Santosh Pandita Koul vs State Of J&K And Others

Wasim Sadiq Nargal, J

BRIEF FACTS:

The facts giving rise to the filing of the present petition are briefly summarized as under:

That the petitioner was initially engaged as Casual Labourer on 26.02.1988 and subsequently she was engaged on consolidated wages of Rs.700/- per month as Junior Assistant. On 4th April, 1990, the petitioner proceeded on 84 days maternity leave up to 26.06.1990. After availing the said leave the petitioner was supposed to join her duties in the office of the then Assistant Secretary (Legal) SFC but she did not report for duties and choose to migrate from the Valley due to the conditions which were prevailing in Kashmir Valley at that time. In the year 1997, the Government vide Government order No.56-FST of 1997 dated 28.01.1997, all Daily Rated Workers/Consolidated Workers/ Work Charge Employees who had migrated from the Valley were deployed on work in Jammu Province. The said Government order also provided that re-deployed persons shall be brought on regular establishment after completion of seven years service, however, the period from the date of migration till date of deployment, shall not be counted. Accordingly, in terms of the Government order (supra), the petitioner also came to be deployed by virtue of order No.100/J of 1997 dated 01.03.1997.

It is further submitted that when despite representations, services of the petitioner in terms of the Government order (supra) were not regularised she filed a writ petition bearing SWP No.2339/1999 and the said writ petition came to be disposed of by virtue of order dated 19.07.2001, directing the respondents to consider the case of the petitioner for regularisation. Further, it is stated that on failure of the respondents to regularize her services she made a representation praying that without taking in to consideration the break period from 1990 to 1997 she shall be deemed to have completed seven years in the year 1995 and her case for regularization shall be considered from 1995. It is further stated that the services of the petitioner along with other persons came to be regularized by virtue of S.F.C. Order No: 134 of 2004 dated 31.08.2004 with effect from 01.04.2002. The petitioner is stated to have represented the respondents for regularizing her services with effect from 1995 instead of 01.04.2002 and in this regard the petitioner has submitted that one Autar Krishan Zutshi was also appointed as Helper on consolidated basis and was subsequently regularized as Accounts Assistant. Further, the petitioner has submitted that several other persons who were appointed as Helper on consolidated basis have since been regularized. The petitioner claims that since she was appointed as Junior Assistant on consolidated basis should have been regularized as Senior Assistant instead of Helper.

The representation of the petitioner came to be rejected by the respondents in terms of the order dated 24.01.2009. The petitioner has challenged the said rejection order through the medium of this writ petition. The petitioner has also prayed for quashing of the regularization order dated 31.08.2004 to the extent of treating her to have been regularized from 05.08.1995 as Junior Assistant instead of 01.04.2002. The petitioner has also prayed for fixing her seniority in the cadre of Junior Assistants treating her to have been regularized from 05.08.1995 and placing her at the appropriate place over and above the officials who have been regularized/ appointed after 1995.

The respondents have filed their objections to the writ petition and seeks dismissal of the writ petition on the ground that petitioner has raised disputed questions of law and fact by the medium of the present writ petition. The further stand taken by the respondents is that petitioner was initially engaged on daily wage basis on 26th February, 1988 and subsequently on 05.08.1988 she was engaged on consolidated wages of Rs.700/- per month as Junior Assistant. The petitioner proceeded on maternity leave of 84 days on 04th April, 1990 and thereafter did report for duty and chose to migrate from the Valley. In the year 1997, in terms of Government order No. 56-FST of 1997 dated 28.01.1997, the petitioner was deployed again by virtue of SFC order No.100/J of 1997 dated 01.03.1997. The Government order dated 28.01.1997 provided that deployment be brought on regular establishment after completion of seven years service, however, the intervening period from the date of migration till deployment shall not counted for purposes of calculating the seven years of service. Accordingly, the case of the petitioner was considered and her services were regularized with effect from 01.04.2002 after taking into consideration the period from 1988 to 1990 and thereafter from 1997 to 2002 which comes to seven years. The further objection taken by the respondents is that petitioner had earlier filed SWP No.2339/1999 seeking her regularization and after having been regularized in the year 2004 she accepted the said regularization order and, therefore, after accepting the regularization order, she has no locus to file the present writ petition. Further, it is stated that the petitioner having filed the earlier writ petition for the same relief as prayed for in the present writ petition, the present writ petition is not maintainable. Further, it is stated that it is settled preposition of law that once the relief prayed for is not granted by the Court the same is deemed to have been rejected. In that view of the matter, the prayer of the petitioner in the earlier writ petition for regularization of her services as Junior Assistant at par with the other employees has not been granted by the Court, meaning thereby the same has been declined and once the said relief is declined by this Court, the petitioner cannot agitate the matter again and pray for the same relief by the medium of this writ petition. The writ petition is also resisted by the respondents on the grounds of delay and laches.

It is further pleaded by the respondents that since the petitioner is seeking seniority but she has failed to array the persons who will be affected by disturbing the seniority position, therefore, the writ petition is also liable to be dismissed for want of necessary parties. Further, the respondents have submitted that cases of Vijay Laxmi Koul, Vijay Laxmi Raina and Avtar Krishan Zutshi who were also engaged on consolidated basis were continusouly on the roll of the Corporation without any break and their services have been subsequently regularized as Junior Assistant, Field Assistant. Further, it is submitted that the case of petitioner is not at par with the said persons. Finally, it is prayed that the writ petition be dismissed with costs.

Legal Analysis:

Heard Mr. P. N. Bhat, learned counsel for the petitioner and Mr. Dewakar Sharma, Dy.AG, learned counsel for the respondents at length and perused the record.

Admit.

This is a peculiar case where the petitioner after having accepted the order No. 134 of 2004 dated 31.08.2004 by virtue of which her services were regularized as Helper with effect from 01.04.2002, for more than five years has filed the present writ petition as a matter of afterthought on false and flimsy grounds. Having accepted the aforesaid order of regularization for more than five years, the petitioner is estopped under law to question the same at this belated stage. The law of estoppel by conduct holds good against the petitioner as the petitioner has acquiesced her right to challenge the same at a belated stage. The petitioner having accepted the order of regularization as Helper cannot turn around and seek her regularization as Jr. Assistant and that too from the year 1995 when she claims to have completed seven years of service instead of 01.04.2002 from which date her services were regularized. My this view is fortified by the judgment of the Supreme Court in Chandra Prakash Tiwari and others v. Shakuntala Shukla and others : (2002) 6 SCC 127, wherein it was held thus :

“In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status - the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Parkash Shukla (Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., [1986] Supp. SCC 285) a Three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a Petition challenging the said examination would not arise.

Subsequently, the decision in Om Prakash stands followed by a later decision of this Court in Madan Lal and Ors. v. State of J & K and Ors., [1995] 3 SCC 486, wherein this Court stated as below:

"9 Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, [1986] Supp SCC 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such petitioner.

Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."

There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.”

Besides, the petitioner was not eligible for regularization with effect from 5th August, 1995 as prayed for in the writ petition on the ground that there was breakage in service and this was precisely the reason the Finance Department cleared the case of the petitioner by regularizing her services as Helper under SRO 64 of 1994 with effect from 1st April, 2002.

Another aspect of the matter which cannot be lost sight of in the present writ petition that the Government order dated 28.01.1997 by virtue of which the daily rated workers/ work charge employees who migrated were deployed on work in Jammu province including the petitioner and the said order clearly provides that the persons shall be deployed and may be regularized from Ist April of the subsequent year/ years provided that they have completed the prescribed continuous working of seven years or may complete continuous working of seven years or more on or before 31st March of the preceeding year without taking into account the break from the date of migration till date of re-engagement/ re-deployment in the same department for computation of seven years continuous service.

Thus, from a bare perusal of the aforesaid order, it was emphatically clear that the intervening period from the date of migration till re-deployment shall not be counted and the respondents, accordingly, by virtue of the order impugned dated 31.08.2004 have regularized the services of the petitioner from 01.04.2002 when she completed seven years continuous service and the said order was gladly and voluntarily accepted by the petitioner without any grouse.

It appears that the petitioner after having accepted the aforesaid order without any demur has filed the present writ petition on false and flimsy grounds by calling into question the subsequent order dated 24.01.2009 by virtue of which the case of the petitioner stood rejected in pursuance to the representation filed by the petitioner by virtue of a speaking order. From a bare perusal of the aforesaid order dated 24.01.2009, it is apparently clear that the petitioner who was claiming parity with Vijay Laxmi Koul, Vijay Laxmi Raina and Avtar Krishan Zutshi. The record reveal that the case of the petitioner was distinguishable from the aforesaid three persons who were also engaged on consolidated basis and were subsequently regularized as Junior Assistant and Field Assistant. The relevant portion of the impugned order of rejection dated 24.01.2009, rejecting the representation of the petitioner reads as under:

“…..Smt. Vijay Lakshmi Koul who was initially engaged as Daily Wager in 1988 was subsequently allowed consolidated wages @ Rs.700/- per month on 09.08.1989 and was allowed to work as Junior Assistant. But she was continuously on the rolls of Corporation without any break and on 27.12.1993 she was appointed against the post of Field Assistant. In case of Smt. Vijay Lakshmi Raina she was engaged on 09.04.1999 on contractual basis @ Rs.5500/- per month to operate computer and subsequently was placed on the regular pay scale of Rs.4000-6090 on 17.08.2005 as computer operator.

In case of Shri Autar Krishan Zutshi, he having similar status as of Smt. Santosh Pandita. He was after his re-deployment in 1997 brought on regular establishment under SRO 64 as Helper w.e.f. 01.04.2002. However, Shri Zutshi approached to the Hon’ble High Court and in terms of the court orders dated 07.08.2003 he was designated as Accounts Assistant and was allowed minimum of the scale attached to the post of Accounts Assistant vide SFC order 46 of 2005 dated 24.03.2005.”

Accordingly, the claim of the petitioner was rejected by virtue of a duly speaking order being distinguishable. It is settled preposition of law that this Court while exercising the extra ordinary writ jurisdiction cannot adjudicate upon the disputed questions of facts. Hon’ble the Supreme Court in a recent decision in Hon’ble the Supreme Court in a recent decision in Shubhas Jain v. Rajeshwari Shivam and Others : 2021 SCC OnLine SC 562 held as under:

“26. It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable.”

The present writ petition even otherwise is not maintainable in view of the fact that the petitioner has also filed a similar writ petition urging the same grounds and facts and sought same relief which was disposed of on 19th July, 2001 by directing the respondents to consider the case of the petitioner for her regularization in accordance with law. The services of the petitioner were accordingly regularized in compliance to the aforesaid direction and the petitioner never challenged her regularization order and accepted the same with effect from 01.04.2002. The petitioner neither challenged her regularization order nor the petitioner challenged the seniority fixed on the basis of the aforesaid order and in absence of the same, the present writ petition is not maintainable. The petitioner has deliberately not chosen to place on record the said writ petition or the order passed thereon by this court (though this aspect of the matter has been pleaded in the writ petition) with a view to misled this Court.

As per the stand of the respondents, the petitioner through the medium of said writ petition in the earlier round of litigation which was registered as SWP No.2339/1999 has prayed for the same relief which has been claimed in the present petition and this Court while disposing of the said writ petition directed the respondents to regularize the services of the petitioner in terms of SRO 64 of 1994. In compliance to the said order, the petitioner was consequently regularized by taking into consideration the provisions of SRO 64 of 1994 as Helper. It is settled preposition of law that once relief claimed in the earlier writ petition which has been decided by this Court and attains finality, the relief which is not granted by the Court is deemed to have been rejected. However, as per the directions of the Court the services of the petitioner were regularized as Helper and the said order was never challenged by the petitioner for almost five years and accordingly, the present writ petition is not maintainable and barred by delay and laches. It is settled preposition of law that successive writ petitions on the same cause of action are not maintainable and liable to be dismissed. Had the intention of the petitioner been bonafide, the petitioner could have placed the said writ petition and the order passed by this Court on record but the petitioner, deliberately failed to place on record the said writ petition and the order along with the present writ petition. The said view is fortified by the decision of the Hon’ble the Supreme Court in Oswal Fats and Oils Limited v. Additional Commissioner (Administration) Bareilly Division : (2010) 4 SCC 728 wherein it was observed as under:

“15. It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.”

The present writ petition even otherwise is not maintainable on the technical grounds in the light of the fact that the petitioner has neither challenged the seniority of the employees who will be effected in case the writ petition is allowed nor the petitioner has arrayed them as party respondents. It is the settled preposition of law that the employees who will be affected in case the relief prayed for in the writ petition is granted are necessarily to be impleaded as party respondents in the writ petition. The petitioner having failed to array them as party respondents or challenging their seniority position, which remained undisputed, the present writ petition is not maintainable.

Conclusion:

For the foregoing reasons, the writ petition is hit by delay and laches and is not maintainable being devoid of any merit and the same is dismissed along with all connected applications as the petitioner has acquiesced her right to challenge the same at a belated stage on the same cause of action and relief as claimed in the earlier petition bearing SWP No.2339/1999.