muzaffar ahmad bhat vs HEALTH AND MEDICAL EDUCATION DEPARTMENT on 28 December 2022

O R D E R

Per Mr. D. S. Mahra, J.M.

Mr. Altaf Haqani, Sr. Adv with Mr. Aasif Wani for applicants and Mr. Satinder Singh, AAG for respondents are present.

2. Learned counsel for the applicants submits that 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, Mattan Shangus, Kellar and D.H Pora. 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 withhed 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.”

3. 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, Kulgam, Shopian 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.

4. 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.

5. Learned Counsel for the applicants further submitted that the applicants are continuously working since 01-04-2016, demonstratively establishing the

entitlement of the applicants to the salary for work done. The applicants specifically submit 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 of State Police Department, yet nothing incriminating has ever been noticed or found against them and nothing objectionable was ever noticed against the applicants even in terms of enquiry ordered vide order dated 09-06-2021.

6. 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.

7. Learned Counsel for the applicants also submitted that the applicants were included amongst total number of employees being 2274 class IV employees, who had been identified by the Directorate of audit and

inspection of finance department as illegal appointees and they belonging to District Anantnag were amongst the said 2274 employees and the class IV Employees of District Bandipora who had filed the above writ petition in the High Court titled Ashiq Hussain Dar and Ors Vs UT of J&K. Ld Counsel further submitted that in their case also though several enquiries were held like in the case of Ashiq Hussain Dar (Supra) yet no incriminating report had been received about the appointments being fake and that work and labour was still being extracted from them.

8. 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.”

9. During the course of proceedings, the applicants have sought our attention to the attendance sheets/duty roasters issued by the respondents from time to time. As per the said certificates/duty roasters, the applicants are continuously working in different medical blocks of District Antnag, Kulgam and Shopian and the same has not been denied by the non-applicants.

10. On the other hand, learned Counsel for the respondents submits 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 that applicants are back doorappointees and appointment to any post under the state can only be made after proper advertisement has been made and holding of selection by a body of experts, through written or interview process which is not in case of applicants.

11. Learned Counsel for the respondents has also submitted that applicants were brought in the regular establishment by incompetent authorities having no power/authority. Further, salary of the petitioners was released earlier, purely in compliance with the directions of the Hon’ble Court. The applicants have been appointed without following the due process of law and have made entry in the department through backdoor. They also submit that during the year 2012-2013, the directorate of audit & Inspection, JK, Srinagar conducted a special audit on the establishment of Health Officers of Kashmir Division & Submitted its report to Director Audit & Inspection Kashmir with the observation that matter may be taken up with H&ME for initiating of appropriate action against officers/officials found responsible for making illegal appointments in respect of 2274 employees, identified by audit and inspection team in all 10 Districts of Kashmir. Moreover, respondents submit that petitioners, even though are working continuously, yet, they are not entitled to salary, as their basic appointment is bad and not in tune with scheme of law.

12. Heard the Learned Counsel for the applicants and the respondents.

13. 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.

14. With the observations made herein above, OAs are allowed. There will be no order as to costs.

(SHRI KRISHNA)

(D.S.MAHRA) MEMBER (A)

MEMBER (J)

I.Nath