AI Structured Summary
Not yet generated for this judgment
Judgment
01/- By these two writ petitions, the petitioners are seeking quashing of Order No. 821-B of 2018 dated 11.12.2018 passed by respondent No. 3, by virtue of which their claim for regularization has been rejected. A writ of mandamus has also been sought thereby directing the respondents to regularize the services of the petitioners against the class-Iv post by according same benefit to them as extended to the writ petitioners of SWP No. 1806/2012 titled as Saleem Ali v. State of J&K and others., and SWP No. 2090/2017 titled as Kewal Krishan v. State & Ors., and also in the light of LPASW No. 208/2017 dated 21.11.2017 and LPASW No. 223/2017 dated 04.12.2017 who are similarly situated to that of the petitioners.
02/- Since subject of both the petitions is same, therefore, these are taken up together for disposal.
BRIEF MATRIX:
03/- The petitioners were consolidated workers in the Jammu & Kashmir Board of School Education, Jammu, hereinafter for short as Board, having been selected and appointed as such in the year 2004. Their selection came to be challenged in a writ petition, SWP No. 1208/2004, titled Kuldeep Singh and others v. J&K BOSE, which was disposed of with a direction to the Board to disengage any person engaged against the quota meant for Doda and Rajouri districts and consider the petitioners and other eligible candidates against such posts. Petitioners came to be disengaged by the Board in terms of Order dated 20th January, 2005, which was challenged by them in a writ petition, SWP No. 262/2005 titled Joginder Kumar vs JKBOSE. The said WP was disposed of in terms of order dated 10.03.2006 with the following directions:
i)“As and when any engagement for the menial or similar job on consolidated basis is required to be made by the Board, the petitioner shall be considered on priority basis.
ii) The vacancies in various districts be filled up from the concerned districts subject to such policy being formulated by the competent authority.
iii) In future, if any, disengagement is to be made principle of ‘first come last go and last come first go shall be adhered to.”
04/- Respondents did not take any action, constraining the petitioners to file a contempt petition bearing COA SW No. 135/2006 titled Kewal Kumar v. Prof. N. A. Ganie and others. During pendency of the contempt petition, order No. 301-B of 2007 dated 09.05.2007 was passed by the Board, according sanction to the engagement of 11 persons, on consolidated basis, including the petitioner. The counsel for the Board is stated to have made a statement on one of the hearing dates of contempt petition that in terms of order dated 09.05.2007, sanction has been accorded to the engagement of the petitioners. Upon such statement, the contempt petition was dismissed giving liberty to the petitioner to challenge the order dated 09.05.2007, if aggrieved.
05/- In the statement of facts filed in opposition to the contempt petition no. 135/2006, the respondents had admitted in paragraph no. 7 that the petitioner therein would be on priority as and when the Board contemplates to make appointment on consolidated basis.
06/- Subsequently, a Writ petition, bearing SWP No. 1806/2012, has been filed by similarly placed candidates before this Court challenging the regularization of certain employees of the Board being junior to the petitioners therein. The said writ petition was disposed of in terms of order dated 16.08.2017 by directing as under:-
“For all what is said and discussed above, this writ petition is partially allowed and by issue of writ of mandamus, respondents are directed to regularize the petitioners as Class IV against the available vacancies with notional effect from date their regularization had become due, subject, however, to their fulfillment of their eligible criteria. It shall be open for the respondent-board to fill up the remaining vacancies in the regular process. The interim direction issued by this court on 30.08.2012 stands vacated accordingly.” (emphasis supplied)
07/- Thereafter, Sh. Kewal Krishan, who was figuring at Serial No. 1 in the Engagement Order dated 09.05.2007, filed a writ petition, bearing SWP No. 2090/2017, seeking regularization of his services in the same manner as has been done to the petitioners of SWP No. 1806/2012 (supra). The said petition was also disposed of with a direction to the Board to accord consideration to his case in light of judgment dated 16.08.2017 passed in SWP No. 1806/2012.
08/- Feeling aggrieved, the respondent-Board filed an LPA against the judgment dated 16.08.2017, bearing LPASW No. 208/2017, which was disposed of in terms of order dated 21.11.2017. The Division Bench observed that there is no reason as to why the respondents herein should not be given the same treatment as has been given to those regularized by the Board, for, they have been appointed through a selection process; and have completed the seven years of engagement in terms of order dated 09.05.2007. The Division Bench while concluding the judgment observed that this decision relates only to the respondents herein, who were part of the batch of 12 persons, initially appointed through the selection process.
09/- An LPA bearing No. 223/2017 was also filed by the Board against the judgment dated 25/8/2017 passed in SWP 2090/2017 on the ground that Kewal Krishan was not a petitioner in SWP No. 1806/2012 so he cannot be given benefit of the judgment of the said writ petition. The said LPA was disposed of in terms of order dated 04.12.2017. The Division Bench of this Court while disposing of the LPA, clarified that the decision relates to the batch of 12 persons engaged initially and the said Kewal Krishan being part of such batch, is entitled to the benefit of the judgment.
10/- The petitioners herein are figuring at Serial No. 5, 6, 8 and 11 in the Engagement order dated 09.05.2007, therefore, being similarly placed; they also filed a writ petition bearing SWP No. 238/2018, seeking same relief as that of Kewal Krishan. The said writ petition was disposed of in terms of order dated 03.11.2018 directing the Board to accord consideration to their regularization in light of judgment dated 16.08.2017 passed in SWP No. 1806/2012
11/- The Board, in compliance to the said direction, considered the case and issued the Order No. 821-V of 2018 dated 11.12.2018, rejecting the claim of the petitioners on the ground that the writ court in terms of order dated 16.08.2017 delivered in SWP No. 1806/2012, had observed that it shall be open for the respondent-board to fill the remaining vacancies of class iv through a regular process while directing the regularization of the said petitioners in the petition.
12/- In the course of proceedings, the petitioners had taken a plea that a writ petition, bearing WP (C) No. 3939/2019, on the same subject had been filed at Srinagar wing of this Court in their names, though they had not signed the petition or executed any vakalatnama in this behalf. The Court directed an enquiry into the plea. The Registrar Vigilance submitted his report dated 26.12.2025 in a sealed cover which is inconclusive.
13/- Heard learned counsel for the parties and considered the submissions made.
14/- Learned counsel for the respondents has fairly conceded to the prayer of the petitioners. The writ petitions, therefore, with the consensus of the learned counsel for the respondents, are taken up for final disposal.
ANALYSIS:
15/- At the outset, it is stated that the enquiry report is inconclusive. It neither establishes that the petition was filed without the petitioners' authority nor indicates to the contrary. This Court is not called upon to conduct a further enquiry into a question that cannot be resolved on the material before it, and the outcome of this petition does not depend on it.
16/- The petitioners are part of the same Engagement Order dated 09.05.2007 as Kewal Krishan, whose case was considered by the Division Bench in LPA No. 208/2017 and LPA No. 223/2017. The Division Bench held that its decision covered the batch of 12 persons engaged under that order, including a person who was not a petitioner in SWP No. 1806/2012. The petitioners belong to that batch. The reasoning of the Division Bench, therefore, applies to them with equal force, and it is not open to the Board to treat them differently from a person engaged under the same order.
17/- The Board's ground for rejection is a misreading of the judgment dated 16.08.2017. The liberty to fill “the remaining vacancies in the regular process” relates to the vacancies that remain after the petitioners in SWP No. 1806/2012 are regularised. It does not take away the claim of persons of the same batch who have since been held entitled to the same treatment. The Board also cannot overlook that it accorded sanction to the engagement under the order dated 09.05.2007 during contempt proceedings, and that it admitted in its own statement of facts that the petitioners therein would be considered on priority for consolidated engagement. Its position now is contrary to both.
18/- The order dated 03.11.2018 directed the Board to consider the petitioners in light of the judgment dated 16.08.2017. Consideration in that light meant consideration on the lines of that judgment, and not a fresh exercise in which the Board could reject the claim on a ground already answered by the Division Bench. Order No. 821-V of 2018 dated 11.12.2018, is, therefore, unsustainable and liable to be set aside.
19/- The relief, however, cannot be unconditional. It must depend on the vacancies actually available, on the inter se seniority of the petitioners, and on their fulfilling the eligibility criteria, as in SWP No. 1806/2012.
20/- The petition is accordingly disposed of with the following directions:
Order No. 821-V of 2018 dated 11.12.2018 is quashed;
The respondents shall regularise the services of the petitioners as Class IV against the available vacancies, on the lines directed in SWP No. 1806/2012, by judgment dated 16.08.2017;
Regularization shall be subject to the availability of vacancies, the inter se seniority of the petitioners, and their fulfillment of the eligibility criteria;
Regularization shall take effect notionally from the date on which it became due to each petitioner, and no arrears shall be payable on that account;
The exercise shall be completed within a period of 08 weeks from the date of receipt of the copy of this judgment.
The Board shall be at liberty to fill the remaining vacancies through the regular process;
The benefit of this judgment shall be available only to petitioners whose names are borne on the record of this petition.
21/- Pending applications, if any, shall also stand disposed of.
22/- It goes without saying that the petitioners who have disputed having filed, or authorized the filing of, the writ petition at Srinagar shall not be treated as parties to that petition. Since their disavowal of that petition is on the record and remains unresolved by the enquiry, they cannot at the same time be held bound by it or given credit for having been petitioners in it. Their claim for regularization shall accordingly be considered independently, on its own merits, in the present proceedings, and any benefit or finding arising from the Srinagar petition shall not be extended to them, nor shall anything in that petition operate to their prejudice.
23/- A copy of this judgment shall be placed on each file.