Azi Bibi vs State of J&K and Ors.

This letters Patent Appeal has arisen out of Judgement dated 02.05.1998 whereby the writ petition seeking regularization of services has been

dismissed by the Learned Single Judge.

The appellant alongwith 19 other writ petitioners, came to be appointed by Principal, Government Degree College for Women, Nawakadal,

Srinagar, Respondent No. 4, on consolidated wages of Rs. 700/ per month. Their grievance is that though they have been appointed as Class IV

employees since 6 to 8 years, neither their services have been regularized nor the pay of the post on which they are working is being released in

their favour. It was also pleaded that they are facing break of one day in service after every sixty days which has the effect of not only depriving

them of the continuity of service but also the wages of the break period. They are apprehensive of termination of their ser vices. Thus, they seek

also the relief of direction to the respondents to allow them to hold their respective class IV Posts, besides regularizations and the pay and

allowances of the said posts.

The respondents, in their reply, have submitted that petitioners were engaged on consolidated wages and the money for payment of the wages

was begin raised by the college out of the local fund collected from the students. It is also stated that the amount of wages payable to the appellant

is not debatable to any state fund. The engagement of the appellant is not against any post as no class IV vacancy is available in the college.

The Learned Single Judge, after considering the rival contentions, has held that the petitioners are not having the status of Daily Rated Workers

or holding any civil post, relying upon the judgement de livered in SWP No. 924/1986 decided on 03.07.1997, upheld in L.P.A No. 276/1997

decided on 24.04.1989 relying on the earlier Division Bench Judgement of the Court in G.H. Qadiri vs. Secretary to Government Industries and

commerce Department and others reported in AIR 1959 J&K 26, and dismissed the writ petition of the appellants. The court also rejected the

plea of the appellant that the appellant is similarly situated, considering the judgement delivered in SWP 502/1992 titled Mst. Khatija Begum vs.

State and others decided on 08.08.1996.

Out of 20 writ petitioners, the appellant alone has preferred the appeal, challenging the legality and correctness of the order under appeal,

reiterating similar grounds which have been set up and taken in the memorandum of writ petition.

Heard learned counsel for the respondents.

The appellant has been appointed as Sweeper by the Principal, Government Degree College for Women, Nawa KadaL Srinagar on

consolidated wages, vide his order dated 16.05.1988 which is extracted below:

Order

Sanction is thereby accorded to the temporary appointment of Mst. Azi Bibi, W/o Mohd. Rajab Sheikh, R/o Dalgate as Sweeper @ Rs. 250/ per

month out of local funds w.e.f. 01.04.1988.

Sd/

Principal,

Govt. College for Women,

Nawa Kadal, Srinagar"".

It is evident from the appointment order of the appellant that she has been appointed on payment of Rs. 250/ per month to be borne out of local

funds. It has been stated in the counter affidavit by the respondents that this fund has been created by collection of money from the students for

purposes of sweeping the college premises and is not debitable to any State Fund. The status of the appellant is not that of a Daily Rated Worker

who in terms of SRO 64 of 1994 is entitled to seek consideration for regularization provided such Daily Rated Worker has completed seven years

services continuously and uninterruptedly. Appellant is being paid out of the local fund which is contingent and her status could only be of a

contingent worker.

The appellant in the memo of appeal has set up the ground that the learned Single Judge has returned the finding which has no relevance with the

case set up by the appellant. Perusal of the judgment of learned Single Judge reveals that the findings recorded in the course of the order, under

appeal, are quite considered and relevant for the disposal of the petition.

She has also set up the ground in the memorandum of appeal challenging the impugned order that the appellant's precious period of life has

been taken away by the respondents, so at this stage, she cannot be thrown out without considering her claim for regularization under SRO 64 of

1994. Besides, the appointment orders of the appellant clearly reveals that the post will be allotted to her. Till the post becomes available, she

prays for the equal pay for equal work.

So far as the consideration in terms of SRO 64 of 1994 is concerned, as observed earlier, the appellant being not Daily Rated Worker having

uninterrupted and continuous service of seven years, has no right to seek such consideration. The appellant seeks the relief of regularizations of her

services also on the ground that she has been appointed against class IV Post, which apparently is not made out, as the appointment order of the

appellant speaks for itself. She has stated in para 15 of the memorandum of appeal that the judgement delivered by the Supreme Court in

Bhagwati Prasad vs. Delhi State Mineral Development Corporation, reported in AIR 1990 SC 371 supports her claim for regularization and the

payment of salary equal to the salary of the employees of class IV Posts. Perusal of this judgement reveals that the relief has been granted to the

Daily Rated Workers for their regularization against the post which is evident from the observation of the Supreme Court contained in relevant

portion of para 4 of the judgement which is extracted below :

.... It is also held that the Justification for not regularizing the services of the petitioners, namely, unlikelihood of the extension of the mining lease

after its expiry was belied by the subsequent advertisement calling application for filling up the vacancies...

Here, the appellant has neither been appointed against the post nor there is vacancy available with the respondents as the respondents have

categorically stated it in their counter affidavit. It is settled proposition of law that in absence of preexisting vacancy, on direction for regularization

of services can be issued and if such a relief is granted, it shall be sheer an abuse of the power and law. This controversy has been set at rest by the

Supreme Court in case titled Himachal Road Transport Corporation v. Dinesh Kumar reported in AIR 1996 SC 2226 holding that:

We are of the view that the Himichal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated

27.03.1995 and 06.03.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of the

vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint

persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally

unauthorized...

The appellant, in the memorandum of appeal relying upon the judgement de livered in case titled Mst. Khatija Begum vs. State and others

(SWP No. 502/1992) has submitted that the case of the appellant is quite identical to that and is entitled to the same relief of appointment. Such a

plea was also raised, of being similarly situated, in case titled Anjum Noore Bano vs. State of J&K and others reported in 2000 SLJ 150. The

Division Bench of this court considering the said plea observed as under:

... Learned counsel for the appellants has not made out that she was engaged and is working against the post Mr. HI Qadri, Learned Additional

Advocate General has submitted that in Government Primary School, there is no post of sweeper and the arrangement has been made for cleaning

the school premises by engaging the appellant on contingent basis to be paid out of contingent fund. Learned counsel for the appellant could not

make out that there is a post against which she is working. Unless there is a post no such direction can be issued"".

In Mrs. Khatija Begum's case the court observed that she was working against the post which is not the case herein. Therefore, the appellant is

not identically and similarly situated. Thus, the reliance placed on the aforesaid judgement is of no help to the appellant. We concur with the finding

recorded by the Division Bench in Anjum Noore Bano's case.

For the aforesaid reasons, we do not see any ground to interfere with the order of the learned Single Judge, Consequently, the appeal is

dismissed.