Rules out applicability of special law enacted in 2010
JAMMU, Mar 2: Taking serious note of glaring disparity with the employees of the Forest Department from Jammu Division, State High Court has directed the Government to end hostile discrimination and issue order of regularization with retrospective effect on the analogy of similarly situated employees from the Kashmir Division within a period of one month. Moreover, the High Court has ruled out applicability of provisions of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 in this particular case.
The glaring instance of hostile discrimination with large number of employees of the Forest Department from Jammu Division was brought to the notice of the State High Court through a petition titled Tarun Mehta and Others Versus State of J&K and Others.
As per the facts placed before Justice Alok Aradhe, the petitioners were appointed as Class-IV employees by the Forest Department by virtue of different orders issued in the year 1998-99 against the clear vacancies. These orders were passed in both the Divisions of the State in exigency of service and in pursuance of Government Order No.1786-GAD of 1997 dated November 11, 1997.
Out of 149 Class-IV employees engaged in Kashmir Division, 128 were regularized before the year 2000 when they completed first spell of their posting—89 days. However, no regularization order was passed in respect of Class-IV employees engaged in Jammu Division.
After much hue and cry by the Class-IV employees of Jammu Division, the Principal Chief Conservator of Forest, Jammu by an order dated November 22, 2000 directed the regularization of services of the Class-IV employees appointed during the period between 1997 and 1999 against the clear vacancies and in pursuance of the same Chief Conservator of Forest Jammu issued direction to Conservator of Forest, Chenab Circle Doda, Divisional Forest Officer, Kishtwar and other officers, under whom such Class-IV employees were working, to allow them to continue.
Though the petitioners submitted representations for regularization of their services from the date of their initial appointment as has been done in the case of similarly situated employees from Kashmir Division yet no action was taken compelling them to knock the doors of the High Court, which vide order dated September 9, 2013 directed the respondents to consider the claim of the petitioners having regard to the treatment given to the similarly circumstanced candidates in accordance with rules.
Vide this order, the Government was directed to take a decision in the matter within eight weeks. After much dilly-dallying approach vide order dated July 16, 2014 the services of the petitioners were regularized but with effect from the date of issuance of the order instead from the date of their initial appointment.
This compelled the petitioners to again approach the High Court with the prayer for issuance of directions to the respondents to issue order of regularization of services against the posts held by them retrospectively from the date they have been appointed as Class-IV employees along with all the consequential benefits on the same analogy as has been adopted in the case of similarly situated employees working in Kashmir Division.
After hearing Advocate Sudershan Sharma with Advocate Rajneesh Singh Parihar for the petitioners and Senior Additional Advocate General Rohit Kapoor for the Forest Department, Justice Alok Aradhe observed, “no explanation has been put forth on behalf of the respondents as to why the similar benefit has been deprived to the employees from Jammu Division”, adding “the petitioners have been subjected to hostile discrimination and deprived of benefits without any justification”.
Referring to Section 5 of the J&K Civil Services (Special Provisions) Act, 2010, Justice Aradhe said, “the rigours of Section 5 of the Act have no application to the fact situation of the case and presumably that is the reason why the competent authority in its wisdom has granted the benefit of regularization from the date of their initial appointment in Kashmir Division”.
Rejecting the contention raised by the Senior AAG that petitioners cannot claim any negative equality even if the benefit is given in the Kashmir Division illegally, Justice Aradhe directed the competent authority to issue order of regularization in favour of petitioners by giving retrospective effect from the date of their initial appointment as has been done in the case of similarly situated employees of the Kashmir Division, who were appointed along with the petitioners.
Directing for carrying out this exercise within a period of one month, Justice Aradhe said, “this direction is being given by considering the fact that it will not cause any burden on the State exchequer as the similar benefits have already been granted in favour of the similarly situated employees of the Kashmir Division”.
Now, it is to be seen whether the PDP-BJP Coalition Government brings an end to discrimination with employees from Jammu Division by implementing the orders of the High Court or approaches Division Bench against the order of Justice Alok Aradhe.
“In case the Forest Department prefers to challenge the judgment of Single Judge then it will be amply clear that Coalition Government doesn’t want to treat employees from Kashmir and Jammu Divisions equally”, sources remarked.