Jammu, Apr 11: In Transfer Application No. 61/2126/2020 titled Smt. Bindu Devi alias Bindu Versus 1. State of Jammu & Kashmir Through Commissioner –cum-Secretary to Government Floriculture, Gardens & Parks Department, J&K Govt, & ors after hearing Advocate F.A.Natnoo on behalf of petitioner, HON’BLE MR. RAJINDER SINGH DOGRA, MEMBER (J) HON’BLE MR. RAM MOHAN JOHRI, MEMBER (A) ordered as under:-
ORDER (Per :- Hon’ble Mr. Rajinder Singh Dogra, Judicial Member
1. This is a case of a person, who sought regularization of his services under the provisions of SRO 64 of 1994 on completion of seven years of service as daily rated/daily wage basis worker more than two decades back and in the process entered into litigation in the year 2016 but died midway and his wife stepped him in that race who along-with her children are still dreaming to have had the right of the husband/father matured and plucked.
2. The present case is the second round of litigation in which the original applicant had entered being aggrieved of the order no. 349 of 2018 dated 03-02-2018 issued by the respondent no.2 in compliance of judgment dated 09-11-2016 passed in SWP No. 310/2016 read with judgment dated 21-11-2017 passed by the Hon’ble Division Bench of the Hon’ble Court in CDL ( SW ) No. 142 / 2017 whereby his case for the purpose of regularization of his services in terms of SRO 64 of 1994 came to be rejected, by way of filing SWP No. 1955/2018 before the Hon’ble High Court , which in view of the notification No. GSR. 267(E) dated 29th April , 2020 read with notification no. GSR 317 (E) dated 28th May, 2020 issued by the Ministry of Personnel , Public Grievance and Pensions ( Department of Personnel and Training ) came to be transferred to this Tribunal for its disposal under law and came to be renumbered as TA No. 2126/2020.
3. Facts giving rise to the filing of the instant petition/TA as emerging from the pleadings and also as explained by the counsels appearing for the parties and which are worthwhile to be deliberated upon hereinafter are that the original applicant/petitioner ( Raj Singh ) with qualification of matriculation came to be engaged on daily rate/daily wage basis in the month of February, 1991 in the respondent-department for maintaining the Bagh-e-Bahu Garden/Park and was discharging his duties and was being paid the wages as per the rates applicable to daily wagers in the erstwhile State and alongwith the petitioner/original applicant various other persons who were engaged by the respondents authorities, as submitted the petitioner in the memo of petition came to be regularized by the respondents-authorities on completion of seven years of requisite service and under the provisions of SRO 64 of 1994 and one such example has been brought on record of one Sh. Ranjit Singh S/o Nama Singh and one Dharam Chand figuring at S. No. 21 and 26 of attendance registers for month of February 1991 who came to be engaged alongwith the petitioner and since been regularized after completion of seven years of service, but no such consideration had been accorded to the case of the petitioner/original applicant at that relevant point of time or thereafter as well despite his constant appetite for the same.
4. Respondent no.2 vide communication no. DFJ/Estt/106/4695 dated 30-12-2013 appears to have recommended the case of petitioner/original applicant to respondent no. 1 for regularization under SRO 64 and the reason for non-submission of his case alongwith other similarly situated persons was shown as oversight, against which the respondent no.1 had sought some requirements and put further some queries to which the respondent no. 2 further in reference to while responding to the same had vide communication no. DFJ/Estt/A-21 /131 dated 02-04-2014 and communication no. DFJ/Estt/106/336 dated 21-04-2015 while furnishing the authentic documents of the petitioner/original applicant as required from the office of respondent no.1 , recommended the case of the petitioner/original applicant for regularization in terms of provisions of SRO 64 of 1994.
It would be appropriate to reproduce the relevant paragraphs of the communication dated 21-04-2015 as under:-
“ Whereas, in view of the above facts Sh. Raj Singh fulfils all the conditions/requirements and is eligible for regularization in terms of provisions of SRO-64 of 1994. Now , therefore the case of Sh. Raj Singh S/o Sh. Mangal Singh R/o Bahu Fort Jammu Daily Rated Worker is submitted to Administrative Department for his regularization on in terms of provisions of SRO-64 of 1994. The said Daily Rated Worker right from his engagement till date working continuously to the entire satisfaction of his superiors and are required to be regularized under SRO 64 of 1994. The month wise details from February 1991from a period of seven years with regard to continuous service have already been submitted.
5. It was after the above communication and recommendation made by respondent no-2, the Deputy Secretary Floriculture, Garden and parks Department vide communication no-BPE/Flori/39/2014 dated 28-07-2015 has communicated the respondent no-2 that since the petitioner/original applicant has been working as Casual Labourer, as such the petitioner/original applicant is not entitled for consideration in terms of SRO 64 of 1994, which communication came to be challenged by the petitioner/original applicant by way of filing SWP no-310/2016 wherein the respondent no-2 has contested the same by filing objections and the Hon’ble High Court based on the documents placed in the writ petition as well as filed by respondents and also on consideration of legal position vide judgment dated 09-11-2016 had been pleased to quash the aforesaid communication dated 28-07-2015 with further direction to the respondents to consider the case of the petitioner/original applicant in light of judgment rendered by Division Bench of the Hon’ble Court in case reported as 2011(Vol-I) JKJ 870(HC) titled state of J&K and Ors Vs Anuradha, against which the respondents have chosen to file an appeal bearing CLD(SW) No.142/2017 which also came to be disposed of by the Hon’ble Division Bench vide judgment dated 21-11-2017 with the observation that the direction given by the Learned Single Judge be complied within three months from the date of the disposal of the said appeal.
6. The respondents even after the direction of the Hon’ble Division Bench have failed to accord consideration to the case of the petitioner/original applicant thus constraining him again to invoke the contempt jurisdiction of the Hon’ble Court by way of filing Contempt Petition No-483/2017, wherein in view of the non- compliance shown to the directions, the Hon’ble Court had secured the personal presence of respondent no-2 by which the respondent no-2 apparently seems to have got annoyed and as such with a view to escape the responsibility had vide impugned order no-348 of 2018 dated 03-02-2018 rejected the case of the petitioner/original applicant on the ground that the same is not being covered under SRO 64 of 1994 with further direction for consideration of his case under SRO 520 of 2017 dated 21-12-2017 which has been challenged by the petitioner/original applicant by way of filing present petition/TA on the grounds set out therein.
7. Mr. F A Natnoo submits that the case of the petitioner/original applicant is squarely covered under the provisions of SRO 64 of 1994 which on completion of seven years of requisite services provides for regularization of the employee and the respondents despite their own communication to the aforesaid extent i.e communication dated 21-04-2015 specifying that the said Daily Rated Worker right from his engagement till the issuance of the said communication was working continuously to the entire satisfaction of his superiors and was required to be regularized under SRO 64 of 1994, have now taken a contrary stand which is not permissible under law.
8. Respondents have filed their response wherein in factual para-5 it has been stated that the case of the petitioner was considered and found devoid of merits, as not covered under SRO 64 of 1994. The Ld. DAG Mr. Dewakar Sharma submits that the case of the petitioner/Original applicant being not covered under SRO 64 of 1994 had been considered as per SRO 520 of 2017 and the same had been submitted to the administrative department in the year 2019.
9. One more crucial aspect of the matter which has been brought to the knowledge of this Tribunal by way of MA No. 277/2025 is that the petitioner/original applicant during the currency of this petition/ Transfer Application had died on 05-01-2025 leaving behind his wife namely Bindu Devi , two college going daughters namely 1 ) Surbee Devi 2) Pragati Devi and a minor son namely Arjun Singh who with their due consent had allowed the applicant herein i.e Smt. Bindu Devi Alias Bindu being wife of the original applicant to contest the matter by getting impleaded as party applicant and for pursuing the case for posthumous effect of regularization in favour of the original applicant, the aforesaid MA for the reasons stated therein had been allowed by this Tribunal vide order dated 06-03-2025.
10.Mr. F A Natnoo submits that due to untimely death of the deceased applicant the source of livelihood for the family members i.e monthly wages being paid to him has also been got vanished as such ripping the shred of very fabric of life of the dependents which circumstances are even not allowing the shock of death to be got diminished which in itself is a traumatic experience for them.
11.Having heard the Ld. Counsel for the applicant and Ld.DAG for respondents.
12. About the engagement of the petitioner/original applicant and continuation thereof there is no dispute as the respondents by way of various communications have specified that he was engaged as Daily Rated Worker and had continued to work, meaning thereby that the arguments of Mr. Dewakar Sharma regarding that the fact that the applicant was engaged as labourers and not as daily wager in not in proper tune and line. The said stand of the respondents, as rightly pointed out by Mr. F.A.Natnoo learned counsel for the applicants, is also not tenable in view of legal position settled on the issue by the Hon’ble Division Bench of the Hon’ble High Court in cases titled as State of J&K & Ors. Vs Mushtaq Ahmed Sohail , State & Ors. Vs Anuradha and Ghar Singh Vs University of Jammu & Ors.
The relevant extracts of both the aforesaid judgments cited by Mr. Natnoo is reproduced as under:- Relevant extract of the Hon’ble Division Bench judgement in case titled State of J&K & Ors Vs Mushtaq Ahmed Sohail:- “13. As against order No. 144-GAD of 2001 dated 02.02.2001, the daily wagers/work charged employees, who were aggrieved, filed number of writ petitions. Finally the judgment passed in those writ petitions were challenged by medium of bunch of LPAs with lead case Ashok Kumar v. State of J&K &Ors. which have been decided vide judgment dated 26.07.2002, reported in 2003(II) S.L.J 475, 2003 (4) JKJ [HC] 93. In the reported judgment, position vis-a- vis right of casual lab- our/daily wagers/adhoc employees, has been taken note of and as many as 15 directions were issued as contained in Para 45 of the judgment. It may not be out of place to mention here that the cut-off date has also been extended to 06.11.2001 in terms of Govt. order No. 1285-GAD of 2001 dated 06.11.2001 which has been issued in pursuance to Cabinet Decision No. 135/11(B) dated 10.09.2001.
The above referred judgment was challenged before the Hon'ble Apex Court by medium of Civil Appeal No. 9298 of 2003 and Civil Appeal No. 9299 of 2003. While disposing of Civil Appeal No. 9299 of 2003, the following order has been passed:- "Our attention has been drawn to the judgment of the Constitution Bench of this Court in Secretary, State of Karnataka and others v. Umadevi and others (supra).
In our view, this judgment has no application in view of the fact that the respondents are employed by the State Government and are claiming the benefit of a scheme formulated by the Notification dated 31st January, 1994, as modified by Notification dated 6th November, 2001. The High Court is perfectly justified in its judgment.
12 We are satisfied that the impugned judgment of the High Court needs no interference at our hands. In the result, the Appeal is dismissed. No costs."
14. What would emerge from above is that the daily rated workers/work charged employees who were appointed after imposition of ban and continued beyond ban period were given benefit of notification dated 6th November, 2001, which, in-effect, would mean that the daily rated workers/work charged employees engaged even after 01.04.1994 till 6th November, 2001, were also entitled to be regularized in terms of the Jammu and Kashmir Daily Rated Workers/Work- Charged Employees (Regularization) Rules, 1994.
15. Again another aspect regarding writ petitioners is that they are stated to have been engaged as casual labours. The question for consideration is as to whether they, in-effect, were casual labours or under the style of casual labourers, in effect, they were working as daily rated workers. Casual labour/Worker and Daily Rated Worker are defined under Section 2(b) and (f) of the Rules of 1994 which reads as under:- "(b) "Casual Labour/Worker" means a person who is engaged through an appointment order or otherwise on daily rated basis for rendering casual services to a Department. (f) "Daily Rated Worker" means a person engaged on daily wage basis at the rates sanctioned by the Government from time to time." 16. The marking difference in between two clauses is that the engagement of the casual labour has to be occasional otherwise daily wages payable to the daily rated workers or the casual labours is the same but casual labour will get daily wages only for such period for which he shall be occasionally engaged whereas engagement of daily rated workers is not on occasional basis.
17. In the instant case writ petitioners styled to have been engaged as casual labours, in-effect, were daily rated workers because they were not engaged occasionally. They have been working continuously. Division Bench of this Court in the reported judgment, as referred above, at para 40 have dealt with the position of casual labours, same is reproduced herein-below: "CASUAL EMPLOYEES: The cases of casual employees be also examined.
In this regard, it would be apt to note the dictionary meaning of the work 'casual'. In Black's Law Dictionary, Sixtl. Edition, the meaning of word 'casual' has been defined as "occurring without regularity", "occasional", "impermanent" and "as employment for irregular periods".
A perusal of above meaning would indicate that where an employee has continued to work for sufficiently long period, then, it would not be apt to call him having been appointed on casual basis. As a matter of fact, this aspect of the matter was considered in Piara Singh's case (supra).
The relevant observations made in para 51 of the judgment stand already noticed above For facility of reference, the relevant observations made in this paragraph are being quoted again:- "If a casual labourer is continued for a fairly long spell say two or three years- a presumption may arise that there is a regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation, while doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person."
18. In view of the observations of the Hon'ble Apex Court quoted above, the writ petitioners having been working for long period are also entitled to be considered for regularization.
19. For the reasons stated hereinabove, the appeal is dismissed, judgment impugned dated 05.02.2010 providing for according consideration to the cases of the writ petitioners for regularization of their services is maintained. The appellants are directed to consider the cases of the writ petitioners for regularization within three months from today.” Relevant extract of the Hon’ble Division Bench passed in case titled State & Ors Vs Anuradha :- “ 8. There is no scope for any disagreement with the writ court that mere nomenclature is not decisive for opining on status of a worker engaged in any of the Government Departments. **************. In case, the worker is allowed to continue for sufficiently long time without his engagement being dependent upon chance or actual requirement of his service and is transferred from one position to another position, such worker, notwithstanding nomenclature used by the authority engaged, is to be taken as daily wager and not a casual worker.**********”. Relevant extract of judgment passed in case of Ghar Singh Vs University of Jammu & ors,
“For the forgoing reasons, I find no merits in the pleas taken by Mr. Abrol, Learned counsel appearing on behalf of the University, to justify denial of relief prayed for by the petitioner. This Writ petitioner is, accordingly, allowed and the petitioner is held entitled to regularization as Security Guard w.e.f 1st April, 2005 with all consequential benefits including arrears of Salary w.e.f 1st April, 2005 till actual realization made in the year 2010. The pensionary benefits, if any, received by the petitioner from University of Jammu shall also be suitably revised and arrears, if any, due to him paid to the petitioner. Let the requisite exercise to comply with these directions be undertaken and completed by the University within a period of two months from the date copy of this judgment is served upon the respondents.
13.Even the Hon’ble Apex Court in latest judgment passed in CIVIL APPEAL No. 9729/2024 Ushaben Joshi Vs Union of India & Ors. has held as under: “17. The respondents have not indicated anything in the affidavit filed in pursuance of the order dated 27th February, 2024, that the nature of duties or the hours of work being performed by Smt. K.M. Vaghela were any different from that of the appellant. Thus, the defence taken by the respondents for their decision not to confirm the appellant in services that she was only performing duties as a contingency worker(water woman) for four hours a day is not substantiated from any acceptable material on record. Indisputably, the appellant continuously served the department for more than three decades as a contingency ‘water woman’. Keeping in view the fact that an employee similarly placed but inducted in service after nearly six years from the date of employment of the appellant with the respondent-Department has been conferred the benefits of confirmation in service by way of appointment to the post of MTS, the appellant is entitled to claim the same benefits.
19. In view of the foregoing discussion, the impugned orders are set aside. the respondents are directed to treat the appellant at par with Smt. K.M. Vaghela and shall pass the order of regularization/appointment as MTS in favour of the appellant, on similar terms as was done in the case of Smt. K.M. Vaghela. The order of regularization will be effective from the date on which Smt. K.M. Vaghela was appointed as MTS with all consequential benefits. Compliance of this order shall be effected within a period of three months from the date of this order.”
14. It is very unfortunate that the petitioner was entitled to for his regularization under the provisions of SRO 64 of 1994 and had sought the said right in the beginning of this century either getting some communications in his favour or by approaching the Court for quashment of the orders against him and had died in the midway while seeking his right of regularization but the respondents even after his death had failed settle his case, the aforesaid pervasive misuse of power seems to be nothing but meant for exploiting the a poor employee and the dependent family members and undermining the labour standards, which the respondents as a welfare state are entrusted with for upholding the principles of fairness and justice and for that matter the respondents bear even greater responsibility to avoid such exploitative employment practices.
The International Labour Organization (ILO) of which India is founding member, has also consistently advocated for employment stability and the fair treatment to workers, which the respondents in the instant case have failed to maintain.
15. In view of the above discussions and facts and circumstances of the case, this TA is allowed, order impugned is set-aside and the respondents are directed to regularize the services of the original applicant from the date of completion of his seven years’ service with all benefits including arrears from such dates, which benefits shall be now given to the applicant (wife) and for that the applicant shall approach the respondent no.2 with all necessary documents viz. bank account details, Aadhaar card and pan card along with the copy of this order within a period of two week from today.
16. The needful as above shall be done within a period of two months from the date of receipt of copy of the order and documents as above submitted by the applicant.
17. No order as to costs.
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