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Judgment
Javed Iqbal Wani, J
The instant appeals arise out of common judgement dated 21.09.2020 (for short impugned judgement) passed in SWP No. 352/2012 and SWP No. 354/2012 involving common issues, as such, are being disposed of by this common judgement.
Facts emerging from the record would reveal that the respondents herein being the petitioners in the both SWPs supra questioned SFC order No. 62 of 2012 dated 24.02.2012 issued by appellant 2 herein providing therein that the services of the 12 petitioners/respondents herein engaged on casual basis in terms of order dated 26.04.2010 and subsequently adjusted as Grading Attendants vide order dated 03.06.2010 are no longer required in the Jammu and Kashmir State Forest Corporation (for short the Corporation), as such, ordered their disengagement with immediate effect.
The said order dated 24.02.2012 came to be questioned by the petitioners respondents herein in their respective petitions supra on the premise that they came to be appointed in the Corporation vide SFC order No. 238 of 2010 dated 26.04.2010 and after qualifying the Performance Test conducted by the Corporation as provided in their orders of appointment, their services came to be regularized by Corporation vide order No. 468 of 2010 dated 30.06.2010, however, the appellant 2 herein rescinded the said order in violation of constitutional and legal guarantees available to the respondents herein, in that, the respondents herein upon being regularized became permanent employees of the Corporation and could not have been terminated as such, by the appellant 2 herein in violation of their fundamental rights on fake and spurious ground stated in order dated 24.02.2012 without taking into consideration the regularization of services of the petitioners/respondents herein.
The respondents in the writ petition being the appellants herein filed reply to the petitions filed by the respondents herein and opposed the writ petitions on the premise that the order dated 24.02.2012 came to be issued after a detailed examination of the matter while admitting the initial engagement of the petitioners/respondents herein on casual basis vide order dated 26.04.2010 on a project sanctioned by the Department of Handicraft, Ministry of Textile, Government of India, stating that the said engagement was co-terminus with the closure of the project and also that the respondents herein came to be engaged against the non-existing post of Grading Assistants/Attendants vide SFC order No. 130 of 2010 dated 04.03.2010 and that the Managing Director of the Corporation appellant 2 herein had ordered re-designation of 16 posts of Dak Runners as Grading Assistants/Attendants without any approval from the Board of Directors of the Corporation inasmuch as without there being any vacancy of the post of Dak Runners.
The petitioners’ respondents herein filed rejoinder affidavit in response to the reply filed by the respondents/appellants herein to the petition contending therein that the Corporation has framed the Jammu and Kashmir State Forest Corporation Employees (Conditions of Service) Regulations 1993 (for short the Regulations of 1993) wherein Regulation 7 provide that the Board may constitute or authorize constitution of such committee/s for direct recruitment to the posts belonging to the various cadres/categories as it may deem fit from time to time and pending consideration of such committee/s the Managing Driector may appoint eligtible candidates for a period of six months or to be renewed by a similar period if selection is not made by the date of expiry of first spell of adhoc appointment.
It also came to be averred in the rejoinder affidavit supra by the petitioners /respondents herein that under Regulation 19, the Managing Driector has been delegated power under Section 31 of the Act of 1978 to make appointments against any post upto the level of 3050-4820 with the previous approval of the Chairman and against any other post with the approval of the Board.
The writ Court after considering the petitions supra in terms of the impugned judgement allowed the same and by issuance of a writ of Certiorari quashed the orders viz SFC 62 of 2012 dated 24.02.2012 impugned in SWP No. 352/2012 and SFC order No. 63 of 2012 dated 24.02.2012 impugned in SWP No. 354/2012 and consequently by issuance of writ of Mandamus commanded the respondents appellants herein to allow the petitioners respondents herein to continue discharging their services in the Corporation on the posts they stand appointed and regularized.
Appellants herein being aggrieved of the impugned judgement have assailed the same on multiple grounds urged in the memo of instant appeals which in essence are the repetition of the grounds urged by them in the objection/reply filed in opposition to the petitions supra before the writ Court, as such, in order to avoid repetition are not referred herein.
Heard counsel for the parties and perused the record.
Before proceeding to address to the issues involved in the instant appeals, it would be pertinent to refer to following provisions of the Jammu and Kashmir State Forest Corporation Act, 1978, (for short the Act of 1978) being relevant and germane to the controversy involved in the instant appeals.
Section 3 of the Act provides for establishment and Constitution of the Corporation by the Government by issuing a notification in the Government Gazette providing further the Corporation to be a body corporate having perpetual succession and a common seal and to sue and to be sued in its corporate name and to have power to acquire, hold and dispose of property for the purposes of the Act.
Section 4(1), provides that the Corporation has to be comprised of the Minister In-charge Forest as its Chairman, Minister of State or Deputy Minister of Forests as its Ex-officio-vice Chairman besides 7 members to be appointed by the Government 5 from amongst its officers and 2 from the Legislature as Directors of the Corporation.
Section 4(2) provides that the Government is authorized to appoint one of the Directors of the Corporation as its Managing Director.
Section 8(2) of the Act provides that Corporation may appoint such employees as it considers necessary for the efficient performance of its functions under the Act.
Section 9(2) provides that employees of the Corporation shall be entitled to receive from the fund of the Corporation such salaries and allowances and shall be governed by such conditions of service as may be determined by regulations.
Section 10 of the Act provides that subject to the superintendence of the Corporation, the general control over the employees of the Corporation is vested in the Managing Director.
Section 31 of the Act provides that the Corporation is empowered and authorized by a general or special order, delegate the unconditional or subject to such conditions including the conditions as may be specified in the order, Chairman or the vice Chairman or the Managing Director or any other member or employee of the Corporation any of its powers and duties other than the power to make Regulations under Section 34.
Section 34 of the Act provides that the Corporation with the previous approval of the Government is empowered to make regulations not inconsistent with the Act for the administration of the Corporation inter-alia for the matters being salaries and allowances and conditions of service of employees of the Corporation etc. etc.
Regulations 7 and 9 supra of the Regulations of 1993 also being relevant are reproduced here under: -
Regulation 7: The Board may constitute or authorize constitution of such committee/s for direct recruitment to the posts belonging to various cadres/categories as it may deem fit from time to time. Pending consideration of such committee/s the Managing Director may appoint eligible candidates for a period of six months or to be renewed by a similar period if selection is not made by the date of expiry of first spell of adhoc appointment.
Regulation 19 to make appointments:
a. Against any post upto the level of 3050-4820 with the previous approval of Chairman; and
b. Against any other post with the approval of the Board.
It is not in dispute that the petitioners respondents herein came to be engaged in the Corporation in terms of SFC order No. 238 of 2010 dated 26.04.2010 and subsequently after qualifying the Performance Test within one month from the date of their engagement as provided in their respective orders of appointment, came to be regularized under SFC order No. 468 of 2020 dated 30.06.2010 and SFC No. 518 of 2010 dated 27.07.2010 respectively.
It is also an admitted fact that in terms of SFC order No. 62 of 2012 dated 24.02.2012 and SFC of 63 of 2012 dated 24.02.2012, the appellant 2 herein terminated the services of the petitioners respondents herein as Grading Assistants/Attendants on the ground that their services are no longer required in the Corporation.
Perusal of the record tends to show that the fundamental ground urged by the respondents appellants herein before the writ Court qua the issuance of order of disengagement of the petitioners as Grading Assistants/Attendants is that the Managing Director appellant 2 herein had ordered re-designation of 16 posts of Dak Runners as Grading Assistants/Attendants without approval of the Board of Directors of the Corporation, whereas record on the contrary reveals that the petitioners/respondents herein had averred in the rejoinder affidavit before the writ Court that they came to be re-designated as Grading Assistants/Attendants in the pay band of Rs. 4440-7600 with Grade pay or Rs. 1300 with corresponding reduction in the overall strength of the posts of Dak Runners by the Managing Director-appellant 2 herein upon the approval of the Chairman of the Corporation. The said fact of approval accorded by the Chairman has not been denied or disputed by the respondents appellants herein before the writ Court so also has not been denied the position and purport of Regulations 7 and 19 supra of the Regulations 1993 as also the provisions of Section 31 of the Act. That being the position the appellants herein could not have ordered disengagement of the petitioners/respondents herein in breach and violation of their constitutional and legal guarantees available to them in law, in that, the respondents herein came to hold the post of Dak Runners existing on the establishment of the appellants herein under the same circumstances under which the other Dak Runners have been working in the Corporation as authorized the appellants herein beyond the sanctioned posts of Dak Runners, on the ground of parity.
Perusal of the record in general and impugned judgment in particular suggest that the writ Court having noticed all the aforesaid facts and circumstances obtaining in the matter has rightly opined and held that the petitioners respondents herein stand validly engaged/appointed in the Corporation and, as such, could not have been disengaged in terms of the impugned orders, so much so, in breach and violation of the Constitutional guarantees available to the petitioners respondents herein and in violation of the fundamental principles of natural justice while rightly placing reliance up on the judgement of the Apex court passed in case titled as “Canara Bank Vs. V. K. Awasthy, reported in AIR 2005 SC 2090” which risking repetition is extracted and reproduced hereunder: -
“10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vacate interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated:
“Even God did not pass a sentence upon Adam, before he was called upon to make his defence. “Adam”, says God,“where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat”.
Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.”
Having regard to the aforesaid facts and circumstances, a further reference to the judgment of the Apex Court passed in case titled as “Swadesh Cotton Mills Vs. Union of India, reported in AIR 1981 SC 818” would be also advantageous wherein the Hon’ble Supreme Court while considering the doctrine of natural justice has enunciated that “principle of natural justice aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law but supplement it.” These rules operate only in areas not covered by any law validly made. They are means to an end and not an end in themselves. The principles of natural justice have many facets. Two of them are: notice of the case to be met and opportunity to explain.
And in case titled as “Mangilal vs. State of Madhya Pradesh reported in AIR 2004 SC 1280” wherein the Hon’ble Supreme Court lays down that “where the statute is silent about the observance of principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of the parties are considerably affected.”
And in case titled as “Dharam Pal Satyapal Ltd. vs. Deputy Commissioner of Central Excise Guwahati and Ors., reported in 2015 Vol. 08 SCC 519” wherein the Hon’ble Supreme Court has reiterated the view that principles of natural justice are applicable to judicial, quasi-judicial and administrative authorities even if not provided for in the statute, where the decision of authority concerned would result in civil or evil consequences.
For what has been observed, considered and analyzed herein above we are of the considered opinion that the impugned judgement dated 21.09.2020 does not call for any interference. Resultantly the appeals fail and are dismissed.