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Judgment
This bunch of writ petitions raises analogous and similar submissions, averments and grounds. These involve the same subject-matter, as such,
the pleadings summed up therein need not be taken up in ab seriatim, so as to avoid prolixity and the controversy percolating therefrom having
akinness, is put at rest by this common judgement.
Petitioners, in all the writ petitions on hand, had worked as contingent/ local fund paid employees in the Education Department. They in quest of
remedying their gravamen, preferred a writ petition, being SWP no.1857/1998, that culminated in a judgement dated 23rd September 1998. The
respondent department was directed to take a decision concerning the regularisation of the services of the petitioners within a period of three
months.
In order to bring the petitioners in the regular establishment, the Government took a decision to absorb the contingent paid/local fund paid
employees/workers in the respondent department, and issued SRO 308 dated 16th October 2008, by which the Jammu and Kashmir
(Subordinate) Service Recruitment Rules (for brevity ""the Rules of 2008""), were notified. Schedule-II A to the Rules of 2008 envisions the method
of recruitment for filling up the various posts. The posts of Class-IV, viz. Orderlies / Chowkidars / Peons etcetera are to be filled up 50% by direct
recruitment and 50% by selection from Middle Pass Contingent, Local Fund Paid Employees by a Committee duly constituted for the purpose by
the concerned Director, School Education.
A Committee, pursuant to the guidelines laid down in the Rules of 2008, by Order no.35-DSEK of 2009 dated 4th April 2009, was constituted
for verification of the service particulars of all the contingent/local fund paid employees, working in the various offices/institutions of the Education
Department, Kashmir Division. The Committee was asked to furnish a comprehensive/detailed report with the specific recommendations to the
Director, School Education, Kashmir, at an earliest. The Committee had several sittings with the concerned Chief Education Officers. During the
course of verification it was found that a number of contingent paid workers had increased since 2009. The Director, School Education, Kashmir,
vide communication dated 6th April 2010, intimated the Secretary to Government, Education Department, that 3283 contingent paid/local fund
paid employees had qualified for the regularisation and most of them had crossed the prescribed age limit for entering into the government service
and that a number of writ petitions were pending relating to regularisation of services. The Director, School Education, Kashmir, also sought age
relaxation in respect of some of the contingent paid employees.
The Commissioner/Secretary to Government, School Education Department vide communication no.Edu-I/227/2009 dated 24th August 2011
asked the Directors, School Education, Kashmir and Jammu, to take immediate action for filling up Class-IV vacancies in the Education
Department in pursuance of the Rules of 2008. The Directors, School Education, were also asked to advertise 50% of the Class-IV vacancies
district-wise and remaining 50% of the vacancies be utilized for regularisation of the contingent/local fund paid employees, who possess the
requisite educational qualification and were 37 years of age and had not crossed 40 years of age in respect of the reserved category as on
01.01.2011. The selection of contingent/local fund paid employees was asked to be made by the Committee after scrutinization of the documents
of the eligible candidates on the basis of the seniority. This became the bone of contention for many of the contingent paid employees to knock at
doors of this Court with the writ petitions, with lead writ petition, bearing SWP no.1921/2011, titled Mohammad Ramzan Lone and others v.
State of J&K and others. The said writ petitions were disposed of by a Bench of this Court vide judgement dated 11th July 2012, quashing
paragraph 2(I) of the aforesaid communication bearing no. Edu- I/227/2009 dated 24th August 2010, issued by the Commissioner/ Secretary to
Government, School Education Department. The respondents were directed to consider the claim of the writ petitioners along with eligible
candidates for their recruitment/absorption in the Government service in accordance with the mandate contained in the Rules notified vide SRO
308 of 2008, by considering their age at the time of their initial engagement/ recruitment. Respondents were also directed to consider and take a
decision in the matter preferably within a period of 12 weeks.
In compliance to the judgement dated 11th July 2012, the Director, School Education, Kashmir, vide Notification no.DSEK/NT/CPW-Lit/22/
2011/ 1248-60 dated 4th September 2012, issued the seniority list of the contingent / local fund paid workers and invited the objections from the
concerned to be submitted before the respective Chief Education Officers with the documentary proof. The Director, School Education, Kashmir,
by communication bearing no.DSEK/NT/CW/42/2013(All)2469-82 dated 2nd February 2013, directed all the Chief Education Officers to
update the seniority list of the qualified contingent/local fund paid workers after ensuring due consideration of the dropouts, if any, to give
reasonable opportunity to all of them to prove their eligibility for their regularisation and their certificates be got verified from the issuing authority.
After a full-dress process, the regularisation orders were issued in favour of the petitioners. As there had been, as contended by petitioners, delay
in the regularisation/absorption of the petitioners on the Class-IV posts, the petitioners through the President, J&K Contingent Paid Employees
Association, represented to the respondent no.2, to give the benefit of the regularisation to their services, at least, from the date SRO 308 of 2008
was issued viz. 16th October 2008. The said representation, according to the petitioners, has not seen any consideration from the respondent
no.2, forcing them to knock at the doors of this Court with the writ petitions on hand, in unison, seeking regularisation / absorption of their services
against the Class-IV posts, at least, with effect from 16th October 2008, when SRO 308 of 2008 was issued, with all consequential service
benefits on the analogy of their counterparts of District Anantnag, who were regularised in service in terms of the order no.1037 of 1992 dated 7th
January 1992.
Reply has been filed by the respondents in all the writ petitions. The respondents do not dispute the factual background of the case. Their only
assertion is that since the rules were framed by virtue of SRO 308 of 2008 dated 16th October 2008 and the respondent department initiated the
process for absorption of the contingent paid workers as Class-IV employees in the Department in due course of time, however, for finalisation it
took some time because of the fact that the Committee constituted was to verify the service particulars of each District, which delay is not
deliberate or intentional.
The petitioners filed the Rejoinder Affidavit, in which they aver that prior to their regularisation, they had worked as the contingent paid local
fund employees for decades together and by regularising them at the fag end of their service they would not be able to reap the fruits of such
regularisation inasmuch as the petitioners would not qualify for pensionary benefits.
I have heard learned counsel for the parties and considered the matter.
Learned counsel for the petitioners, while advancing arguments, has invited attention of this Court to a judgement dated 28th June 2011 in
SWP no.1309/1998, passed by the Full Bench of this Court, directing respondents to allow the writ petitioners appointed against the migrant
vacancies to continue till the appropriate scheme for their regularisation was formulated or till concerned migrant employees returned to their duties
in the Kashmir Valley, to contend that subsequent to passing of the aforesaid judgement dated 28th June 2011, a Government order bearing
no.1304-GAD of 2001 dated 9th November 2001 was issued, whereby a Committee was constituted to consider the regularisation of the
candidates appointed from time to time on ad hoc basis against the migrant vacancies in accordance with the principles outlined in the aforesaid
judgement dated 28th June 2001. The Government order no.1304-GAD of 2001 dated 9th November 2001 was substituted by the Government
Order no.610-GAD of 2006 dated 16th May 2006, whereby another Committee was constituted for regularisation of the migrant substitutes,
where the posts were vacant. In terms of the Government order no.579-GAD of 2009 dated 17th July 2009, besides, creating 197 posts of
Teachers and 12 Class-IV employees of erstwhile Falah-i-Aam Trust and utilization of left out 25 posts of Teachers out of 538 posts of Teacher
created earlier as also utilization of 26 posts of Class-V posts available in the Department, sanction was also accorded to regularisation of 222
Teachers and 28 Class-IV employees of erstwhile Falah-i-Aam Trust from the date of their actual joining in the Education Department after
banning of the Falah-i-Aam Trust notionally. The learned counsel''s next contention is that by virtue of the Government order no.1061-GAD of
2014 dated 16.10.2014, the past service rendered by the migrant substitutes prior to their regularisation shall be counted for the purpose of the
pensionary benefits. In furtherance to this submission, the learned counsel for the petitioners avers that the petitioners are also entitled to the same
treatment as has been bestowed unto the migrant substitutes.
The petitioners, in the writ petitions on hand, exhort retrospective effect to their regularisation/absorption, principally from the date, SRO 308
of 2008 was issued, viz. 16th October 2008, with all consequential service benefits. The petitioners'' chief grouse is as about minimal term of office
due to delay in regularisation of their services incapacitating them for qualifying-service, resultantly turning them ineligible for pension and other
retiral benefits.
J&K School Education (Subordinate) Service Recruitment Rules, 2008, have been notified vide SRO 308 dated 16th October 2008.
Amongst other things, Schedule-II A, attached to the Rules of 2008, provides that Class- IV posts, viz. Orderlies/Peons/ Chowkidars / Book
Keepers / Lab. Bearers / Lib. Bearers / Attendants / Mallies / Gardeners / Ground Coolies / Waterman / Chainmen / Farmhands / Animal
Keepers / Gasman / Farashes / Packers / Conductors and Safaiwalas, are to be filled up 50% by direct recruitment and 50% by selection from
Middle pass contingent/ local fund employees by a Committee duly constituted for the purpose by the concerned Director School Education. The
scheme of the recruitment in terms of SRO 308 qua Class-IV in the School Education Department, procreated hopefulness and optimism in the
contingent/local fund employees working in the School Education Department and they exhorted remedying of their gravamen. With a view to give
effect to the aforesaid beneficial provisions incorporated in the Service Rules of the School Education for welfare of the contingent paid/local fund
employees, Director School Education, Kashmir, vide Order no.35- DSEK of 2009 dated 4th April 2009, constituted a Committee of the officers
of the School Education Department, to verify the service particulars of all the contingent/local fund paid employees, working in various
offices/institutions of the Education Department.
Perusal of the record on file reveals that the process for regularisation of the contingent paid/local fund employees was not processed and
squared off in a hit-or-miss method, but their credentials were meticulously scrutinized. Even during scrutinization, it was found that some of the
workers did not possess the genuine credentials and therefore, the cases of such workers were put on the backburner till they could establish the
veracity of their credentials. The seniority lists of the workers were issued and the objections thereto were invited. The objections were considered
and the seniority list was got authenticated through respective Zonal Education Officers in the capacity of Drawing and Disbursing Officers of their
respective workers and in the capacity of Nodal Officers at the zonal level for verification of the credentials of such workers. As a consequence
whereof, the contingent/local fund paid workers, fulfilling all prerequisite and fundamental eligibilities, were regularised/absorbed as Class-IV in the
respondent department. Be that as it may, the respondent department did not induce gratuitous deferral in meting out and squaring off petitioners''
case for regularisation. Nevertheless, it as well cannot be left unattentive that the delay in regularisation of the petitioners'' service has lessened their
tenure of service and put them in melancholy. However, it is germane to point out here that otherwise also the service rendered by the petitioners
as the contingent paid workers is also to be counted for the pension together with the service rendered or to be rendered by the petitioners in
regular establishment. Article 177-A of the J&K Civil Service Regulations, 1956, explicitly enjoins and stipulates that a work charge
employee/whole time contingent paid staff including the daily rated workers, who is/are brought on regular establishment and retires / retire without
having been declared substantive or quasi-permanent, shall be allowed to count 50%, of his/her work charged contingent paid service as qualifying
for the pension together with the period of service rendered in regular establishment. Having said so, the trepidations nursed by the petitioners in
the writ petitions on hand, are put to rest. But, simultaneously, respondents ought to, at best, vouchsafe the benefit of SRO 308 of 2008, from the
date of its coming into being.
Based on the discussion and the reasons discoursed herein supra, the writ petitions are disposed of with a direction to the respondents to
consider the case of the petitioners for giving them the benefit of regularisation/ absorption against the Class-IV posts in terms of and from the date
when SRO 308 of 2008, was issued, with all the consequential benefits attached thereto as has been done in respect of the contingent paid
workers of District Anantnag, who were regularised in service in terms of the Order no.1037 of 1992 dated 7th January 1992. Disposed of.