Ab. Gaffar Bhat and Others vs State and Others

Bashir A. Kirmani, J.—To set-forth the case of petitioners herein, the interim order dated 23.04.2007 may be reproduced herein below.

Vide order of this Court dated 16th March, 2006 purporting to have been passed in SWP No. 507/2005 the earlier writ petition of petitioners

was disposed of with a direction to respondents to process and consider the case on basis of recommendations submitted by officers to the high

authorities of respondent-department and accord necessary benefits to them under SRO 64 of 1994 and other rules holding the field. This was

followed by a report filed by the committee comprising of Manager Seed, Joint Director and Additional Director, Kashmir of respondent-

department who vide their report appear to have been submitted in August 2006 while observing that the petitioners have spent most of their life in

the department and had been working since 1988-89, of course with usual breaks in the months of January and February presumptively for want

of funds and as such deserves consideration for condonation of breaks in their work period on humanitarian grounds submitted the report to the

concerned Director who appears to have forwarded the draft order to the administrative department for wetting the same for further necessary

action with a copy thereof endorsed to Additional Director for necessary action and communicating the speaking order passed to each of

petitioner(s). This was followed by the impugned communication purporting to have been addressed by said Additional Director to petitioners

under his communication No. ADSDK/LC/206/7096-98 dated 07.12.2006 where under he is stated to have communicated speaking order to

petitioners informing them that they did not come within purview of SRO 64 of 1994 and as such were not entitled to grant of any benefit there

under. It is this communication which is impugned in this writ petition on various grounds mentioned therein. The official side has however failed to

file objections despite opportunities granted, consequent whereupon vide order dated 16.04.2007 right to file the same was closed.

Thereafter vide order dated 7th May 2007, however the prayer of respondents for taking memo objections on record was allowed under order

passed in CMP No. 104/07 which now form part of the record. Perusal of the memo of objections so filed reveals that besides taking preliminary

objections regarding non availability of cause to petitioners for instituting this petition respondents also maintain that petitioners do not have a case

for regularization of their services under SRO 64 of 1994 as they have been working with respondent-department only as casual labourers and not

daily wagers which in view of the opinion expressed by administrative department dis-entitles them for such consideration. During course of

submissions the appearing counsel have reiterated contents of their respective pleadings.

I have heard learned Counsel and considered the matter. For ascertainment of factual position of the case it would be enough to refer to the

report of appointed Committee comprising of Manager Seeds, Joint Director and Addl. Director of respondent-department, constituted in terms of

order passed in previous writ petition of petitioners being No. 250/95 decided as already said on 6.3.06 furnished to the Director under No.

ADSDK/LC/2006/Sick/8-2006 wherein the committee has among other things concluded in last paragraph of the report that average period of

working of petitioners in the department is 9/10 months in year and they had been working in the department as such since 1988-89 and had thus

rendered services for about 18 years albeit with periodic breaks in months of January and February due to non availability of funds. The committee

has also opined that petitioners had spent their entire youth serving the department and as such deserved consideration on humanitarian grounds

etc. Thus, petitioners admittedly appear to have been working with respondent-department for around 18/19 years. Despite that their status does

not appear to have changed due to the unchanged nomenclature of casual labourer which ultimately appears to have hit them for being considered

under SRO 64 of 1994, whereunder respondent department takes refuge to deny them regularization on the basis that since they were not ""daily

wagers"" they could not be given the benefit of regularization. At this stage, it would be appropriate to notice that a bench of this Court has already

considered the import of word ""casual labourer"" in the judgment dated 5.9.2000 passed in SWP No. 87/99 captioned as ""Chander Prakash v.

State and Ors."" and it would be appropriate to notice certain portions of that judgment before proceeding further;

...3&4 contents of paras 3 and 4 of the writ petition in so far as they pertain to the appointment of the petitioner as Daily wager/Daily Rated

employees are incorrect, as such, are denied. It is submitted that the petitioner was engaged in the month of May, 1990 as Seasonal/Casual

Labourer and had been continuing as such, with usual breaks. No formal order of engagement was passed in favour of the petitioner by any

authority at any time. Since the petitioner was engaged as a Casual Labourer as such does not fall under the purview of SRO 64 of 1994 and as

such is not entitled to be regularized.

A perusal of the above paras would make apparent that respondents have not taken consistent stand. There is lot of difference between the

seasonal and casual Labourer. A person who has continued to work for all these years that is more than a decade his employ lent can never be as

a Casual Labourer. This (sic) by this Court in detail in SWP NO: 437/1997 decided on 28.8.2000 wherein it was observed as under; ""The word

Casual"" has been defined in the Reader's Digest Universal Dictionary 1988 Edition at page 256 as something resulting from or occurring by

chance, unpremeditated un-planned, informal, irregular, occasional part time. It also makes reference to the word 'casual Labourer'. According to

this dictionary the Casual Labourer would be a person who works at irregular intervals.

The term 'Casual employment' has also been defined in Black's Law Dictionary at page 218 is as under:

Casual employment; Employment at uncertain or irregular time. Employment for short time and admitted and temporary purpose. Occasional,

irregular or incidental employment. Such employee does not normally receive seniority rights nor if hours worked are below a certain number each

week, fringe benefits . By statute in many states, such employment may or may not be subject to workers 'compensation at the election of the

employer. The test is the nature of the work or the scope of the contract of employment of the continuity of employment.

Thus a person who continued to work for a period of six and half years cannot be called as casual worker or a Labourer. Plea taken by the

respondents that the petitioner continued to work for six and half years and that he continued to remain casual worker is contrary to the very

concept and meaning of the both casual. This cannot be accepted. By no stretch of imagination; petitioner has worked for six and half years can be

called as casual employee. He was engaged in the year 1990. He continued to work for six and half years whereas beyond 1994 that is when rule

referred to above came into force. In this situation petitioner was well within his rights to content that he should also been allowed to complete 7

yeas of service. As a matter of fact that he should have been allowed to continue in terms of Rule 8.

In view of the above this petition is disposed of in the said terms as was disposed of aforementioned writ petition, claim for regularization be

considered. Petitioner make available copy of judgment passed in this case and also in the case referred to above S/VP NO: 437/1997 and also in

LPA NO: 438/1998 decided on 16.8.1998 which has been relied upon in the earlier case. Petitioner would be considered for regularization with

effect from the date he has completed seven years of services.

After noticing the stand taken by respondents in that writ petition ld. Bench proceeded to assess the import of expression ""casual labourer"" as

under;

The word 'Casual' has been defined in the Reader's Digest Universal Dictionary 1980 Edition at page 256 as something resulting form or occurring

by chance, un- unpremeditated un-planned, informal, irregular, occasional part time. It also makes reference to the word' casual Labourer'

According to this dictionary the Casual Labourer would be person who works at irregular interval.

It would be apt to notice the stand taken by respondents the instant petition has striking similarity with that taken in the above mentioned petition

(SWP No. 87/99) in paras 3 &4,

3 & 4 contents of paras 3 and 4 of the writ petition in so far as they pertain to the appointment of the petitioner as Daily wager/Daily Rated

employees are incorrect, as such, are denied. It is submitted that the petitioner was engaged in the month of May, 1990 as Seasonal/Casual

labourer and had been continuing as such, with usual breaks. No formal order of engagement was passed in favour of the petitioner by any

authority at any time. Since the petitioner was engaged as a Casual Labourer as such does not fall under the purview of SRO 64 of 1994 and as

such is not entitled to be regularized.

The objection raised by respondents regarding disentitlement of petitioners to regularization for the reason of their having been engaged as ""casual

labourers"" and not as ""daily wagers"" thus stand duly answered obviating any further discussions thereupon, particularly because nothing has been

brought on record or suggested to show that above quoted judgment has ever been challenged by respondents herein or any body else.

Accordingly, applying ratio of the aforesaid judgment the petition is disposed of with a direction to respondents for considering petitioners case

under SRO 64 on basis of services admittedly rendered by them. The consideration as such be accorded within three months from now.

Disposed of.