Mumtaz Ali vs State and Others

Mohammad Yaqoob Mir, J.—Admitted position of the case is that the petitioner was engaged as daily wager in then Food & Supplies

Department (now CAPD) vide order No. F & S/DW/C-92-93 dated 01.03.1993, as such, was continuously working till his appointment as Class

IV vide order dated 15.6.2011 in compliance to order dated 13.5.2011 passed by this Court while disposing of his earlier writ petition (SWP)

No. 672/209. SRO 400 has been notified on 24.12.2009 where-under New Pension Scheme has been sanctioned and made applicable to the

appointments made with effect from 01.01.2010.

Number of daily wagers, with whom petitioner was working, have been regularized in terms of SRO 64 of 1994 as Helpers with effect from

1.4.2001 vide Govt. order bearing No. 101-CAPD of 2011 dated 27.12.2011. In view of this development petitioner claim that his rights are

jeopardized as on one hand his seniority position is effected and on the other hand he will be governed by the New Pension Scheme.

Basically when petitioner was working as a daily wager he had responded to advertisement notice dated 17th May, 2008 issued by Secretary

Ladakh Autonomous Hill Development Council (Subordinate Services Selection Board) as against Class IV post. In the process he got selected

and order of appointment bearing No. DDEXL/DRB/Class-IV/09/1564-74 dated 11.2.2009 was issued but he could not join for fault not

attributable to him. Then he filed SWP No. 672/2009 which has been disposed of vide judgment dated 13.5.2011 with the following direction:

By issuance of Writ of Mandamus, respondents are directed to appoint/post the petitioner on a Class IV post in CAPD or alternatively on any

Class IV post in other department in Leh, Ladakh. Respondents to offer the appointment to the petitioner on the Class IV post within two weeks

from the date copy of the order is served.

It is in compliance to the said direction petitioner has been appointed against Class IV vacancy vide order dated 15.6.2011 with a condition that

he shall be governed by New Pension Scheme notified vide SRO 400 dated 24.12.2009.

Petitioner noticing the position of Govt. order dated 27.12.2011, in terms whereof the daily rated workers have been regularized as Helpers

with effect from 01.04.2001 so automatically they will rank senior to the petitioner and will be governed by Old Pension Scheme, filed the instant

writ petition.

Learned counsel would contend that in case the order of appointment dated 14.2.2009 as was issued on the basis of selection, the petitioner

would have been allowed to join, he would be governed by old pension scheme, no fault was attributable to him for non-joining in compliance to

the said appointment order.

Stand of the respondents in the earlier disposed of writ petition (SWP No. 672/2009) was that the petitioner was referred to Executive

Engineer R&B Division, Leh on 14.2.2009 but he did not join, has been repelled by observing that the plea has been raised to defeat the legal

rights of the petitioner. The order has never been conveyed to the petitioner. Then it is observed as under:-

The order which referred the petitioner to the office of Executive Engineer R&B Division, Leh is dated 14th February, 2009 and the order which

referred him for reporting for duty to Wildlife Warden is dated 07th March, 2009. Had the petitioner ever been provided the copy of the order

dated 14th February, 2009, he would have definitely reported in the office of Executive Engineer for being posted.

In view of the facts and circumstances of this case, it appears that petitioner has been made to move from pillar to the post but his just and legal

grievances have not been redressed by the respondents.

In these highly competitive times seeking the Government employment is an uphill task. The petitioner who has worked as daily wager for long time

cannot be said to have not acted on the orders of his appointment.

While holding that the right of the petitioner guaranteed under Article 14 has been infringed, respondents were directed to appoint petitioner as

against Class IV post in CAPD department or any other department in Leh. In compliance thereto petitioner has been appointed but his genuine

grievance has remained to be redressed.

The effective date of appointment of the petitioner cannot be at par with other daily wagers to whom, on regularization vide Govt. order dated

27.12.2011 effective date has been given as 01.04.2001 because they continued to be daily wagers and in the capacity of daily wagers their

services were regularized in accordance with SRO 64. In case petitioner would not have opted for competing for Class IV post, then he, on his

own turn along with other daily wagers, would have been regularized the way they have been regularized. Petitioner has chosen to get appointment

on the basis of proper selection, therefore, his claim for regularization along with other daily wagers in terms of SRO 64 vanished, same is not

available to him, so such effective date to his appointment is impermissible.

The petitioner in fact had been appointed on proper selection vide order dated 14.2.2009, the order was not conveyed to him and it is in the

same backdrop vide judgment dated 13.5.2011 passed in SWP No. 672/2009 he was directed to be offered appointment, that would definitely

mean appointment in pursuance to earlier order dated 14.2.2009. Now the appointment of the petitioner vide order dated 15.6.2011, in-effect, is

in continuation to his appointment dated 14.2.2009. The effective date of the said order of appointment dated 15.6.2011 has to be 14.2.2009. It

being so, the order of appointment dated 15.6.2011 shall be treated to be with effect from 14.2.2009 but now since petitioner has joined only

after 15.6.2011, therefore, effective date of his appointment notionally shall be with effect from 14.2.2009. As a necessary corollary, New Pension

Scheme notified vide SRO 400 shall not apply to him, as such, his appointment shall be governed by Old Pension Scheme. Petition accordingly

succeeds, so shall stand disposed of along with connected CMP.