Shabir Ahmad Parray and Others vs State and Others

Nisar Ahmad Kakru, J.—Essentially, it is failure of the respondents to concede to the claim of the petitioners for regularization, which

resulted in institution of SWP 267/06, decided on 07-03-2006, requiring the former to consider the claim of the petitioners in terms of SRO 64 of

1994, consequently, constitution of a Committee by the respondents for examination of the petitioners' claim. Testing the same by the standards

prescribed by SRO 64, it could not evoke even a murmur of acceptability by the Committee which was followed by yet another application of

mind on the part of the Respondent-Director, net result being, rejection of the claim on two fold grounds, one that the petitioners were not daily

rated workers and the other that they were not in continuous service which stance is alleged to be violative of the judgment of the writ Court

referred above, on the ground that the said objections were over ruled by the writ Court. If that be so, the second phase of litigation by medium of

the writ petition on hand is bound to entail dismissal, for the simple reason that if a finding stands returned by the writ Court, declaring the status of

the petitioners as daily rated workers within the ambit of SRO 64 and their entitlement to regularization, then there is no question to maintain this

writ petition but fact remains that no such declaration is mandated by judgment supra and its such import can be appreciated just at a glance which

is reproduced in full for facility of reference:

By medium of this writ petition, petitioners have sought writ of mandamus, commanding the respondents to regularize the services of the petitioners

in terms of mandate of SRO 64 of 1994, on the grounds taken in the writ petition.

Petitioners, in the writ petition, have pleaded that they came to be engaged as daily-rated workers on 01-03-1987, 01-08-1986, 22-06-1985,

01-05-1985. 21-06-1985, 30-06-1985, 01-10-1986, 01-08-1986, 01-03-1987 and 01-03-1987 respectively and are working continuously as

daily-rated workers for the last seven years and are entitled to regularization in terms of rules contained in SRO 64 of 1994- Petitioners have

annexed Photostat copies of documents indicating that they were working as daily-wagers. Annexure-A to the writ petition discloses the

particulars of daily-rated workers, who have completed seven years of service as on 31st March, 1995, Petitioners are also figuring in the said

annexure.

Respondents have filed reply and have stated that petitioners were not working as daily-rated workers but were/are working as casual/seasonal

labourers and petitioners 3 to 9 have refused to receive the wages from November, 2005 to February, 2006.

Petitioners have filed rejoinder affidavit and have specifically pleaded that only petitioner Nos. 5 and 6 have been paid wages till February, 2006

and other petitioners have been paid wages upto September, 2005.

This case came up for consideration and respondents were directed to file the affidavits of the officials, who are signatories to annexure-A.

Respondents have neither denied the contents contained in annexure-A - to the writ petition nor they have filed affidavits of those officials who are

signatories to annexure-A. Respondents have also failed to produce record. Annexure-A corroborates para-2 of the writ petition.

It is also apt to mention herein that respondents have not specifically denied para-2 of the writ petition. It is profitable to reproduce para-4 of the

reply herein:

Para 4 is vehemently denied to the extent that the petitioners have become entitled to regularization under SRO 64 with effect from 31-03-

1995. The fact is that the petitioners does not fulfill the terms and conditions as laid down under SRO 64 as they are merely seasonal/casual

labourers and are working in the department as and when required for some specific period and nursery operations. It is submitted that as soon as

nursery operations are over they are disengaged as per rules governing the service engagement of casual labourers, it is further submitted that the

petitioners have not worked continuously in the department for seven years which is pro-requisite condition for regularization under SRO 64/94, as

such, the writ petition is liable to be dismissed on this count alone. The attendance statement of petitioners with effect from 1990 upto February,

2006 is annexed herewith and marked as annexure R and R1.

In one breath respondents have stated that petitioners cannot seek benefit in terms of SRO 61 of 1994 for the reasons they have not worked as

daily-rated workers and in second breath they have stated that petitioners have not worked continuously in the department for seven years.

In the given circumstances, I deem it proper to grant this writ petition and accordingly the respondents are directed to consider the case of the

petitioners for regularization in terms of SRO 64 of 1994 with a further direction to respondents to release the legitimate earned wages in favour of

the petitioners. Consideration order be passed within three months from the date the copy of this order is served upon the respondents.

Writ petition is accordingly disposed of along with all connected CMP(s).

What has flown to the petitioners from the judgment is spelt out in last but two paras of the judgment wherein the writ Court has identified the

rival contentions of the parties by reproduction of a portion of the reply filed by the respondents, depicting that their objection to the grant of writ

was based on the averment that the petitioners did not fall within the scope of daily rated workers because they have not worked continuously in

the department for seven years. It was in that background that a direction came to be passed commanding the respondents to consider the case of

the petitioners for regularization on the touch stone of SRO 64 of 1994 and nothing more. That being the purport of the judgment, the contention of

the learned Counsel for the petitioners, suggesting that their status as daily rated workers and entitlement to regularization stands granted is bereft

of reason and logic.

Having turned down the contention deliberated upon in the preceding para, the question that arises now is, whether petitioners do have a

continuous service of seven years to their credit so as to entitle them to regularization in terms of SRO aforementioned. To answer the question in

the affirmative, reliance is placed by learned Counsel for the petitioners on annexure 'A' to the writ petition to canvass that the petitioners have

been in continuous service of seven years. Rebutting the claim, the respondents have filed copies of the Muster Sheets of the Seasonal Labourers,

relating to the period ranging between 1991 to 2001, perusal whereof reveals that continuation of the petitioners has witnessed breaks by months,

apparently exceeding two days. What has prompted me to make a mention of spells of ""two days"", relevant it is to refer to the definition (e) of the

Jammu and Kashmir Daily Rated Workers/Work Charged Employees (Regularization) Rules, 1994 which is reproduced hereunder:

Definitions:....

e. ""Continuous working"" means continuous working of daily rated worker or work charged Employee after his first engagement regardless of the

fact whether wages have been paid for the Gazetted holidays/Sundays:

provided that shall be deemed to be continuous if not more than one break upto two days has been given in his continuous working in a period of

90 calendar days.

On a plain reading of the definition, it is manifestly clear that a break in 'continuous working' upto two days in a period of ninety calendar days

cannot be reckoned against a worker to disentitle him to regularization but the difficulty for the petitioners is that break in their case is by months

and weeks together in their continuous working in the spells of 90 calendar days, therefore, disentitled to regularization at this stage.

Viewed thus, writ petition fails. It is dismissed along with CMPs. Interim direction, if any, shall stand vacated.