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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohd. Yaqoob Mir, J.
Mubarik Ahmad Mir - Appellant
Versus
State Of J&K & Ors. - Respondent
SWP No. 1483/2001
Decided On : 05 June, 2009
Closure of Watch Case Project - Absorption - Jammu & Kashmir Engineering (Gazetted) Recruitment Rules, 1978, Rule 5 - The court discussed the petitioner's absorption on a permanent basis as an Assistant Engineer (Mechanical) in the Mechanical Engineering Department. The court highlighted the policy decision, the petitioner's performance, the approval of the Public Service Commission, and the need for relaxation of rules to mitigate undue hardship. The court quashed the refusal of approval and commanded the respondents to accept the petitioner's case for absorption and issue the requisite order within four weeks.
Fact of the Case:
The petitioner, an Engineer Trainee at the Watch Case Project of SIDCO, sought permanent absorption as an Assistant Engineer (Mechanical) in the Mechanical Engineering Department. The petitioner's case was caught in inter-departmental correspondences, and despite favorable recommendations and approval from the Public Service Commission, the case was not approved, leading to the filing of the petition.
Finding of the Court:
The court found that the petitioner's performance was appreciated, and the refusal to approve the petitioner's absorption was quashed. The court commanded the respondents to accept the petitioner's case for absorption and issue the requisite order within four weeks.
Issues: The issues involved the petitioner's entitlement to permanent absorption, the refusal of approval, and the need for relaxation of rules to mitigate undue hardship.
Ratio Decidendi: The court held that the petitioner was entitled to relaxation of rules under Rule 5 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, to mitigate undue hardship. The court emphasized the petitioner's performance, the policy decision, and the approval of the Public Service Commission in commanding the respondents to accept the petitioner's case for absorption.
Final Decision: The court quashed the refusal of approval and commanded the respondents to accept the petitioner's case for absorption and issue the requisite order within four weeks.
2. Petitioner admittedly vide order No.IDC/WCP/84/25 dated 13th of June, 1984 issued on approval by Project Manager Watch Case Project has been appointed, as Engineer Trainee and subsequently regularized in the grade of Rs. 1200-2040, therefore, was permanently on the establishment of SIDCO.
3. The Industries & Commerce Department vide its communication No.41-PAC/99-NS dated 19.3.1992 addressed to Commissioner/Secretary to Government General Administration Department, has conveyed that the Advisor (Z) (as then was under Governors Rule) has desired the staff of the factory be adjusted in Various departments/ corporations after taking into consideration their suitability and utility, therefore, list of surplus staff of the Watch Case Project for their adjustment in various departments/corporations has been sent to the General Administration Department.
4. Petitioner had moved an application for his adjustment in Mechanical Engineering Department or in Science & Technology Department. Same has been sent to Commissioner/Secretary to Public Works Department and also to Science & Technology Department by the Industries Department with the request to explore the possibility of utilizing the services of the petitioner in their department. Public Works Department has taken up the matter with Chief Engineer Mechanical Engineering Department vide its No.PaG.Estt/2/93-JE dated 3.2.1993 requesting therein as to whether services of the petitioner can be utilized as Mechanical Engineer in Engineering Department. Chief Engineer Mechanical Engineering Department vide his No.CEM/CO/5339 dated 1.3.1993 has responded by stating that the department has shortage of technical hands at Assistant Engineers level, as an exception in the interests of government work, petitioner may be considered for appointment in Mechanical circle on standard terms and conditions.
5. The aforesaid correspondence culminated in issuance of Govt. order No.188-PW of 1993 dated 26.3.1993 where-under petitioner has been appointed against the post of Assistant Engineer (Mechanical) on deputation basis for a period of two years in the first instance.
6. The petitioner continued to work as an Assistant Engineer continuously though the period has not been extended beyond two years which shall be for a specific reason i.e. the High Level Committee held a meeting wherein the issue of adjustment of surplus staff also figured and the surplus staff was decided to be adjusted against the vacancies where-ever occur in government departments. Immediately on adjustment elsewhere the post held by an employee in PSE would stand abolished. In this connection it is quite relevant to quote sub-item No. 10.02 and the decision taken thereon by the committee in its 10th meeting of BPE under the Chairmanship of Chief Secretary of the J&K Government held on 11.10.1993:
"Sub-item No. 10.02/9.10/8.03/6.03: Pool of Surplus Staff/Adjustment/Absorption thereof:
The BPE decided that a category wise list of the surplus staff be prepared by the GAD indicating therein the qualification of each and every member declared surplus for adjustment where-ever vacancies occur in Govt. Deptts. The corresponding post held by an employee in the PSE shall stand abolished as soon as he is adjusted else-where. In this behalf the Chairman wanted to ascertain whether there are proper rules for protection of pay, service and G.P. Fund etc. of the employees of the Corporation on their adjustment in Govt. Deptts and for the Govt. employees on their opting for the services of the PSES and vise-versa. The A.C.S. (F) assured the Chairman that proper rules are already existing in this behalf."
7. The petitioner in the process of getting himself absorbed on permanent basis w
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