Dinesh Kumar Nayyar vs State of Jammu & Kashmir and Others

Nirmal Singh, J.—Petitioner is seeking a writ in the nature of mandamus commanding upon the respondents to treat the petitioner having

been appointed retrospectively w.e.f. April '92, and to accord other consequential benefits including the maintenance of his seniority position.

The brief facts for the disposal of the case are that petitioner along with others had applied for the post of Junior Engineer (Civil) Grd. II in

pursuance to a notification issued by the J&K Service Selection Recruitment Board in the year 1988. The selection made by the respondents in

this regard became the subject matter of challenge in SWP No. 369/88 titled Vijay Kumar Sharma and Ors. v. State and Ors. This Court vide

judgment dt. 20th of Sept'90, allowed the writ petition and quashed the selection of private respondents therein with a direction to respondent

State to fill up the posts on the basis of merit and in accordance with the rules governing the field. Against the aforesaid judgment, the State of

Jammu and Kashmir, preferred an appeal bearing LPA No. 153/90. A Division Bench of this Court while deciding the appeal directed that the

cases of the writ petitioners(respondents in the appeal) in the aforesaid writ petition would be considered and they would be entitled for adjustment

only against the vacancies which are available with the Government as on the date of passing of order by this Court i.e.20th Sept'90. Thereafter,

the State Government in compliance to the judgment passed by this Court in the aforementioned LPA, constituted a Committee and initiated the

process of selection in which the petitioner also participated. In pursuance to the selection process, a select list of Junior Engineer (Civil) Gr.II was

issued by respondents in which the name of the petitioner did not figure which led him to file another writ petition bearing SWP No. 463/92. The

said writ petition was allowed by this Court vide judgment dated 16th of March'95. The respondent-State was directed to consider the case of the

petitioner for appointment to the post of Junior Engineer Grade-II( Civil) irrespective of his status as a stipendiary engineer but this was subject to

his suitability and availability of posts. The respondents after considering the case of the petitioner issued appointment order in his favour dt. 27th of

April 2000.

The grievance of the petitioner in the present petition is that he was one of the writ petitioner in SWP No. 369/88, referred to above, and

therefore, when the respondents allowed the benefit of appointment in favour of similarly situated persons vide Government Order No. 175-PW of

1992 dt. 30th of April92, which was passed in compliance to the judgments passed by this Court in the aforesaid writ petition and LPA No.

153/90, then the petitioner cannot be singled out and denied the said benefit. It is submitted that the respondents later on allowed the benefit in

favour of some of the candidates who had also been left out of zone of consideration while passing order dt. 30th of April92. Reliance in this

regard is placed on Government Order No. 41-PW of 1993 dt. 25th of Jan93 (Annexure E.1). It is thus submitted that when the writ petitioners in

writ petition bearing SWP No. 369/88 have been given the benefit of appointment w.e.f. 30th of April'92, then the petitioner herein who was also

one of the petitioner in the aforesaid writ petition cannot be denied this benefit as he is also similarly situated. It is stated that respondent authorities

cannot adopt a different yard-stick so far as the petitioner is concerned. Through the medium of present writ petition, a direction is thus sought to

respondents for according the benefit of appointment and other consequential benefits in favour of the petitioner w.e.f. the same date i.e. 30th of

April'92 as has been given to the rest of writ petitioners in aforesaid writ petition.

Respondents have filed counter stating therein that in the absence of any appointment order in favour of the petitioner, he cannot be treated to

be an appointee of 1992 and thus cannot be granted any benefit in this regard. It is submitted that petitioner cannot rely on the judgment passed by

this Court in SWP No. 246/94 dated 21st of Jan94, as the facts involved in the present case are not similar to the aforesaid writ petition. It is

stated that as the appointment of the petitioner was made vide Government Order No. 153-Works of 2000 dated 27th of April2000, and this

order having been passed in pursuance to Cabinet decision No. 51 dt. 6th of April2000, the petitioner cannot be given the benefit of appointment

w.e.f. April92. The further stand taken by the respondents is that in case the petitioner is given the said benefit at this stage, then the same would

affect the seniority and promotion of other Junior Engineers working in the department.

A perusal of the above stand taken by the respondents shows that they have not denied the assertions made in the writ petition. It has only been

stated that the petitioner cannot be given the benefit of appointment w.e.f. April'92. No reason whatsoever has been given by the respondents to

show that as to why the petitioner was denied the benefit of appointment w.e.f. the aforesaid date when similarly situated persons were allowed

this benefit. This is more so, when the petitioner was also a party to the writ petition SWP No. 369/88 and LPA No. 153/90. The respondents, as

indicated above, have given no reason to differentiate the case of the petitioner from rest of the writ petitioners in the aforesaid writ petition.

The other aspect of the matter which is to be taken into consideration is that the petitioner, as noticed above, filed another writ petition bearing

SWP No. 463/92. The said writ petition was also allowed and the petitioner was held entitled to the same benefit as given to similarly situated

persons i.e. writ petitioners in SWP No. 369/88. What was said by this Court while deciding SWP No. 463/92, is being reproduced below:

The short point that falls for consideration therefore, is whether the petitioner could be denied consideration for appointment to the post of Junior

Engineer, Grade-II in terms of Court order dated 11.4.1991 passed in LPA No. 51/90 or Review Petition No. 41/91 or by the reason of any

eligibility prescribed by the recruitment rules?

The history of the case reveals that the Government granted stipend to unemployed engineers sometime in 1986-87 to provide them some

sustenance. Consequently engineering graduates and diploma holders who had qualified by a certain date, were granted such stipend and others

were not. This coupled with the selection of the Junior Engineers made by the SSRB in 1988 generated litigation in which petitioner figured in Writ

Petition No. 369/88. The judgment in this writ petition was called in question in LPA No. 153/90 which was disposed of by a consent order dated

15.3.1991, the relevant portion whereof has been extracted hereinabove. Under this judgment all writ petitioners in writ petition No. 369/88

including the petitioner, had to be considered for appointment to the post of Junior Engineer irrespective of whether any of such writ petitioners

was stipendiary or not. There is nothing to show that this consent order passed in LPA No. 153/90 was subsequently modified by any other order

and, therefore, it should be taken to have assumed finality vis-a-vis the parties i.e. between the petitioner and the State.

The case of the respondent-State that order was subsequently modified by order dated 11.4.1991 in LPA No. 51/90 and Review Petition No.

41/91 is a different matter and cannot be used against the petitioner. Admittedly, petitioner was not a party in LPA 51/90 or Review Petition No.

41/91 which arose out of Writ petitions No. 137/91 and 122/91. Therefore, any order made in these proceedings cannot bind him one way or the

other to the prejudice of his rights and can in no way take away his right of consideration for employment. His case has to be and will always bed

governed by the consent order dated 15.3.1991 passed in LPA 153/90 in which he was a party respondent and which arose consequent upon the

acceptance of his writ petition. Since under this order all writ petitioners had to be considered, including the petitioner, irrespective of their status of

stipendiary engineers, there was no legal impediment in according consideration to the petitioner and appointing him subject to his suitability.

After making the above observations, the writ petition filed by the petitioner was allowed and respondent-State was directed to consider the

case of the petitioner for appointment to the post of Junior Engineer(Civil) Grade-II irrespective of his status as a stipendiary engineer. It is in

pursuance to the aforesaid directions that the respondents vide order impugned have considered the case of the petitioner and issued appointment

order in his favour. However, while passing the aforesaid order, the respondents have not taken into consideration the observations made by this

Court reproduced above. A perusal of the observations noticed above shows that petitioners case has been held to be governed by the consent

order dt. 15th of March91 passed in LPA 153/90 in which appeal, the petitioner was also one of the party respondent. Therefore, when the

respondents have given the benefit of appointment to the writ petitioners in SWP No. 369/88 i.e. the private respondents in the aforesaid LPA

vide order No. l75-PW of 1992 dt. 30th of April92, which order was passed in pursuance to the consent order dt. 15th of March91 passed in the

LPA aforementioned in which petitioner was also one of the party respondent, then the petitioner cannot be singled out and denied the same

benefit as has been given to all other similarly situated persons.

In view of the above, this petition is allowed. The petitioner is held entitled to the same benefit as has been given to the private respondents in

LPA No. 153/90 which came to be decided vide consent order dt.l5th of March91, in which appeal, the petitioner, as indicated above, was also

one of the party respondent. The net result is that the petitioner shall also be treated as an appointee of April92. This appointment, however, shall

not confer any right upon the petitioner so far as monetary benefits are concerned but he shall be entitled to all other consequential benefits

including the seniority. Let appropriate orders in this regard be passed by the respondent authorities within a period of two months from the date, a

copy of this order is made available to them by the petitioner.

Disposed of accordingly.