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2001 DIGILAW 220 (JK)

Azi Bibi v. State Of J. &K.

2001-09-21

R.C.GANDHI, S.K.GUPTA

body2001
1. This letters Patent Appeal has arisen out of Judgment dated 02.05.1998 whereby the writ petition seeking regularization of services has been dismissed by the Learned Single Judge. 2. The appellant alongwith 19 other writ petitioners, came to be appointed by Principal, Government Degree College for Women, Nawakadal, Srinagar, Respondent No. 4, on consolidated wages of Rs. 700/- per month. Their grievance is that though they have been appointed as Class - IV employees since 6 to 8 years, neither their services have been regularized nor the pay of the post on which they are working is being released in their favour. It was also pleaded that they are facing break of one day in service after every sixty days which has the effect of not only depriving them of the continuity of service but also the wages of the break period. They are apprehensive of termination of their services. Thus, they seek also the relief of direction to the respondents to allow them to hold their respective class - IV Posts, besides regularizations and the pay and allowances of the said posts. 3. The respondents, in their reply, have submitted that petitioners were engaged on consolidated wages and the money for payment of the wages was begin raised by the college out of the local fund collected from the students. It is also stated that the amount of wages payable to the appellant is not debatable to any state fund. The engagement of the appellant is not against any post as no class -IV vacancy is available in the college. 4. The Learned Single Judge, after considering the rival contentions, has held that the petitioners are not having the status of Daily Rated Workers or holding any civil post, relying upon the judgment delivered in SWP No. 924/1986 decided on 03.07.1997, upheld in L.P.A No. 276/1997 decided on 24.04.1989 relying on the earlier Division Bench Judgment of the Court in G. H. Qadiri vs. Secretary to Government Industries and commerce Department and others reported in AIR 1959 J&K 26, and dismissed the writ petition of the appellants. The court also rejected the plea of the appellant that the appellant is similarly situated, considering the judgment delivered in SWP 502/1992 titled Mst. Khatija Begum vs. State and others decided on 08.08.1996. 5. The court also rejected the plea of the appellant that the appellant is similarly situated, considering the judgment delivered in SWP 502/1992 titled Mst. Khatija Begum vs. State and others decided on 08.08.1996. 5. Out of 20 writ petitioners, the appellant alone has preferred the appeal, challenging the legality and correctness of the order under appeal, re-iterating similar grounds which have been set up and taken in the memorandum of writ petition. 6. Heard learned counsel for the respondents. 7. The appellant has been appointed as Sweeper by the Principal, Government Degree College for Women, NawaKadal Srinagar on consolidated wages, vide his order dated 16.05.1988 which is extracted below : "Order Sanction is thereby accorded to the temporary appointment of Mst. Azi Bibi, W/o Mohd. Rajab Sheikh, R/o Dalgate as Sweeper @ Rs. 250/- per month out of local funds w.e.f. 01.04.1988. Sd/ Principal, Govt. College for Women, Nawa Kadal, Srinagar". 8. It is evident from the appointment order of the appellant that she has been appointed on payment of Rs. 250/- per month to be borne out of local funds. It has been stated in the counter affidavit by the respondents that this fund has been created by collection of money from the students for purposes of sweeping the college premises and is not debitable to any State Fund. The status of the appellant is not that of a Daily Rated Worker who in terms of SRO 64 of 1994 is entitled to seek consideration for regularization provided such Daily Rated Worker has completed seven years services continuously and uninterruptedly. Appellant is being paid out of the local fund which is contingent and her status could only be of a contingent worker. 9. The appellant in the memo of appeal has set up the ground that the learned Single Judge has returned the finding which has no relevance with the case set up by the appellant. Perusal of the judgment of learned Single Judge reveals that the findings recorded in the course of the order, under appeal, are quite considered and relevant for the disposal of the petition. 10. She has also set up the ground in the memorandum of appeal challenging the impugned order that the appellants precious period of life has been taken away by the respondents, so at this stage, she cannot be thrown out without considering her claim for regularization under SRO 64 of 1994. 10. She has also set up the ground in the memorandum of appeal challenging the impugned order that the appellants precious period of life has been taken away by the respondents, so at this stage, she cannot be thrown out without considering her claim for regularization under SRO 64 of 1994. Besides, the appointment orders of the appellant clearly reveals that the post will be allotted to her. Till the post becomes available, she prays for the equal pay for equal work. 11. So far as the consideration in terms of SRO 64 of 1994 is concerned, as observed earlier, the appellant being not Daily Rated Worker having un-interrupted and continuous service of seven years, has no right to seek such consideration. The appellant seeks the relief of regularizations of her services also on the ground that she has been appointed against class IV Post, which apparently is not made out, as the appointment order of the appellant speaks for itself. She has stated in para 15 of the memorandum of appeal that the judgment delivered by the Supreme Court in Bhagwati Prasad vs. Delhi State Mineral Development Corporation, reported in AIR 1990 SC 371 supports her claim for regularization and the payment of salary equal to the salary of the employees of class -IV Posts. Perusal of this judgment reveals that the relief has been granted to the Daily Rated Workers for their regularization against the post which is evident from the observation of the Supreme Court contained in relevant portion of para 4 of the judgment which is extracted below: ".... It is also held that the Justification for not regularizing the services of the petitioners, namely, unlikelihood of the extension of the mining lease after its expiry was belied by the subsequent advertisement calling application for filling up the vacancies..." 12. Here, the appellant has neither been appointed against the post nor there is vacancy available with the respondents as the respondents have categorically stated it in their counter affidavit. It is settled proposition of law that in absence of pre-existing vacancy, on direction for regularization of services can be issued and if such a relief is granted, it shall be sheer an abuse of the power and law. It is settled proposition of law that in absence of pre-existing vacancy, on direction for regularization of services can be issued and if such a relief is granted, it shall be sheer an abuse of the power and law. This controversy has been set at rest by the Supreme Court in case titled Himachal Road Transport Corporation v. Dinesh Kumar reported in AIR 1996 SC 2226 holding that: - "We are of the view that the Himichal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated 27.03.1995 and 06.03.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of the vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorized..." 13. The appellant, in the memorandum of appeal relying upon the judgment delivered in case titled Mst. Khatija Begum vs. State and others (SWP No. 502/1992) has submitted that the case of the appellant is quite identical to that and is entitled to the same relief of appointment. Such a plea was also raised, of being similarly situated, in case titled Anjum Noore Bano vs. State of J&K and others reported in 2000 SLJ 150. The Division Bench of this court considering the said plea observed as under: "... Learned counsel for the appellants has not made out that she was \engaged and is working against the post Mr. HI Qadri, Learned Additional Advocate General has submitted that in Government Primary School, there is no post of sweeper and the arrangement has been made for cleaning the school premises by engaging the appellant on contingent basis to be paid out of contingent fund. Learned counsel for the appellant could not make out that there is a post against which she is working. Unless there is a post no such direction can be issued". 14. In Mrs. Khatija Begums case the court observed that she was working against the post which is not the case herein. Therefore, the appellant is not identically and similarly situated. Thus, the reliance placed on the aforesaid judgment is of no help to the appellant. Unless there is a post no such direction can be issued". 14. In Mrs. Khatija Begums case the court observed that she was working against the post which is not the case herein. Therefore, the appellant is not identically and similarly situated. Thus, the reliance placed on the aforesaid judgment is of no help to the appellant. We concur with the finding recorded by the Division Bench in Anjum Noore Banos case. 15. For the aforesaid reasons, we do not see any ground to interfere with the order of the learned Single Judge, Consequently, the appeal is dismissed.