Ab. Qadeer Kumar vs State and Others

Muzaffar Hussain Attar, J.—The Petitioner was engaged as Sweeper-cum-Night Chowkidar in the Office of Respondent No. 4, Assistant

Director Handicrafts Pulwama vide order No. 109 JDHK/Sgr of 1997 dated 22-12-1997 by Joint Director, Handicrafts Kashmir. In the writ

petition, following reliefs are sought:

In the premises, it is, therefore, prayed that the Respondents be directed to regularize the services of the Petitioner with effect from the date of his

first appointment along with grade/pay scale attached to the post of Sweeper-Cum-Night Chowkidar as is being given to the regular Sweeper-

Cum-Night Chowkidars of the department and to this effect a writ of Mandamus be issued in favour of the Petitioner and against the Respondents.

A writ of Mandamus be also issued whereby Respondents be directed to give similar treatment to the Petitioner with respect to release of grade

and regularization as has been given to Ama Khan, orderly-cum-Chowkidar in the office of Assistant Director Handicrafts Anantnag. The

Respondents be further directed to allow the Petitioner to continue till he will be absorbed permanently.

Any other order or direction which the Hon'ble Court deems just and proper may also be passed in favour of the Petitioner and against the

Respondents.

Objections have been filed wherein it is pleaded that the case of the Petitioner is not similar to that of the Ama Khan as contended in the relief

supra. It is also pleaded in the objections that the Petitioner was engaged as part time Sweeper whereas the said Ama Khan was appointed against

the post of Orderly-cum-Chowkidar in the grade of 2550-3200 and later on his services were regularized also.

Heard learned Counsel for the parties and considered the matter.

The very fact that the Petitioner continues in the service of the Respondents from the year 1997 shows that the Respondents are in need of his

services. The Petitioner, who belongs to a lowest strata of the society, cannot be subjected to arbitrary treatment in as much as continuing him as

contingent paid employee without considering his claim for bringing him in the regular establishment. Like all other constitutional organizations, the

State Government is also creature of the Constitution and, in view of constitutional mandate, is under obligation to effectuate the mandate contained

thereof. The Government which is on the higher bargaining position, cannot be permitted to exploit a lesser mortal like Petitioner by continuing him

to remain in a position in his service career where no protections are available to him. The State Government is duty bound to take a decision in

respect of the case of the Petitioner.

This writ petition is, accordingly, disposed of in the following terms:

By issuance of a writ of Mandamus, Respondents are directed to consider the claim of the Petitioner for bringing him in the regular establishment

and for attaining this purpose, Respondents may consider to take policy decision and even formulate rules. Till such time, a decision of

regularization of the Petitioner's services is taken, he shall be permitted to continue.

Disposed of along with CMPs.