DB uphold judgment of writ court directing regularization of employees in Transport department
JKUT (Jammu), November-17-2021-( JNF):- A Division Bench of Jammu & Kashmir High Court Comprising Chief Justice Pankaj Mithal and Justice Mohan Lal while dismissing the appeal filed by Transport Commissioner & other challenging the judgment of writ Court whereby Writ Court found petitioners have been found entitled for regularization of services in accordance with the prevailing rules and regulations.
DB after hearing both the sides observed that this Court examined the communication dated 03.09.2009 which is part of the record. It is a letter addressed by the Transport Commissioner to the Commissioner/Secretary to the Government for the purpose of considering the cases for regularization of services of the employees of the Department in accordance with the above Act. The said communication contains a chart in the prescribed proforma ‘C’ giving the name of the employees, their designation, pay, date of initial appointment, the designation of the appointing authority, whether the person is continuing in service and if his appointment was against a clear vacancy or otherwise. The said chart clearly mentions that the petitioners/ respondents were appointed against clear vacancy as orderlies on check post on a consolidated remuneration of Rs.1500/- per month by the Transport commissioner and that they are continuing in service from the date of their initial appointment.
DB said that the aforesaid communication clinches the issue regarding the appointment of the petitioners/respondents and establishes beyond doubt that as per the own showing of the Transport Commissioner, they were appointed against the clear vacancies.
DB observed that in view of the aforesaid facts and circumstances, both the grounds that the appointment of the petitioners/respondents was not against clear vacancy or post, and that they were paid from the contingent fund do not stand substantiated and as such the writ court committed no error of law in holding that they are entitled for regularization of their services under the Act.
DB further observed that the order refusing regularization of services to the petitioners/respondents states that as their appointment is not against clear vacancy or post, they are not qualified for regularization in terms of Section 5 of the Act. The veracity of the said letter has to be judged on the basis of the reasoning recorded therein and that the said reasoning cannot be supplemented by means of pleadings or arguments as has been held by the Apex Court in the case of Mohinder Singh Gill and another v. Chief Election Commissioner and others, wherein it has been laid down that when a statutory authority makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In view of the above dictum the appellants in fact, cannot be permitted to take up any other ground other than refusing regularization on the account of not appointment against clear vacancy or post. It may not be out of context to point out that any intermittent breaks of one or two days in service would not disrupt the continuance in service as such breaks are artificially created. The fact remains that the services continued from day one till the appointed day resulting in completion of seven years of service. The Act contemplates seven years of completed service rather than continuous service and in such a situation intermittent breaks of a day or two or such artificial breaks are meaningless and would not be sufficient to hold that the petitioners/ respondents do not have seven years of service to their credit.
DB observed that the recent decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association, Bandipora, that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject, is of no help to the appellants in the present case inasmuch as no illegality has been pointed out at any stage in the appointment of the petitioners /respondents. They may have been irregularly appointed and it is for this reason their cases fell for consideration of regularization in accordance with the statutory provisions of the above Act. The writ court has considered their cases for regularization in the light of the provisions of the Act without impinging upon the mandate of the Apex Court. The petitioners/respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations. 18. In view of all that has been said above, we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs. JNF