Afroza Akther vs State of Jammu & Kashmir

Syed Bashir-Ud-Din, J.—Petitioner was appointed against class IV post in Health Department by Chief Medical Officer, Anantnag

(respondent No. 3) on 9.3.1998 against the resultant vacancy caused by promotion of incumbent of such post (Annexure-A). Petitioner has

alleged that her appointment is within the competence of Chief Medical Officer and has been in accordance with the rules. However, her service

record is not maintained and she suspects official respondents are bent upon to terminate her service arbitrarily and malafide. Petitioner also alleges

that even from the letter of Block Medical Officer to Chief Medical Officer Anantnag (Annexure-B) seeking clarification regarding appointment of

petitioner who is stated to have worked upto 31.3.1999, her status thereafter is that she is working and there is no such thing as her termination

from the post. Petitioner has prayed for reliefs) of regularization of service and quashment of termination of appointment, if any, and maintenance of

service record.

Respondent on affidavit of Director Health Service has alleged that the then CMO Anantnag in violation of the Government orders without

observing due procedure prescribed under law went for wholesale promotions from the posts of class-IV in the Health h Department in District

Anantnag. Against he resultant vacancies thus created the CMO again in violation of Rules and procedure made appointment(s) to class IV posts

in the Department Petitioner is one of such appointees to class-IV post. Only Head of Department could have made the appointment against the

class-IV post in question and that too in accordance with the rule in question at the relevant point of time and subsequently such powers have been

even taken from HOD's and vested with General Administrative Department by the Govt. vide order dated : 14.6.99. Petitioner having obtained

appointment order passed in favour of the petitioner by incompetent person who had and has no jurisdiction to pass such order has no efficacy

under law. The Govt. taking stocks of the situation cancel all the illegal promotion orders ordered by CMO Anantnag by Govt. Order No. 114-

HME of 1999 dated 15.3.1999 and consequently the beneficiaries of such illegal promotion order of the CMO were reverted back to the class IV

post(s) resulting in ouster of the incumbent(s) illegally appointed in such arrangement against consequent resultant vacancies. The writ petition is

therefore prayed to be dismissed.

During the pendency of the writ petition, petitioner through counsel moved application (CMP No. 1890/01) praying therein that petitioner's case

may be dealt with and her writ petition disposed of in the light of the judgment passed by Division Bench of this court on 25.6.01 in L.P.A. No.

170/2000 on the ground that the petitioner is similarly situated as the petitioners of that writ petition. Respondents have filed their objections and

contested the matter. The maintainability of writ and treatment sought by the petitioner on pari materia with the directions of L.P.A. No. 170/2000

is opposed on the ground that so many other candidates who were appointed as the petitioner is appointed by the CMO. Anantnag were

subsequently cancelled under Govt. order dated: 15.3.1999. The oustees did file the writ petition titled Sardar Sauran Singh and Ors. v. State of

J&K and Ors. Which writ petition has been dismissed by the Ld. Single judge. The LPA against the judgment is also dismissed on 6.9.2001. The

result is that consequent on dismissal all the promotees who were reverted back to the original posting lost the jobs for non-available of post for

being filled up by candidates like the petitioner. It is also alleged that petitioner had earlier to this writ petition filled SWP No. 807/99, with many

other candidates which petition stands dismissed on 24.5.99. Petitioner has on self same facts filled this petition. Petitioner is as per her own case

out of job and not working against any post form 31.3.1999. The submissions of the Ld. Counsel for the parties are heard. Record perused and

matter is considered.

So far as petitioner's case is concerned in the face of the reply on affidavit of the Director Health Service at is seen that petitioner's appointment as

class-IV is ordered by an incompetent person with no powers to make such appointment at the relevant time. Besides the resultant vacancy against

which petitioner's appointment was ordered by CMO Anantnag was the post made available by promotion of he incumbent of the post to next

higher grade which promotion was found made in violation of rules and beyond pale of law. Accordingly the appointment was cancelled by the

Govt. in March 1999. Once the promotions were cancelled the beneficiaries of such promotion reverted back to the class-IV post and

consequently petitioner who was appointed against one of such post is out. The cancellation of the above promotion order has attained finality with

the pronouncement by Hon'ble Single Judge in writ petition and the LPA Bench. The State of Affairs in place came to an end when the petitioner

on ouster was not continue from 20.4.01 as reported by BMO, Yaripora to Director Health Services. This is so stated on affidavit by Director

Health Services. The judgment of June 2001 in LPA No. 170/2000 on which reliance is placed to regulate the petitioner's case is not in terms

applicable to the petitioner. The judgment reads as :-

to consider the case of the appellants by opening the service book or regularizing them in the posts subject to their possessing requisite

qualification for the post and further provided that the promotees against whose vacancy appellants has been engaged are not reverted back to

their original position.

It is the positive case of the respondents, as supported by affidavit of Director Health Service that the promotees of the vacancies to which

petitioner has made a claim have since been reverted back to the original position and thereby leaving no resultant vacancy for petitioner to

continue against on the class IV post. Even circumstances pointed out in that case that the appellants of that case were holding the posts and

working against class IV post is not true of this case as petitioner has been disengaged from 21.4.2001 as deposed on affidavit by Director Health

Services.

Before court can issue direction for according treatment to a case as per the directions contained in an earlier judgement, it has to be necessarily

shown that the candidates are equally circumstanced and are similarly placed in both case. This is not the case as pointed above.

Para 14 of the writ petition reads as under :-

That the petitioner filed a writ petition before this Hon'ble Court bearing SWP No. 807/99 which came for consideration before the Hon'ble court

on 24.5.99 before the Hon'ble Justice Mr. G.L. Raina but the same was dismissed for non-prosecution of the same by the petitioner and the

petitioner in this regard has to submit that the petitioner has engaged the counsel for the purpose but due to death of his mother on that day could

not present himself before the Hon'ble court as such case for filing this petition.

Annexure-D to the petition focuses on the position as is given in this para. Respondents in reply have averred that once the writ petition is

dismissed, the second writ petition is not maintainable. Once the writ petition is dismissed for non-prosecution and no steps whatsoever have been

taken to restore recall the dismissal order of the writ petition this second writ petition on the self same subject is not maintainable.

In this aforesaid view of the matter petition is dismissed.