Mohd.Abdullah Mir vs State and others

Syed BashirudDin, J.—Admit.

Mr. M.A. Ganai, AAG, accepts post admission notice and submits that the objections which have been filed on affidavit at preadmission stage

may be treated as reply at this postadmission stage.

On consensus of the Ld. counsel for the parties, the case is taken up for final disposal.

Petitioner, Safai Karamchari in the Pr. School Haryan Tragam District Kupwara (now upgraded as Middle School as stated by the Ld. counsel

for petitioner) pleads that he is engaged and working as Sweeper since 1983 and is being paid Rs. 55/ per month. (AnnexureA) and prays that he

may be regularised and not replaced by any contingent paid Sweeper, besides soliciting for any other relief or direction which court may deem fit

and proper in the facts and circumstances of the case.

Respondent's stand, as disclosed in the reply, is that the petitioner is a part time worker engaged and paid out of the contingent funds of

Education Department, as such, has no right or claim for regularization.

Mr. S.R. Khawar has referred to Zoona Bibi v. State and others, 2001 SLJ 352 and Ghulam Hassan and others v. State and others, 2003(II)

SLJ 326.

In Zoona Bibi v. State and others, the Division Bench of this Court, after noting that Article 14 of the Constitution of India, conveys right to live

with dignity and honour and not sheer existence, directed the State Government for framing of appropriate scheme or formula in case of workers

like petitioner engaged as Sweepers in schools and till such scheme is framed or formula evoked, the petitioner in that case has been directed to be

paid at the rate of the minimum wages provided under provisions of Minimum Wages Act as applicable in the State of Jammu and Kashmir,

provided the petitioner is engaged for full time and not for part time.

In Ghulam Hassan and others case (supra), a Division Bench of this Court while reiterating the view of the earlier Division Bench [Zoona Bibi's

case (supra)] has on following the judgment, respectfully directed the ZEO to determine whether petitioners were working on full time basis and in

that case to pay him the minimum wages and if not working against regular post(s) or engaged as full time workers then the service not to be

regularised or paid minimum wages. To determine exact status and nature of duties rendered by the petitioner, the ZEO was to give hearing to the

petitioners and to determine if petitioners were working as full time Safaiwala and thereafter to follow the judgment.

In this case, the Ld. counsel for the respondents has taken similar rather the same stand. Having regard to the directions of the Division Bench in

Ghulam Hassan Mir and others (supra), CEO Kupwara, is directed to give hearing to the petitioner and determine if the petitioner is a full time or

part time Safaiwalla and in case the CEO comes to the conclusion that he is working as full time `Safai Karamchari' then in that case he shall be

paid the minimum wages as statutorily prescribed by the Minimum Wages Act as applicable to the State of Jammu and Kashmir.

In respect of other matters, operable applicable directions of Division Bench Judgment ""Ghulam Hassan Mir v. State of J&K (supra)"" be

followed. Disposed of. However, this direction shall not be treated as precedent and is deemed confined only to the facts and circumstances of the

case. Needless to say that if petitioner's conduct is good and performance satisfactory, he shall not be replaced or substituted by another

(contingent paid worker) like person.