Jammu, Aug 3: In Transferred Application No. 61/8653/2020 titled Ghulam Mohd VERSUS State of Jammu & Kashmir Through its Commissioner/Secretary, Rural Development Department & others after hearing F A Natnoo on behalf of applicant ordered as under:-
Being aggrieved of impugned government no. 160-RD & PR of 2017 dated 24-07-2017 issued by the respondent no.1 along with the decision of the respondent no.2 mentioned in the said order itself , whereby the case of the applicant for the purpose of regularization of his services has been rejected , the applicant had initially approached before the Hon’ble High Court of J&K by way of filing SWP No. 2125/2017 titled Ghulam Mohd Vs State of Jammu & Kashmir & Ors, seeking therein the following reliefs:-
i) Allow this writ petition of the petitioner. ii) Issue of writ in the nature of Certiorari quashing the Govt. Order No. 160-RD & PR of 2017 dated 24-04-2017 issued by respondent no.1 alongwith the decision of respondent no.2 quoted in the aforementioned order, whereby the case of the petitioner for the purpose of regularization has been rejected though admittedly the petitioner is working as Daily Wager Worker since 1990 more particularly w.e.f. 17-11-1990. iii) Issue a writ in the nature of mandamus, commanding the respondents to regularize the services of the petitioner in terms of SRO 64 of 1994 from the date the petitioner was completed seven years of uninterrupted services and in furtherance of mandate of judgment dated 12- 06-2015 passed by the Hon’ble Court in SWP No. 1806/2015. iv) Any other writ, order, command or direction as this Hon’ble Court may deem just and proper in the given facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents.
Briefly stated, facts of the case leading the applicant to file the instant petition, as averred in the Petition/TA in nutshell are that the applicant as would be evident from the Government order no. 111-RD & PR of 2017 dated 20-03-2017 and also the impugned order dated 24-04-2017, came to be appointed as Daily Rated Worker in the year 1990 more particularly on 17-11- 1990 in Rural Development Department and as averred in the petition was entitled for consideration of his case for regularization on completion of seven years of service in terms of SRO 64 of 1994 on 01-04-1997 , thus amongst others his case came to be recommended for regularization in the year 1999- 2000 but was not finalized despite various follow up steps taken/representations made by the applicant.
Mr. F A Natnoo submits that in the said process some of the juniors of the applicant were allowed consideration either due to the kind indulgence of the Hon’ble High Court or otherwise and thus discriminating with the applicant, the applicant thus feeling aggrieved of the inordinate delay on part of the respondents in according consideration to his case for the purpose of his regularization in terms of SRO 64 of 1994 approached the Hon’ble High Court by way of filing SWP No. 1806/2015, wherein the Hon’ble Court taking note of the fact that his name figured at Serial No.2 in the list of Daily Rated workers in respect of District Doda and was due for regularization with effect from 01-01-1997 and has been continuously following his case by continuously making representations, the Hon’ble Court thus vide order dated 12-06- 2015 had been pleased to dispose of the aforesaid petition by directing for consideration of the case of applicant for regularization of his services with effect from 01-04-1997 by taking into account record relied upon by the applicant which had formed annexures to the said petition.
It would be profitable to reproduce the relevant extract of the order dated 12-06-2015 passed by the Hon’ble Court, which thus reads as under:- “3. In view of the fact that the petitioner’s case has been recommended for regularization with effect from 01-04-1997 and keeping in view the grievance of the petitioner that pick and choose policy has been adopted by the respondents in ordering regularization of Daily Rated Workers with instances given of those similarly situated having been regularized, it would be appropriate to dispose of the instant writ petition by directing the respondents to consider regularization of services of the petitioner wit effect from 01-04-1997 by taking into account the record relied upon by the petitioner which forms annexures to the petition. Respondents shall do well by passing a consideration order in light of the averments of the petition supported by the documents within a period of six weeks from the date, copy of this order together with copy of the petition alongwith annexures is served upon the respondents and also to release his unpaid wages within the same period.
Disposed of accordingly” 4. Mr. F A Natnoo submits that the order dated 12-06-2015 had remained un-implemented despite lapse of the time granted by the Hon’ble Court and for getting the same implemented the applicant had again approached the Hon’ble Court by way of filing Contempt Petition bearing COA (SWP) No. 229/2016 and the respondent no.1 thus under the subject: “ COA No.229/2016 in SWP No. 1806/2015 titled Ghulam Mohd Vs Shri Khurshid Ahmad Shah & Ors” vide Govt Order No. 111-RD & PR of 2017 dated 20-03-2017 while admitting the fact that the applicant has been engaged as Daily Rated worker on 17-11-1990, in the opening para of the order itself , has also mentioned that vide U.O No. RD/Legal/132/2015 dated 06-02-2017 , and after examination, the case of the applicant has been forwarded to the respondent no. 2 for placing the same before the Empowered Committee for consideration of his regularization and has further stated in the conclusion that the case of the applicant is under process and shall be decided in light of the decision of the empowered committee. It would be profitable to reproduce the opening as well as the concluding paras of the aforesaid Govt Order No. 111-RD & PR of 2017 dated 20-03-2011 issued by respondent no.1, which reads as under:-
Opening para:- “Whereas, Mr. Ghulam Mohd S/o Gagga Gani R/o Village Barri, Tehsil Marmat, District Doda was engaged as Daily Rated Worker in the 17-11-1990” Concluding paras:-
“ Whereas, after examination on the above lines, vide this department’s U.O No. RD/Legal/132/2015 dated 06-02-2017, the case of the petitioner namely Mr. Ghulam Mohd S/o Gagga Gani R/o Village Barri, Tehsil Marmat, District Doda has been forwarded to the Finance Department for placing before the Empowered Committee for consideration of his regularization. Now, therefore, in view of the above and in compliance to the directions of the Hon’ble High Court, Jammu dated 12-06-2015, the claim of petitioner Mr. Ghulam Mohd S/o Gagga Gani R/o Village Barri, Tehsil Marmat, District Doda has been considered and his case for regularization is under process and shall be decided in light of the decision of the Empowered Committee”
The respondent no.2 appears to have responded to the communication dated 06-02-2017 issued by the respondent no.1 by returning the case of the applicant vide U.O No. A/156(94)- temp-120 dated 17-03-2017 with observation that the applicant was initially engaged as Physical Labour/Casual Labour and converted as DRW after ban imposed vide Government Order No. 26-F of 1994 dated 31-01-1994 and as such, the case does not attract provisions of 64/1994. It is this observation of the respondent no.2 (Finance Department) which has become the basis for the passing of impugned order bearing Government Order No. 160-RD & PR of 2017 dated 24-04-2017 rejecting the case of the applicant with further observation that the Department is not in position to act in terms of Rule 3(2) of SRO 64 of 1994, the applicant has thus again approached the Hon’ble High Court by way of filing the instant writ petition bearing SWP No.2125/2017 seeking challenge to the order impugned dated 24-04-2017 and also the decision of respondent no.2 quoted in the said order itself, on the grounds set out in the petition.
In view of the notification no. G.S.R 267(E) dated 29th April, 2020 read with notification No. G.S.R 317 (E) dated 28th May,2020 issued by the Ministry of Personnel, Public Grievances and Pensions ( Department of Personnel and Training ) , the SWP No. 2125/2017 came to be transferred to his Tribunal for further proceedings and thus got renumbered as TA No. 8653/2020.
Mr. F A Natnoo learned Counsel for the applicant submits that order impugned issued by the respondent no. 1 as also the decision reflected/quoted in the order impugned itself are against the fact and law and are thus liable to be struck down more so in view of the fact that once while issuing the order dated 20-03-2017 ( Annexure –B of the petition/TA) , the respondent no.1 has admitted the engagement of the applicant as Daily Rated Worker since 17-11-1990, the observation made in order impugned regarding engagement of the petitioner as casual labourer is contradictory to their own stand, as such being sheer non-application of mind to such admitted position.
Mr. Sudesh Magotra, Learned AAG while relying on the objections filed by the respondents reiterated the same stand as that of the one taken in the impugned order that since the applicant was engaged as Physical Labour/Casual Labour in the year 1990 and was converted as Daily Rated Worker after the ban imposed vide Government Order No. 26-F of 1994 dated 31- 01-1994 and submitted that the petition has been filed on mere conjunctures and surmises , and is wholly misconceived, misleading false and frivolous and noting but flagrant abuse of process of law and is thus required to be dismissed.
9. We have heard the Learned Counsels appearing for both the parties and have perused the available record.
Rule 4 of SRO 64 of 1994, prescribes the eligibility conditions to be fulfilled by the employee for the purpose of regularization. It would be profitable to reproduce the said rule, which has even been reproduced by the respondents in the impugned order as well, which thus reads as under:- “4-Eligibility for regularisation : A Daily Rated Worker/Work Charged Employee shall be eligible for regularization on fulfilment of the following conditions namely:-
a) that he is permanent resident of the State; b) that on the date of his initial appointment his age was within the minimum and maximum age limit as prescribed for appointment in Government Service; c) that he possesses the prescribed academic and/ or technical qualification for the post against which he is required to be regularized; Provided further that in case of eligible Daily Rated Workers to be regularized against Class IV posts, relaxation of qualification and/ or age shall be considered on merits by the concerned Administrative Department; d) that he is not retiree from any State or Central Government Service or any Local Body, Public Sector Undertaking or Autonomous Body in or outside the State; e) that his work and conduct has remained satisfactory during the period he worked as Daily Rated Worker of Work Charged Employee and no disciplinary proceeding are pending against him; and f) that he has completed seven years continuously period of working as Daily Rated Worker or Work Charged Employee or partly as Daily Rated Worker and partly as Work Charged Employee.
Further, Rule 5 of SRO 64 of 1994 which provides for regularization of Daily Rated Workers, reads as under:-
“5- Regularization of Daily Rated Workers- All the Daily Rated workers who on 31-03-1994 are eligible under rule 4 for regularization shall with effect from 01-04-1994, be appointed on regular pay scale of Class-IV prescribed in the concerned department for the relevant category of posts of Rs. 750-940; Provided that if any of the categories have higher pay scale of Rs. 775-1025 such employee(s) shall be placed in the higher pay scale of Rs. 775-1025 after completion of 2 years of service in the scale of Rs. 750-940.”
Indisputably , so for as the other conditions are concerned viz. residential status of applicant, age as on the initial appointment etc the respondents have not raised any dispute and it is only the observation made by the finance department and reiterated by the respondent no.1 that the applicant was initially engaged as Physical Labour/Casual Labour and converted as DRW after ban imposed vide Government Order No. 26-F of 1994 dated 31-01-1994 , the case of the applicant does not attract provisions of SRO 64 of 1994, which has become the basis for denying the claim of the applicant for his regularization by the respondents. The said stand of the respondents as rightly pointed out by Mr. Natnoo is not tenable in view of the fact that once while issuing the order dated 20-03-2017 ( Annexure –B of the petition) , the respondent no.1 has admitted the engagement of the applicant as Daily Rated Worker since 17-11-1990, the observation made in order impugned regarding engagement of the applicant as casual labourer is contradictory to their own stand, and also in view of the legal position on the issue by the Hon’ble High Court of J&K in case reported as 2011 1 JKJ 870, 2011 0 Supreme (J&K) 44; titled State & Ors. Vs Anuradha wherein Hon’ble High Court has categorically stated that mere nomenclature is not decisive for opining on status of a worker engaged in any Government departments. Relevant extract of the judgment passed in case of State & Ors. Vs Anuradha is as under:-
“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*****
Further in case reported as 2012 (4) JKJ 1051 (HC) of State of J&K & Ors. Vs Mushtaq Ahmed Sohail has held as under :
“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 Vs 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 labour/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 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 of 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 .
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.”
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.
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 :: 15 :: T.A. No. 61/8653/2020 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.”
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.
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.” 14. What would emerge from the above settled legal position is that the stand taken by the respondents which otherwise is contrary to their own record, in any case if taken as true , would also be un-tenable in law, is also not tenable in view of the legal position quoted above that If a casual labourer is continued for a fairly long spell - 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 regularization, while doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person, which obligation the respondents in the instant case have failed to perform despite the directions passed by the Hon’ble High Court in the earlier round of litigation.
The said act of the respondents does not look right on part of the respondents who as a welfare state are entrusted with the task of upholding the principles of fairness and justice and for that matter the respondents bear even a greater responsibility to avoid such exploitative measures in the matter of employment.
Having given careful consideration to the submissions advanced by the parties through their respective counsels and the material on record and also the settled legal position quoted above, we find that the applicant’s un-interrupted service cannot be brushed aside merely on the ground that the respondents contrary to their own record i.e Government order No. 111 –RD & PR of 2017 dated 20-03-2017 (mentioning that the applicant was engaged as Daily Rated Worker in 17-11-1990), have while passing the impugned order, termed the applicant as having been initially engaged as casual labour, without even bearing in mind that the earlier order dated 20-03-2017 has also been issued by the same officer only, which abrupt attempt seems to be nothing but arbitrary action on part of the respondents and devoid of any justification, and thus violative of fundamental principles of natural justice.
The sustained contribution of the applicant thus warrants a fair treatment and regularization of the services of the applicant and denial of the said benefit in our view would amount to manifest injustice to him.
In view of the above discussions and facts and circumstances of the case and also the settled legal position quoted above, the instant Petition is allowed, impugned Government order No. 160-RD & PR of 2017 dated 24-04-2017 issued by respondent no.1 and also the decision of respondent no. 2 mentioned in the said order itself are set aside and quashed and the respondents are directed to regularize the services of the applicant with effect from the date the applicant has completed seven years of un-interrupted services i.e from 01-04-1997 and in furtherance of mandate of judgment dated 12-06-2015 passed in SWP No. 1806/2015.
The needful as above shall be done within a period of two months from the date of receipt of copy of this order.
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