Aijaz Ahmad Wani & Anr. vs State Of J&K & Ors.

The applicants by virtue of the TA seek the following relief :

Learned counsel for the applicants submitted that in the year 1996 the government issued an order dated 23-04-1996 as per which daily rated workers who had completed the prescribed service of 07 years as on 31-03-1996 and had satisfactorily performed election duty in the valley, would be considered for regularization.

In light of the said order the applicants found it appropriate to perform election duty in order to get the benefit of regularization. They performed election duty on 03-08-1996 for Parliamentary election. The Presiding Officer issued a certificate in favour of applicant No 1.

The Mushroom Development Officer, Anantnag addressed a communication dated 23-07-1996 to the Chief Agricultural Officer, District Anantnag highlighting the fact that the applicant no 2, Ghulam Hassain Dar was associated with the election process and election duties. However, he could not submit the election certificate well in time, but in any case, admitted the fact that the said applicant no. 2 had performed election duty.

Learned counsel for the applicant further submitted that Director Agriculture addressed a communication to the Commissioner Secretary vide communication dated 04-10-1997 in which the said authority submitted a list of candidates who had performed election duties, but created a cloud on the engagement of the applicants which was being investigated by a committee headed by Joint Director Agriculture Extension, Kashmir and submitted that once the report is received, the Administrative Department shall be apprised of the facts. In the said communication it was the applicants vis-a-viz the private respondent whose names were reflected. In the Report dated 04.11.1997 the following was brought out:

The names of both the applicants along with private respondent were included in the said list.

It was submitted by learned counsel for the applicants that while the applicants were not considered for regularization, the private respondent who was appointed along with the applicants and whose name was in the same list in which names of the applicants were also figuring, came to be regularized w.e.f. 1.10.1996 by virtue of order dated 04-06-1999 for having performed election duty in 1996.

The election record to the extent of the applicants as well as the private respondent could not be submitted in original and the authenticity of the same could not be ascertained, though the private respondents and the applicants were squarely covered and identically situated. Therefore, the respondents could not have discriminated on that count alone and hence the denial of regularization of the applicants was uncalled and unconstitutional.

The applicants had filed a petition before the Hon’ble High Court in SWP No.318 of 2010 and Hon’ble High Court directed the respondents to accord consideration to the petitioners for regularization in accordance with the rules having regard to the aforementioned order and decide the matter within 08 weeks.

He further submitted that the official respondents are contradicting their stand by stating that the applicants were not fulfilling the criteria laid down under SRO 64 of 1994 whereas with regard to the private respondent they are substantiating his regularization on the plea that he had completed continuous seven years of service. The regularization order of the private respondent which is on record reveals that the said respondent had never completed seven years of service as he was appointed alongwith the applicants on 27-12-1993 and therefore would have completed seven years on 27-12-2000 but he has been regularized on 04-06-1999 on account of performing election duties in the year 1996. Therefore, the stand taken by the respondents is completely contrary to the record.

The applicants have been deprived of their due benefit of regularisation by the respondents, as is evident from the face of the record. The authenticity of performing election duties has been confined to the extent of applicants, while for private respondents, the authenticity of performing election duty has been a mere formality.

The respondents have time and again asked the applicants to produce original appointment letter issued by the District Election Officer, Anantnag and duty slip issued by the then Presiding Officer but the applicants could not produce the same till date. This stand was substantiated by the fact that when the photocopies of the election duty slips furnished by the applicants were referred to District Development Commissioner, Anantnag for authentication, the same have not been authenticated by the District Development Commissioner till date.

Learned counsel for the respondents further submitted that the private respondent No.5 was regularized by the respondents on the basis of continuous seven years’ service. The condition laid down in SRO 64 of 1994 was that the Daily Rated Workers should have continuously worked for seven years, which the applicants could not satisfy and as such have not qualified for regularization of their services. The respondents have therefore prayed for dismissal of the present application being devoid of any merit.

The records reveal that the applicants and the private respondent no.5 are similarly placed and were engaged on the same date i.e. 11.11.1993 as daily rated workers by a common order and their engagement was further extended vide an order passed on 27.12.1993. The contention of the official respondents that private respondent no. 5 was regularised on completion of 07 years of service is contrary to the facts available on record. In terms of Govt order no Agri/Estt/2294-2300 dated 04.06.1999, the service of private respondent no. 5 was regularized w.e.f. 1.10.1996. Since he had been engaged on 11.11.1993 and was regularized w.e.f. 01.10.1996, his regularisation was given after less than 03 years and not 07 years of service. It has been clearly mentioned in the said order dated 04.06,1999 that regularisation is being given to those who have performed election duty during the year 1996. Therefore, submission of the official respondents that the private respondent no. 5 was regularized after 07 years of service is absolutely contrary to the facts on record. We note it with concern that the respondents have filed a factually incorrect counter. The same is strongly deprecated.

Inasmuch as the applicants were similarly placed and had performed election duty along with the private respondent no. 5, leaving aside their claim shows the adoption of a pick and choose policy on the part of the respondents. Decision of the respondents to regularize the service of private respondent no. 5 and denying the same benefits to the applicants shows bias and arbitrary exercise of power on the part of the respondents.