Bilal Ahmed Siraj And Others vs State Of J&K And Others

1 The petitioners are aggrieved and challenge the order issued by respondent No.2 vide its No. Diremp/Estt/C-26/2002/170/4158-60 dated 07.12.2017

whereby the claim of the petitioners for granting retrospective effect to their regularization w.e.f 01.07.2008 with consequential benefit of seniority has

been found to be devoid of merit and rejected.

2 The facts, in brief, leading to the filing of this petition, as are gatherable from the writ petition, are that the petitioners came to be appointed as

Computer Operators on contractual basis for a period of one year w.e.f 01.07.2001 on consolidated emoluments of Rs.5000/- per month in terms of

order dated 29.06.2001 issued by respondent No.2 on 29.06.2001.

3 Admittedly, the posts of Computer Operator in the Directorate of Employment were not available when the petitioners were so appointed. The

matter appears to have taken by respondent No.2 with the Administrative Department for creation of posts of Computer Operator. Several

communications have been placed on record by the petitioners to the effect that respondent No.2 vigorously pursued the proposal for creation of posts

of Computer Operators. It further transpires that during the year 2004, as is evident from the communication bearing No.Diremp/Estt/E-12/2001 dated

15.04.2004, respondent no.2 requested respondent No.1 to accord sanction for the transfer of three posts of Key Punch Operators from the Districts

of Kargil, Leh and Poonch to the Directorate of Employment for regularization of the services of the petitioners.

4 Responding to the aforesaid communication, the Commissioner/Secretary to Government of J&K, Department of Labour and Employment vide its

communication No.Emp/11/2002 dated 07.07.2004 conveyed sanction of the Administrative Department to the continuation of the petitioners as Key

Punch Operators till the formal selection to the posts aforesaid is made under rules. Respondent No.2 vide its order No. 112-ED of 2004 dated 14th

July, 2004 permitted the petitioners to continue as Key Punch Operators till the formal selection is made under rules. Although, there is no formal

order of transferring the posts of Key Punch Operators from the Districts of Kargil, Leh and Poonch, yet from the communications of respondent

Nos. 1 and 2 dated 07.07.2004 and 14th July, 2004, it can be inferred that the petitioners were appointed on contractual basis and on payment of

consolidated salary against the available posts of Key Punch Operators. Their cases came up for consideration before the Empowered Committee for

regularization in terms of J&K Civil Services (Special Provisions) Act, 2010 (for short ‘Act of 2010’) and in pursuance to the decision taken by

the aforesaid Committee in its 10thmeeting, the services of the petitioners as Key Punch Operators in the pay scale of Rs.5200-20200(GP- 1900)

came to be regularized vide Government Order No.38-L&E of 2012 dated 19.04.2012 against the posts of Computer Assistants created vide

Government Order dated 14th July 2010.

5 Feeling aggrieved of their prospective regularization w.e.f 19.04.2012, the petitioners filed a representation before respondent No.1 which, after

examination by the Administrative Department, was rejected vide communication dated 28.09.2017 which decision was conveyed to the petitioners by

respondent No.2 in terms of the impugned communication.

6 The petitioners seek their regularization retrospectively from 1st July 2008 on the ground that the petitioners having been appointed as Computer

Operators in the year 2001 completed the requisite service of seven years as contractual/consolidated employees in the year 2008 and, therefore, are

entitled to be regularized from the aforesaid date under the provisions of the Act of 2010.

7 The respondents have filed their objections and have taken a stand that initial appointment of the petitioners as Computer Operators on consolidated

basis was not against any available post as, at the relevant point of time, no post of Computer Operator had been sanctioned for the Directorate of

Employment. The matter was taken up by the Directorate of Employment with the Administrative Department for creation of three posts of Computer

Assistants, so that the petitioners could be adjusted, but the proposal was not accepted and instead, the Directorate of Employment was asked to

continue the petitioners as Key Punch Operators till the formal selection is made under rules. It is further submitted that vide Government Order

No.88-L&E of 2010 dated 14th July 2010, for the first time, three posts of Computer Assistants were created for the Directorate of Employment and,

accordingly, with the coming into force of Act of 2010, the cases of the petitioners were forwarded to the Empowered Committee for taking

appropriate decision with regard to the regularization of the petitioners. Accordingly, pursuant to the decision of the Empowered Committee taken in

its 10thmeeting, respondent No.1, vide Government Order No.38-L&E of 2012 dated 19.04.2012, accorded sanction for regularization of the

petitioners as Key Punch Operators against the available posts of Computer Assistants, prospectively and, consequently, seniority of the petitioners

was fixed.

8 Having heard learned counsel for the parties and perused the record, I am of the view that the claim of the petitioners for their regularization

retrospectively w.e.f 01.07.2008 is not tenable in law.

9 Admittedly, the initial appointment of the petitioners as Computer Operators on consolidated basis was against no posts. It is not in dispute that, for

the first time, three posts of Computer Assistants were sanctioned for the Directorate of Employment in terms of Government Order dated 14th July

2010. It is also doubtful, as to whether without formal shifting of the posts of Key Punch Operators from the Districts of Leh, Kargil and Poonch, the

petitioners could have been continued against the posts of Key Punch Operators.

10 Be that as it may, the Empowered Committee has considered the matter and has given the benefit of regularization to the petitioners, though, in my

opinion, technically, it was not permissible. In any case, pursuant to the decision of the Empowered Committee, the petitioners have been regularized

as Key Punch Operators against the posts of Computer Assistants, though in a unique manner. I am of the view that the petitioners should feel

satisfied and be happy with whatever they have got. Their attempt through the medium of this petition to steal march over the direct recruits, who

have come after facing selection process, cannot be allowed to succeed. The petitioners have not been able to make out their case that they held the

posts of Key Punch Operators or Computer Assistants for seven years. Technically, perhaps, the petitioners were not entitled to be regularized either

as Key Punch Operators or Computer Assistants. However, taking into consideration the special circumstances in which the petitioners had been put

by the respondents, the Empowered Committee apparently took a benevolent decision and cleared their cases for regularization as Key Punch

Operators against the available posts of Computer Assistants, though prospectively w.e.f 19.04.2012.

11 The representation made by the petitioners seeking their regularization retrospectively w.e.f 01.07.2008, in the facts and circumstances explained

above, was absolutely without merit and the same was correctly rejected by respondent No.1.

12 For the foregoing reasons, I find no merit in this petition and the same is, accordingly, dismissed.