SWP No.565/2015 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 01.05.2025 Pronounced on: 06.05.2025 SWP No.565/2015 SHEIKH MUBASHIR ... PETITIONER(S) Through: - Mr. Mian Tufail, Advocate. Vs. STATE OF J&K AND OTHERS …RESPONDENT(S) Mr. Mr. Ilyas Laway, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner, through the medium of present petition, has sought a direction upon the respondents, more particularly respondents No.2 to 4, to release the salary and other benefits in his favour with effect from January, 2013, till the date of filing of the writ petition and to continue to pay him the same in future without any obstruction or hindrance. 2) As per case of the petitioner, he was appointed as a Works Supervisor in terms of Order No.MC/BPR/ESTT/76- 80 dated 25.07.2005 in Municipal Committee, Bandipora, with effect from 01.08.2005 against a vacant sanctioned post. On 19.10.2009, he was transferred from Municipal Committee, Bandipora, to Municipal Committee, Sumbal. SWP No.565/2015 Accordingly, on 07.11.2009, he was relieved by Municipal Committee, Bandipora, with the direction to report to Executive Officer, Municipal Committee, Sumbal. While working in Municipal Committee, Sumbal, the petitioner performed Panchayat election duty on 05.05.2011. It is the case of the petitioner that he has regularly discharged his duties with Municipal Committee, Sumbal, but his salary with effect from January, 2013 is not being released. It has been submitted that the last salary paid to the petitioner was on 27.12.2012. The petitioner is stated to have made repeated representations to the respondents for release of his salary but the same have not yielded any result. 3) According to the petitioner, the respondents had withheld salary of a number of similarly situated employees and the said employees invoked writ jurisdiction of this Court by way of SWP No.252/2014 and pursuant to the interim order passed in the said writ petition, salary has been released in favour of the petitioners therein but the respondents have denied similar treatment to the petitioner. It has been submitted that the respondents have no justification or reason to withhold the salary of the petitioner. 4) The respondents, in their objections to the writ petition, have submitted that he appointment of the SWP No.565/2015 petitioner has been made by the President, Municipal Committee, Bandipora, who was not the competent authority. It has been submitted that the appointment of the petitioner is in blatant violation of the provisions of Section 307 of the J&K Municipal Act as the same has been made without previous approval of the Government. It has been further contended that the petitioner has not undergone any selection process but he has managed his appointment at the hands of an incompetent authority in violation of the mandate of equality envisaged under Articles 14 and 16 of the Constitution. It has been contended that the appointment of the petitioner is nullity in the eyes of law and the same cannot confer any benefit upon him. 5) The respondents have claimed that the appointment of the petitioner is under scrutiny by a High Level Enquiry Committee that has been constituted by the Government vide Order No.110-HUD dated 20.04.2011 for the purpose of enquiring into illegal appointments made in Urban Local Bodies of Kashmir, since 2003. It has been further submitted that as per the report of the Executive Officer, Municipal Committee, Sumbal, the petitioner is neither existing on the rolls of the Municipal Committee nor is he attending any kind of duties in the Committee at present. SWP No.565/2015 6) The petitioner has filed a rejoinder to the reply filed by the respondents, in which he has reiterated that he has been properly appointed as a Works Supervisor by President, Municipal Committee, Bandipora, and that upon his transfer to Municipal Committee, Sumbal, he has been working there in his capacity as Works Supervisor. It has been further submitted that even though the petitioner has been attending his duties regularly but the respondents are not allowing him to mark his attendance. The petitioner has placed on record certain statements pertaining to the years 2009 to 2014 to support his contention that he has been working regularly with the respondents. The petitioner has placed on record the copy of his service book to substantiate his aforesaid claim. 7) On 13.09.2023, this Court, after taking note of the claim of the respondents that the petitioner was working with them only till the year 2013 and that the record relating to the case has been seized by the Crime Branch, Kashmir, in FIR No.19/2011, directed respondent No.4 to verify the contentions raised by the petitioner that he has been working with the respondents till the year 2014-2015 from the record lying with Crime Branch, Kashmir. It was further directed that the concerned Investigating Officer SWP No.565/2015 shall permit respondent No.4 to examine the record in his presence. 8) Pursuant to the aforesaid direction, it seems that the record was examined by respondent No.4 whereafter he filed affidavit dated 21.02.2024. In the said affidavit, it has been mentioned that in compliance to the direction passed by this Court on 13.09.2023, respondent No.4 examined the record relating to the petitioner in the office of Crime Branch, Srinagar. These included the service book, last pay certificate and the order regarding utilization of services of the petitioner. It has been submitted that after thorough examination of the records, it was found that the petitioner was appointed by the then President, Municipal Committee, Bandipora, vide order dated 25.07.2005 on pick and choose basis without any competence and jurisdiction. It has been reiterated that the appointment of the petitioner has been made without undertaking any selection process and that the same is in utter violation of Section 307 of the J&K Municipal Act. 9) The petitioner has filed his response to the aforesaid affidavit. In the said response, the petitioner has, while reiterating his earlier stand that he has been regularly attending his duties with the respondents but they are not marking his attendance, contended that respondent No.4, SWP No.565/2015 in the affidavit filed by him, has mechanically stated that the petitioner has been appointed on pick and choose basis without any competence and jurisdiction and that his appointment is in violation of the provisions of Section 307 of the J&K Municipal Act. It has been submitted that Jammu and Kashmir Urban Local Body Institutions (Management) Service Recruitment Rules, 2008, came into force on 18.12.2008 and prior to that, there were no Rules governing the services of the petitioner and, therefore, it cannot be said that the petitioner has been appointed by an incompetent authority. It has been submitted that in the affidavit filed by respondent No.4, it has not been mentioned as to upto which date the petitioner was working with the respondents, as a result of which there has been no compliance to order dated 13.09.2023 passed by this Court. 10) I have heard learned counsel for the parties and perused the record. 11) The issue that is required to be determined in the present case is as to whether the respondents have withheld salary of the petitioner even for the period for which he has actually worked with them. The petitioner claims that he has not been paid salary after December, 2012 while as the respondents, in their reply, have stated SWP No.565/2015 that the petitioner has been paid salary upto March, 2013. The petitioner himself has placed on record a copy of communication dated 26.11.2015 addressed by the Executive Officer, Municipal Committee, Sumbal, to the Director, Urban Local Bodies, Kashmir, in which it is mentioned that the salary upto March, 2013, has been paid to the petitioner. Authenticity of this communication has not been disputed by the petitioner. In fact, he has relied upon the said communication by placing it on record along with his response to affidavit of respondent No.4. Therefore, it is clear that the petitioner has been paid salary upto March, 2013. 12) The next question that falls for determination is as to whether the petitioner has worked with the respondents beyond March, 2013, and whether he has not been paid salary for the period he has actually worked with the respondents. The respondents have taken a stand that because appointment of the petitioner is illegal, inasmuch as it has not been made by the competent authority and the same has been made in violation of the mandate provided under Article 14 of the Constitution, therefore, he is no more on the rolls of the respondents. They have, however, not placed on record any document to show that services of the petitioner have been terminated. They have not even SWP No.565/2015 stated in their various responses filed to the writ petition as to upto which date the petitioner was on the rolls of the respondents. 13) Vide order dated 13.09.2023, respondent No.4 was asked to verify the contention of the petitioner that he has worked with the respondents upto the year 2014-2015 by examining the record, which was lying with the Crime Branch, Kashmir. Pursuant thereto, respondent No.4 seems to have examined the record, whereafter he filed affidavit dated 21.02.2024. However, in the said affidavit he has not stated anything as to whether or not the claim of the petitioner that he had worked upto the year 2014-15 is borne out from the record. Instead of answering this query of the Court, respondent No.4, in his affidavit, has harped on the plea that appointment of the petitioner is illegal. As against this, the petitioner has placed on record salary budget statement projected by Municipal Committee, Sumbal, for the years 2012-13 upto the years 2013-14. The authenticity of these documents has not been disputed by the respondents. In the absence of any record to the contrary and in the absence of any assertion in the affidavit of respondent No.4 that the petitioner has not worked with the respondents beyond March, 2013, it has to be inferred that the petitioner has worked with the respondents upto SWP No.565/2015 March, 2014. Thus, even if it is assumed that appointment of the petitioner is illegal, still then, once it is found that he has worked with the respondents upto March, 2014, it is not open to the respondents to deny him salary for the said period after having extracted work from him. 14) However, the respondents have taken a categoric stand in their reply that the petitioner is no more on their rolls. The petitioner has not placed on record any document whatsoever to show that he is still working with the respondents. Thus, he cannot claim either continuation of his services with the respondents nor can he claim salary for the period beyond March, 2014. 15) In view of the foregoing discussion, the writ petition is partly allowed and the respondents are directed to release the salary of the petitioner from April, 2013 to March, 2014 at the rate at which he was drawing his salary prior to his disengagement. Needful shall be done by the respondents within a period of two months from the date a copy of this order is made available to them, failing which the arrears of outstanding salary shall carry interest @6% from April, 2014 till its realization. (Sanjay Dhar) Judge Srinagar, 06.05.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 06.05.2025 02:03