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Judgment
Javed Iqbal Wani, J
Petitioners in the instant petition filed under Article 226 of the Constitution have prayed for the following reliefs: -
Mandamus, commanding respondents to regularize the services of petitioners as Turbine Operators along with consequential benefits of seniority and pay from the day they have completed their seven years ahead of their juniors by reference to their merit/seniority as was determined in selection list and reflected in Annexure-C.
Background facts under the shade and cover of which the aforesaid reliefs have been prayed and as are stated in the petition are that upon sanctioning of creation of different posts including the 08 posts of Turbine Operators by respondent 1/the Board of Directors of J&K State Power Development Corporation (hereinafter for short ‘the Corporation’), an advertisement notice came to be issued bearing
No.Elect-32/(M)E/04(303) dated 19.10.2004, for making appointments against the said posts of Turbine Operators on a contractual basis, in response to which the petitioners herein applied along with other eligible candidates and consequently came to be selected. The selection list dated 23.12.2004 and thereafter appointed by respondent 2 herein in terms of order No.543/PDD/2004 dated 24.12.2004, whereafter the petitioners herein joined against the said posts and started discharging their duties, as such satisfactorily.
It is being next stated that in the year 2014, respondents herein had initiated a process of regularization of the appointees working in the Corporation who have completed 07 years of continuous service on consolidated/contractual/ad-hoc basis as on 31.12.2012 and in furtherance thereof respondent 3 herein issued a notification bearing No.DIP/J-1655-P dated 15.02.2017.
It is being further stated that the Corporation/respondent 1 herein issued order No.PDC/CJ/2264 dated 24.11.2017, whereby sanction came to be accorded to the regularization of the appointees figuring in terms of order dated 15.02.2017 (supra) and the petitioners herein were shocked to find out that their services having not been regularized by the Corporation for unknown reasons, although the appointees regularized have had been selected and appointed along with the petitioners in terms of order dated 23.12.2004. Aggrieved of the non-regularization of the services of the petitioners herein by the Corporation respondent 1 herein against the post in despite being eligible and entitled thereto, the petitioners have maintained the instant petition, fundamentally on the premise that the petitioners have been given unequal treatment in the matter of regularization with those appointees who were selected and appointed with them, and thus, violated Article 14 of the Constitution.
Objections to the petition have been filed by the respondents, wherein it is being admitted that the post of Turbine Operator were referred to the Deputy Commissioner, Leh, for recruitment for the Corporation whereupon an advertisement notice, dated 19.10.2004, came to be issued, and consequently the petitioners were appointed vide order No. 543/PDD of 2004 dated 24.12.2004 as Turbine Operator against the available posts subject to various terms and conditions provided therein the order and while admitting that the petitioner has continuously worked satisfactorily and that in the year 2014 a process for regularization of the employees of the Corporation who had completed seven years of continuous service as on 31.12.2014 was initiated, whereafter in terms of order dated 24.11.2017, sanction came to be granted to the regularization of the various employees who had completed seven years of service excluding the petitioners.
It is being next stated that in terms of notification dated 15.02.2014, a list of the employees working in the Corporation came to be published by the respondent Corporation who had completed seven years of continuous service on consolidated/contractual/ad-hoc basis as on 31.12.2012, invited objections if any, there from and the petitioners therein the said list figuring as 24 and 28, and during the consideration of the cases of the petitioners along with others for regularization, it came to be observed that the petitioners’ cases were involving qualification bar as the petitioners possess the qualification below 8th standard on the date of the appointment and upon examination of the case of the petitioners by the Management cum Finance Committee, the cases of the petitioners do not involve regularization and that the Board of Directors need to take a decision regarding the qualification of the petitioners in one hand, and on the other hand, since the regularization of the co-employees and the petitioners was accorded in terms of the provisions of the J&K Civil Services (Special Provisions) Act, 2010, (hereinafter for short ‘the Act of 2010’) the said Act does not provide a case for regularization and consequently, upon the consideration of the matter by the Board of Directors, only 41 employees came to be accorded regularization, whose cases did not require regularization.
It is being further stated that in view of Section 6 of the Act of 2010, as also having regard to the entire record pertaining to the case of the petitioners, the petitioners were found to be not fulfilling the criteria laid down under Section 6 of the Act, as such, were not regularization.
Heard counsel for the parties and perused the record.
It is significant to mention here that counsel for the respondents during arguments of the case has produced a copy of the extract from the 40th Minutes of Meeting of the Board of Directors of the Corporation which is taken on record and which reveals that the Board of Directors at Agenda Item No. 40.3, the creation of total number of 62 additional posts at different levels, including the post of ITI trained Turbine Operator to meet the immediate requirement of various projects in the Ladakh region against available vacancy in the JKPDC, while resolving further as under: -
“RESOLVED further that Managing Director be and is hereby authorizes to get the posts filled up on contractual basis on consolidated emoluments at the minimum of the lowest possible relevant pay scale and relevant qualifications to meet the requirement in keeping with the engagement of other similarly engaged personnel by the Corporation and/or in the Leh and Kargil Districts in other Departments in accordance with actual requirement.
Perusal of communication dated 11.09.2004 annexed with the petition as annexure I to the petition referred to and relied upon by counsel for the petitioners, addressed by the Managing Director of the Corporation to the respondent 2 herein for making appointments against the said newly created posts including the posts of Turbine Operator, the following has been ordered qua qualification for the post in question:
It is requested that the recruitment may kindly be done at your level from amongst the local youth on contractual basis. Minimum qualification for SBA/ Electrician Technician and Turbine Operator should be ITI qualified. In case of non ITI qualified person, he should have an experience of at least 1 year on power house machinery. The concerned Executive Engineer (Electric Project Division PDC Leh should please be associated with the selection committee as the technical expert. As is manifest from above, the aforesaid resolution of Board of Directors of the Corporation, has specifically provided that Turbine Operator be ITI trained so also has it been resolved that said post should be filled up at the minimum of lowest possible pay scale and relevant qualification, however, the Managing Director of his own without any power and authority has incorporated the qualification for the post in question that in the event of non ITI qualified person, he should have an experience of at least one year powerhouse machinery, which qualification was never provided at Agenda Item No.40.3 supra or else resolved in the Minutes of Meeting dated 26.05.2004 by the Board of Directors and consequently the respondent 2/Deputy Commissioner acting upon the said communication dated 11.09.2014 supra proceeded with the selection and consequently selected and appointed the petitioners herein who admittedly did not possess a requisite and prescribed ITI qualifications.
Record would also reveal that although the respondent Corporation in terms of notification dated 17.02.2014 published in the local newspaper invited objections qua the proposed regularization of employees working on contractual/consolidated/ad-hoc basis, reflecting the name of the petitioners as well therein consequently regularized those figuring in the said published list excluding the petitioners in terms of the Act of 2010, supra on the ground that the petitioners were found not possessed of requisite minimum qualification entitling them to the regularization, as also under Section 6 of the Act of 2010 though provide for relaxation in the upper age limit of an candidate yet do not provide any such relaxation qua the qualifications. A reference in this regard to Section 5 and 6 of the Act of 2010 would be relevant hereunder: -
Regularization of adhoc or contractual or consolidated appointees_
Notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in section 3 shall be regularized on fulfillment of the following conditions, namely : -
(i) that he has been appointed against a clear vacancy or post ;
(ii) that he continues as such on the appointed day ;
(iii)that he possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post ;
(iv) that no disciplinary or criminal proceedings are pending against him on the appointed day ; and
(v) that he has completed seven years of service as such on the appointed day :
Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization, irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization :
Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act.
Relaxation in upper age limit.
(1) The upper age limit as prescribed under rules, for entry into Government service shall be relaxed, in case the ad hoc or contractual or consolidated appointee is otherwise eligible for regularization under this Act ; provided such appointee has crossed the age limit at the time of his regularization but was within the prescribed age for appointment into the Government service at the time of his initial appointment as such or his age was relaxed by the competent authority at the time of his initial appointment
(2) The ad hoc or contractual or consolidated appointee shall be treated as an in-service candidate so far as the upper age limit is concerned for direct recruitment to Government service ; provided his ad hoc or contractual or consolidated service is subsisting on the date of issue of the advertisement notification by the recruiting agency.
It is significant to mention here that since the petitioners herein have challenged the actions of the respondents qua non-regularization of their services on the ground of violation of Article 14 of the Constitution, yet it is acknowledged principle of law that the gravamen of Article 14 is equality of treatment and that law must operate equally on all persons under like circumstances and that treating inequals as equals also violates Article 14 of the Constitution.
What emerges from the record firstly is that the petitioners were not possessed of minimum qualification required for the post of Turbine Operator and secondly, that they were not similarly situated with those regularized by the respondent Corporation against the post of Turbine Operators in whose cases no relaxation qua qualification was warranted suggesting that they were possessed of the requisite qualification thus, in view of aforesaid position of law it can safely be said that the petitioners have not been subjected to discrimination by the respondents in the matter of regularization of their services vis-à-vis those who stand regularized as Turbine Operators.
Viewed thus, for what has been observed, considered and analyzed hereinabove, the petition is found to be without any merit and is accordingly, dismissed.