Waheeda Akhter vs Secretary To Department Of Culture And Ors

Javed Iqbal Wani, J

The issues involved in the instant petitions filed by the petitioner are interconnected and akin to each other, as such, are being disposed of by this common judgement.

Facts:

WP(C) No. 2193/2021

• The petitioner claims to have been engaged in Jammu and Kashmir Academy of Art, Culture and Languages (hereinafter for short „the Academy‟) on adhoc basis as an Instructor initially for a period of 06 months vide order No. 26 of 1991 dated 10.07.1991. Upon expiry of the said period of engagement, the petitioner came to be re-engaged from time to time and allowed to continue to work as such.

• In the year 1996 the petitioner filed SWP No. 4603/1996 before this Court which was disposed of vide order dated 06.05.1998 while directing the Academy to consider the petitioner along with other eligible candidates in case they contemplate to make the appointment on Stop Gap Basis.

• Being aggrieved of the said order, the petitioner filed Letters Patent Appeal being LPA No. 122/1998 which was disposed of vide order dated 16.07.1999 directing the respondents to fill up the post of Senior Calligrapher in accordance with Rules and then the petitioner be considered against the resultant vacancy of Junior Calligrapher/ Instructor Calligraphy having worked and gained experience in the Department for more than four years.

• It is being stated that the case of the petitioner remained pending consideration before the Academy till 2006, when the petitioner came to be finally appointed against the post of Junior Instructor Calligraphy vide order no. 48 of 2006 dated 04.09.2006 having been advertised vide notification dated 22.09.2003, and consequently the seniority of the petitioner came to be fixed in the Kitabat Section at serial No. 9 in the seniority list issued by the Academy.

• It is being next stated that in the year 2008 an FIR No. 22 of 2008 under Sections 420, 468 and 471 came to be registered by the Crime Branch against the petitioner upon a complaint qua her date of birth and qualification certificates which FIR came to be closed “as not proved” by the investigating agency vide report dated 07.04.2011 after conducting an investigation therein.

• Immediately upon closure of the aforesaid FIR the services of the petitioner are stated to have been regularized in terms of endorsement No. Adm/E/15/2008-9/6817-20 dated 29.10.2011 by the Academy w.e.f. 04.09.2006 whereafter the petitioner claims to have submitted series of representation before the respondents for preparation of her service book as also release of annual increments and upon failure of the respondents to do the needful, the petitioner filed the instant petition.

• The instant petition came to be admitted to hearing vide order dated 18.08.2022 and while admitting the same the Court made an observation that the pendency of the petition shall not come in the way of respondents for considering the representations of the petitioner for preparation of service book and release of annual increments from the date the petitioner became entitled thereto.

WP(C) No. 2413/2022

• During the pendency of the writ petition being WP(C) No.2193/2021 supra the Academy issued order No. 30 of 2022 dated 12.10.2022 rejecting the claim qua the preparation of service and release of annual increments of the petitioner on various grounds stated in the order and the said order is impugned in the instant petition.

• The facts averred in the instant petition and the grounds urged against the impugned order dated 12.10.2022 are by and large which are raised and urged in WP(C) No. 2193/2021 and for the sake of brevity and in order to avoid repetition are not referred hereunder, however, it is averred in the instant petition that the respondents after a period of 13 years post appointment of the petitioner, forwarded the case of the petitioner to the competent authority vide letter dated 13.03.2019 for relaxation in age and qualification which, however, had remained un-decided.

• It is being next averred that the said inaction of the respondents cannot be used as a ground against the petitioner to deny her said service benefits while heavily relying upon order No. 29 of 2022 dated 30.09.2022 issued by the Academy relating to the final seniority list notifying the seniority of the employee of the Academy wherein the petitioners figures in the category of Junior Instructor Calligraphy.

Per Contra, reply stands filed by the respondents to WP(C) No. 2413/2022 supra wherein the respondents have disputed the basic eligibility of the petitioner for engagement and have contended that the petitioner could not have been engaged in the first instance while strongly relying upon the reasons detailed out in the impugned order, though the respondents have neither disputed the engagement of the petitioner nor do they deny regularization of the petitioner, except that the said regularization is alleged to be erroneous.

Heard counsel for the parties and perused the record.

Perusal of the record tends to show that engagement of the petitioner as Junior Calligrapher/ Instructor Calligraphy in the year 1991 inasmuch as her re-engagement from time to time is not in dispute. So is also not in dispute the re-engagement of the petitioner as Instructor Calligraphy in the year 2006 and though the respondents claim that the said engagement was only for the period of 89 days yet, the continuation of the petitioner beyond the said period of 89 days is not being denied by the respondents. Respondents have also not denied to the fact that FIR lodged against the petitioner qua her date of birth and qualification certificate was closed “as not proved”. Subsequent regularization of the petitioner against the post of Instructor Calligraphy inasmuch as her placement in the seniority lists issued by the respondents from time to time is also not being denied by the respondents. What is being disputed by the respondents, is an alleged erroneous regularization of services of the petitioner yet, the withdrawal of said regularization is neither pleaded nor denied by the respondents.

It is also not the case of the respondents that any disciplinary proceedings were initiated against the petitioner for allegedly having got engaged in the respondent Department without being eligible for the said post.

The sum and substance of the issue/s, is that the respondents have denied the claim of the petitioner for preparation of her service book and release of annual increment on the ground that the petitioner was not qualified to be engaged/appointed, even though her case for relaxation in age and qualification is admitted to have been submitted to the competent authority having not so far been decided.

Record would further demonstrate that the petitioner has been working as Junior Calligrapher/ Instructor Calligraphy in the Academy for more than three decades now and while she has worked for two decades in adhoc capacity, till her regularization in the year 2011, the petitioner after regularization has been working for more than a decade and continues to be so, prima-facie with the acknowledgement and approval of the respondents and the order of regularization of the services of the petitioner alleged to be erroneous by the respondents stands acted upon by them in the year 2011 and till date is intact.

The respondents in the impugned order as well as in the objections filed to the petition have averred that they came to know about the eligibility of the petitioner after the order of regularization was issued in her favour yet, it cannot be overlooked that the respondents permitted the petitioner to continue in the service on one hand and on the other hand forwarded her case for relaxation in age and qualification, instead of rectifying the error or else initiating any action against the officers who are alleged to have accorded said regularization to the petitioner, though the competence of the Secretary of the Academy to issue order of regularization of the petitioner has not been denied by the respondents. The aforesaid conduct of the respondents manifestly suggests that the respondents consciously and knowingly allowed the petitioner to be in service for more than three decades. The petitioner by the efflux of time can safely be said to have gained experience which itself would be deemed to be a qualification having regard to the nature of the post of Instructor Calligraphy. Therefore, the respondents by no sense of imagination can said to have acted in the manner fairly while denying the petitioner‟s service benefits in the form of preparation of service book or else grant of annual increments that too at the fag end of her career when she is about to retire having given her prime youth in the service of the respondents. The respondents cannot at this stage be allowed to turn around and deny the petitioner her service benefits as aforesaid as same would be sheer injustice with the petitioner at this stage of her life as the petitioner as per the age claimed to be accurate by the respondents is around 58 years of age and is now at that stage of her life where she would be preparing for her superannuation rather than looking for a job elsewhere thus, in law the respondents would be estopped from denying the petitioner her service benefits, in that, estoppel is a Rule of evidence which precludes a party to contradict his previous representation as the Doctrine of Estoppel appertains to equity and fairness in action and the Rule of Estoppel looks into the aspects of equity, justice and good conscious.

It is also an admitted fact that the respondents have forwarded the case of the petitioner for grant of relaxation in age and qualification to the competent authority which case till date has not been settled by the respondents. The case for relaxation has admittedly been initiated and sent to the competent authority by the respondents oflate when the petitioner is on the verge of her retirement, as such, delay in processing the case of the petitioner for grant of such relaxation cannot be used by the respondents as a ground to deny the service benefit to the petitioner, in that, the same would amount to arbitrariness and thus, violation of fundamental rights of the petitioner enshrined under Article 14 and 16 of the Constitution as in every discriminative action has arbitrariness within it which arbitrariness in the manner in which the respondents have dealt with the case of the petitioner is writ large.

For all what has been observed, considered and analyzed hereinabove, the petition/s succeed and are allowed in the following terms: -

“(i) Impugned order No. 30 of 2022 dated 12.10.2022 is quashed.

(ii) Respondents are commanded to have case of relaxation in age and qualification of the petitioner with the Competent Authority settled without any further delay within a period of two months from the date a copy of this judgement is served by the petitioner upon the respondents and in the event the same is not settled and decided within the aforesaid period, the said relaxation shall be deemed to have been granted/accorded in favour of the petitioner and consequently respondents shall prepare the service book of the petitioner and release all service benefits to the petitioner to which the petitioner would be entitled thereto had the same not been withheld”.

Disposed of.

A copy of this judgement shall be placed on record in WP(C) No. 2193/2021.