State of Jammu & Kashmir and Others vs Jagdev Singh

In this case respondent was put on notice on 25.9.2001 and he is represented by Mr. P.S. Chandel.

We have heard Mr. Baldev Singh, Govt. Advocate , for appellants as well as Mr. P.S. Chandel Advocate, for respondent.

This appeal is directed against the judgment and order dated 31.5.2001 passed by the learned single Judge in SWP No. 1776/98, allowing writ

petition with following directions:

That an Government employee can also fall within the definition of work-man also.

that even in the case of employee who is working with a contractor under the Contract Labour (Regulations and Abolition) Act, 1970, direction

can be given to the Principal Employer to bring the employee on its Rolls;

even in case of seasonal employee, direction for regularisation of services can be given under circumstances noticed above;

an employee who is engaged under a scheme can be adjusted in another suitable work if it is possible to do so. However, no vested right exit in

that person;

that an employee employed in terms of SRO 64 of 1994 is entitled to regularisation on completion of period of seven years of service. In case

this tenure is yet to be completed then he should be allowed to complete this terms of seven years of service;

that an employee working under Courts direction acquires no right to claim regularisation;

If similarly situated employee services are regularized then direction can be given for regularising services of other also;

That an employee who have been appointed dehors the rule or does not possess qualifications cannot claim regularisation.

The writ petitioner/respondent was appointed in a leave arrangement by an order dated 3.10.1994. Order dated 3.10.1994 is extracted below:

OFFICE OF THE MANAGER HATCHERY POULTRY PROJECT UDHAMPUR

ORDER

Sh. Om Parkash Attendent was on leave for one month sanction vide this office order No. Est-6/521-22 dt. 6.9.1994 w.e.f. 11.9.94 to 10.10.94,

further one month earned leave more is hereby extended with effect from 11.10.1994, in favour of Sh. Om Prakash Attendent as requested by him

vide his application dated 3.10.1994 to continue the treatment of his ailing son.

Sh. Jagdev Singh S/o Sh. Jaswant Singh R/o Udhampur in hereby appointed as attendent for one month on leave arrangement with effect from

11.10.94 to 9.10.94, in place of Sh. Om Prakash Attendent.

Sd/-

(Dr. V.P. Sharma)

The petitioner/respondent on his own admission in sub-para (iii) of para 3 that he joined the post w.e.f 15.11.94. He filed the writ petition in

1998, praying the following reliefs:

In view of the submissions made hereinabove and those to be urged at the time of hearing of this petition, it is therefore, most respectfully prayed

that this Hon'ble Court may be pleased enough to issue writ whereby restraining the respondents from terminating the engagement of the petitioner

in the department of the respondents illegally and without and lawful excuse.

For further issuance of an appropriate writ, order or direction in the nature of mandamus whereby directing the respondents to extend the benefit

of SKO 64/ 94 dated 24.3.1994 as soon as the petitioner completes seven years services in the capacity as Daily wager/work charge in the

department of respondents.

Any other writ, order or direction befitting the occasion may also be allowed in favour of the petitioner and against the respondents.

The prayer made by the writ petitioner is two-folds. Firstly restraining the respondents from terminating the services of the petitioner in the

department and secondly the benefit of SRO 64 of 1994 should be extended to him soon after he completes seven years of service. Both the

prayers are not tenable in the facts and circumstances of the order of appointment. The appointment of the writ petitioner as extracted above

would show that the engagement was purely temporarily and against the leave vacancy. A leave vacancy is not a regular vacancy and cannot be

ordered to be regularised by issuing a writ of mandamus. A leave vacancy is purely of temporary nature of vacancy. Leave vacancy automatically

terminates when the substantive incumbent rejoins the post. In such circumstances no writ of mandamus can be issued for regularisation.

The second prayer is that extension of benefit of SRO 64 of 1994. SRO 64, prescribed the procedure of regularising the employee, Clause 4 of

the SRO 64 is relevant. It reads as under:

Eligibility for regularisation -- A daily rated worker/work charged employee shall be eligible for regularization on fulfillment of the following

conditions, namely:

(a) That he is a permanent resident of the State;

(b) that on the date of his initial appointment his age was with in the minimum and maximum age limit as prescribed for appointment in Government

services;

(c) that he possessed the prescribed Academic and/or technical qualification for the post against which he is required to be regularised:

Provided that in case of eligible Daily Rated workers to be regularised against class IV posts, relaxation of qualification and/or age shall be

considered on merits by the concerned Administrative Department.

(d) that he is not retiree from any State or Central Government service or any Local Body Public Sector Undertaking or Autonomous Body in or

outside the State;

(e) that his work and conduct has remained satisfactory during the period he worked as Daily Rated Worker or Work Charged Employee and no

disciplinary proceeding are pending against him, and

(f) that he has completed seven years continuous period of working as Daily Rated Worker or Work Charged employee or partly as Daily Rated

worker and partly as work charged Employee. (Underline is ours).

Sub-clause (f) of Clause 4 stipulates that a Daily Rated Worker or Work Charged Employees must have completed seven years of continuous

services. The petitioner was engaged against a leave vacancy. He was not engaged as a Daily Rated Worker or Work Charged Employee. This

apart he has not completed seven years continuous service either as Daily Rated Worker or Work Charged Employee, When the writ petition was

disposed of on 31.5.2001. By issuing a writ of mandamus or any other writ, this court cannot enlarge the scope of the SRO because SRO is

intended to achieve the particular purpose and that has been indicated in the SRO itself.

Mr. P.S. Chandel Advocate for respondent has, however, invited our attention to the orders dated 22.11.1994 and 13.4.1995 to show that the

writ petitioner thereafter has been appointed w.e.f 15.11.1994 for one month and w.e.f 10.4.1995 for one month. These orders cannot come to

the rescue of the writ petitioner in as much as the order was not in continuous and for a period of one month intermittently. Rule 4 of SRO 64 of

1994 as quoted above clearly stipulates that a person to be regularised as Daily Rated Labour or Work Charged Employee as the case may be,

must have served the post continuously and must have completed seven years of services before such cases can be considered for regularization,

In the result judgment of the learned single Judge is not sustainable in law. It is accordingly set aside. The writ petition stands dismissed. This

appeal stands allowed. No costs.