Abdul Hamid Shah vs State of Jammu & Kashmir

Counsel heard. Petition admitted.

With the consent of the parties, the petition was taken for final disposal today.

The circumstances under which this petition has been preferred, be noticed.

The petitioners have come to the Court with a grievance that they were appointed as daily wage workers with respondent No.2. It is their case,

that they came to be appointed on 21.6.1993. In this petition, they submit that even though if they have been going in the office of respondent

No.2>the above respondent has not been permitting them to mark attendance. It is under these circumstances, that this petition was filed.

The respondents have put in appearance. It is admitted that the petitioners were given appointments on 21.6.1993. The respondents have taken

a stand that the petitioners were not given further appointments, and their services were terminated. As to on which date this has been done, has

not been indicated in the objections so preferred.

The learned counsel appearing for the petitioners submits that in terms of J&K Daily Rated Workers/Work Charge Employees Regulation Rule,

1994, the petitioners are entitled to regularisation and absorption. It is submitted that these rules came into force on 1.4.1994, and the petitioner

were in service on this date.

However, the learned counsel appearing for the state submits that the very Rules, on which reliance is being placed by the petitioners, imposes

restriction on the State from engaging daily rated workers and work charge employees. Reliance for this is being placed on Rule 7. It is,

accordingly, submitted that w.e.f. 1.4.1994 the respondents are not in a position to continue with daily rated workers or work charge employees.

This argument might have prevailed, but for another Rule. This Rule is Rule 8. Before proceeding further Rule 7 & 8 are being noticed. These

reads as under:

Rule7Restriction on engagement of Daily Rated Workers/Work Charged Employee:

(1) With effect from the commencement of these Rules, no field/subordinate officer shall have the power for engagement of Daily Rated Workers

or Work Charged Employee in the Department and the existing delegation, if any, in this regard is withdrawn:

Provided that the Competent Authority may engage Casual labour or Seasonal labour in any of the Departments to be specified by Notification

from time to time by the Government and such labour shall be on the Muster Roll for payment of wages and no engagement or appoinment order

shall be issued.

(2) After the commencement of these Rules the work charged posts shall be created only by the Administrative Departments in consulation with

the Finance and Planning Department."" ""Rule8Application of rule to existing Daily Rated worker and work Charged Employee:

The policy of absorption of Daily Rated Workers and Work Charged Employees shall also apply to such of the existing Daily Rated Workers and

Work Charged Employees who may not have completed seven years on 3131994 but may complete by the end of subsequent financial years and

their absorption shall be considered in that financial year in accordance with these Rules.

Thus the rules provide for the policy of absorption of Daily Rated Workers and Work Charge Employees. Employees who may have complted

seven years are entitled to regularisation. Those employees who have not completed seven years of service, but may complete their seven years by

the end of subsequent financial year can also be regularised. Rule 8 takes care of those Daily Rated Workers, who were working with the

respondents. The only exception which has been carved out is that they would be entitled to absorption only on the completion of seven years of

service. It be seen that the words used in Rule 8 are:

.....seven years on 3131994, but may complete by the end of subsequent financial years....

The words the ""subsequent financial years"" has to be given full meaning. The Rule cannot be ignored. The intention of rule making authority is

to continue and regularise any employee who is working as a Daily Rated Worker or Work Charge Employee and has completed seven years of

service. He is to be permitted to continue to work as such, but is to be absorbed only when he completes seven years of service.

The state has not indicated as to when the service of the petitioners were brought to an end. So, following directions are given:

i) That the state would examined the Muster Rolls;

ii) If the petitoners have worked for a particular period and for that period they have not been paid the wages, then they would be paid the wages;

iii) The petitioner would now be taken on Rolls.

The embargo which has been placed by the above Rule applies only in the matter of non employment of daily rated workers and work charge

employees after 1.4.1994. The petitioners were in service before that date, therefore, they are entitled to the relief.

This petition is disposed of accordingly.