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DB holds courts cannot encourage appointments made outside constitutional scheme
3/27/2024 10:35:34 PM
Early Times Report
JAMMU, Mar 27: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Tashi Rabtsn and Justice Puneet Gupta holds that courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the courts to give any direction for regularization of a person who has not been appointed by following the procedure laid down in Articles 14 and 16 of the Constitution. This order has been passed in a LPA filed by appellants praying setting aside of the judgment passed in SWP No.315/2003 dated 09.04.2019 in case titled 'Lal Hussain and others v. State and others', whereby the Single Judge had dismissed the writ petition filed by the petitioners being bereft of any merit.
The case set up in the writ petition by the writ petitioners briefly was that they were working as Gang Coolies/Daily Wagers and had completed more than 9 years continuous service. According to the petitioners, they were engaged prior to the year 1994. It is on record that petitioners had moved an application before the Chief Engineer, PWD(R&B), Poonch, that since they were working in the Department for the last 10 years, but they had not been declared as permanent employees in terms of government order governing the field; that every casual labourer who has completed 07 years of service must be confirmed.
DB after hearing both the sides observed that the respondents in the writ petition have taken a specific stand that the writ petitioners were engaged as special laborers on different works against the sanctioned estimates for specific period. They have alleged that the writ petitioners were engaged as special laborers that too after the year 1994, so they were discharged/disengaged in terms of Government order No. 144-GAD of 2001 dated 02.02.2001. It is submitted by the respondents that this appeal is sans merit and be dismissed out rightly with heavy costs.
DB further observed that it is apparent that the petitioners were engaged for sometime as Special Labourers pursuant to which they were issued identity cards. There is no documentary proof or otherwise from the record to show that they have been engaged prior to 1994 and have been continuously working on the said post to entitle them for any confirmation. The documents produced before the learned Single Judge by the writ petitioners/appellants itself show that they were without date and dispatch number and which show no proof of having worked in the department prior to the year 1994.
The appellants, in support of their case, placed reliance on application MP No. 01/2018, which accordingly to them, escaped notice of Single Judge. A perusal of the aforesaid MP would show that it contains muster roll showing working of the appellants in the year 2002 and in 2004, which in the considered opinion of this court cannot be taken to prove that the appellants were continuous working prior to the year 1994.
DB further observed that admittedly, the appellant/writ petitioners are not working with the department at present. In that view of the matter, this court cannot direct their consideration for regularization.
DB further observed that courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the courts to give any direction for regularization of a person who has not been appointed by following the procedure laid down in Articles 14 and 16 of the Constitution. With these observations, DB observed that the impugned judgment does not call for any interference as the impugned judgment is a well reasoned judgment which cannot be find fault with viewing from any angle. The impugned judgment is thus upheld. —JNF
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