/quasi permanent status and entitled to continue in the service of the respondents as Junior Assistant
6. Learned counsel further submits that during the pendency of aforesaid writ petition bearing no. SWP 2025/2009 ( TA 5528/21) , the case of the applicant came to be considered at various levels for the purpose of absorption/regularization of his services and accordingly vide Order no. 101/3045/8385- 89 dated 27-02-2015 issued by the Divisional Commissioner, Jammu , the placement/regularisation of the applicant as Junior Assistant in the pay scale as admissible under rules was allowed, relevant paragraph of the order of regularisation is reproduced as under:-
“ In view of the above, Sh. Amir Hussain Bhat, who is already working against post of Jr. Assistant in the office of Deputy Commissioner, Doda is hereby placed as Jr. Assistant in the pay scale admissible under rules, monitory with immediate effect and notionally w.e.f 20- 08-2007.”
7. Learned counsel further submits that it was not only the case of applicant where the Divisional Commissioner Jammu has allowed regularization/placement of the regular grade but in number of such cases, the Divisional Commissioner, Jammu has directed/allowed regularization of the similarly situated persons/employees in regular grade e.g, in case of One Pagbir Saini who was working in the same capacity was allowed similar treatment vide order no. DIVCOMJMU (Estt) 38 of 2014 dated 18-06-2014, similarly vide order no. 101/2466/101-04 dated 20-06-2007 services of Digvijay Singh Junior Assistant, Rustam Din orderly were regularized. Further vide order no.ADM/HA /1150-51 dated 27-10-1995 services of one Naresh Kumar S/o Prabdayal engaged in District Kathua as Jr. Assistant in the same status were regularized.
Further the services of the aforementioned Jr. Assistant namely Pawan Kumar Sharma S/o Tara Chand in whose favour the Hon’ble High Court has also passed directions has been regularized while serving in the office of Deputy Commissioner , Jammu. Learned counsel has further referred the details of all such persons similar situated than that of the applicant as enclosed by the applicant alongwith the rejoinder affidavit as Annexure-R-1 page 14-16 of the rejoinder affidavit
8. Mr. F.A.Natnoo submitted that despite the applicant having been regularized to which the applicant was otherwise entitled to even for the purpose of parity to the similarly situated cases, the then Divisional Commissioner, Jammu vide order impugned bearing no. 101/3045/8519-22 dated 09- 03-2015 has directed withdrawal of the order of regularization issued in favour of the applicant bearing no. 101/3045/8385-89 dated 27-02-2015 on the sole ground that the said authority allegedly lacks competence.
It is thus the aforesaid order dated 09-03-2015 which has been impugned by the applicant in the second writ petition bearing no. 3161/2015 ( TA 5609/2021) , precisely on the ground that the same has resulted in discriminative treatment to the applicant viz-a-viz similarly situated persons.
Mr. Natnoo in support of his submissions regarding the competence of the Divisional Commissioner Jammu for allowing regularization of employees of Revenue Organization at Division Level has further enclosed copies of some of the orders issued viz. (i) Copy of Order No. DIVCOMJMU(Estt) 38 of 2014 dated 18-06-2014 ( Annexure-K , Page-34 of TA 5609/2021). (ii) Copy of Order dated 101/1834/1242-46 dated 18- 10-2010 ( Page-44 of TA 5609/2021) (iii) Copy of Service Book of one Smt. Neelam Kumari ( Page-46 to 49 of TA 5069/2021)
9. Mr. F.A.Natnoo has further drawn the attention of this tribunal regarding the fact that the applicant has specifically projected the disparity being caused by the respondents in the matter of denial of regularization viz a viz similarly situated persons, moreso when the Deputy Commissioner Doda has categorically informed the Divisional Commissioner, Jammu at the time of allowing regularization vide order dated 27-02- 2015 that the applicant is now working against the vacant post of Junior Assistant of Deputy Commissioner Office Doda but such averments have not been dealt with or even denied specifically by the respondents in their reply/counter affidavit and which according to learned counsel for the applicant are to be taken as admitted, moreso in light of the same having been substantiated with documentary proof. Learned counsel has further submitted that the applicant is since then is continuously been allowed to work against the post of Junior Assistant in the office of Deputy Commissioner, Doda and is being even assigned additional duties at par with regular employees during emergent situations, which fact the learned counsel has further supported with the documents/orders issued by the office of :: 10 :: TA 5528/2021 & TA 5609/2021 Deputy Commissioner, Doda assigning various special duties to the applicant placed on record for perusal of the tribunal. 10.The respondents have filed their objections/counter in both the TA’s/petitions, wherein though the regularisation of services of similarly situated employees as named by the applicant has not been specifically denied but in one of the reply filed in TA No. 5
+528/2021it is been stated which has even vehemently reiterated by the learned Dy.AG during the arguments as well that the concept of equality as envisaged under article 14 of Constitution of India is positive concept which cannot be enforced in negative manner, when any authority shown to have been committed any illegality or irregularities in favour of any individuals or group of individuals others cannot claim the same illegality or regularity on ground of denial thereof to them. 11.We have heard Mr. F.A.Natnoo, Advocate learned counsel appearing for the applicant and Mr. Hunar Gupta, Learned Dy. A.G for respondents and perused the record. 12.Indisputably, the applicant in the instant TA’s/petitions has been engaged as orderly in the year 1997 and thereafter as Junior Assistant in the year 2000 and because of his :: 11 :: TA 5528/2021 & TA 5609/2021 continuous working initially against vacant post being funded by Defence authorities and thereafter in the office of Deputy Commissioner, Doda . Taking note of these admitted facts the then Divisional Commissioner, Jammu, has allowed regularisation of the applicant vide order No. 101/3045/8385- 89 dated 27-02-2015 notionally w.e.f. 20-08-2007 and monetarily with immediate effect. It is further an admitted fact born on record that such kind of placement/regularisation had been allowed in past by the Divisional Commissioner, Jammu itself. However the order of regularisation of the applicant has arbitrarily been withdrawn by the then Divisional Commissioner, Jammu vide order impugned bearing No. 101/3045/8519-22 dated 09-03-2015 citing lack of competence as the only reason , when in case of one Pagbir Saini, who similar to that of the applicant was working against the post created by defence estate authority , the same officer vide order No. DIVCOMJMU(ESTT) 38 of 2014 dated 18-06-2014 has allowed placement/regularisation of said employee as junior assistant on same and similar conditions as was allowed to the applicant. 13.We are thus in agreement with the submissions made by Mr. F.A.Natnoo Advocate, learned counsel for the applicant that the then Divisional Commissioner, Jammu while passing the :: 12 :: TA 5528/2021 & TA 5609/2021 order impugned dated 09-03-2015 has failed to consider that allowing two yardsticks in the matter of regularization of services of similarly situated persons/employees clearly tantamount to subjecting the employee/applicant to discrimination which is not allowed as per the constitutional scheme. The legal position in this behalf as cited by Mr. Natnoo continuous to be settled that for the purpose of regularisation of services the employees are entitled to similar treatment. Reference in this behalf is made to following legal precedents of Hon’ble Apex Court. (I) Raman Kumar & Ors. Vs. Union of India &Ors, SLP No. 7898/2020 , date of judgment 03-07-2023’ “Indisputably, the appellants herein have completed service of more than ten years. Even this Court in the case of Ravi Verma And Others v. Union of India and Others (Civil Appeal No(s).2795-2796 of 2018) decided on 13.03.2018 found that the act of Regularizing the services of some employees And not regularizing the services of the Others is discriminatory and violative of Article 14 of the Constitution of India. Mrs. Aishwarya Bhati, learned Additional Solicitor General of India appearing on behalf of the respondents, has vehemently opposed the petition. :: 13 :: TA 5528/2021 & TA 5609/2021 She submits that since Posts were not available, and, thereafter, Group ‘D’ posts have been abolished, the appellants could not have been regularized. The services of the appellants are directed to be regularized from the date on which the Services of other 35 employees were regularized and the backwages and other consequential benefits etc., to which the appellants would be entitled to, shall be paid to them within a period of six months from today. (II) Purnendu Mukhopadhyay & Ors. Vs. V.K.Kapoor&Anr.’ Reported as 2008 (14) SCC 403, “...As we have noticed hereinbefore that S.K. Ganguli and others had been given the Benefit of the order passed by the Tribunal. We do not appreciate the stand of the Respondents in this behalf inasmuch as whereas one set of order involving employees who were similarly situated to Those of the appellants, benefits have been given but the same are being denied to them. Such an action on the part of the Respondents in our opinion is wholly unjustifiable. The judgment of a court, as is well known, should not be read as a statute. It has to be read in its entirety. So read, the appellants had become entitled to the grant of benefits contemplated thereby. There is :: 14 :: TA 5528/2021 & TA 5609/2021 no reason why the same shall be denied to them. Our attention has also been drawn to the fact that apart from S.K. Ganguly and Others some other persons who were similarly situated, namely – Prem Kumar Saha, S.K. Majumdar and AlopiLal, have Also been granted the same benefits. In a case of this nature, in particular having regard to the fact that the respondents have granted similar benefits to others, we fail to understand as to how the decision of this Court in J.S. Parihar(supra) and Mittanlal (supra) could be Applicable. The State cannot treat employees similarly situated differently. It cannot implement the orders in relation to one and refuse to do so in relation to others. It is also not a case like J.S. Parihar (supra) where while implementing the orders, a particular stand has been taken by the employer giving rise to a subsequent cause of action. It is also not a case where The order of this Court is capable to two Interpretations....” (III) CIVIL APPEAL No. 9729/2024 Ushaben Joshi Vs Union of India & Ors Judgement dated 02-08-2024. “17. The respondents have not indicated anything in the affidavit filed in pursuance of the order dated 27th February, 2024, that the nature of duties or :: 15 :: TA 5528/2021 & TA 5609/2021 the hours of work being performed by Smt. K.M. Vaghela were any different from that of the appellant. Thus, the defence taken by the respondents for their decision not to confirm the appellant in services that she was only performing duties as a contingency worker(water woman) for four hours a day is not substantiated from any acceptable material on record. Indisputably, the appellant continuously served the department for more than three decades as a contingency ‘water woman’. Keeping in view the fact that an employee similarly placed but inducted in service after nearly six years from the date of employment of the appellant with the respondent- Department has been conferred the benefits of confirmation in service by way of appointment to the post of MTS, the appellant is entitled to claim the same benefits. 19. In view of the foregoing discussion, the impugned orders are set aside. the respondents are directed to treat the appellant at par with Smt. K.M. Vaghela and shall pass the order of regularisation/appointment as MTS in favour of the appellant, on similar terms as was done in the case of Smt. K.M. Vaghela. The order of regularisation will be effective from the date on which Smt. K.M. Vaghela was appointed as MTS with all consequential benefits. Compliance of :: 16 :: TA 5528/2021 & TA 5609/2021 this order shall be effected within a period of three months from the date of this order.” 14. Even the Hon’ble Supreme Court in recent judgment rendered on the subject passed in SLP ( C) 5580 of 2024 titled Jaggo vs Union of India & ors. has allowed protection to the similar nature of workers. It would be profitable to reproduce para- 10 , 26 & 27 of the judgment, which are thus reproduced as under:- “10. Having given careful consideration to the submissions advanced and the material on record, we find that the appellants’ long and uninterrupted service, for period extending well beyond ten years, cannot be brushed aside merely by labelling their initial appointments as part-time or contractual. The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route. 26. While judgment in Uma Devi ( Supra ) sought to curtail the practice of backdoor entries and ensure the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. The judgment aimed to distinguish between “illegal” and :: 17 :: TA 5528/2021 & TA 5609/2021 “irregular” appointments. It is categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one- time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi ( Supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment’s explicit acknowledgment of cases where regularization is appropriate . This selective application distorts the judgments’ spirit and purpose, effectively weaponizing it against employee who have rendered indispensible services over decades. 27. In light of these considerations , in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organizations’ functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, :: 18 :: TA 5528/2021 & TA 5609/2021 government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to allow, thereby contributing to the overall betterment of labour practices in the country.”
15. The net result of the above discussion is that, we allow these TA/s/petitions filed by the applicant by following directions: (i) The impugned order bearing No.101/3045/8519-22 dated09-03-2015 issued by the then Divisional Commissioner, by virtue of which order of regularisation of the applicant as junior assistant bearing No.101/3045/8385-89 dated 27-02-2015 was withdrawn is quashed and set-aside.
(ii) Respondents are directed to treat the applicant as regularised junior assistant in the office of Deputy Commissioner, Doda allowed in terms of order bearing No.101/3045/8385-89 dated 27-02-2015 issued by then Divisional Commissioner Jammu with restoration of all benefits as allowed vide said order of placement/regularisation.
(iii) Respondent-Deputy Commissioner, Doda is further directed to immediately prepare the service book/record of the applicant in terms of order of placement/regularisation of the applicant allowed vide order bearing No. 101/3045/8385-89 dated 27-02-2015 issued by then Divisional Commissioner Jammu and also to allow all consequential benefits including increments ,seniority ,insitu/regular promotions.
16. No order as to costs.
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