LPA No.167/2021 c/w

LPA No.137/2021 Page 1 of 10

IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 21.10.2024

Pronounced on: 17.12.2024

LPA No.167/2021

c/w

LPA No.137/2021

LPA No.167/2021:

1. Imran Nazir Malik, age:32 years

S/o Nazir Ahmad Malik R/o Panzi Nara District

Srinagar.

2. Lobzang Yangzes, age: 29 years

D/o Tsering Angchok R/o Manzil Zangsti Road,

District Leh.

...APPELLANT(S)

Through: - Mr. M. S. Reshi, Advocate.

Vs.

1. Union Territory of J&K, through Principal

Secretary to Government, Industries & Commerce

Department, Civil Secretariat, Srinagar/Jammu.

2. J&K Khadi & Village Industries Board, through its

Secretary/CEO, Srinagar/Jammu.

…RESPONDENT(S)

Through:- Mr. Ilyas Laway, GA.

LPA No.137/2021:

1. Nisha Musharaf, age 40 years

W/o Muhammad Zubair Banday

R/o Bilal Colony, Soura Srinagar.

2. Imran Assadullah Dar, age: 33 years

S/o Mohammad Assadullah Dar

R/o Watergam Wagoora, District Baramulla.

3. Amir Nazir, age: 31 years

S/o Nazir Ahmad Padder

R/o Bamzua, Mattan, Anantnag.

4. Khalid Rashid Malla, age: 31 years

S/o Abdul Rashid Malla

R/o Dandoosa, Rafiabad Baramulla.

LPA No.167/2021 c/w

LPA No.137/2021 Page 2 of 10

5. Villayat Ali, age: 32 years

S/o Mohammad Jawad

R/o Baroo Yukmastrawg District Kargil.

6. Hadiya Farooq, age: 28 years

D/o M. Farooq Ahmad

R/o Tahab Pulwama.

...APPELLANT(S)

Through: - Mr. Z. A. Shah, Sr. Advocate, with

Mr. A. Hanan, Advocate.

Vs.

1. Union Territory of J&K, through Principal

Secretary to Government, Industries & Commerce

Department, Civil Secretariat, Srinagar/Jammu.

2. J&K Khadi & Village Industries Board, through its

Secretary, 3

rd

Floor, Sanat Ghar, Bemina Srinagar.

…RESPONDENT(S)

Through:- Mr. Ilyas Laway, GA.

CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

JUDGMENT

Per Sanjeev Kumar „J‟

1) In LPA No.167/2021, appellants Imran Nazir Malik and

Lobzang Yangzes, were selected and appointed as Executive

Officers in the J&K Khalid & Village Industries Board [“the

Board” for short], in the year 2018 and were put on

probation for a period of two years. The appellants in LPA

No.137/2021 were selected and appointed as Executive

Officer, Assistant Executive Officer and Junior Statistical

Officers.

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2) It seems that immediately upon appointment of the

appellants in different capacities in the Board, complaints

from different quarters with regard to illegalities committed

in the selection started pouring in. With a view to look into

the allegations made in the comp laints, the General

Administration Department vide order No.462-GAD of 2018

dated 19

th of March, 2018, constituted a three-member High

Level Enquiry Committee under the Chairmanship of the

then Principal Secretary to Government, Home Department.

The Committee conducted its enquiry and submitted report

to the Government. Without sharing with the appellants, the

Government relied upon the report and vide Government

Order No.127-IND of 2018 dated 28.06.2019, ordered as

under:

(I) All the selections made in the KVIB pursuant

to advertisement Notice No.KVIB/01 of 2016

dated 08.10.2016, are quashed/cancelled.

(II) The KVIB will provide opportunity of being

heard to all the candidates appointed to

different categories of posts pursuant to

advertisement notice dated 08.10.2016 and

fulfill all other formalities required under law

before cancelling the appointments of these

candidates.

3) In consequence of the aforesaid Government Order, the

Secretary, who is also Chief Executive Officer of the Board,

issued communication dated 24

th July, 2019, quoting

therein Government Order dated 28

th June, 2019, to the

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appellants seeking their explanation as to why their services

be not terminated. Thereafter there was some intervention

made by this Court, as a result whereof, fresh show cause

notices dated 1

st October, 2019 were issued to the

appellants and others. After consi dering the replies

submitted by the appellants to the show cause notices

issued, the Board terminated their services vide order

No.KVIB/168 of 2019 dated 14

th October, 2019. Feeling

aggrieved, the appellants challenged both the orders i.e.

Government Order dated 28.06.2019 and KVIB order dated

14

th October, 2019, by filing writ petitions which have been

disposed of by a common order and judgment dated 28

th

September, 2021. It is this judgment passed by the learned

Single Judge [“the Writ Court”], the appellants are aggrieved

of and have challenged the same only to the extent that the

Writ Court though allowed their writ petitions and quashed

the impugned orders yet did not pass any direction to put

the appellants back in service.

4) Having heard learned counsel for the parties and

perused the material on record, we are of the considered

opinion that the operative portion of the judgment impugned

is not in tune with what is held by the Writ Court elsewhere

in the judgment. Indisputably, the Writ Court has accepted

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the challenge of the appellant to both the orders impugned

before it; one passed by the Government dated 28.06.2019,

and other passed by the Board dated 14

th October, 2019,

and has held both these orders bad in the eye of law. As a

necessary corollary, the selection as well as appointment of

the appellants have been held to be valid. In such

circumstances, ordinarily, the Writ Court ought to have

directed the respondents to take back the appellants in

service and then leave it open to them to hold a fresh

enquiry in accordance with law. Unfortunately, this has not

happened in the case. The Writ Court has come to a definite

conclusion that the orders impugned in the writ petitions

were bad in the eye of law being passed in violation of

principles of natural justice,yet stopped short of quashing

the same. No good reason is forthcoming from the impugned

judgment as to why such course was adopted by the Writ

Court. Before we proceed further, we would like to reproduce

paras 24, 30 and 31 of the impugned judgment:

24. Furthermore, a bare perusal of the plain

language used and contained in the operative

part of the order makes it manifest that the

Government did not only quash and cancel the

selections made in the Board pursuant to

advertisement notice in question, but in clause (ii)

thereof, by use of the words 'before cancelling the

appointments of these candidates', in

unambiguous terms, ordered the Board to cancel

the appointments of the candidates. Given the

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fact that the Government disclosed its mind and

intention vide the clause (i) of the operative part

of the order and reading it conjointly with what

was said in clause (ii) thereof, as quoted above, it

becomes manifest that the Government conveyed

its decision and direction to the Board to, in any

case, cancel the appointments of the petitioners.

Thereby also, the direction contained in clause (ii)

of the operative part to provide opportunity of

being heard to all the candidates is rendered

false, farce and sham, violating the right to

hearing of the petitioners, recognized by the

Government/respondents themselves in the

order. In consequence of the above, the show

cause notices issued by the Board to the

petitioners suffer from the same vices of

unfairness and arbitrariness.

30. I may hasten to add that the court does not in

any manner or by any standards hold that the

selection process has been fair or that the select

list was fairly drawn, instead, the Court is only

holding the manner adopted by the respondents

in dealing with the matter as unfair.

31. For all what has been said above, it is left

open to the respondents to conduct a denovo

enquiry into the selection process, having

recourse to due process of law they have time

and again talked of throughout, associating the

petitioners therein, and proceed in the matter as

the outcome of any such enquiry may result in

withdrawal/continuation of orders of cancellation

of selection and appointment of petitioners. Such

enquiry may be initiated within three months from

the date of this judgment and completed within a

period of six months thereafter.

5) In para 24, the Writ Court has, on the basis of the

discussion made in the preceding paras, concluded that the

cancellation of selection and appointment of the appellants

was not sustainable in law. In para 30, the Writ Court has

clarified that it has not expressed any opinion on the merits

of the selection and appointments but has only held the

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manner adopted by the respondents in dealing with the

matter as unfair. Para 31 reproduced above is the operative

portion of the judgment where the Writ Court, with out

formally quashing the orders challenged before it, left it open

to the respondents to conduct de-novo enquiry into the

selection process by having recourse to due process of law

by associating the appellants therein, providing further that

outcome of s uch enquiry may result in

withdrawal/continuation of orders of cancellation of

selection/appointment of the appellants. The liberty to

initiate the enquiry was to be exercised by the respondents

within a period of three months from the date of the

judgment and to be completed within a period of six months

thereafter.

6) Mr. Z. A. Shah, learned senior counsel appearing for

the appellants, restricts his arguments only to what is

provided by the Writ Court in para 31 of the judgment and

submits that once the Writ Court has come to the

conclusion that cancellation of selection and appointment of

the appellants is in violation of principles of natural justice

and bad in the eye of law, as a necessary consequence

thereof, there ought to have been further direction to put the

appellants back in service. He further submits that even if

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we are to accept what is provided by the Writ Court in the

operative portion of the impugned judgment as it is, the

Government, having failed to initiate the enquiry within the

time frame fixed, is otherwise bound to put the appellants

back in service.

7) We couldn’t agree more with Mr. Shah. Obviously,

once the Writ Court came to the conclusion that the

cancellation of selection and appointment of the appellants

was in violation of the principles of natural justice and bad

in the eye of law, the Writ Court ought to have put them

back in service and then allowed the Board to conduct de-

novo enquiry associating the appellants therein and pass

fresh orders. The Writ Court has also not given any reason

as to why it adopted a course which was , in a manner,

unique in the facts and circumstances of the case and

deprived the appellants of the fruits of their litigation in

which they had succeeded. We are also of the considered

opinion that the respondents, after having failed to initiate

and complete fresh enquiry into the selection and

appointment of the appellants within the period stipulated

by the Writ Court, had no other option but to take back the

appellants in service.

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8) Mr. Laway, learned counse l appearing for the

respondents, states at bar that the respondents have now

initiated an enquiry in terms of the judgment of the Writ

Court and, therefore, the period granted by the Writ Court to

complete the enquiry may be extended. This submission of

learned counsel for the respondents cannot be accepted at

this stage.

9) For the reasons stated hereinabove, these appeals are

disposed of by providing as under:

(I) The cancellation of selection vide Government Order

No.127-IND of 2019 dated 28.06.2019 and cancellation

of appointment of the appellants vide order

No.KVIB/168 of 2019 dated 14.10.2019, which are

already declared bad by the Writ Court against which

there is no appeal by the State, are quashed.

(II) The respondents are directed to take back the

appellants in service on the positions they were holding

on the date of passing of the orders impugned in the

writ petition, within a period of one month from the

date copy of this judgment is served upon the

respondents.

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(III) The respondents shall be free to conduct a fresh

enquiry in the matter in accordance with law

associating the appellants therein and thereafter to

pass appropriate orders.

(IV) The decision with regard to period between the

termination of appellants and their reinstate pursuant

to this order shall depend upon the result of fresh

inquiry and action, if any, taken in pursuance thereof.

(V) It needs no clarification that fresh order, if any passed

by the respondents after conducting enquiry in the

manner aforesaid, shall be open to challenge by the

appellants if the same goes against them.

10) The judgment of the Writ Court is modified to the

aforesaid extent and consequently both the appeals are

disposed of in the manner as aforesaid.

(RAJESH SEKHRI) (SANJEEV KUMAR)

JUDGE JUDGE

Srinagar,

17.12.2024

“Bhat Altaf-Secy”

Whether the order is reportable: Yes/No