Srinagar, Jan 10: In SWP No. 1714/2016 titled Mehrun Nisa Vs. 1. Sheri Kashmir Institute of Medical Sciences, Soura, Srinagar & ors after hearing HON’BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE ordered as:-
1. The petitioners, 45 in number, are aggrieved of the Government Order No. 15-SKIMS of 2013 dated 19.03.2013 (hereinafter referred as ‘impugned order’ for short) whereby the services of the petitioners, who were initially engaged on contractual basis as Staff Nurses, were regularized with effect from 19.03.2013 i.e., from the date of issuance of the said Government Order.
The grievance of the petitioners is that their regularization was not given effect from the date of their initial appointment under SRO 255 dated 05.08.2003 against migrant vacancies, as has been done in case of other similarly situated contractual employees.
2. Through the medium of the instant Service Writ Petition, the petitioners have challenged the impugned Order No. 15- SKIMS of 2013 dated 19.03.2013 to the extent that the regularization of the petitioners was to be given effect from the date they were initially appointed under SRO 255, and also sought direction to the respondents to grant them all consequential benefits, consequent to their regularization from retrospective date.
3. Brief facts of the instant case are that the petitioners, who had been initially appointed as Staff Nurses Grade-II on contractual basis in terms of SRO 255 dated 05.08.2003 against the migrant vacancies, claimed that their services be regularized but the respondents took no action, as such, they filed writ petition bearing SWP No. 363/2021, which was allowed vide judgment dated 18.07.2012, directing the respondents to consider the claim of the petitioners for regularization of their service and provide ‘other service benefits in accordance with the rules’ to them; that consequent to the judgment so delivered, the services of the petitioners came to be regularized vide the impugned order but from the date of issuance of the order i.e. 19.03.2013; that the petitioners are entitled to regularization from the dates of their initial engagement.
4. It was alleged that another group of Staff Nurses Grade-II were also appointed vide Government Order No. 59-SKIMS of 2007 dated 23.10.2007, and subsequently this group of Staff Nurses, who were similarly placed as the petitioners came to be regularized vide Government Order No. 31- SKIMS of 2008 dated 10.03.2008 with effect from 13.09.2007; that the Government Order No. 610-GAD of 2006 dated 16.05.2006 provides for regularization against the migrant posts without waiting for the post to get vacated due to retirement or promotion of migrant employees and the said Government Order does not provide the date from which a person holding migrant post has to be regularized; that the petitioners continued in the service uninterruptedly and the services, so rendered by the petitioners, under the provisions of Classification Control and Appeal Rules, have to be regularized after formal orders of regularization are issued; that the services rendered by the petitioners between P a g e | 6 2007/2008 till 2013 cannot go without recognition under Rules; that the petitioners shall be deemed to be on probation as from the date they were initially appointed under SRO 255; that this position has been accepted by the respondents themselves while dealing with the case of similarly situated Staff Nurses who were also appointed under SRO 255 and against migrant vacancies, and the petitioners cannot be discriminated.
After various judgements & rule court added that 25. Our own High Court had also dealt with a similar matter in a case titled ‘Imtiyaz Ahmed Malik Vs. State & Ors.’ reported as 2010 (2) SriLJ 658, and has held that:- “..Once it is pleaded and alleged in the writ petition that petitioner has been subjected to invidious discrimination which is infringement of constitutional guarantees as contained in Articles 14 and 16 of the Constitution, the burden shifts on the respondent-state/authorities to satisfy the court that none of the rights guaranteed under said Articles of Constitution have been infringed in respect of petitioner…”
26. Supreme Court in another case rendered in ‘Raman Kumar & Ors. Vs. Union of India & Ors.’ reported as 2023 Legal Eagle (SC) 685, has enunciated as under:- “Indisputably, the appellants herein have completed service of more than ten years. Even this Court in the case of Ravi Verma and Others v. Union of India and Others (Civil Appeal No(s).2795-2796 of 2018) decided on 13.03.2018 found that the act of regularizing the services of some employees and not regularizing the services of the others is discriminatory and violative of Article 14 of the Constitution of India. Mrs. Aishwarya Bhati, learned Additional Solicitor General of India appearing on behalf of the respondents, has vehemently opposed the petition.
She submits that since posts were not available, and, thereafter, Group ‘D’ posts have been abolished, the appellants could not have been regularized. The services of the appellants are directed to be regularized from the date on which the services of other 35 employees were regularized and the backwages and other consequential benefits etc., to which the appellants would be entitled to, shall be paid to them within a period of six months from today.”
27. Thus, in view of the aforementioned legal position and the discussions made hereinabove, the impugned order, is, hereby, quashed, to the extent that the regularization of the petitioners shall be given effect from the date of their initial appointment under SRO 255 dated 05.08.2003, with further direction to the respondents to grant them all consequential benefits, consequent to their regularization from retrospective date.
28. Disposed of, as indicated above.
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