Darshan Kumar vs State of Jammu and Kashmir and Others

Even if the facts stated by the respondents are taken into consideration even then the petitioner would be entitled to the relief as claimed by him.

The facts as stated in the objections preferred by respondent 1 to 3 are being taken note of. The petitioner was brought on Regular Temporary

Establishment vide order passed by Chief Engineer Ravi Tawi Irrigation Complex, Jammu on 02.07.1990. He was appointed to the post of

Gateman in the grade of Rs. 630940/. This grade is per the respondents was upgraded as Rs. 750940/. The fact that the petitioner came to be

appointed on daily wages earlier is admitted in the reply given in para 4 to 9 of the petition. In this it is submitted that:

i. respondents 4 to 8 were engaged on daily wage basis as operator much after the petitioner;

ii. their services were brought on work charge establishment w.e.f. 01.12.1979 in the grade of Rs. 200320/;

iii. service record of the respondents 4 to 8 are unblemished;

iv. service record of the respondents 4 to 8 are unblemished;

v. the matter was referred to the police, one man was also constituted. It was on account of this factor, the case regarding conversion of the

petitioner was delayed. It was not considered on 01.12.1979 when the claims of private respondents were considered; and

vi. the police closed the case as untraced;

vii. however, in the departmental inquiry some finding were recorded against the petitioner. This as per the respondents could not be given effect to

because of the findings recorded by the police authorities;

viii. that even though there was proposal to terminate the services of the petitioner. This was not done; and

ix. that it was above factor which lead to delayed consideration of the petitioner.

It is, accordingly, submitted that it was not mandatory on the part of department to consider the petitioner on work charge establishment w.e.f.

01.12.1979. It is submitted that the petitioner accepted the status w.e.f. 02.07.90. It is accordingly submitted that the petitioner cannot claim

benefit of the grade of operator i.e. Rs. 14002600/ the position of law is well settled even where some criminal case is pending against a person

but if ultimately he is acquitted then he cannot be deprived of the service benefit. This view was expressed by a Division Bench of this court in

'Mohd Ishq Bhat Vs. State of J and K and others' reported as 2000 KLJ 274. What is said in para 5 is reproduced below:

The learned counsel for the appellant has placed reliance on AIR 1985 SC 84, Nepal Singh Vs. State of U.P. and others. In the above case,

the services of a Government servant on temporary appointment were brought to an end. As the allegations of misconduct were attributed, the

order of termination was held to be bad. Again in 'Babu Lal Vs. State of Harayana, AIR 1991 SC 1310, an employee was placed under

suspension. This was on account of pendency of criminal proceedings. The Criminal proceedings ended in acquittal. The Supreme court of India

was of the view that the termination of the services during the pendency of suspension pending criminal proceedings was bad and the appellant was

held entitled to reinstatement and also to regularization in the above, case Baby Lal appellant was appointed on adhoc basis against the quota of

exserviceman. His appointment was purely temporary on adhoc basis and was not to exceed six months. Even to such a tenure holder, relief of

reinstatement was granted. The fact that the appellant therein was placed under suspension was taken note of. Appellant's counsel has also placed

reliance on AIR 1986 SC 1790 Rajinder Kour Vs. State of Punjab. In this case, it was observed that the court can go into the question whether

the order of discharge is by way of punishment or is a simple order of discharge.

The aforementioned observations would be fully attracted to the facts of the case. As a matter of facts of the case. As a matter of fact, the case

of the petitioner, is on better footings. He has never been convicted. The police authorities have found no case against the petitioner. As the lodging

of F.I.R. was the only factor which lead to the nonconsideration of the claim of the petitioner for promotion of the dated when he became eligible

and as that factor is nolonger relevant, the petitioner is entitled to the same relief w.e.f. the same date as was given to private respondents 4 to 8.

It is settled law that so far as service benefits are concerned, these are part and parcel of Article 16 of the constitution of India. This is a

fundamental right. No person can be deprived of the advantages and the benefits which are concerned upon a person and which advantages flow

from fundamental rights. This is on the theory that a fundamental right cannot be waived. These can not only be not waved but a citizen cannot be

deprived of these benefits. The earliest view on the subject would be found reported as 'Behram Khurshid Pesikaka Vs. State of Bombay1, AIR

1955 SC 123. It was observed that doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be

introduced in our constitution. The rights described as fundamental rights are a necessary consequences of declaration in the preamble that the

people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizen citizens justice, social

economic and political, liberty of though, expression, belief, faith and wothership; equality of status and the opportunity. These fundamental rights

have not been put in the constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They

have been put their as a matte of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as

a matter of constitutional policy. Refer to some of the Articles, inter alia, Articles 15(1), 20, 21 makes the proposition quite plain. A citizen cannot

get discrimination by telling the State ""you can discriminate"".

In a still stronger language the Supreme Court of India in the case reported as 'Basheshar Nath Vs. Commissioner of Income Tax, Delhi and

Rajasthan and another'. AIR 1959 SC 149 observed that Articles 14 is, in form, an admonition address to the State and does not directly support

to confer any right on any person. The obligation thus imposed on the State, no doubt, ensures for the benefit of all persons, as a necessary result

of the operation of this Article, they all enjoy equality before the law. It was further observed that whatever breach of other fundamental right a

person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right.

A full Bench of Allahbad High Court in 'Pardeep Tandon Vs. State of Uttar Pradesh and others', AIR 1975 Allahabad 1, considered this

question. It was observed that merely because a citizen has filled some form would not confer upon the State of Power to discriminate in violation

of the constitutional injunction. No question of estoppel or waiver arises where the State lacks the constitutional power to enforce a rule which is

unconstitutional and thus ultravires.

Another Division Bench in 'Hon'ble Chief Justice H.C. Allahabad and others Vs. Abdul Wahid Khan and others' 1971 Labour and Industrial

cases 773, speaking through Shri R.S. Pathak letter Chief Justice of India expressed the same sentiments and held in no uncertain terms that the

State is not relieved of the obligation to company with the constitutional mandate merely because a person affected chose to exercise a Particular

option. A right to discriminate against cannot be waived. See Omega Advertising Agency Vs. State Electricity Board, AIR 1982 Guhati 37.

In View of the aforementioned legai position, it is accordingly held :

i. that there can be no waiver of fundamental right;

ii. that the State cannot act in a manner which leads to infringement of fundamental rights;

iii. that the only impediment in the way of petitioner was the pendency of some criminal investigation. This was concluded and the petitioner has not

been found guilty, therefore, he cannot be deprived of the service benefits to which he becomes entitled w.e.f. 01.12.1979. This petitioner is

accordingly hold is hold entitled to the grade claimed by the petitioner w.e.r. 01.12.1979.

iv. Let this benefits be calculated and released in favour of the petitioner within a period of two months from the date, a copy of the order passed

by this court is made available by the petitioner to the respondents.

v. In case this is not done with in the stipulated period, the petitioner would be entitled to interest at the rate of 12 % payable by the person on

whose account delay occurs.

Disposed of accordingly.