Posha Bano vs State of Jammu and Kashmir

Syed BashirudDin, J.—Petitioners pleaded claim is that they were engaged by Executive Engineer, Rural Engineering Wing, Budgam on

daily wage basis in 1991 and have not been paid wages. They filed Writ petitions (2979/94 and 2001/94) Same came to be disposed of with

direction to respondents to consider petitioners' cases for regularisation under rules. Despite conveyance of the court orders respondents have

failed to consider their cases. They were not paid wages even though the payment of wages was subject of correspondence within the department

vide Annexures P3, P4, P5 and P6. Petitioners pray for release of wages for the period they worked and to allow them to work till they are

absorbed permanently. The counsel further submits that petitioners are entitled to be regularised.

In reply (filed by Executive Engineer, Rural Engineering Wing Budgam respondent No. 4 on behalf of the respondents) the petition allegation of

the petitioners having been engaged as Daily Wagers is countered. It is specifically pleaded that the petitioners were engaged as Casual Labourers

for different spells with long intervening breaks only for a total period of 21/2 years between 11691 and 311095. The Casual labourers are not

covered by SRO 64 of 1994. They cannot be regularised. It is further stated that the two orders of this court in SWP No. 2001/94 and SWP No.

2979/94 (Annexure P1 and P2 of the petition) are covered by the judgment Union of India and others v. Daya Ram rendering both the orders not

enforceable. The Annexures P3 to P6 on record are general in nature and are not specific to the two petitions. The two respective court orders of

August 8,1994 and January 21, 1994 in SWP 2001/94 and SWP No. 2979/94 filed separately by the two petitioners have been passed without

admitting the petitions for hearing, when even other party (respondents) was not served. While disposing of the writ petitions it is noted in the

orders that it is not necessary to admit the writ petition to formal hearing for disposal of the case. Both these orders are hit by the following dictum

of law laid down in Civil Appeal 74 of 96 (Daya Ram's case 1997 SLJ 155) :

...that both the orders of the learned Single and of the Division Bench, give the respondent some relief ""without admitting the petition to hearing"". It

is difficult to see how enforceable orders directing the respondent to a writ petition to do certain things can be passed upon a proceeding which, in

express terms is stated not to have been admitted.......

The Apex court while allowing the Appeal in this case held whole order unenforceable as the petition was not admitted and could not be

considered on the file of the High Court.

Petitioners have not placed on record any proof to show that they have been engaged as Daily Rated Workers/Work charge employees. On the

other hand, the officer, who petitioners claim appointed them, had on affidavit in reply averred that the petitioners were engaged only as Casual

Labourers for different spells with long intervening periods in all for a period of 21/2 years. No rejoinder has been filed thereto and no proof is

available on record to disbelieve this counter/reply assertion of respondent No. 4. This being so, the Casual Labourers cannot be treated as Daily

Rated Workers/work charge employees in terms of SRO 64 of 1994, under which petitioners claim regularisation. Petitioners cannot claim and are

not conferred any right under any statutory rule to be engaged for specific period(s) with respondents much less till the gestation period for

regularisation as daily rated workers, matures.

In Gh. Ahmad Bhat and another v. State of J&K and others, 2001(1) J&K LR 357, a Division Bench, of which I was a member, held that the

Casual Labour/worker or seasonal labour/worker is not covered by Rules of SRO 64 of 1994, therefore, rights conferred thereunder, are not

available to such labour/worker. To quote from the judgment, it is observed :

...In no way SRO 64 contemplates regularisation of the services of casual workers or seasonal workers nor it could have done so because

regularisation in case of such workers is impossible in view of the nature of the work for which they are employed, viz., casual or seasonal. It is,

therefore, impossible by any process of interpretation to hold that the benefit of regularisation under that SRO 64 would be available to casual

workers/seasonal workers. We find no basis or foundation for the submission of the learned counsel for the appellants that there is no difference

between a casual labour/worker and a daily rated worker for the purpose of regularisation under SRO 64. We find that the distinction is clear and

obvious. We are, therefore, of the clear opinion that SRO 64 applies only to daily rated workers and work charge employees and not to casual

labour/workers or seasonal/labour workers which have been separately defined in clauses (b) and (h) of Rule 2 of SRO 64. No other

interpretation is possible.

In result, no case for admission is made out. Dismissed in limine.