AI Structured Summary
Not yet generated for this judgment
Judgment
Appellants in these appeals submit that even though they came to be engaged as night chowkidars almost 10 years ago, they are not being paid
wages which are supposed to be paid under the minimum Wages Act. It is also their grievance that even though vacancies existed and even though
they were performing their duties, their services have not been regularised but some other persons have been appointed on adhoc basis and the
person so appointed are to be paid in the regular grade. This was done without issuing public notice and without considering the claims of the
appellants. It is submitted that non-payment of minimum wages and non-consideration of the claim of the appellants for appointment when adhoc
appointments came to be made is a matter which required interference. Writ petitions were preferred. Writ petitions came to be dismissed. Now
two appeals have been preferred. Facts in these appeals be noticed.
The appellants came to this court with a plea that they were appointed as watchman-cum chowkidars at a consolidated salary of Rs.30/- PM as
watchman-cum chowkidar. They were supposed to safe-guard the Government properties. This order was passed by the District Development
Commissioner, Doda. Copy of the order passed on 19.7.1991 pertaining to five of the appellants read as under:-
As per standing order of worthy DDC and discussion with the TSO following persons are engaged as night chowkidars at the rate of Rs.30/- to
safe-guard the Govt. Property.
The appellants further pleaded in the writ petition that they have been discharging their duties w.e.f 19.7.1991. It was further pleaded that
Assistant Director, Food and Supplies Department on the recommendation of the Tehsildar vide memorandum No. 964 issued on 28.2.1997
granted ex-post facto sanction to the appointment of the appellants. In terms and conditions were the same. As already mentioned the appellants in
these appeals submit that even though they were engaged ten years back, no step has been taken to regularise their services. The emoluments
which they are getting are the same as were originally fixed. The only difference made by the latter order was that the appointment came to be
regularised as these orders came to be issued by Assistant Director, Food and Supplies, Doda. These were effective from 19.7.1991. The
appellants wanted their services to be regularised. Their plea was that they have been working as night watchman for more than seven years and
therefore, their services be regularised and they be given the minimum wage payable under the Minimum Wages Act. Further grievance of the
appellants was that even though they had continued to work since 1991, the Minister for Food and Supplies Department appointed 26 persons on
89 days basis. This assertions was made in para 8 of the petition. Copies of the orders issued in this regard were placed on the record. For facility
of reference one such order is being reproduced below :-
DIRECTORATE OF FOOD AND SUPPLIES JAMMU
OFFICE ORDER NO. 46-FCJ OF 1998
Dated 25/05/1998.
In the interest of smooth running of Government work Shri Zakir Hussain Shah S/o...Jee Shah R/o Suied Dachhan is hereby temporarily appointed
as weighman-cum-chowkidar against the available vacancy in the pay scale of Rs. 2550-3200 on stop gap arrangement for eighty nine (89) days
in the first instance.
Sd/-
Director
Food and Supplies, Jammu.
The grievance of the appellants was that if the posts were to be filled on regular basis then they should have been given preference and in any
case they being in the department for more than seven years were within their rights to get their claims considered. In the writ petition preferred by
Jamal Din, allegations made are similar. In nut-shell what was pleaded by Abdul Rehman and others was pleaded by Jamal Din and others.
The State filed its objections in Jamal Din's case. It was pleaded that a writ of mandamus cannot be issued to regularise the service of the
appellants. The fact that the appellants were engaged as night watchmen was not denied. It was pleaded that the appointment of these chowkidars
was casual in nature. They were appointed on need basis on consolidated salary. It was stated that SRO 64 of 1994, namely Jammu and Kashmir
Daily Rated workers/Work Charged Employees Regulations Rule 1994 (here-in-referred to as Rule of 1994) under which person who has
completed seven years of service could seek regularisation are not applicable. The assertion of the appellants that respondent No.2 had appointed
chowkidars against the available vacancy in a regular pay scale of Rs.2550-3200 on stop gap arrangement for 89 days basis was not denied. It
was stated that it was a purely temporary arrangement. An objection has also been taken that as these persons have not been arrayed as
respondents, therefore, the writ petition is not complete. The fact that the appellants came to be appointed at a consolidated salary of Rs.30/- PM
was not denied. It is admitted that the appellants were appointed and that they had continued for a period of seven years, but their services cannot
be regularised under Rules of 1994 as these are not applicable to them. The arrangement of the appellants was on need basis. It is stated that no-
doubt some appointments have been made, but these were temporary in nature.
A learned Single Judge of this court came to the conclusion that the appellants were neither Daily wages workers, nor holding any civil post and
therefore, they were not entitled to get their services regularised under the Rules of 1994. It has also been observed that post of watchman or
chowkidar in the Department against which the services of the appellants could be regularised did not exist. It is this opinion expressed by the
learned Single Judge, which is subject matter of challege of these appeals.
To summerise, the appellants submit;
i) that they came to be appointed on consolidated salary of Rs.30/- PM as night watchman in the year 1991;
ii) that they had continued to perform the duties more than seven years (ten years by now);
iii) that the post of night watchman did exist and as a matter of fact, the Director, Food and Supplies Department on the asking of the Minister
concerned had made the appointments. These arrangements as per the State are temporary in nature.
The prayer which was made by the appellants was that the services of the appellants should be regularised and such other relief as may be
deemed appropriate be granted.
It be seen it is not the case of the State that the services of the appellants as night watchman-cum-chowkidar which assignment they were asked
to perform in the year 1991 have come to an end and their services are no longer required. All that they have stated is that they were not covered
by Rules of 1994. The fact that appointment of 26 persons have been made and that too at the asking of the Minister concerned has not been
disputed.
It thus becomes apparent that the appellants came to this Court with the avernments;
i) that they have been engaged as watch-man;
ii) that they are entitled to minimum wages;
iii) that when other persons have been appointed as night watchman then the claims of the appellants should have also been considered.
There is merit in the submission made by the learned counsel for the appellants. The retention of a person in public service at a meagre salary
of Rs.30/- per month would be hit by the provisions of Article 23 of the Constitution of India, which prohibits ""beger"". Calling upon a person to
work at Rs.1/- per day would not even meet the expenses for coming and going to the place of work from his house. A cup of tea costs Rs.3/-.
Therefore, by engaging the appellants at the rate of Rs.30/- PM the respondent-State is not keeping in view the spirit of Article 23 of the
Constitution of India. Even otherwise the Directive Principles of State Policy make a provision in this regard. Article 43 of the Constitution of India,
reads as under:-
Living Wage, etc for workers - The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all
workers, agricultrual, industrial or otherwise, work, a living wage, a condition of work ensuring a decent standard of life and full enjoyment of
leisure and social and cultural opportunities and, In particular, the state shall endeavour to promote cottage industries on an individual or co-
operative basis in rural area.
The principal of equal pay for equal work can be invoked. Whatever is the pay paid to a regular incumbent can be claimed by the appellant. At
least, the least which is required is payment of minimum wages as are paid in the State. Such a view has been expressed in State of Haryana v.
Jasmer Singh (1996) 1 SCC 77. In this case claim for payment of minimum wages was upheld. As to what should be the minimum wage is a
matter which has been dealt with in State of Gujarat and Another Vs. Hon'ble High Court of Gujarat, . It was observed that the quantum of
minimum wage should be sufficient to cover basic physical needs of the employee and his family. See also Airfreight Ltd. Vs. State of Karnataka
and Others, .
Therefore, appellants are entitled to the wages which a daily wager is getting as minimum wages payable to this category of employees. This is
one aspect of the matter.
Another aspect of the matter is that the State has engaged some other persons. These appointments have been termed as temporary. If the
need was there, then the claims of the appellants should have been considered. It is settled law that when appointments are made to a public
service then these should be done by a public notice. The requirement to advertise is satutory. This grarantees invitation to all. It ensures an equality
of opportunity to all. It is in conformity with the requirements of Articles 14 & 16. It is in consonance with the principles of fair play. It excludes
arbitrariness. It helps in the selection of the best. It is only in this manner the spirit behind Article 14 & 16, i.e., equality in the matter of public
appointments would be served.
Therefore, a direction is given that as and when the State considers the question of regularisation of the services of the employees who have
been issued letters of appointment on temporary basis, the claims of the appellants be also considered. It is also held that adhoc and temporary
arrangements which have been arrived at without issuing public notice would not be extended beyond the period of six months or the term to which
these appointments stand extended, which-ever period is latter and during this period the State would issue public notice and then make the
appointments. In the meanwhile, the State is directed to pay the minimum wages which are payable to such employees.
The appeals are disposed of in the manner indicated above.