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| Without establishing the appointments are illegal, the salary of the respondents for the period they perform their duties cannot be stopped: DB | | | Early Times Report
JAMMU, Aug 1: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sanjeev Kumar and Justice MA Chowdhary holds that without establishing the appointments of the respondents are forged, fraudulent or illegal, till such conclusion is arrived at by the competent Authority, the salary of the respondents for the period they perform their duties cannot be stopped.
This significant judgment has been passed by Division Bench in appeal filed by UT of J&K against the order of Central Administrative Tribunal whereby the Tribunal has allowed the OAs and directed the petitioners herein to pay the salary of the respondents herein (petitioners before the Tribunal) for the work they have performed and also for the work they perform in future.
The facts of the case if that the respondents came to be appointed by the Chief Medical Officers concerned against class-IV posts of Nursing Orderlies/Sweepers/Auxiliary Nurses/Female Nursing Orderlies etc., somewhere in the year 2008 on substantive basis. While they were performing their duties and were being paid their salary regularly, the Directorate of Audit and Inspections, J&K, Srinagar during the year 2012-2013 conducted a special audit in respect of the establishment of Offices of Health Department of Kashmir Division and Deputy Director, Audit and Inspection, Kashmir submitted his report to the Director, Audit and Inspection, Kashmir with the observation that in as many as 2274 employees had been appointed in different Districts illegally and the matter was required to be taken up with the Department of Health and Medical Education for initiating appropriate action. With a view to examine the observation of the Directorate of Audit and Inspection, the Director, Health Services constituted District and Divisional level Committees with the mandate to examine the report of Audit and Inspection teams in respect of all 2274 employees.
The District Level Committees constituted by the Director, upon enquiry, pointed out that there were many candidates in the list of 2274 employees who had been appointed on the recommendations of J&K SSB and in terms of SRO 43 of 1994 and regularised. In the light of the aforesaid report submitted by the District Level Committees, the concerned Chief Medical Officers were directed to release the salary of such employees who stood appointed through a proper selection mechanism. The Divisional Level Committee also examined the matter in the light of information/report provided by the District Level Committees and came to the conclusion that in as many as 133 employees including the respondents herein stood appointed between 2002 to 2010 as Nursing Orderlies/Class-IV and Safaiwalas by the then Chief Medical Officers. The Divisional Level Committee was also of the tentative opinion that these appointments were illegal. The matter was taken up by the Directorate of Health Services, Kashmir with the Administrative Department of Health. The Administrative Department also examined the matter at its level and directed the Directorate, Health Services to release the pending salary of all the employees except 133 identified as illegal appointees with a further direction to initiate action against the illegal appointees immediately. The Directorate of Health Services vide its communication No. DHSK/Estt-II/NG/390-408 dated 26.03.2013, forwarded the instructions of Administrative Department to the Chief Medical Officers concerned for information and strict compliance.
Apprehending adverse action, the respondents herein along with few others amongst 133 alleged illegal appointees approached this Court and challenged the communication dated 26.03.2013 and also prayed for release of salary from the date it had been stopped by the respective Drawing and Disbursing Officers. While this development had taken place, the matter came up for consideration once again before the Administrative Department. Upon examination by the Administrative Department, the matter was referred to the General Administrative Department seeking later's advice. On the basis of some advice tendered by the GAD, the Administrative Department of Health vide its communication dated 13.10.2016 conveyed the approval of the Government to the disengagement of 133 illegal appointees including the respondents herein with a further advice that action may be taken in the matter, accordingly.
DB after hearing both the sides observed that the orders passed by the Tribunal and we concur with the view taken by the Tribunal. The facts projected by the respondents before the Tribunal are entirely identical to the facts of the case of Ashiq Hussain Dar and others. In the background of similar controversy raised, the Division Bench of this Court in Ashiq Hussain Dar's case has held thus:
"In the backdrop of aforesaid facts, the appellants seek to challenge the impugned judgment, primarily on the ground that the appointments of the respondents as Class-IV have been found to be without following due process of law and therefore, they are not entitled to continue in services, nor can they be paid any salary or allowed to make subscription to the GP fund. It is submitted that with regard to their appointments, the matter has already been taken up with the Crime Branch, Kashmir which is investigating the matter. It is submitted that prima facie, the appellants have found the appointment of the respondents contrary to law and, therefore, no premium can put on such irregular and illegal appointments.
Having heard learned counsel for the parties and perused the record, we are of the view that the judgment of the learned Writ Court impugned in this letters patent appeal is, well-reasoned and does not call for any interference. The Single Judge has rightly concluded that so long the appointment of the respondents is intact and has not been held to be illegal or irregular by any competent authority, they cannot be denied the salary for the period they perform their duties. It is rightly held by the Single Judge that taking the work from the respondents without paying their due salary is tantamount to "Begar" which is constitutionally prohibited. Thus, the view taken by the learned Single Judge is unexceptionable and therefore, cannot be interfered with.
DB further observed that the Tribunal, thus, committed no illegality in relying upon the judgment of Division Bench (supra) and deciding the OAs in terms thereof. The plea of the petitioners that the respondents were fence sitters and, therefore, were not permitted to file the petitions stems out of total fallacy in understanding the doctrine that fence sitter cannot be permitted to knock the doors of the Court belatedly on the ground that the persons similarly situated have, after long battle in the Court, succeeded in obtaining the relief. The plea of fence sister can be pressed into service only in cases where the subsequent petition filed by the alleged fence sitters is highly belated and hit by delay and laches.
In the instant case, Ashiq Hussain Dar and others filed their petition in the year 2020, whereas the instant OAs was filed by the respondents before the Tribunal in the year 2022. The petition cannot be stated to be belated or hit by delay and laches. The Tribunal has rightly turned down the plea of the petitioners that the respondents werefence sitters and, therefore, cannot be allowed to claim the relief prayed for in the OAs after inordinate delay. That apart, the only relief claimed by the respondents in the OAs is with regard to payment of their withheld salary. Needless to say that so long as the salary remains withheld and is not paid, it gives a fresh cause of action. In other words, we can say that the cause of action on the basis of which the OAs were filed before the Tribunal was a recurring cause of action and, therefore, there is no justification to term the petitions belated and hit by delay and laches.
DB further observed that the judgments relied upon by. Aman Ali, Dy.AG having distinguished facts would not apply in the present case as in all those cases, the Supreme Court as also the High Courts of Patna and Allahabad declined to release the salary of the appointees after having found the appointments forged, fraudulent and illegal. In the instant case, an inquiry in accordance with law is yet to be conducted and it is yet to be established as to whether the appointments of the respondents are forged, fraudulent or illegal. Till such conclusion is arrived at by the competent Authority, the salary of the respondents for the period they perform their duties cannot be stopped.
For the reasons given above, the Division Bench found no legal infirmity in the impugned orders of the Tribunal and while upholding the same, DB further provide that the salary, that shall be paid to the respondents in terms of the impugned orders of the Tribunal, is subject to the respondents submitting an undertaking that in case the respondents are ever held to be illegal appointees in an inquiry conducted by the petitioners, they shall refund the entire amount of salary received, to the petitioners along with interest @ 6 % per annum. Nothing said herein above shall come in the way of the petitioners to proceed against the respondents in accordance with law. —JNF |
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