UT of J&K and ors vs Rattan Chand

Rajnesh Oswal, J

The respondent was engaged as a „Turncock‟ in December 1993 in the Public Health Engineering Department by petitioner No. 3 as a „Daily Wager‟. In the year 2005, he initially filed a writ petition, bearing SWP No. 1689/2005 for regularization of his services under SRO 64 of 1994. The said writ petition came to be disposed of vide order dated 14.07.2009, whereby the respondents therein i.e. the petitioners were directed to accord consideration to the case of the respondent for regularization of his services in terms of SRO 64/1994 and pass appropriate orders within a period of four weeks.

Upon failure to comply with the order dated 14.07.2009, the respondent filed a contempt petition bearing COA(S) No. 44/2010. During pendency of the contempt petition, respondent No. 2 vide its communication dated 27.02.2015 issued a continuity certificate in terms of SRO 64 of 1994 certifying that the respondent had been working as a „Daily Rated Worker‟ since December, 1993 and the matter was taken up with the Administrative Department for regularization of services of the respondent. The Administrative Department, i.e. the petitioner No.1, forwarded the case to Planning and Development Department. Planning and Development Department vide note dated 03.03.2014 accorded concurrence to the creation of one post, subject to clearance of Finance Department and approval of State Cabinet in respect of age/qualification, if required. However, the Department of Finance returned the file vide note dated 04.06.2014 with some observations, including the one that initial engagement order or the muster roll/HR, whereunder the initial wages have been drawn in favour of respondent, to establish the status of the respondent, be furnished. After the requisite information was submitted to the Department of Finance, yet again, the Department of Finance vide note dated 21.01.2015 returned the file to petitioner No.1 to place on record the speaking order certifying the „Daily Rated Worker‟ status of the respondent right from 12/1993. The speaking order dated 27.02.2015/continuity certificate was forwarded to petitioner No.1 by petitioner No.2 for onward submission to the Department of Finance. TheDepartment of Finance, vide its note dated 22.11.2016, opined that the respondent held the status of a “Casual labourer” and accordingly, petitioner No. 2 rejected the claim of the respondent for regularization under SRO 64 of 1994 vide order dated 25.01.2017.

Aggrieved by the said order, the respondent filed the writ petition bearing SWP No. 280/2017 for quashing the order dated 25.01.2017 passed by petitioner No. 2 and for regularization of his services under SRO 64 of 1994. The said writ petition was subsequently transferred to the Central Administrative Tribunal, Jammu (hereinafter to be referred as „the Tribunal”), and re-numbered as Transferred Application No. 61/30/2024.

In the objections filed by the petitioners to the Transferred Application, it was stated that the claim of the respondent was referred to the Administrative Department and thereafter, considered by the Empowered Committee, which found that the respondent had been working as a “Casual Labourer” and was, therefore, not covered under the provisions of SRO 64/1994. Consequently, his claim was rejected vide order dated 25.01.2017.

The learned Tribunal, by its order dated April 8, 2025, allowed the Transferred Application and directed the respondents (the petitioners herein) to regularize the services of the respondent in accordance with SRO 64 of 1994, considering the observations made in the judgment, and to issue appropriate orders within eight weeks. Furthermore, the Tribunal held the respondent entitled to all consequential benefits, including wage arrears, effective from the date he became eligible for regularization.

Being aggrieved of order dated 08.04.2025 passed by the learned Tribunal, the petitioners have filed instant petition for quashing the order dated 08.04.2025 on the ground that the respondent was engaged only as a “Casual Labourer” and, therefore, the provisions of SRO 64/1994 were/are not applicable to his case.

Ms. Monika Kohli, learned Sr. AAG appearing for the petitioners has reiterated the contentions of the petitioners as recorded above by us.

Heard learned counsel for the petitioners and perused the record.

The undisputed fact is that the respondent has been working with the petitioners since December 1993. His subsequent claim for regularization under SRO 64 of 1994 was rejected by the petitioners vide an order dated 25.01.2017. This rejection was based on the Department of Finance‟s opinion that the respondent's status was that of a 'Casual Labourer.' However, the impugned order dated 25.01.20217 challenged in the Transferred Application, itself reveals that the Planning and Development Department, through a communication dated 03.03.2014, had concurred with the creation of one post of Helper for the respondent's regularization, effective from February 2001. This concurrence was conditional upon clearance from the Finance Department and approval from the State Cabinet regarding age and qualifications, if required.

The order dated 25.01.2017, chronicles the rejection of the respondent's case. It notes that the Finance Department, vide note dated 21.01.2015, first returned the case, requiring the Administrative Department to place on record a speaking order certifying the respondent's Daily Rated Worker (DRW) status from his initial engagement in December 1993. In compliance, the concerned Chief Engineer issued a continuity certificate dated 27.02.2015 confirming the respondent‟s DRW status since December 1993. Despite this certificate, the Finance Department subsequently returned the documents again on 22.11.2016, asserting that the HR record for January 1994 explicitly reflected the respondent's status as a 'Casual Labourer.

It is noteworthy that the Finance Department, arrayed as Respondent No. 4 in the original writ petition, has made no attempt to challenge the Tribunal's order dated 08.04.2025. This inaction is significant. It is surprising that the Finance Department would rely solely on a solitary HR record from January 1994, reflecting the status of 'Casual Labourer', just to negate the claim of the respondent for regularization of his services. This reliance is misplaced, particularly since the concerned Chief Engineer had already issued a continuity certificate confirming the respondent‟s status as a 'Daily Rated Worker' since December 1993, the Administrative Department had certified his DRW status, and the Planning and Development Department had accorded approval for the creation of a Helper post for regularization. The rejection of the respondent‟s claim by the petitioners vide order dated 25.01.2017 is, therefore, unsustainable in law. Furthermore, the designation itself is not paramount, even a casual worker, who has served continuously for a considerable period, the law presumes that he functions as a 'Daily Wager,' notwithstanding the use of expression 'Casual Labourer' in the engagement or subsequent orders.

In State Of J&K & Ors. vs Mushtaq Ahmad Sohail & Ors., 2012 (4) JKJ[HC] 1051, the Coordinate Bench of this court has held that „In the instant case writ petitioners styled to have been engaged as casual labours, in-effect, were daily rated workers because they were not engaged occasionally.‟

In  its  latest  pronouncement,  the  Hon‟ble  Supreme  Court  of  India  in „Jaggo v Union of India and others’, 2024 INSC 1034 has held as under:

“27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.

(emphasis added)

It would also be profitable to take note of the observations made by the Hon‟ble Supreme Court of India in “Dharam Singh v. State of U.P.”, 2025 SCC OnLine SC 1735. The relevant paragraphs are extracted as under:

“11. Furthermore, it must be clarified that the reliance placed by the High Court on Umadevi (Supra) to non-suit the appellants is misplaced. Unlike Umadevi (Supra), the challenge before us is not an invitation to bypass the constitutional scheme of public employment. It is a challenge to the State's arbitrary refusals to sanction posts despite the employer's own acknowledgement of need and decades of continuous reliance on the very workforce. On the other hand, Umadevi (Supra) draws a distinction between illegal appointments and irregular engagements and does not endorse the perpetuation of precarious employment where the work itself is permanent and the State has failed, for years, to put its house in order.Recent decisions of this Court in Jaggo v. Union of India4 and in Shripal v. Nagar Nigam, Ghaziabad5 have emphatically cautioned that Umadevi (Supra) cannot be deployed as a shield to justify exploitation through long-term “ad hocism”, the use of outsourcing as a proxy, or the denial of basic parity where identical duties are exacted over extended periods. The principles articulated therein apply with full force to the present case. The relevant paras from Shripal (supra) have been reproduced hereunder:

“14. The Respondent Employer places reliance on Umadevi (supra) 2 to  contend  that  daily-wage  or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are “illegal” and those that are “irregular,” the latter being eligible for regularization if they meet certain conditions. More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor-based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.

It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records-despite directions to do so-allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite “temporary” employment practices as done by a recent judgment of this court in Jaggo v. Union of India3 in the following paragraphs:

“22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.

………

It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:

• Misuse of “Temporary” Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labelled as “temporary” or “contractual,” even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

• Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practi4ce undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

•Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.

•Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.

• Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.””

We also note the Commission's affidavit filed in 21.04.2025 pursuant to the order of this Court dated 27.03.2025, wherein reference has been made to a supervening reorganisation in 2024, whereby the U.P. Higher Education Services Commission was merged into the U.P. Education Services Selection Commission and, by a Government Order of 05.07.2024, certain Group-C posts were sanctioned while Class-IV/Driver requirements were proposed to be met through outsourcing. We must point out however, that supervening structural change cannot extinguish accrued claims or pending proceedings. The successor body steps into the shoes of its predecessor subject to liabilities and obligations arising from the prior regime. More fundamentally, a later policy to outsource Class-IV/Driver functions cannot retrospectively validate earlier arbitrary refusals, nor can it be invoked to deny consideration to workers on whose continuous services the establishment relied for decades.

As we have observed in both Jaggo (Supra) and Shripal (Supra), outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission's further contention that the appellants are not “full-time” employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State's refusals. It neither creates rights that did not exist nor erases entitlements that may arise upon a proper adjudication of the legality of those refusals.

The learned Single Judge of the High Court also declined relief on the footing that the petitioners had not specifically assailed the subsequent decision dated 25.11.2003. However, that view overlooks that the writ petition squarely challenged the 11.11.1999 refusal as the High Court itself directed a fresh decision during pendency, and the later rejection was placed on record by the respondents. In such circumstances, we believe that the High Court was obliged to examine the legality of the State's stance in refusing sanction, whether in 1999 or upon reconsideration in 2003, rather than dispose of the matter on a mere technicality. The Division Bench of the High Court compounded the error by affirming the dismissal without engaging with the principal challenge or the intervening material. The approach of both the Courts, in reducing the dispute to a mechanical enquiry about “rules” and “vacancy” while ignoring the core question of arbitrariness in the State's refusal to sanction posts despite perennial need and long service, cannot be sustained.”

(emphasis added)

We have carefully examined the judgment passed by the learned Tribunal and we find that the same is in consonance with law.

In view of the foregoing discussion and the reasons stated hereinabove, we find no merit in the present writ petition warranting interference. Accordingly, the same is dismissed.