Mohammad Ashraf Khan vs K. Rajinder And Anr

Ali Mohammad Magrey, J

The order passed on 15.05.2019 being relevant and is extracted hereunder:

“Petitioner claims to be engaged as Daily Rated Worker in February, 1996 and on the strength of having continued for more than seven years, had

sought regularization, which on denial formed a ground for him to file writ petition bearing SWP No. 1597/2001, which came to be disposed of by this

Court in terms of order/judgment passed on 09.11.2011. Operative portion of the judgment is reproduced as under;

“For the above stated reasons, this writ petition is disposed of and the respondents are directed to consider the claim of the petitioner No. 2 for

being brought on regular temporary establishment in accordance with Govt. orders and rules notified vide SRO 64 of 1994 within a period of three

months from the date copy of this order is served on them. While considering the said claim, respondents shall also have regard to the Govt. order No.

355-GAD of 1996 dated 30.04.1996.â€​

The respondents in compliance to the above said order/judgment, have on consideration, rejected the claim of the petitioner in the form of order No.

2124 of 2012 dated 07.06.2012.

Feeling aggrieved of above said order bearing No. 2124 of 2012 dated 07.06.2012, the petitioner challenged the same by virtue of writ petition bearing

SWP No. 654/2014 and this Court on consideration of the matter, in terms of order dated 17.05.2016, while allowing the writ petition, had quashed the

order dated 07.06.2012 and directed the respondents to consider petitioner‘s claim for regularization within a period of three months from the date

copy of the order is served upon them.

The respondents having failed to comply with the aforesaid direction dated 17.05.2016, formed a ground for the petitioner to file the instant contempt

petition.

On notice, the respondents have filed first statement of facts on 09.08.2017, perusal whereof reveals that the respondents had reiterated the stand

which they had reflected in the order dated 07.06.2012, impugned in the writ petition (SWP No. 654/2014) and this Court in terms of order dated

09.10.2017, while noticing the statement of facts already filed, had given the respondents further time for submitting compliance. Order dated

09.10.2017, being relevant, is taken note of;

“As is apparent from the perusal of the order dated 18.09.2017, the requisite steps for compliance of judgment passed by this Court have since

been taken by the respondents who have recommended the case of the petitioner for regularization to the Administrative Department. However,

Commissioner/Secretary Home has not been arrayed as party respondent. Accordingly, Mr R.K. Goyal, Principal Secretary (Home) Department is

arrayed as party respondent No. 3. Notice.

Mr B.A. Dar, learned Sr AAG, accepts notice on behalf of newly added respondent. Registry to update the cause title of Contempt Petition. Mr Dar,

learned Sr AAG, shall file the latest status report, indicating the steps taken by respondent No. 3 pursuant to the recommendations made by the

respondent No. 1 & 2. It is further provided that in case the approval has already been granted by respondent No. 3 for regularization of the petitioner

necessary orders shall be passed strictly in terms of judgment. Compliance report be filed by next date.

List this matter on 14th November, 2017.â€​

The statement of fact filed on 13.09.2018, reveals that the claim of the petitioner has been rejected in the form of Government order No. 2890 of 2018

dated 14.07.2018, perusal whereof, reveals that the respondents have changed their stand, which they had taken while considering the case of the

petitioner in tune with the directions passed in writ petition (SWP No. 1597/2001) on 09.11.2011, in the shape of order dated 07.06.2012, impugned in

writ petition bearing SWP No. 654/2014 and quashed by this Court in terms of judgment dated 17.05.2016. Needless to mention that in the order dated

07.06.2012, which stands quashed by this Court, only stand taken with reference to rejecting the claim of the petitioner was that he does not fulfill the

requirements of SRO 64 of 1994 read with Government order No. 26-F of 1994 dated 31.01.1994 and Government order No. 355-GAD of 1996 dated

30.04.1996.

The Court on consideration had quashed the order dated 07.06.2012 in terms of the judgment dated 17.05.2016, by holding the petitioner entitled for

regularization with the application of SRO 64 of 1994, notwithstanding the engagement being after cut of date. Paragraphs 3, 4 and 5 of the judgment

being relevant are taken note of;

“3. According to the order impugned since the petitioner was not engaged prior to 31st of March, 1994, hence he was held not eligible for

regularization.

The issue as to whether Daily Rated Workers who were engaged after the cut of date i.e. 31st of March, 1994 are eligible for regularization in

terms of SRO 64 of 1994 are eligible for regularization in terms of SRO 64 of 1994, came to be decided by a Division Bench of this Court in LPA No.

33/2010 State of J&K 7 ors. Vs Mushtaq Ahmad Sohail and ors. reported in SLJ 2013 (1) 73, Para 14 of which is reproduced as under;

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

continued beyond that period were given benefit of notification dated 6th of 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 regularized in terms of Jammu and

Kashmir Daily Rated Workers/Work-Charged Employees (Regularization Rules, 1994.â€​

From the above, it is clear that notwithstanding the fact that the petitioner had been engaged as Daily Rated Worker beyond the cut of date i.e. 31st

of March, 1994, yet the petitioner having completed seven years of service as a Daily Wages was entitled for regularization in terms of the aforesaid

SRO as also the judgment (supra).†Prima facie Court is satisfied with the non-compliance of the final order/ judgment, therefore, before framing

rule, it shall be appropriate to ask the respondent-Commissioner/Secretary, Home Department and Director General of Police to submit compliance in

the manner as reflected in the judgment dated 17.05.2016.

Mr Dar, learned Sr AAG submits that both Respondent No. 1 and 3 are not in position.

Be that as it may, let the order be brought to the notice of the present incumbents who shall take steps for implementation of the judgment and if it

noticed that incumbents in position have failed to implement the same, they will be arrayed as party-respondents.â€​

When asked, Mr. B.A.Dar, learned Sr. AAG submits that the case of the petitioner stands considered in tune with the judgment rendered by the court

on 17.05.2016 in SWP No.654/2014 in terms whereof this court while allowing the writ petition, had quashed the order No.2124 of 2012 dated

7.6.2012 with the direction to respondents to consider the petitioner’s claim for regularization within three months from the date copy of order is

served on the respondents. It was further directed that the regularization will have effect from the date the petitioner completed seven years as Daily

Rated Workers.

In terms of order passed on 15.5.2019 Mr. B.A.Dar, learned Sr. AAG was asked to inform the present incumbents in position about the pendency of

the contempt petition and the order of which the contempt has arisen and to provide copy of order dated 15.05.2019 so as to facilitate decision in the

matter. However, Mr. Dar, learned Sr. AAG submits that he has already brought the order passed by this court, in the notice of the present

incumbents who have instructed him to seek time to file their response.

In order to ensure proper hearing to the present incumbents and their response, it has become necessary to array them as party respondent in the

instant contempt petition, therefore, Mr. Shalin Kabra, Commissioner Secretary, Home Department Civil Secretariat, J&K, Srinagar and Mr. Dilbagh

Singh, Director General of Police, J&K, Srinagar, are arrayed as party respondents. They shall figure as respondents 4 and 5 in the array of

respondents.

Notice waived by Mr. B.A.Dar, Sr. AAG. he shall file response within four weeks. List on 28.08.2019.

Copy of the order be provided to Mr. B.A.DAR, Sr. AAG for compliance.