AI Structured Summary
Not yet generated for this judgment
Judgment
Mohammad Yaqoob Mir, J.—Subject matter of all the above referred three appeals is the judgment dated 12.07.2006 rendered in SWP
Nos. 1642/2003,77/2003 and 508/2001.
Respondents in all the three appeals claim to have been engaged as casual/seasonal labourers so as to maintain watch and ward to the assets
worth millions of the Estates Department scattered in various parts of Srinagar. The position and the background in which the Respondents (writ
Petitioners) were engaged by the Government of Jammu and Kashmir Directorate of Estates Department, is vividly stated in a detailed
communication bearing No. DW-l/4750-Est dated 03.03.2001 addressed by Deputy Director Estates, Srinagar to the Director Estates, J & K,
which is available on the record of SWP No. 508/2001. In the said communication it is mentioned that the authority for engagement of specific
number of casual labourers/seasonal has been permitted vide various communications, more particularly vide No. 4466 dated 3.2.2001. It is also
qualified that the necessity and urgency of engaging such workers was quite inevitable and the said workers are performing their duties
satisfactorily.
Keeping in view the security scenario, the extraordinary job safeguarding of the Government properties including Ministers/VIP Bungalows was
entrusted to such workers. It is also clarified that it is said workers who perform the job of sweeping, cleaning and also discharge the job of
Farash. It is also detailed as to how the service of such workers are being utilised.
The referred communication giving details of the requirements and background for engaging the said workers was necessitated as an aftermath
of Govt. Order No. 144-GAD of 2001 dated 02.02.2001, which reads as under:
Government of Jammu and Kashmir
Subject: Disengagement of Daily Wagers appointed after imposition of ban. Reference: Cabinet Decision No. 15/1 dated 31-1.2001.
Government Order No: 144 ?GAD of 2001
Dated 2-2-2001
Whereas, under Government Order No. 26-F of 1994 dated 31-1-1994, the practice of engagement of employees on daily wage basis/daily
rated workers in the Government in any form was withdrawn retaining only the category of casual labourer/seasonal labour for specified
Development Departments. The existing delegation of powers for engagement of daily rated workers/work charged employees available to field
officers (if any) was also withdrawn; and
Whereas, the decision for withdrawal of powers for engagement of daily rated workers/work charged employees w.e.f. 1.2.1994 with any of the
subordinate offices/officers was reiterated in SRO 64 of 1994 dated 24.3.1994 also; and
Whereas, it has come to the notice of the Government that a number of daily rated workers have been appointed even after the imposition of ban
in the Departments in total disregard of the above orders and Rules by some of the officers who had no jurisdiction or authority to do so and,
therefore, such orders have been issued without jurisdiction are not legally valid; and Whereas, the Cabinet vide their decision No. 15/1 dated
31.1.2001, referred to above, noted with concerned that these appointments were unauthorised and ordered that all such daily rated workers
appointed after the ban if they have been performing duties, shall be paid their salary up to 31.1.2001 after which their services shall be terminated
as these appointments have been unauthorised.
Now, therefore, it is hereby ordered that all the daily rated workers who have been appointed after imposition of ban i.e. after 31.1.1994 and are
still performing their duties shall be paid their wages up to 31st of January, 2001 and thereafter their services shall be disengaged/discharged. By
order of the Government of Jammu and Kashmir
Sd/-
In the background of the said order, the Director Estates Department vide his communication No. Est/Acctts/415/95 dated 5.5.2003,
addressed to Principal Secretary to Govt. General Administration Department, has sought permission for continuation of 313 casual labourers of
Estates Department in relaxation of ban imposed vide Govt. Order No. 144-GAD of 2001 and for release of funds. In response thereto,
Government Vide Government order No. 81-Est of 2003 dated 23.4.2003 has accorded sanction for continuation of 313 casual labourers. The
said Govt. Order reads as under:
Government of Jammu and Kashmir
Subject: Continuation of 313 casual labourers of Estates Department in relaxation of ban imposed vide Government Order No. 144-GAD of 2001
dated 02.02.2001 and release of funds by Finance Department.
Reference: Cabinet Decision No. 59/5 dated 04.04.2003.
Government Order No:81-Est of 2003
Dated 23-02-2003
Sanction is accorded to the continuation of 313 casual labourers (as per Annexure A & B) of Estates Department in relaxation of ban imposed
vide Government Order No. 144-GAD of 2001 dated 02.02.2001 and release of funds by the Finance Department for payment of their wages
with effect from 9/2001.
By order of the Government of Jammu and Kashmir.
Sd/-
In the Government order No. 144-GAD of 2001 position of Govt. Order No. 26-F dated 31.1.1994 was reiterated, where-under practice of
engagement of employees on daily wage basis was withdrawn whereas only the category of casual/seasonal labourer for specified development
departments was retained.
Confronted with the repercussions of the said order vis-a-vis position of the Respondents (writ Petitioners), the Respondents filed three
separate writ petitions praying therein that the Appellants (Government) shall be commanded to frame rules in accordance with the directions
issued by the Hon'ble Apex Court in Piara Singh's case reported in AIR 1992 SC 2315 and also for issuance of command so as to direct the
Government not to apply order No. 144-GAD of 2001 to the case of the Respondents (writ Petitioners) and a restraint order from disengaging
them, further to regularise the services of the Respondents (writ Petitioners) and to allow them to continue in the service and to pay them the
arrears of wages of the work done and the work as shall be discharged by them in future.
Learned Writ Court while noticing the details of the communication as addressed by the Deputy Director Estates, Srinagar, has directed the
Appellants to formulate a scheme in order to regularise the services of the Respondents (writ Petitioners). Same exercise was required to be
completed within six months:
Aggrieved and dissatisfied with the said judgment, three separate appeals as referred to above have been filed.
Admitted position of the case is that the Respondents (writ Petitioners) by now have been rendering services continuously for last more than 17
years under the caption as ""casual labourers"" but in effect they have been rendering services round the clock. It is in that backdrop they claim
regularisation in service.
The question which arise for consideration is as to whether Government can be asked to formulate a scheme for regularisation of such persons
i.e. Respondents (writ Petitioners). Constitutional Bench judgment rendered in Secretary, State of Karnataka and Others Vs. Umadevi and
Others, has been referred to by the learned Counsel for the Appellants. In the said judgment the law laid down in various judgments including the
judgment State of Haryana v. Fiara Singh and Ors. AIR 1992 SCW 2315 has been considered. The conclusions as drawn in the said judgment
have been noticed, same are reproduced herein-below:
The normal rule, of course, is regular recruitment through the prescribed agency but the exigencies of administration may sometimes call for an ad
hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a
regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular
selection/appointment. If he gets selected, well and good, but if he does not, he .must give way to the regularly selected candidate. The
appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a
regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be
drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is
available or is not sponsored by the employment exchange, some appropriate method consisting the requirements of Article 16 should be followed.
In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto
should be considered fairly.
An unqualified person are to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation
provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the
reservation policy of the State.
On considering the same it has been held: ""with respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent
inconsistent with the conclusion in paragraph 45 therein. With great, respect, it appears to us that the last of the directions clearly runs contrary to
the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the
law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent."" It
shall be quite relevant to quote para 17 of the said judgment:
One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The
viability of the department or the instrumentality or of the project is also of equal concern for the State. The Stale works out the scheme taking into
consideration the financial implications and the economic aspects. Can the Court impose on the State a financial burden of this nature by insisting
on regularisation or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we
can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking.
The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not
happened, so the court ought not to impose a financial burden on the State by such directions, as such direction may turn counter-productive.
It is manifest that the Court cannot impose financial burden on the State by issuing directions for absorption of the Respondents (writ
Petitioners) but the important factor which is to be noticed is that the services of Respondents (writ Petitioners) are required by the Appellants
permanently. It is because of that, Respondents (writ Petitioners) have been working for last 17 years and the position of their need on regular
basis to work as such is not only highlighted by the Deputy Director Estates in communication dated 3.3.2001 but is also supported by the
communication of the Director Estates dated 5.5.2003 and Govt. Order No. 81-Est of 2003 as referred to hereinabove.
When the department requires the services Respondents (writ Petitioners) on regular basis, then their fate has to be taken care of by the
Government itself. It is true that the mode of recruitment has to be in accordance with C institutional scheme and the backdoor and irregular
appointments are to be stopped. In Piara Singh's case, it has been clearly ruled that the exigencies of administration may call for an ad hoc or
temporary appointment and when a person is engaged on ad hoc or temporary basis, he is not to be replaced by another ad hoc or temporary
employee, so has to be replaced by a regularly appointed employee which is necessary to avoid arbitrary action.
The prayer for continuation of the Respondents (writ Petitioners) in the aforesaid backdrop, has a weight so discontinuance of Respondents
(writ Petitioners), to be replaced by similarly situated persons, is impermissible. Therefore, the services of such workers are to be continued
subject to requirement.
The second question which is of prima importance is that the Appellants No. 3 and 4 have not filed any reply before the Writ Court so as to
show that they do not require the services of the Respondents (writ Petitioners). Even in the memo of appeal it is not mentioned anywhere that they
don't require the services of such casual/seasonal workers. It is also not clarified by the Appellant as to whether any sanctioned vacancy is
available nor is it shown that the Respondents (writ Petitioners) have been engaged as against any available vacancy.
It is trite that whenever there is any vacancy, same has to be marketed so that every person may have a right to compete. When there is no
vacancy, there is no question of advertising the same.
The engagement of Respondents (writ Petitioners) is stated to be an exigency of administration but same has, in view of the security scenario
prevalent in the Valley, given rise to their continuance for last 17 years. Even till date Appellants have not come up with any suggestion that they
don't require the services of the Respondents (writ Petitioners). Instead when Govt. Order No. 144-GAD of 2001 was issued and the power to
engage casual/seasonal workers only in specified development department was permitted, it is the Estates Department itself which has made strong
recommendation for permitting the Estates Department to allow them to continue services of Respondents (writ Petitioners). The same position
was later on acknowledged by the Government by allowing continuation of such casual workers and funds were also released. Same was done in
relaxation of ban imposed by Govt. Order No. 144-GAD of 2001.
The another important circumstance is that the Government had issued SRO 64 in the year 1994, in terms whereof the rules ""Jammu and
Kashmir Daily Rated Workers/Work Charged Employees (Regularisation), 1994 were framed and in terms thereof, daily rated workers and work
charged employees in accordance with time frame fixed therein, on completion of 7 years of regular service were to be regularised. In the said
Rules, the casual Labour/Worker and Seasonal labour/Worker has been defined as under:
Casual Labour/Worker means a person who is engaged through an appointment order or otherwise on daily rated basis for rendering casual
service to a Department.
Seasonal Labour/Worker means a person who is employed in any department for a defined season or period of a year.
The Respondents (writ Petitioners) under the caption ""Casual Labourers/Seasonal Workers"" are shown to have been engaged but in effect
they are neither casual labourers nor seasonal workers as they are not covered by the definition as referred above. Admittedly they are rendering
services on permanent basis, so they stand on a different footing. This position of their's is required to be examined with some sort of sympathy, the
way daily rated workers have been treated under SRO 64 of 1994.17 years of service rendered by the Respondents (writ Petitioners), that too in
tough security scenario has its special features. In the year 1996 persons who rendered service during Assembly elections in view of the security
scenario of the State were extended incentives which included Class 4th appointments. On the same analogy Respondents (writ Petitioners)
deserve special treatment.
In the aforesaid background, Government shall accord consideration to the formulation of scheme to the advantage of the Respondents (writ
Petitioners).
Appeal on aforesaid terms is disposed of.