Muzaffar Ahmad Bhat & Ors vs Health & Medical Education Department

D. S. Mahra, Member J

The applicants are the permanent employees of the Directorate of Health Services Government of Jammu and Kashmir holding Class IV posts of Orderlies/Nursing Orderlies on substantive basis and pursuant to the present orders of transfer, are presently posted at Medical Block Sallar, Achabal and Mattan. The applicants have filed the present OA seeking the following reliefs :

“(a) Call for the records of the non applicants

(b) Direct the non applicants to treat the applicants as similarly situated with the applicants of the judgments/orders Annexure A/7 and Annexure A/8 and release their withheld and future salary w.e.f. 1.4.2016, as has already been ordered by the Hon’ble High Court in Annexure A/7 upheld by the Hon’ble Division Bench and Hon’ble Supreme Court.

(c) Pass any other order or direction which the Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the applicants and against the non applicants.”

The learned counsel for applicants further submitted that the individual service particulars of the applicants have already been mentioned in the petition. The Learned Counsel for the applicants further submitted that the applicants being borne on permanent establishment of the respondent department in the office of the concerned Block Medical Officer/ Chief Medical Officer, Anantnag have been continuously discharging their duties at respective places of the posting and testified as under:-

a) That even though by virtue of the report of Directorate of Audit and Inspection of Finance Department dated 22.11.2012, like a total number of 2274 Class-IV employees of Kashmir valley, the applicants along with 133 Class-IV employees of District Anantnag were unilaterally adjudged as illegal appointees on the pretext of having been appointed against direct recruitment posts by the Chief Medical Officer, without reference of posts to any selection agency, yet their withheld salary from 2008 to 31.3.2016 was released and paid by the Govt. vide communication bearing No. HME/HRM/04/2013 dated 31.3.2016.

b) That the applicants are already admitted to the GP fund Scheme of the Government, since the date of their regular appointment in the Class IV posts and they have been permitted to subscribe to the GP Fund Scheme of the Government, which fact is evidenced by the GP Fund/NPS Account numbers allotted to each one of them.

c) That in terms of a report bearing No. HME/HRM/50/2012-II-Enquiry dated 16.12.2019, made by high level committee constituted by the Government vide Govt. order No. 596-HME of 2018 dated 25.10.2018 and headed by Director Finance, Health and Medical Education Department, the applicants herein grouped along with 133 Class-IV employees of District Anantnag were acknowledged as continuing in service continuously and regularly, discharging inter alia, the special duty of Yatra and their essential assignments, were recommended to be exonerated on the principle as adopted vis-à-vis other similarly circumstanced employees identified by the Audit.

d) That the applicants have been regularly assigned their duties and responsibilities at their respective place of posting in terms of series duty rosters as issued by the Block Medical Officer concerned from time to time including their assignment of Covid-19 duties.

Learned Counsel for the applicants further submitted that even though the aforesaid records irresistibly and conclusively establish the genuineness of the respective appointments/engagements of the applicants, yet the same was re-established in a full-fledged enquiry held by the authorities of the Health Department in the year 2021. By virtue of the said communication the salary of the applicants then withheld was ordered to be released on the count that on the basis of the enquiry held by the Directorate of Audit and Inspections, they were not found among those employees who were alleged to be illegal appointees and in respect where separate action was to be taken.

Learned Counsel for the applicants further submitted that an unjustified and unwarranted controversy raked up by the respondents regarding the appointment of the applicants merely on the report of respondent No. 3 regarding the alleged discrepancy and non-matching of computerized GP Fund No’s but nothing objectionable was found against the applicants. He further submits that even though all appointments in Class IV posts in the department of Health Services in Kashmir Valley are under scrutiny of the Crime Branch, yet nothing incriminatory has ever been noticed or found against them and nothing objectionable was ever noticed against the applicants.

Learned Counsel for the applicants further submits that pursuant to final Judgment dated 19.3.2020 passed by the Hon’ble High Court in WPC No. 742/2020 and SWP No. 2648/2018, as upheld by the Hon’ble Division Bench of the Hon’ble High Court in LPA No. 136/2020 and the Hon’ble Supreme Court in SLP No. 12594/2021, similarly situated persons have been granted the release of their withheld earned and future salaries of the Class IV posts. The judgment of WPC No. 742/2020 (Ashiq Hussain Dar and Ors. –vs- UT of J&K and Ors.) provides as under:

“The petition is allowed and by Writ of Certiorari, the impugned order bearing No. 381-NG of 2019 dated 29-08-2019 issued by respondent No. 2, is so far as it relates to the present petitioners, is quashed. The respondents by a Writ of Mandamus are directed to release the withheld as well as the future salary of the petitioners in lieu of the services rendered/to be rendered by them in the respondent department as Class IV employees, not withstanding pendency of any enquiry against them.”

And the Hon’ble Supreme Court in SLP No. 12594/2021 (UT of J&K and Ors. –vs- Ashiq Hussain Dar and Ors.) provides that “the SLP is dismissed” and accordingly the order of the Hon’ble High was not interfered.

The applicants are also aggrieved of order bearing No. 381-NG of 2019 dated 28-08-2019 issued by respondent No. 2. By virtue of the said order the respondents have proceeded to reject the claim of the applicants for release of salary.

On the other hand the Learned Counsel for the respondents submitted that the said judgments/orders are in personem and are confined to the contesting petitioners therein who have all along agitated the matter up to the Hon’ble Supreme Court and are not applicable to the applicants herein. The applicants are the fence sitters and have been all along waiting for the outcome of the said proceedings dated 28.8.2019 is a matter of record and anything contrary to the records is vehemently denied. He further submits that it got established from the records of District fund office Bandipora and Baramulla that applicant have been possessing fictitious and fake GP Fund account numbers which do not find any place in the record of the said offices and accordingly the same were freezed/deactivated and salary of the applicants along with others was stopped.

Learned Counsel for the applicants has placed the Judgment of the Hon’ble Apex Court (Civil Appeal No. 7841 of 2011 dated 31-03-2022) which is as under:

“we find that the High Court has failed to consider the fact that even if the appointment was irregular, the appellant has discharged the duties and in lieu of duties, he had to be paid. The State cannot take any work from any employee without payment of any salary.”

While hearing the arguments of the case, the Tribunal had raised a query regarding the attendance of the applicants and in reply to the said query, the Block Medical Officer, Bandipora appeared before the Tribunal and confirmed that applicants are still working and attendance records of the applicants are available with the respondents.

During the course of proceedings, the respondents have also filed an affidavit regarding the current position of the applicants. As per the said affidavit, the applicants are continuously working in Medical Block viz Block Bandipora, Hajin and Gurez of District Bandipora and their salary was stopped on the instructions issued from the answering respondent office in the backdrop of report of District Fund Office, Bandipora with regard to processing of fake GP Fund account numbers.

Heard the Learned Counsel for the applicants and the respondents.

After hearing both the parties/pursuing the records, we have found that applicants are continuously working in the department of the respondents. In view of the above discussion, we direct the respondents to treat the applicants as similarly situated with the petitioners of the Judgment in WP(C) No. 742/2020 titled Ashiq Hussain Dar and Ors. –vs- UT of J&K and Ors. and to release their withheld salaries w.e.f. 01-01-2016 respectively. This exercise shall be completed within six weeks from today. However, we make it clear that these directions are for releasing their duly earned wages. The respondents would be free to pursue any investigation and take action thereon regarding the charge of fraudulent appointment of the applicants. It is further directed that there is no provision under the service rules for directing the respondents department to make payment of future salary. It is apparent and obvious that if the employees are working in the department, certainly they will be paid for the work they have performed. Similarly if they perform their duties in future, they will certainly be paid for the work done by them. Therefore, it is clarified that if the applicants are working they will be paid and if they will work in future, they will be paid for the work they will perform in future.

With the observations made herein above, OA is allowed. There will be no order as to costs.