UT of J&K and others vs Ved Parkash and others

Sindhu Sharma, J

The Union Territory of Jammu and Kashmir has invoked the jurisdiction of this Court against the judgment dated 27.12.2024 passed by the Central Administrative Tribunal, Jammu Bench (hereinafter referred to as "the Tribunal") in OA No. 1264/2023 titled Ved Parkash & ors. vs. Secretary to Government & ors.

The Tribunal vide impugned order dated 27.12.2024 allowed the OA filed by the respondents setting aside order of consideration No. 226-DFJ of 2021 dated 08.04.2021, issued in compliance with the directions passed by this Court in SWP No. 1563/2016. The petitioners have also been directed to regularize the services of the applicants/respondents herein from the date they completed seven years of service, with all consequential benefits including arrears from such date.

Briefly stated the facts arising in this petition are that the respondents were engaged as daily-rated workers/daily wagers in the year 1993 in the Department of Floriculture, Gardens and Parks for maintaining the parks and garden. They were working continuously in the department and discharging their duties to the satisfaction of authorities, as such, sought their consideration for regularization of their services.

The respondents, accordingly, sought consideration of their cases for regularisation along with other similarly situated persons upon completion of seven years of requisite service under the provisions of SRO 64 of 1994. In 2010, their case was recommended for regularization by the Director, Floriculture Department, vide communication No. DFJ/AS/735 dated 29.03.2010. The Director Floriculture Department again recommended their case after the queries raised, were satisfied, vide communications dated 25.10.2014 and 28.03.2016. However, petitioner No. 1 i.e., Secretary to Government, Floriculture, Garden and Parks Department, through petitioner No. 2/Director (Finance), Floriculture, Garden and Parks Department,, rejected the case of the respondents (petitioners before the CAT) on 16.05.2016 on the plea that their case did not fall under the provisions of SRO 64 of 1994.

Aggrieved of their rejection, the respondents approached this Court by filing SWP No. 1563/2016 titled Ved Prakash & Ors. vs. State of J&K and others assailing the order of rejection dated 16.05.2015 and seeking regularization of their services. This writ petition was disposed of vide order dated 09.11.2016 by holding as under :-

“In view of the aforesaid submissions and in the facts of the case, the impugned order dated 16.05.2016 is quashed. The competent authority is directed to consider the case of the petitioners in light of the judgment rendered by a Division Bench of this Court in State of J&K and others vs. Anuradha by passing a speaking order within a period of three months from the date of receipt of certified copy of the order passed today.”

The judgment dated 09.11.2016 was not implemented by the authorities constrained the respondents herein to approach this Court again by filing contempt petition. In compliance to the judgment dated 09.11.2016, the respondents passed the order of consideration dated 26.09.2017 but since it was not in tune with the judgment, the petitioners herein were directed to file a fresh compliance. The petitioners thereafter passed order No. 226-DFJ of 2021 dated 08.04.2021 rejecting the claim of the respondents being devoid of merit.

The claim of the respondents was rejected vide order dated 08.04.2021 on the ground that they had worked purely as labourers on a need basis without any formal engagement order from a competent authority. Hence, their claim was found without merit.

The respondents in this backdrop filed an original OA No. 1264/2023 before the CAT on the ground that the respondents have been discharging their duties as daily wagers and monthly wages were paid to them at the rates applicable to the daily wagers working in the department. The order of rejection is against the settled position of law that worker working for a sufficient long period of time will be treated as daily wager.

The contention of the respondents was that they were engaged on a daily wage basis, their attendance was recorded in muster rolls maintained by the authorities, and similar workers in other departments have already been regularised under SRO 64 of 1994. Therefore, their rejection was unjustified.

The Tribunal, after considering the contentions of both parties, and in view of the law settled by the Division Bench of this Court in State of J&K vs. Mushtaq Ahmed Sohail and State of J&K vs. Anuradha, allowed the OA, set aside the rejection order, and directed regularization of the applicants (respondents herein) from the date they completed seven years of service.

The petitioners are aggrieved by the impugned judgment of the Tribunal on the ground that the Tribunal erred in granting relief of regularization from the date of completion of seven years of service, including all benefits and arrears, thereby exceeding its jurisdiction.

It is further submitted that the order is liable to be set aside as the Tribunal failed to appreciate that daily-rated/work-charged employees engaged in any Government department are not covered under the provisions of SRO 64 of 1994. The Tribunal, it is contended, also failed to consider the objection that the respondents were not engaged as daily rated workers by the competent authority and thus, their engagement is not covered under the said SRO. The respondents were never engaged as daily rated workers on the sanctioned rules by the competent authority. The officials have allowed loss to the public exchequer by releasing the wages in their favour without engagement.

It is also submitted that there is a discrepancy regarding the age of respondent No. 5, Madan Lal, who was shown as 45 years old at the time of filing the OA, which would mean he was only 14 years old at the time of his engagement. It is further submitted that the appointments made on contractual and daily wage basis cannot be regularised or made permanent in the absence of a scheme to that effect.

Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment passed by the Tribunal does not call for any interference.

The Director, Floriculture Parks and Gardens Department, vide communication dated 28.03.2016, referred to the regularisation of daily-rated workers of Jammu Division. It was clearly stated that all such workers were engaged on 06.08.1993, 01.09.1993, 01.11.1993, 11.09.1993 and 01.11.1993, and prior to the imposition of a ban on 01.04.1994, there was no classification such as temporary or casual labourers/daily wagers. Therefore, their cases ought to have been considered in the first round of litigation.

The Division Bench of this Court has held that if a casual labourer is continued for a fairly long spell, so presumption may arise that there is a regular need of his services and in such a situation, it becomes obligatory for the authority concerned to examine feasibility of this regularization. In Anuradha and Mushtaq Ahmed Sohail, while considering the engagement of casual labourers, this Court in “State of J&K and others v. Mushtaq Ahmad Sohail and others” has held in Para 17 that:

“17. 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. They have  been  working  continuously.  Division  Bench  of  this Court in the reported judgment, as referred above, at para 40 have dealt with the position of casual labours, same is reproduced herein-below:

"CASUAL EMPLOYEES;

The cases of casual employees be also examined. In this regard, it would be apt to note the dictionary meaning of the work 'casual'. In Black's Law Dictionary, Sixth Edition, the meaning of word 'casual' has been defined as occurring without regularity", "occasional", "impermanent" and "as employment for irregular periods". A perusal of above meaning would indicate that where an employee has continued to work for sufficiently long period, then, it would not be apt to call him having been appointed on casual basis. As a matter of fact, this aspect of the matter was considered in Piara Singh's case (supra). The relevant observations made in para 51 of the judgment stand already noticed above. For facility of reference, the relevant observations made in this paragraph are being quoted again:-

"...If a casual labourer is continued for a fairly long spell say two or three years a presumption may arise that there is a regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation, while doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person....”

Similarly, in “State and others vs. Anuradha”, this Court has held as under: -

“There is no scope for any disagreement with the Writ Court that mere nomenclature is not decisive for opining on status of a worker engaged in any of the Government Departments. The word "Casual" in the New Shorter Oxford Dictionary, is shown to mean "due to, or characterized by, or subject to chance" and the word "Casual Labourer/Worker" as "without permit employment, working when the chance comes". The engagement as Casual worker thus implies an engagement which may or may not continue depending upon the requirements. The expression "Casual Labourer/Worker" is denying under Rule 2(b) Jammu and Kashmir Daily Rated Workers/Work Charged employees (wce) regularization rules 1994, means a person who is engaged through an Appointment Order or otherwise on daily rated basis for rendering casual services to a Department. The "Daily Rated Worker" on the other hand, in terms of Rule 2(f) means a person engaged on daily wage basis at the rates sanctioned by the Government from time to time. The differences between the "Casual Labour/Worker" and "Daily Rated Worker" thus lies in the nature of work rendered and also the rate of payment. While "Casual Labour/Worker" is engaged for rendering casual service to a Department and may be paid at any rate not necessarily the rate sanctioned by the Government, the "Daily Rated Worker' is not engaged for rendering casual service to a Department and is to be paid at the rate sanctioned by the Government from time to time.”

The record of the petitioners reveals that the respondents were engaged in1993 and continuing since then, they are claiming their right for more than two decades. The ground that one of the respondents was less than 18 years of age cannot be taken at this belated stage when admittedly he has worked with them for almost 30 years and no such plea was raised. The respondents have denied regularization on one pretext or the other. Considering the facts and circumstances, the cases of the respondents are clearly covered by SRO 64 of 1994.

The Hon’ble Apex Court in a recent judgment passed in case titled Jaggo Vs Union of India & ors. (2024 INSC 1034) while quashing the orders of termination of the appellant therein and directing forthwith regularization of his services has held as under:-

“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.”

The respondents’ long and un-interrupted service, for period extending now beyond 30 years cannot be brushed aside on the grounds as taken down above, which is nothing but an abrupt attempt and devoid of any justification and violative of principles of natural justice. The sustained contribution of the respondents towards the maintenance of various parks/gardens warrants equitable treatment and regularization of their services and denial of this benefit would amount grave injustice to the respondents.

In view of the aforesaid facts and circumstances, we find no merit in this petition and the same is, accordingly, dismissed.