State of J & K vs Bashir Ahmed Sheikh

Facts of the case being peculiar, a detailed narration is necessary. The Government in the Revenue Department, issued Order No. 250GR(S) of

1990 dated 21.12.90 directing that settlement operation be taken up in the Tehsils of Anantnag, Pulwama, Chadoora, Srinagar, Leh and Kargil of

Kashmir division besides a few tehsils in Jammu Division. Since some additional man power was required to take up the assessment, therefore.

Settlement Officers were allowed to engage Chairmen on payment of daily wages. Accordingly, the Financial Commissioner (R) vide order dated

1931992 had constituted a committed under the chairmanship of Asstt. Commissioner (R) for the engagement of Chairmen. He had also issued

necessary guidelines as to who and in what manner such persons should be selected. Subsequently, it came to the notice of the Financial

Commissioner that these guidelines have been violated. So. by order dated 16.2.93, he issued fresh guidelines and also directed termination of

those already engaged. However, even before this, the Assistant Commissioner (R) (Settlement Pulwama) had by orders dated 25.692 and

14.7.92 canceled the engagement of Chairmen in District Pulwama, who had been engaged vide order dated 15.5.92 issued by the Chairman,

Settlement. Appointing Board. Pulwama and the Tehsildar settlement Pulwama.

The aforesaid orders of cancellation of engagement were challenged in a suit for declaration and permanent injunction filed by 108 persons in the

court of District Judge. Pulwama. The plaint bears the date of verification as 19081992 but it does not bear the date of its presentation in the court.

However, the learned District Judge. Pulwama (Shri Abdul Rehman Bhat) passed an order dated 19081992, dispensing with notice under

Section 80 of CPC and directing registration of the suit. On 20081992, the Tehsildar (Settlement), Puiwamadefcndant4 appeared in the court and

appears to have informed it about the pendency of the writ petition in Srinagar Bench of this court. Consequently, the learned District Judge passed

the following order:

...However, it may be mentioned that a photo state copy of the order passed by Hon'ble High Court on 8th of July 1992. in writ petition No.

1829/92 has been submitted before this court by the defendant

The plain reading of this order suggests that the matter is already subjudice before the Hon'ble High Court and as such counsels for the plaintiffs

are hereby directed either to get the writ petition withdrawn from the Hon'ble High Court or convince this court as to whether the suit is

maintainable in presence of the writ petition before the Hon'ble High Court before the interim application can be processed with. Unless the

procedural snag is removed court cannot be in a position to adjudicate upon the petition enshrining the interim relief.

On 24081992, the court passed the following order:

Counsel for the plaintiffs present. Nemo present for the defendants. The process which has already been issued to the defendant1 for causing his

appearance in the court has not so far been received back from that quarter. As such let a fresh process be issued to the defendant1. The other

defendants were present through their subordinate officials to whom this date was duly communicated for causing the appearance of the

defendant2 and 3. Defendant4 was also present in person. Today neither of them are present and they do my satisfaction and opinion have willfully

abstained from joining the proceedings before this court and have chosen to be in deep a lumber. They have virtually failed to raise to the occasion

at least to get their action which is impugned before this court fortified by any sort of reasoning. As such defendants 2, 3 and 4 are hereby set

expert. The suit file be now put up for further orders with respect to presence of the defendant1 in the court on 9th Sept. 1992.

Obviously, the learned judge proceeded to hear the suit on merit. The order setting defendants 2 and 3 expert appears questionable. However,

on the same date i.e. 24081992 by a detailed order, following adinterim direction was granted on the application of the plaintiffs:

So the order of adinterim injunction as prayed for is passed against the nonapplicants 2 to 4 in expert and in the result the operation of the

termination orders relatable to the petitioners bearing Nos. 486/AC dated 25061992 and 514/AC dated 14071992 is suspended. The file be put

up for the presence of the nonapplicant1 on 9th Sept. 1992.

Finally, the suit was also decreed on 19111992. The operative portion of the judgment reads as under:

Thus what safely could be concluded is that the orders of the appointment of the plaintiffs as the Chairmen dated 15th May, 1992 with No.

38/AC/Estt and 40/AC/Estt dated 15th May, 1992 are validly passed and the orders of the cancellation passed by ACR bearing Nos. 486/PA

dated 25th June, 1992 and 514I6/PA dated 14th July. 1992 are invalid, null and void, ineffective and inoperative as against the interests of the

plaintiffs which are accrued to them by the order of the appointment passed in their favour. Resultantly the orders of the cancellation as are referred

to above are hereby declared null and void, illegal, ineffective and inoperative as against the right of the plaintiffs. This declaration is made in favour

of the plaintiffs in expert against the defendants. The defendants are also perpetually restrained from causing any sort of interference with the

performance of the duties of the petitioners/plaintiffs assigned to them by virtue of the order of their appointment.

The State filed an appeal, challenging the judgment and decree on various grounds but more particularly that it is nullity being contrary to law.

However, while dismissing the application for condonation of delay and consequently the appeal on 10051996 Nazkij as his Lordship then was

(now Judge, High Court of Andhra Pradesh), issued show cause why the appeal be not treated as petition under section 104 of the Constitution of

Jammu and Kashmir. Respondents filed objections to the maintainability of the petition, which was admitted after hearing and considering the

objections.

The contention of Mr. Bhat appearing for the respondents is that the appeal filed by the State against the Judgment and decree having been

dismissed, the decree passed by the trial court has attained finality, the decree holders cannot be deprived of the fruits of the decree. In support of

this, reliance is place on the decisions of the apex court in Sankar Ramchandra Abhyankar Vs. Krishna Ji Dattatraya Bapat. AIR 1970 Supreme

Court1 and in MarutiBala Raut Vs. Dashrath Babu Wathare and Others. AIR 1974 SC 2051. Mr. Kapoor, AAG on the other hand, argued that

the judgment and decree of the District Court being nullity, power under section 104 of the State Constitution can be exercised to advance justice,

so that i,t is not thwarted by implementing the decree, which under law could not be passed as the suit was not maintainable. In support of this, he

relies on the decision of the apex court in State of/Uttar Pradesh Vs. District Judge. Unnao and Others, AIR 1984 SC 1401.

First of all, the question is, whether the judgment and the decree passed by the District Judge, is nullity on the admitted facts of the case. It is the

admitted case of the parties that the Chairmen were to be appointed on daily wage basis. This is stated in letter dated 19031992 issued by the

Financial Commissioner (R), para3 of which reads as under:

Whereas a decision has been taken that while engaging the Chairmen on daily wage basis due priority should be given to the local and qualified

youth (Matric and above).

The order dated 1561992. by virtue of which, plaintiff/respondents herein were engaged also reveals that they were appointed on daily wage

basis. This order reads as under:""In the interest of smooth miming of settlement work, in the entire tehsil Pulwama, the below mentioned persons

are hereby engaged as Chairmen w.e.f. 15061992 purely on daily wages basis in continuation of this order No. 18387/AC dated 08011992 and

are adjusted in Nayabat Circles shown against each."" So, there is no dispute that Chairmen were not engaged against any sanctioned post but oh

daily wage basis so as Jo assist the Patwaries in carrying out measurement. Since the procedure prescribed for their engagement was not followed,

the defendants were disengaged by order dated 25061992. This order of canceling appointments was challenged in the suit, which ultimately came

to be decreed.

The question involved is. whether the defendants who were engaged on daily wage basis, had any enforceable right. It is settled law that a

person appointed on daily wage basis, is not holding any civil post. This proposition was reiterated by the apex court in State of Himachal Pradesh

Vs. Suresh Kumar Verma, AIR 1996 SC 1565, which reads as under:

It is settled law that having made rules of recruitment to various service under the Stole or to a class of posts under the State, the State is bound to

follow the same and to have selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date

of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment to a post according to the Rules.

Since defendants were not holding any post, they could be terminated at any time. However, the order impugned was passed only because the

engagements had been made arbitrarily. The order of cancellation of engagement dated 25061992 infect provided that fresh selection will be made

by the selection committee, constituted by the Financial Commissioner. Allowing such a decree to stand, will tantamount giving legitimacy to illegal

act of the officer and also to hold that person engaged on daily wage basis holds civil post. Such a view is contrary to law, laid down by a Division

Bench of this Court in G.M. Qadri Vs. Secretary to Government, Industries and Commerce Department. AIR 1959 J&K 26 holding that:

Mere payment out of State funds or the control of the State over certain concerns will not by itself confer upon a person serving in those concerns

; status"" of holding a civil post under the State. In my opinion, a person holds a civil post under the State provided that his duties fall under any

sphere of activities connected with the State; that the post which he holds is created by the State and could be abolished by it; that the conditions

of service of that person are regulated and controlled by the State and that he is paid a monthly salary out of State Funds. These conditions must

be fulfilled by a person who claims the status of holding a civil post under the State.

A similar view was expressed by a Learned Single Judge of this court while dismissing S WO No. 924/86 on 03071997 holding that:

It cannot be anybody's case that the petitioner was member of the service or was holding any post under the state and was entitled to any

provisions, whether under the relevant provisions of the constitution or that of any Recruitment Rules, the order of his engagement shows that his

status was that of a daily wager who was paid conslidated sum of Rs. 400/per month...

This view was upheld by a latters patent Bench, while dismissing the LPA NO.276/97 titled Gulam Rasool Bhat Vnion of india and others on

24.4.1998. So, the plaintiffsrespondent had no onbrcible civil right on the basic of which relief could be granted, the suit was thus not maintainable

and ought to have been dismissed, so, the decree was a nullity and the appeal should have been entertained by condoning the delay, as the decree

will resulting grave public injury.

The question however, is whether there is any bar to the exercise of jurisdiction under section 104 of the state constitution. The ratio of

Shanker Ramachandra Abhyankar Vs. Krishna ji Dattatray Bapat. AIR 1970 SC1 relied by Mr. Bhat is not directly applicable to the case

because the High Court had aiready in exercise of jurisdiction under section 115 of the code of civil procedure refused to interfere with order of

the lower court, the legality of which was once again challenged under Articles 226 and 227 of the constitution, as is evident from the following

observation:

Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose

of rectifying the error of the court below. Section 115 of the code of civil procedure circumscribes the lit nuts of that jurisdiction but the jurisdiction

which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising

power conferred, by the statute; basically and fundamentally it is the appellate jurisdiction of the High court which is being invoked and exercised in

a wider and larger sense. We don't therefore, consider that the principle of merger of orders of inferior courts in those of superior courts would be

affected or would become inapplicable by making a distinction between a petition for revision and an appeal.

After referring to some of its earlier decisions on the question of merger, their lordships observed as under:

Even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision

petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosed the

remedy u/s 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has

been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the

same order of the Subordinate Court. The refusal to grant relief in such circumstances would be inconsonance with the anxiety of the court to

prevent abuse of process as also to respect and accord finality to its own decisions.

The decision is distinguishable firstly because revisional powers are as wide as powers under section 104 of the State Constitution and secondly

order of the lower court had merged in the order of the High Court. This is not the case here, as appeal was not decided on merits.

Similarly, the case of Maruti Bala Raut Vs. Dashrath Babu Wathare and Others. AIR 1974 SC 2051 is not an authority for the proposition

involved because the High Court instead of examining the legality of the order of the Tribunal, decided the case with reverence to the evidence, as

is evident from the following:

But the High Court fell into the same error as the Tribunal while dealing with the order of the Print Officer. It relied upon its discussion of the

evidence in the other case for holding that the appellant was not the tenant. That again was beyond the powers of the High Court under Article

The conflict is inherent in the situation and unfortunately neither the Tribunal nor the High Court had the power to resolve it. But they have

proceeded to do so by setting themselves up, so to say. as Appellate authorities.

This is certainly not the case herein. So, this also does not help the respondents.

However, the case of State of Uttar pradesh Vs. District Judge, Unnao, AIR 1984 SC 1401 is more close to the facts of the case because the

appeal had been dismissed by the District Judge as barred by limitation and the High Court refused to interfere under Article 227 of the

Constitution. This order was setaside by their Lordships holding that:

The present appellant approached the High Court in writ petition No. 610 of 1974 under Article 227 of the Constitution. The high Court declined

to interfere with the order of the learned District Judge even though it was satisfied that the appellant had established that it was prevented by a

sufficient cause form preferring the appeal in time. This is frankly understandable and exhibits a rigid and inflexible view of jurisdiction under Article

227 ultimately leading to injustice.

No doubt State could have filed an appeal against the dismissal of application for condo nation of delay in filing the appeal and consequently the

appeal but as this court decided to exercise jurisdiction under section 104 of the State Constitution, this appears to be the reason for not availing of

the remedy of appeal. So, refusal to exercise jurisdiction under section 104 of the State Constitution would tant amount to affirming the decree,

which is a nullity. Powers of superintendence have t be exercised to prevent abuse of process of the court and rules or procedure or objections of

technical nature cannot stand in the way of exercising such jurisdiction wherever found necessary. The law on the point has been authoritatively

pronounced in Achutananda Baidya Vs. Prafullya Kumar Gayen and Others, AIR 1997 SC 2077 holding that:

The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but

such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure

that the courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this

Court that the High Court can interfere under Art. 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal

to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority

or discretion, a patent error in procedure, arriving a finding which is perversion or based on no material, or resulting in manifest injustice. As

regards finding of fact of the inferior court, the High Court should not quash the judgment of the Subordinate court merely on the ground that its

finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Art.227 to interfere with the finding of fact if the

Subordinate Court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper

exercise of jurisdiction or if its conclusions are perverse.

If the evidences on record in respect of a question of fact is not at all taken into consider action and without reference to such evidence, the finding

of fact is arrived at by inferior court or Tribunal, such finding mast be held to be perverse and lacking in factual basis. In such circumstances, in

exercise of the jurisdiction under Art.227,th High Court will be competent to quash such perverse finding of fact.

As already found that the decree passed by the District Judge is a nullity as the plaintiffs had no cause of action to claim the relief. He thus

entertained the suit, which was not maintainable and exercised jurisdiction not vested him and passed the decree, which is illegal and void abintio.

This is thus a fit fit case to exercise jurisdiction under section 104 of the Constitution of Jammu and Kashmir. Hence, the judgment and decree

passed by District Judge, Pulwama (Shri Abdul Rehman Bhat) on 19.11.1992, is quashed.