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J&K High Court · body

2001 DIGILAW 213 (JK)

Mohd. Shabir v. State Of J. &K.

2001-09-18

R.C.GANDHI

body2001
1. These petitions involve common questions of law and facts and are being disposed of by this common order. 2. Petitioners in these petitions have been engaged as daily rated workers by respondents, including Field/Subordinate Officers. After the issuance of Government Order No. 26-F of 1994 dated 31.01.1994 and SRO 64 of 1994 containing Rules known as J&K Daily Rated Workers/Work Charge Employees (Regularization) Rules, 1994, issued vide Notification dated 24.03.1994, the respondents have discontinued the services of the petitioners vide Government Order No. 144-GAD of 2001 dated 02.02.2001. Petitioners have approached the court, challenging the aforesaid Government Order and seeking direction for their continuation as Daily Rated workers and regularization of their services. 3. Respondents in some of the petitions have filed objections which are treated as counter affidavits in all the petitions. Respondents have stated therein that petitioners have been engaged by the respondents without any jurisdiction and authority of law. Illegal engagements of the petitioners do not vest any right either to continue as Daily Rated Worker or Regularization of their services in terms of provisions of SRO 64 of 1994 and thus seek dismissal of the writ petitions. 4. Heard the learned counsel of parties and perused the records. 5. Petitions are admitted to hearing and taken up for final disposal with the consent of the learned counsel for the parties. 6. Respondents have engaged number of daily rated workers/work charge employees/Seasonal Labourers. With a view to regularize their services, respondents have issued Government Order No. 26-F of 1994 dated 31.04.1994 which contains a proviso that daily rated workers who have completed seven years continuous period of working or may complete on 31.04.1994, shall be appointed in a regular pay scale of Rs. 750-940 w.e.f. 01.04.1994. Making similar provisions in the Government order for work charge employees, the practice of engagement of daily wagers/work charge employees in any form has been withdrawn. For Causal labour/Seasonal labour for specified development departments on muster roll for payment of wages, it was further provided that no engagement/appointment orders shall be issued. Relevant para 1 (c) of the Government Order is reproduced hereunder:- "1(c). For Causal labour/Seasonal labour for specified development departments on muster roll for payment of wages, it was further provided that no engagement/appointment orders shall be issued. Relevant para 1 (c) of the Government Order is reproduced hereunder:- "1(c). The policy of absorption of daily rated workers after completion of seven years of continuous working shall also apply to such of the existing daily rated workers who may not complete seven years on 31st March, 1994 but may do so by the end of the subsequent financial years. The Committee as mentioned in sub-para (b) shall review the cases of the existing incumbents by the end of each financial year and create appropriate number of posts till the existing incumbents are absorbed into regular pay scales, (d). The practice of engagement of daily wager/daily rated workers in the Government in any form is hereby withdrawn retaining only the concept of casual labour/seasonal labourfor specified development departments. The engagement of such casual/seasonal labour-shall be on the muster roll for payment of wages and no engagement/appointment orders shall be issued..." 7. Therefore the Government framed rules for regularization of services of the daily rated workers/work charge employees known as J&K Daily Rated Workers/ Work Charge Employees (Regularization) Rules 1994 notified vide notification dated 24.03.1994 making it effective from 01.04.1994 (herein after called SRO64 of 1994). Rules 4,5,7,9 and 10 dealing with regularization of daily rated worker, restriction on engagement of daily rated worker/ work charge employees, filling up of the class IV vacancies by such Daily Rated workers and saving such relevant provisions of F-26 of 1994 respectively, are extracted below: - "4. Eligibility for Regularization: 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. Eligibility for Regularization: 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 within the minimum and maximum age limit as prescribed for appointment in Government Service : (c)that he posses the prescribed academic and / or technical qualification for the post against which he is required to be regularized ; Provided that in case of eligible Daily Rated workers to be regularized 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 a 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 as no disciplinary proceedings 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. 5. Regularization of daily Rated Workers: All the Daily Rated Workers who on 31.03.1994, are eligible under rule 4 for regularization shall with effect from 01.04.1994 be appointed on the regular pay scale of Class IV prescribed in the concerned department for the relevant category of posts in the scale of Rs. 750-940: 7. Restriction on engagement of Daily Rated Workers/Work Charged Employees - (1) With effect from the commencement of these Rules, no field/subordinate officer shall have the power for engagement of Daily Rated Worker or Work Charged Employee in the Department and the existing delegation, if any, in this regard is withdrawn: Provided that the competent authority may engage Casual Labour or Seasonal Labour in any of the Department to be specified by notification from time to time by the Government and such labour shall be on the Muster Roll for payment of wages and no engagement or appointment order shall be issued. (2). After the commencement of these rules the work charged posts shall be created only by the Administration Department in Consultation with the Finance and Planning Department. 9. (2). After the commencement of these rules the work charged posts shall be created only by the Administration Department in Consultation with the Finance and Planning Department. 9. Miscellaneous- (1) No Class IV vacancy occurring in any department where Daily Rated Workers or Work Charged Employees are adjustable under these rules shall be available for direct recruitment till whole lot of such workers/employees is adjusted: (2). If any retired person has been engaged as Daily Rated Worker, his/her service/engagement as such shall be terminated forthwith: 10. Repeal and Savings All the existing rules regularization and orders excepting Government Order No. 26-Fof 1994dated 31.01.1994 relating to the matters covered by these rules are hereby repealed:" 8. Learned Counsel for the petitioners have submitted that petitioners have been engaged and appointed as daily rated workers and are thus entitled to continue till they complete continuous and uninterrupted period of seven years, attaining eligibility for regularization of their services. It is also submitted that those who have completed seven years, they are entitled to seek regularization of their services. The respondents, therefore, cannot oust them. 9. For regularization of services of a daily rated worker, it is seen from the afore extracted provisions of the Rules that a Daily Rated Worker must be eligible and should have been appointed by a competent officer in terms of the provisions contained in SRO 64 of 1994. It is admitted case of the petitioners that they have been engaged by the respondents/Field/Subordinate Officers after promulgation of SRO 64 or 1994 i.e. after 01.04.1994. 10. What is to be seen is whether the petitioners have been engaged by Officers having jurisdiction and whether such engagement vests any right for continuation as daily rated worker or entitlement to regularization of such services. Rule (7) places restriction on engagement of daily rated workers/work charge employees after01.04.1994. It envisages that no Field/ Subordinate officer shall have the power for engagement of daily rated worker/work charge employees the department and the existing delegation, if any, stood withdrawn. Proviso to this rule further specifies unambiguously that the competent authority may engage casual labour or seasonal labour in any of the Departments to be specified by the notification from time to time by the Government and such labour shall be on Muster Roll for payment of wages. Proviso to this rule further specifies unambiguously that the competent authority may engage casual labour or seasonal labour in any of the Departments to be specified by the notification from time to time by the Government and such labour shall be on Muster Roll for payment of wages. It is not made out by the learned counsel for the petitioners that in view of the mandate of Rule (7), respondents were having jurisdiction or otherwise competent to engage the petitioners as daily rated workers. The petitioners have been engaged by the Field/Subordinate Officers, which is neither denied nor rebutted by the petitioners. It is also not made out that in terms of the provisions of Rule (7), the Government by Notification has nominated or appointed the competent authority in the Departments wherein the petitioners have been engaged/appointed. Thus, it is made out that the petitioners have not been engaged by an officer specified as an authority nominated in the Notification, if any issued in terms of proviso to Rule 7. Engagement of the petitioners, therefore, is in violation of rules and is illegal and it does not create any enforceable right. 11. Respondent - State having noticed that Officers of the State without any jurisdiction or authority, in derogation of the provisions of F-26 of 1994 have illegally appointed/engaged number of daily wagers. With a view to implement the provisions of F-26 and SRO 64 of 1994, the respondents have discontinued the services of the petitioners and others similarly situated. Petitions appointed in breach of Rule 7 of SRO 64 of 1994 have no right to continue or seek regularization of their services being their appointment de-hors the Rules. This proposition of law has been settled by the Supreme Court in case titled J&K Public Service Commission vs. Dr. Narinder Mohan and others reported in Air 1934 SC 1808. 12. Learned counsel for the petitioners have also drawn attention of the court on the judgment delivered by the Supreme Court with a view to impress upon the court that petitioners having served for a period of 240 days as daily wagers cannot be thrown out, as they have acquired right to continue in employment in terms of the provisions of the Industrial Disputes Act. To appreciate this plea of the learned counsel, it is required to be seen as to whether the petitioners under such circumstances are entitled to any relief and judgments cited at the bar are applicable to their cases for their continuation in terms of their engagements/appointments. The engagement/appointment of the petitioners as discussed in the preceding paragraphs is in derogation of the provisions of law contained in Rule - 7 of the SRO 64 of 1994 and held illegal. Illegal order does not vest any right muchless enforceable in the court of law. Petitioners appointments have been made while the respondent-State has not only withdrawn the powers of the filed/Subordinate officers to engage daily wager but also put ban on such engagement/appointment. Noticing the engagement/appointment made by such field/ subordinate officers, despite ban, being bad and in contravention of Rule-7 (supra), the government has terminated the engagement and appointments. This was not the proposition, on facts and law before the Supreme Court. Herein the respondent State has promulgated Statutory Rules for engagement/appointment, absorption and governing other conditions of the daily wagers. In presence of these statutory Rules, engagement/appointment could only be made in accordance with the Rules. If it is made in breach of the Rules, it cannot be justified or held valid even to seek application of labour laws for their continuation and regularization of services. 13. The petitions are disposed of with the following directions: i. The Daily Rated Workers who have been engaged on or before 31.01.1994, are permitted to continue till they attain eligibility for regularization of the services provided they have been working continuously and uninterruptedly till date. ii. The respondents will regularize the services of the petitioners who have been engaged before 31.01.1994; iii. The petitioners who have been engaged after 31.01.1994, their engagement being dehors order No. 26-F of 1994 and provisions of SRO 64 of 1994, are not found entitled to the relief. No order as to costs.