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2001 DIGILAW 205 (JK)

Mohd. Muzaffer Jan v. State Of J. &K.

2001-09-14

R.C.GANDHI

body2001
1. Petitioner by means of this writ petition seeks issuance of writ of Mandamus directing the respondents No.2, Director, Technical Education, Srinagar, not to terminate his services on the basis of the letter dated 26.3.1996 addressed to the Director by Under Secretary to Government, Technical Education Department and allow him to continue to hold the post of Legal Assistant against which he has been appointed on consolidated salary of Rs.1, 000/- per month. 2. Respondent have filed objections stating there in that the petitioner was engaged vide order dated 5.12.1994 on consolidated amount of Rs. 1,000/- per month to assist the litigation section. His wages were directed to be drawn by debit to State Project Implementation Unit (World Bank Scheme). The petitioner attended duties up to April, 1996 and, thereafter, approached this court by means of this writ petition and this court vide interim order dated 18.6.1996 has directed the continuation of the petitioner. It has been also submitted therein that as per the record of the Department and their muster-sheets, the petitioner was working on muster-sheet basis. A copy of the muster sheet pertaining to the month of July, 1996 has been annexed as annexure. R1 with the objections. The petitioner has absented from the job on his own with effect from 17.7.1996 and thereafter has not discharged the duties. Therefore, he has no claim to the wages onwards thereafter. The scheme by debit to which the wages of the petitioner and other similarly situated candidates were drawn has been closed and no further allocation is available under the scheme for payment of wages. 3. Heard learned counsel for the petitioner. 4. Communication dated 26.3.1996 sought to be quashed reads as under: - "GOVERNMENT OF JAMMU & KASHMIR CIVIL SECTT, TECHNICAL EDUCATION DEPT. To The Director, Technical Education, Jammu. No.Edu-ITI-16/96 Dt.26.3.1996 Sub: - Annual Plan discussion-Submission of details of daily-wagers. Madam, I am directed to refer your letter No.DTE/Acctt-96/5953 dated 11.1.1996, relating to the subject cited above and to say that such of the Daily wagers as have been engaged after deadlines fixed by the finance department i.e. 24.3.1994 may kindly be identified and terminated with immediate effect under intimation to this Department. Madam, I am directed to refer your letter No.DTE/Acctt-96/5953 dated 11.1.1996, relating to the subject cited above and to say that such of the Daily wagers as have been engaged after deadlines fixed by the finance department i.e. 24.3.1994 may kindly be identified and terminated with immediate effect under intimation to this Department. As regard daily wagers engaged prior to the issuance of instructions by the finance Department , their details together with financial requirements on accounts of their wages may be worked out and intimated to this Department so that Planning/finance Department is requested for allocation of requisite funds for the purpose. Yours faithfully, Sd/- (P.N. Dhar) Under Secretary to Govt.Tech. Education Deptt." 5. The petitioner, according to the stand of the respondents, is not working with them since 17.7.1996 onwards and the scheme where in he was engaged has also been closed. The relief prayed for has rendered infructuous. The petitioner having been engaged and paid against the scheme, which has been closed, is not entitled to claim the relief prayed for in view of the law laid down by the Supreme Court in State of Himachal Pradesh v Ashwani Kumar and others, AIR 1997 SC 352 holding that: - "It is seen that when the project is completed and closed due to non-availability of funds, consequently, the employees have to go along with the closed project. The High Court was not right in giving the direction to regularize them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularize their service in the absence of any existing vacancies, nor directions be given to create posts by the State to a non-existent establishment. The court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them inspite of non-availability of the work. 6. The petitioner is continuing on the strength of the interim direction of the court. The court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them inspite of non-availability of the work. 6. The petitioner is continuing on the strength of the interim direction of the court. He on this Count is also not entitled to the relief of regularization of his services or continuation as this proposition of law has also been set at rest by the Supreme Court in State of U.P. and others v Raj Karan Singh, (1998) 8 SCC 529 holding that: "...Merely because a person continues under the interim orders of the Court, such continuance on the post cannot and, in this case, does not confer on him any right for continuance, it does not enhance his case for regularization..." 7. Learned counsel for the petitioner submits that his wages have not been released by the respondents for the period he has worked. It is observed that the petitioner is entitled to the wages and the respondents are under obligation to release the wages for the period he has worked up to 17.7.1996, If not already paid. 8. No case for admission of the petition is made out. The petition is, accordingly dismissed along with the connected CMPs.