Gh. Mohd. Sheikh and Another vs State and Others

R.C. Gandhi, J.—Petitioners seek issuance of writ of Mandamus commanding the respondent to regularise the services of the petitioners in

terms of the provisions of SRO 64/1994 against Class 4th posts from the date they have been working as Sweepers and also to pay salary of the

post from the date of their initial appointment. They further pray for similar treatment which have been extended to the similarly circumstanced

employees whose services have been regularised in the Department.

The petitioners were initially engaged as Sweepers for cleaning the offices on a monthly remuneration of Rs. 100 to 150/-. The wages of all the

Sweepers of the Department were enhanced to Rs. 750/- p.m. with effect from 1995 by the Principal Chief Conservator of Forests vide his order

No. 20/95 dated 31-1-1995. The petitioners are also getting wages of Rs. 750/-p.m. accordingly. They seek regularisation of services on the

ground that similarly situated sweepers, who were being paid remuneration out of the Contingency Fund of the department, their services have

been regularised. Respondents were notified. They have not filed the objections. However, Mr. Attar, AAG, has submitted that the pleas and the

grounds set up in the petition are not sustainable as these have already been settled by various judgments of this court including the Division Bench

judgment and, therefore, the writ petition requires dismissal.

Heard Learned counsel for the parties.

Learned counsel for the petitioners has submitted that the petitioners have been working since over a period of seven years and are entitled to seek

regularisation. Besides this, they are similarly situated as were the petitioners of the writ petition No. 933/91 whose services have been regularised.

He has also relied upon Khatija Begum's case who according to the learned counsel for the petitioner was also similarly situated and here services

have also been regularised.

In rebuttal Mr. Attar, AAG has submitted that Writ Petition No. 933/91 has been disposed of on admitted facts that the petitioners of that writ

petition were working as Daily Wagers and not as contingent paid sweeper as the petitioners are. He has also disputed the application of Khatija

Begum's case as she was working against a post whereas the petitioners are not working against posts. In support of his plea, Mr. Attar has relied

upon the Division Bench judgment of this court delivered in case titled State v. Anjuman Noor Bano reported in 2000 SLJ 150.

Perusal of the order passed in Writ Petition No. 993/91 reveals that it has been decided with the consent of the learned counsel for the parties

on admitted facts that those writ petitioners were working as Daily Wagers and a direction was issued to consider their cases for regularisation of

their services in terms of SRO 64 of 1994. The operative portion of the order reads as:

The fact of the continuance of the petitioners on daily wage basis has been admitted by the respondents. The writ petition is disposed of with the

consent of the learned counsel for the parties with a direction to the respondent to consider the cases of the petitioners for regularisation in terms of

SRO 64 of 1994 read with Govt. order No. 26-F of 1994, dated 31.3.1994 if the petitioners are found eligible otherwise.

So far as the application of the judgment delivered in Khatija Begum's case, to the present case, is concerned, such a plea was in issue in case

of Zona Bibi versus State of J&K and on consideration of the plea:, the Division Bench of this Court held as-

Learned counsel for the petitioner has relied upon the Division Bench judgment dated 29-11-1996 of this court delivered in State of J&K v.

Khatiji Begum to impress upon that similarly situated person's services were directed to be regularised. The facts of that case as recorded in the

course of the order are as under:

The petitioner is working since 1972, period of 24 years has lapsed. She is without regularisation. The State Govt. has policy for regularisation of

employees on completion of seven years period under SRO 64/94 why this benefit is not being extended to her after such a long time. The

department may have large number of posts which may have fallen vacant against which the petitioner could be regularised. It is not understandable

why case of the petitioner was not considered for regularisation against any of these posts. In the circumstances discussed by the learned Single

Judge, the order is patently correct and is upheld.

The court while appreciating the claim of Mst. Zona Bibi, further observed:

The case of petitioner is not covered under SRO 64/94 which contains rules for regularisation of the services of Daily Wagers who have

completed seven years uninterruptedly. The petitioner is not a Daily Wager and is being paid out of the contingent fund. She is not similarly situated

viz-a-viz Daily Wager. Therefore, the petitioner is not entitled to get the benefit of the aforesaid Division Bench judgment.

Another aspect of the case is that the petitioners services cannot be regularised unless there is a post. The petitioner is doing the work of cleaning

the school for an hour or so and not working for full working hours. It is settled law that no direction for regularisation of the services can be issued

unless there is existing post against which the petitioner has been working, as held by the Supreme Court in H.P v. Ashwani Kumar AIR 2997 S.

C 352 that-

No vested right is created in a temporary employment, directions cannot be given to regularise their services in the absence of any existing

vacancies nor directions be given to create posts by the State to non-existing establishment. The court would accept pragmatic approach in giving

direction. The directions would amount to creating of posts and continuing them in spite of non-availability of the work. We are of the considered

view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside.

In an identical case titled Anjum Noore Bano v. State reliance was placed on Khatija Begum's case for seeking regularisation under the

provisions of SRO 64/94. The writ petition was dismissed and the appellant preferred an appeal. The Division Bench while dismissing the appeal

observed as under:-

Learned counsel for the appellant has also relied upon the judgment delivered in SWP No. 502/92 titled Mst. Khatija Begum v. State and Ors.

upheld by the Letters Patent Bench also with a view to persuade us to record a finding in favour of the appellant for regularisation of her services.

The facts of that case are quite different and distinguishable. The petitioner in SWP No. 502/92 was working against a post which is not the

position in the present case. Therefore, the appellant cannot seek any support or analogy from the said judgment.

For the aforesaid reasons, the petitioners are not found entitled to the relief prayed for. The writ petition is accordingly, dismissed.