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Judgment
V. K. Jhanji, ACJ
Letters Patent Appeal No. 241/19998 has been directed against order dated 6th April, 1998 passed in writ petition, SWP No. 2509/94, by the
learned Single Judge, dismissing the writ petition. Letters Patent Appeal No. 283/98 has been directed against order dated 19th August, 1998
passed by another learned Single Judge of this Court in writ petition, SWP No. 90/98, dismissing the writ petition. Letters Patent Appeal No.
283/98 has been directed against dated 19th August, 1998 passed by another learned Single Judge of this Court in writ petition, SWP No. 90/98,
dismissing the writ petition. Since the two appeals involve identical relevant facts and common questions of law and, in fact, the two appeals have
been clubbed together, therefore, we proceed to dispose of both the appeals by this common order. However, while adverting to the facts and the
observations made in the impugned judgements, we would refer only to the judgement out of which LPA No. 241/98 arises as, out of the total
number of fifty-nine appellants, fifty eight persons are appellants in the said LPA.
The appellants are contingent paid employees, working as safaiwallas in the Education Department. The case of the writ-petitioners namely, the
appellants, is that the respondents have been utilising their service in different offices and Schools for more than one decade and that they are
working for the whole day, but are being paid Rs. 25/- to Rs. 250/-per month. Their case further is that, on account of the nature of their job, they
are bound to perform their duties regularly in the Schools from morning till evening and, as such they are entitled to the minimum wages as are
being paid to other daily-rated workers. The learned Single Judge rejected the contention of the appellants with regard to payment of minimum
wages on the ground that the appellants do not render the services as are being discharged by the daily-wagers, who have to work for minimum
hours on a day, whereas the appellants are performing the duty for limited hours. The contention of the appellants, that similarly situated contingent
employees have been adjusted against class IV posts by the respondents, has also been rejected by the learned Single Judge on the ground that if
an illegality has been committed in case of others, the same cannot be allowed to be committed in the case of the appellants. The learned Single
Judge also observed that in case this contention of the appellants is accepted, then the State would have to be directed to create new posts in the
category of Class IV, not only equal to the number of appellants, but for all Safaiwallas, who discharge their duties for an hour or so in a day. The
appellants have come in appeal against the said judgement and order of the learned Single Judge.
The submission of the learned counsel for the appellants is that the learned Single Judge has failed to take into consideration the attendance
register duly signed by the Zonal Education Officer concerned, showing that the appellants have been working on full-time basis. It is contended
that the appellants are not only entitled to the minimum wages, but their services are to be regularised. On the other hand, learned counsel
appearing on behalf of the respondents, submitted that the appellants are contingent paid employees and are not working against regular posts, nor
they are engaged as full-time workers and, therefore, neither their services can be regularised nor they can be paid the minimum wages, as they are
working only for an hour or so in a day.
We have heard learned counsel for the parties and have carefully gone through the record of this case.
The admitted fact in this case is that the appellants have been engaged for keeping the offices and Schools clean, i.e., as Safaiwallas, and they
have been discharging their such duties over a period often years on meagre payments. It is beyond one's imagination that a person would be in a
position to make his both ends meet with the sort of negligible remunerations these persons are being paid. One should not take it as their fail
acconipli. On account of the socio-economic conditions of the general masses in the Country as a whole and, in particular the State of Jammu and
Kashmir, there is a great need not only for providing job security but also to remunerate such workers commensurate with having, atleast, two
meals so that people, like the appellants herein, are not exploited. It would be apt to refer herein to the observations made by their lordships of the
Supreme Court in K. C. Rajeevan v. State of Kerala (1991) 1 SCC 31 while dealing with similar almost a situation:
India is a developing country. It has a vast surplus labour market. Large scale unemployment offers a matching opportunity to the employer to
exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the
bargaining power in the other. The unorganised job seeker is left with no option but to accept employment on take-it-or-leave-it terms offered by
the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. Employers have betrayed an
increasing tendency to employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the
working classes under the benevolent legislations enacted from time to time. One such device adopted is to get the work done through contract
labour....
The case of the appellants herein is no less worse. They are also at the mercy of the concerned School or office heads and, in such
circumstances, it cannot be expected that they should be leaving these Office or School premises after doing their jobs in the morning. When a
cheap labour is available, there are least chances of the concerned Heads leaving them before the close of office hours. Even otherwise, since these
persons are not governed by any set of norms and are engaged at the choice of the heads of offices and Schools, they must always be feeling the
Damocles sword hanging on their heads that, in case they leave the premises, they might be substituted. Of course, that is the plea of the appellants
that their services are, in fact, being utilised full-time.
The case of contingent paid employees earlier came up before the Division Bench of this Court in Zoona Bibi v. State 2000 SLJ 352 and, his
lordship Hon'ble Mr. Justice H. K. Sema, (as His Lordship then was), speaking for the Bench, observed as under:
....It is unthinkable that in the present context of society, where prices of essential commodities are sky high, a person can survive by a meagre
income of Rs. 260/- per month. It would amount to exploitation. Sections 13 and 19 of the Directive Principles of State Policy enshrined in the
Constitution of Jammu and Kashmir, a adopted on 26th January, 1967, provide that there shall be socialistic pattern of society with a vow to
promote social order and welfare of the people of State and all sort of exploitation has been abolished. Keeping in view the Directive Principles of
the State Policy as enshrined in Sections 13 and 19 of the Constitution of Jammu and Kashmir, it is a high time that, to give a meaningful
interpretation to Sections 13 and 19 of the Constitution, the State should evolve a formula or a scheme so that the citizen like the appellant at hand,
who toil and labour for earning daily bread, must have two coarse meals a day. Keeping them a meagre contingent paid of Rs. 260/- per month,
whatever nature of the employment may be, in our view, is too meagre for them to survive. The appropriate Govt. must, therefore, seriously
consider the plight of these lowest strata of the people in the State and either to frame a scheme or any other formula so that they can survive with
honour and dignity.
The Division Bench further observed that:
....The right to life, as enshrined in Article 14 of the Constitution, has been interpreted by the Supreme Court as to live with dignity and honour and
not mere living...
Apparently, the State does not seem to have taken note of the aforesaid observations and concern of the Court. If that had been the case, then
some sort of formula or scheme would have come into existence. No such formula or scheme has been produced before the court by either of the
parties. We feel that the judgement might not have been brought to the notice of the concerned authorities. We, therefore, repeat the concern of
this Court expressed in the aforesaid judgement.
In the aforesaid case, the division Bench directed that till such time the scheme or a formula was framed by the appropriate Government, the
case of the appellant therein may be considered to be paid at the rate prescribed under the Minimum Wages Act as applicable in the State of
Jammu and Kashmir. The direction was, however, made subject to the condition that the engagement was full-time and not part-time. The Court
also observed as under:
...We are also of the view that till the Government formulate a scheme or any other formula, such contingent engagements, subject to the quantum
of work, may be made for the full job so that they can get the daily wages at the rate of Minimum Wages Act framed for the purpose.
We are of the view that the case of the appellants herein is squarely covered by the above decision and, therefore, they are entitled to the same
treatment as was given to the contingent paid employees in Zoona Bibi v. State (Supra).
However, at this stage, learned counsel appearing on behalf of the respondents, submitted that the directions given in Zoona Bibi v. State
(supra) was subject to the condition that the engagement of the contingent employees is full-time and not part-time and, since in this case the
appellants engagement was part-time, the said judgement would not apply to the case of the appellants.
However, we are of the view that this exercise can be undertaken by the Zonal Education Officer, Baramulla. In case the Zonal Education
Officer finds that the appellants have been working full-time, then the same direction, as was given in Zonna Bibi v. State (supra), would follow in
the case of the appellants. The Zonal Education Officer shall also give a hearing to the appellants so as to enable them to furnish proof of the fact
that they have been working as full time Safaiwallas. This exercise shall be completed by the Zonal Education Officer within three months from the
date of receipt of the certified copy of this judgement.
The appeals are, accordingly, disposed of in terms of the above.