Khem Raj vs State of J&K

Mr. Alok Aradhe, J. (Oral) - SWP No. 281/2007 & connected MPs:

In this writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, petitioner inter

alia seeks quashment of order dated 20.01.2006 by which the claim of the petitioner for regularisation has been rejected. The petitioner also seeks

a direction to the respondents to regularise tire services of the petitioner in terms of SRC No. 64 of 1994 and to accord him all consequential

benefits.

Facts giving rise to filing of this writ petition briefly stated are that the petitioner was initially engaged as daily wage employee on 01.12.1993.

Thereafter he was adjusted as daily wager at Chinjar village Woodlot for four months. It is not in dispute that the petitioner continued in service up

to 20.08.2001. The name of the petitioner was included in the list of daily wagers who were shown to be engaged with effect from 01.04.1994.

There-upon the petitioner as well as other daily wagers submitted a representation which was duly considered by the Divisional Forest Officer and

Divisional Forest Officer by an order dated 10.08.2001 after conducting an enquiry and after verification of the record of the petitioner held that

the petitioner has been engaged with effect from 01.12.1993. It is also noteworthy that salary to the petitioner was not paid for the period for

which he had performed his duties, thereupon the petitioner approached this Court by filing SWP No. 1009/2002, which was disposed of by a

Bench of this Court vide order dated 10.06.2002. The relevant extract of the order reads as under:

This writ petition is disposed of directing the respondents to consider the case of the petitioners for regularisation of their service under the

provisions of SRO 64 of 1994, as the petitioners have continuously and uninterruptedly worked as daily rated workers for a period over seven

years. This exercise shall be done by respondents within two months from the date a copy of this order is served upon the respondents by the

petitioners"".

Thus a categorical finding was recorded by this Court that the petitioner has rendered service as daily rated worker for a period of more than

seven years. Admittedly, the aforesaid order has attained finality. In compliance of the aforesaid order, an order dated 03.10.2002 was passed by

the Divisional Forest Officer, Social Forestry Division, Ramban by which the name of the petitioner was directed to be included in the list of daily

wagers who were engaged prior to 31.01 1994. Thereafter a Committee of five members was constituted for verification of date of engagement of

the petitioner. The aforesaid Committee by report dated 29.03.2004 held that the petitioner has been engaged prior to imposition of ban i.e.

31.01.1994 and the petitioner was held entitled to benefit of SRO 64 of 1994. However, the claim of the petitioner for regularisation has been

rejected vide impugned order dated 20.01.2006 inter alia on the ground that the name of the petitioner appears in the list of employees and the

aforesaid list has been tempered with. In the aforesaid factual background, the petitioner has approached this Court.

Learned counsel for the petitioner submitted that on representation being made by the petitioner, an order was passed by the Divisional Forest

Officer which contained a categorical finding in the order dated 10.08.2001 that the petitioner was engaged on 01.12.1993. It is further submitted

that vide order dated 10.06.2002, a Bench of this Court has recorded a categorical finding that the petitioner has served as daily rated worker for

a period of more than seven years and the aforesaid order has attained finality as the same was not challenged before the higher forum. It is further

submitted that pursuant to the order passed by this Court, an order dated 03.10.2002 was passed by which the name of the petitioner was

directed to be included in the list of daily rated workers engaged prior to 31.01.1994. It is also submitted that a five member Committee was

constituted to enquire into the claim of the petitioner which has found that the petitioner was engaged prior to 31.01.1994 and is entitled to benefit,

of SRO 64 of 1994. However in utter disregard of the aforesaid material available on record, the respondents have passed the impugned order

dated 20.01.2006 by which the claim of regularisation has been rejected. It is further submitted that the impugned order is patently arbitrary and

suffers from the manifest illegality as well as vice of non application of mind. On the other hand, learned counsel for respondents has supported the

order.

I have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the name of the petitioner

was included in the list of employees who were engaged subsequent to January, 1994. Thereupon the petitioner submitted a representation which

was allowed by Divisional Forest Officer after due enquiry vide order dated 10.08.2001 and it was found that the petitioner has been engaged

with effect from 01.12.1993. It is also pertinent to mention here that the finding recorded by a Bench of this court in SWP No. 1009/2002, vide

order dated 10.06.2002 that the petitioner has rendered seven years of service as daily rated worker uninterruptedly has attained finality. In

pursuance of the order dated 10.06.2002 passed by this Court, an order dated 03.10.2002 was passed in which the name of the petitioner was

directed to be included in the list of employees who were engaged prior to 31.01.1994 Thereafter a Committee of five officers was constituted to

verify the date of engagement of the petitioner. The Committee vide report dated 29.03.2004 has recorded a categorical finding that the petitioner

was engaged prior in December, 1993 and is entitled to benefit of SRO 64 of 1994. However, while passing the impugned order dated

20.01.2006, all the aforesaid material facts which are on record have not been considered by the respondents. The impugned order, therefore,

suffers from the vice of non application of mind, and is accordingly quashed.

Accordingly, the writ petition is disposed of with the direction to the Director, Social Forestry Department, Jammu to take a decision with

regard to regularisation of the petitioner, in terms of Rule 4 read with Rule 8 of SRO 64 of 1994, in the light of order dated 10.08.2001 passed by

Divisional Forest Officer, Social Forestry Division, Ramban, order dated 10.06.2002 passed by Bench of this Court in SWP No. 1009/2002,

order dated 03.10.2002 by DFO, Social Forestry Division, Ramban as well as the report dated 29.03.2004 submitted by a Committee

comprising of five members with regard to date of engagement, by a speaking order within a period of two months from the date of certified copy

of the order passed today. Needless to state that in case the petitioner is found entitled for regularisation, he shall be entitled to all consequential

benefits.

Accordingly, the petition is disposed of along with connected MP(s).

SWP No. 1812/2006

Mr. R.K.S. Thakur. Adv. for the petitioners.

Mr. Ahtsham H. Bhat, GA for the respondents.

In this writ petition, the petitioners inter alia seek quashment of order dated 26.04.2002 by which t he claims of the petitioners for regularisation

on the post in question have been rejected on the ground that the petitioners have been engaged after the cut-off date dated 31.01.1994. In order

to appreciate the petitioners’ grievances, few facts need mention which are stated infra.

Petitioner No. 1 was engaged as a daily rated worker in the month of December, 1993, whereas Petitioner No. 2 was engaged as such in the

month of March, 1994 whereas Petitioner No. 3 was engaged as a daily rated worker in the month of Feb. 1994. The claim of the petitioners for

regularisation of their services have been rejected by the impugned order on the ground that they have been engaged after the cut-off date i.e.

31.01.1994.

When the matter was taken up today for final hearing, learned counsel-for the petitioners while inviting the attention of this court to Paragraph

Nos. 13 and 14 of the decision rendered by Division Bench of this Court in the case of State of J&K & Ors. v. Mushtaq Ahmed Sohail &

Ors., 2012 (4) JKJ 1051 [HO] has submitted that the impugned order dated 26.04.2002 has been passed in contravention of the law laid

down by Division Bench of this Court and therefore the same cannot be sustained in the eye of law.

I have considered the submissions made by learned counsel for the parties and have perused the record. From perusal of the impugned order,

it is evident that the claim of the petitioners for regularisation has been rejected on the ground that the petitioners have been engaged as daily rated

workers after 31.01.1994. A Division Bench of this Court in the aforesaid case in Paragraph Nos. 13 and 14 has held as under:

As against Order No. 144-GAD of 2001, dated 02.02.2001, the daily wagers/work charged employees, who wore aggrieved, filed number

of writ petitions. Finally the judgment passed in those writ petitions were challenged by medium of bunch of LPAs with lead case Ashok Kumar

v. State of J&K & Ors., 2003 (4) JKJ 93[HC] which have been decided vide judgment dated 26.07.2002, reported in 2003 SLJ 475. In

the reported judgment, position vis-a-vis right of casual labour/daily wages/adhoc employees, has been taken note of and as many as 15 directions

were issued as contained in Para 45 of the judgment. It may not be out of place to mention here that the cut-off date has also been extended to

06.11.2001 in terms of Govt. Order No. 1285-GAD of 2001, dated 06.11.2001 which has been issued in pursuance to Cabinet Decision No.

135/11(B), dated 10.09.2001. The above referred judgment was challenged before the Hon’ble Apex Court by medium of Civil Appeal No.

9298 of 2003 and Civil Appeal No. 9299 of 2003. While disposing of Civil Appeal No. 9299 of 2003, the following order has been passed :-

Our attention has been drawn to the judgment of the Constitution Bench of this Court in Secretary, State of Karnataka &, Ors. v. Umadevi

& Ors. (supra). In our view, this judgment has no application in view of the fact that the respondents are employed by the State Government and

are claiming the benefit of a scheme formulated by the Notification dated 31st January, 1994, as modified by Notification dated 6th November,

2001. The High Court is perfectly justified in its judgment.

We are satisfied that the impugned judgment of the High Court needs no interference at our hands.

In the result, the Appeal is dismissed. No costs.

What would emerge from above is that the daily rated workers/work charged employees who were appointed after imposition of ban and

continued beyond ban period were given benefit of notification dated 6th November, 2001, which, in effect, would mean that the daily rated

workers/work charged employees engaged even after 01.04.1994 till 6th November, 2001, were also entitled to be regularised in terms of the

Jammu and Kashmir Daily Rated Workers Work-charged Employees (Regularisation) Rules, 1994.

In the aforesaid enunciation of law by Division Bench of this Court, it is evident that the impugned order has been passed in contravention of

law laid down by Division Bench of this Court, the same therefore cannot be sustained in the eye of law, which is accordingly quashed. The

respondents are directed to decide the claim of the petitioners for regularisation in the light of the law laid down by Division Bench of this Court

especially in the light of the finding recorded in Paragraph Nos. 13 and 14 of the aforesaid decision by a speaking order within a period of two

months from the date of receipt of certified copy of the order passed today. Needless to state that in case the petitioners are found fit for

regularisation of their services, they shall be entitled to all consequential benefits.

Accordingly, the petition is disposed of. Certified copy as per rule.