The High Court of J&K and Ladakh Friday dismissed a petition seeking its directions to quash the order of Srinagar Municipal Corporation (SMC) dated September 9 by which the services of Masrat Yousuf as media assistant were terminated.
A single bench of Justice Javed Iqbal Wani rejected the petitioner’s contention that disengaging her was not in consonance with the constitutional safeguard enshrined under Article 311 of the constitution.
“Unless there is a post (civil post) against which a person is appointed, provisions of Article 311 cannot said to be attracted,” the court said as it rejected her contention that she was engagement in pursuance of advertisement notice dated June 16, 2011, and that similarly situated employees were regularised in the corporation.
“It is settled and significant to mention here that though a statutory corporation being a juristic entity separate from the state, its employee may not said to be holding a civil post under the state so as to attract Article 311,” the court said.
Indisputably, the court said, the services of the petitioner came to be hired as an expert on consolidated wages for launching awareness and not against any post borne on the establishment of the corporation “notwithstanding the styling of the expert as media assistant”.
“In presence of the explicit and specific stand taken by the respondents that the petitioner was not engaged against a post as also the non-existence of the post of media assistant in the corporation having admittedly not been controverted or denied by the petitioner, the claim for regularisation lodged by the petitioner (notwithstanding, the disengagement of her services in terms of the impugned order) under and in terms of Regulations of 2014 cannot said but to be grossly misconceived solely on the premise that the Regulations of 2014 prima facie are not applicable to the petitioner for not holding any post as envisaged in the Regulations of 2014, even though the case of the petitioner was recommended and approved by the Empowered Committee and Executive Committee as the said recommendation, approval in law would pale into insignificance.”
The court said that the claim of the petitioner for her regularisation as per the stand taken by the respondents in their objections stands rejected in terms of order dated November 7, 2022.
The court also rejected contentions of the petitioner regarding alleged violation of principle of natural justice by the authorities.
“The principles of natural justice cannot be applied in a vacuum. As per the record made available by the respondents with their objections, the petitioner has been engaged though in pursuance of advertisement notice dated June 16, 2011, yet in the selection list has been figuring at Serial No 6 having been found not qualified scoring 20 points out of 100 as against five other qualified candidates having much more merit than the petitioner with 78.4, 60.4, 50.5, 48.5, and 45.4 points,” the court said. “The engagement of the petitioner seemingly has been tainted, faulty, and illegal and in essence a backdoor therefore, not attracting the principles of natural justice.”
Regarding the doctrine of legitimate expectation urged by the petitioner to her case, the court said, the same was not attracted as it was settled that legitimate expectation does not mean illegitimate flight of fancy.
“The said plea raised by the petitioner is misdirected and non sustainable in law,” the court said.
Earlier vide order 07.10.2022 , Ld single bench of High court has granted stay order to the disengagement of Masrat Yousuf Media Assistant with direction to allow her to continued , which was assailed by the counsel for SMC Mohsin S Qadri Senior Additinal Advocate General before the Division Bench which directed the conclusion of arguments within in a period of one day before the Ld Writ court which dismissed the petition filed against the SMC , SMC before Ld single bench was also represented by Mohsin S Qadri Senior AAG .
