Jammu, Aug 17: In Ref to Implementation of Judgment dated 11.08.2016 in SWP No. 1579/2013 titled Bashir Ahmad Mir and Ors Vs State and Ors, read with Judgment dated 19.10.2000 in SWP No. 506/1992 titled Ghulam Mohi-u-din Sheikh & Ors Vs State & Ors, and upheld by Division Bench vide judgment dated 26.05.2023 in LPA No. 247/2019 and Order dated 18.03.2024 in SLP No. 35941/2023— Regularization thereof.
Lt Governor accorded approval for sanction to the regularization of 223 petitioners (Annexure-I) as Helpers in Pay Level SL-1, order copy with CTN reads as under;-
. Whereas, 446 individuals allegedly engaged as DRWs in PHE Division Handwara were found to have been appointed through fake orders and disengaged vide CE Kashmir's order dated 16.03.1992. Many of them challenged the disengagement through writ petitions, including SWP No. 506/1992, seeking regularization under SRO 64 of 1994: and
2. Whereas, the Hon'ble High Court, vide judgment dated 19.10.2000, directed consideration of their claims. In compliance, committees were constituted and reconstituted, ultimately certifying 240 DRWs as genuine; and
3. Whereas, approval was accorded for engaging 236 individuals on a need-based, nonregular basis, at Rs. 2100/month. Dissatisfied, the petitioners filed Contempt Petition No. 446/2007. The Finance Department advised filing an LPA; and
4. 5. Whereas, the Hon'ble Court, in orders dated 15.05.2010 and 13.05.2011, stressed compliance. The Respondents' LPA and subsequent SLP were dismissed, finalizing the petitioners' claim, I in light of prolonged litigation and verified status of the DRWs, the matter was placed before the Cabinet. Vide Decision No. 174/22/2011 and Govt. Order No. 239-F of 2011 dated 30.09.2011, sanction was accorded to revive the Empowered Committee for time-bound consideration of their cases under SRO 64 of 1994; and
Whereas, the Empowered Committee, revived vide Government Order No. 239-F of 2011 dated 30.09.2011, met on 03.11.2011 under the Chairmanship of Commissioner/Secretary, Finance Department.
The Committee submitted its findings to the Cabinet, which were conveyed to this Department on 21.11.2011; and 6. Whereas, based on the Committee's findings, the petitioners' claims were rejected as being outside the scope of SRO 64 of 1994, vide Government Order No. 52-PW(Hyd) of 2012 dated 03.02.2012 and the Hon'ble Court, vide order dated 05.04.2012, took serious note of this rejection; and
7. Whereas, the Respondents' LPA No. 99/2012 was dismissed on 11.06.2012. Respondent No. 2 tendered an unconditional apology, and the Hon'ble High Court dismissed both Robkar No. 02/2012 and Contempt Petition No. 466/2007 on 28.09.2012.
Aggrieved upon the petitioners' filed LPA No. 180/2012 which was Page 1 of 5 α Scanned with OKEN Scanner dismissed on 19.02.2013. followed SLP No. 16861/2013 against the said order was also dismissed by the Hon'ble Supreme Court on 09.05.2013; and
8. Whereas, the petitioners filed SLP (Civil) No. 29644/2013 against the order dated 28.09.2012 (Robkar).
The SLP remains subjudice. Following SC directions dated 23.08.2018, the Department reconsidered the matter and again rejected the claim vide Government Order No. 338-PW(Hyd) of 2018 dated 29.09.2018. and accordingly was brought to the notice of the Hon'ble Apex Court, where the SLP remains pending; and the petitioners also challenged Government Order No. 52-PW(Hyd) of
9. Whereas, 2012 through SWP No. 1579/2013 (WP-II), titled Bashir Ahmed Mir & Ors V/s State & Ors.
10. Whereas, the Hon'ble High Court, vide judgment dated 11.08.2016, quashed the G.O Order No. 52-PW(Hyd) of 2012 and directed the respondents to regularize the petitioners under SRO 64 of 1994 with all consequential benefits within three months; and
11. Whereas, pursuance to the Hon'ble High Court's judgment dated 11.08.2016, the Department sought sanction from the Department of Law, Justice & Parliamentary Affairs (U.O No. PW/PHEK/21/2014-WP dated 07.10.2016) to file an LPA.
However, the Law Department, vide U.O dated 06.12.2016, returned the file with observations, the matter was re-submitted for further clarification (U.O dated 14.12.2016), and the Law Department, vide U.O dated 04.01.2017, advised compliance with the Court's order by placing the case before the Empowered Committee and, if necessary, before the Cabinet; and
12. Whereas, the Department again sought LPA sanction (U.O dated 16.02.2017), but the Law Department reiterated its previous stance on 28.02.2017 and based on Law Department advice, the Finance Department was consulted. The matter was placed before the Empowered Committee in its meeting on 13.09.2017, which recommended that the Department comply with the High Court judgment or approach the Cabinet if needed.
13. Whereas, the General Administration Department (GAD), vide U.O dated 14.03.2018, advised placing the proposal before the Cabinet. Accordingly the Department submitted a Cabinet memo for creation of 232 Helper posts and condonation of breaks for regularization.
GAD returned the file on 18.05.2018 advising further action as per the Chief Secretary's meeting held on the same day; and 14. Whereas, minutes of the said meeting were not issued due to the Chief Secretary's transfer. Meanwhile, SLP (Civil) No. 29644/2013 was listed before the Supreme Court.
The matter was again referred to the Law Department on 06.09.2018 for updated opinion; and 15. Whereas, the Law Department, advised the Advocate General's advice (U.O dated 20.09.2018), recommended the State may take a clear position before the Hon'ble Supreme Court of India and, if inclined toward regularization, conclude the matter, and in view of this, and the Hon'ble Supreme Court of India direction dated 20.08.2018, the Department reconsidered the case and issued Government Order No. 338-PW(Hyd) of 2018 dated 29.09.2018, rejecting the petitioners' claim, which was placed before Hon'ble Supreme Court of India; and
16. Whereas, the Department later sought permission to file an LPA through U.O dated 19.03.2019, and the Law Department conveyed sanction on 04.07.2019, against the judgment dated 11.08.2016; and
17. Whereas, the Hon’ble Division Bench of the High Court at Srinagar dismissed LPA No. 247/2019 on 26.05.2023, thereafter, the Department of Law, Justice & Parliamentary Affairs, vide U.O. dated 13.06.2023, advised for filing of an SLP against the said judgment dated 26.05.2023; and Page 2 of 5 α Scanned with OKEN Scanner
18. Whereas, in pursuance of said advice, the Department filed SLP (Diary No. 35941/2023) before the Hon'ble Supreme Court of India, the Hon'ble Supreme Court of India while considering the case on 18.03.2024 and, dismissed SLP Diary No. 35941/2023 with the following order:
"We are not inclined to interfere with the impugned judgment/order of the High Court. Accordingly, the Special Leave Petition is dismissed. Pending application(s), if any, shall stand disposed of."
19. Whereas, following the dismissal, of SLP the case was referred to the Law Department vide U.O. dated 28.03.2024, who advised,, to first obtain Finance Department's comments and in line with the Law Department's advice, the file was referred to the Finance Department, who returned it vide U.O. No. FDCode/385/2021-02-10 dated 02.05.2024 with certain observations.
Upon examining the observations, the Department, and the department re-submitted the case to the Finance Department on 05.08.2024; and 20. Whereas, following Finance Department's advice, the file was referred to the Law Department on 03.05.2024 seeking advice/sanction for filing a review petition against the Supreme Court order dated 18.03.2024.
The Law Department, vide U.O. dated 20.05.2024, advised to consult GAD as per Finance Department's advice and clarify the issues raised by Finance Department to explore grounds for review petition, if any.
21. Whereas, the Department examined the matter and found no valid grounds for filing a review. It was also noted that Finance Department had issued a conditional No Objection Certificate (NOC), and their queries had been addressed.
Accordingly, the matter was re-submitted to the Law Department, which, vide U.O. dated 29.07.2024, advised: "With the dismissal of SLP and no grounds for review as per DNF, the court order has attained finality. Department is advised to proceed in terms of Finance Department's advice (U.O. dated 02.05.2024) after satisfying itself on their observations."
22. Whereas, character and the antecedents Department, meanwhile, sought verification of the petitioners'
23. Whereas, from ADG CID, J&K, vide letter dated 11.06.2024; and advising: the Finance Department, which returned it vide U.O. dated 02.09.2024, "With Department dismissal may of SLP, the judgment has attained finality.
The regarding proceed in consultation with GAD after satisfying itself 02.05.2024)."the Finance Department's earlier observations (U.O. dated 24. Whereas, Department accordingly, the case was referred to the General Administration for approval to implement the judgment dated 19.10.2000 in SWP No. 506/1992 (WP-I), order dated 11.08.2016 in SWP No. 1579/2013 (WP-II), upheld by the Division Bench on 26.05.2023 in LPA No. 247/2019, and upon dismissal of the proceedings; SLP by the Hon’ble and Supreme Court on 18.03.2024, and in view of latest contempt
25. Whereas, the General Administration Department (GAD), vide U.O. dated 12.09.2024, advised that the department to submit a formal coordination note Page 3 of 5 α Scanned with OKEN Scanner 29. outlining all factual details after obtaining concurrence from the Finance Department; and 26. Whereas, in compliance, the matter was referred to the Finance Department, who, vide U.O. dated 08.10.2024, conveyed concurrence to the creation of 223 supernumerary posts of Helpers (Pay Level SL-1), subject to: 1. Posts shall be co-terminus with the incumbents.
2. Prior approval of the Competent Authority before issuance of orders. 27. Whereas, in compliance with the judgement dated 19.10.2000 in SWP No.506/1992 (WP-I), followed by the order dated 11.08.2016 in SWP No.1579/2013 (WP-II), upheld in LPA No. 247/2019 dated 26.05.2023, and the subsequent dismissal of the SLP by the Hon'ble Supreme Court on 18.03.2024, and in view of the contempt proceedings and the legal and financial concurrence conveyed by the department of Law, Justice & Parliamentary Affairs (U.O dated 29.07.2024) and Finance Department (U.O. dated 08.10.2024), the Jal Shakti Department submitted the matter to the General Administration Department for approval of the Competent Authority; and
28. Whereas, the GAD, vide U.O. No. GAD-CORD/134/2024-09-GAD (7570562) conveyed approval of the competent authority are as under: -
"In compliance with the Judgment dated 19-10-2000 passed in SWP No. 506/1992 (WP-I), titled Ghulam Mohi-u-din Sheikh & Ors Vs State & Ors, followed by the order dated 11.08.2016 passed in SWP No. 1579/2013, CMP No. 2528/2013, titled Bashir Ahmed Mir & Ors Vs State & Ors (WP-II) of the Single Bench, which was upheld by the order dated 26.05.2023 passed in LPA No. 247/2019, and in light of the dismissal of the SLP by the Hon'ble Аpex Court on 18.03.2024, and considering the latest orders passed in the contempt petition, along with the opinion of the Department of Law, Justice & Parliamentary Affairs vide U.O. dated 29.07.2024 and the concurrence of the Finance Department vide U.O. No FD-Code/290/2021-02-Part(2)-391 dated 08.10.2024, sanction is hereby accorded to the:
1. Regularization of the persons (List A-1) in terms of SRO-64 of 1994 from the date petitioners have completed 07 years (i.e 84 Months) of Service.
2. Relaxation in both age and qualification of the petitioners (List A-II ). 3. Relaxation in Qualification bar only of the petitioners (List -1V). 4. Relaxation in Age bar only of the petitioners (List -V) 5. Condonation of break period of the persons (List A-VI) shown against each petitioner.
Now, therefore, in compliance with the Judgment dated 11.08.2016 passed in SWP No. 1579/2013 titled Bashir Ahmad Mir and Ors Vs State and Ors, read with Judgment dated 19.10.2000 in SWP No. 506/1992 titled Ghulam Mohi-u-din Sheikh & Ors Vs State & Ors, and upheld by Hon'ble Division Bench vide judgment dated 26.05.2023 in LPA No. 247/2019 and Order dated 18.03.2024 passed in SLP No. 35941/2023, and in pursuance of the due approval of the Competent Authority, concurrence of the Finance Department, and the advice tendered by the Department of Law, Justice & Parliamentary Affairs, sanction is hereby accorded to the regularization of 223 petitioners (Annexure-I) as Helpers in Pay Level SL-1, against an equal number of supernumerary posts created specifically for the said purpose.
30. The Chief Engineer, Jal Shakti (PHE) Kashmir, shall take necessary action for issuing appointment orders only after due verification.
By order of the Lieutenant Governor.
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