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2002 DIGILAW 321 (JK)

Tilak Raj v. Housing Board, J&K

2002-10-10

T.S.DOABIA

body2002
Tejinder Singh Doabia, J. 1. These petitions dealing with the similar nature of controversy shall stand disposed of vide this common judgment. 2. The petitioners in writ petition 517/2001 submit that they came to be engaged by the respondents initially for a period of 89 days on daily wage basis in the year 1994. It is submitted that this engagement has continued from time to time. Similar assertion has been made by the petitioners of writ petition SWP 615/2001. The dates on which the petitioners in Writ petition 615/2001 came to be engaged have been mentioned in para 3 of the writ petition. So far as writ petitioner in SWP 651/2001 is concerned, it is submitted that he came to be engaged initially in Dec. 1993. In para 4 of the said writ petition, it is submitted that he is continuing as a daily wager from Ist Dec., 1993 till date The petitioners have approached this Court with a plea that after having worked with the respondent J&K Housing Board (hereinafter referred to as the Board) for more than seven years they are entitled to regularisation of their services. So far as the continuous working of the petitioners is concerned, there is no dispute. The dispute is only as to whether their services have actually been brought to an end, in pursuance of Government directions given vide Order No. 144-GAD of 2001 dt. 2nd Feb. 2001, According to the petitioners, they have continued to service. For this reliance is being placed on interim orders passed in the above said petitions on l6th March 2001, 30th March 2001 and 4th April 2001. Respondent, however, submit that the relationship of master and servant was brought to an end and the petitioners are no longer in services. The petitioners, however, as indicated above, challenged this aspect of the matter. They are by placing reliance on an order passed by the Managing Director on 15th May 2001. The above order takes notice of some interim order having been passed by this Court and permitted these persons to continue in service on the terms and conditions specified in the above said order. 3. The above aspect of the matter need not to be elaborated further. The above order takes notice of some interim order having been passed by this Court and permitted these persons to continue in service on the terms and conditions specified in the above said order. 3. The above aspect of the matter need not to be elaborated further. The issues as projected and the questions which are required to be gone into in the present petitions are as under: (i) Whether the petitioners, who came to be appointed in a year i.e. after Government Order No. 26-F of 1994 dated 31.1.1994, can be permitted to continue? (ii) Whether the services of the petitioners could be brought to an end in pursuance of Government. Order No. 144-GAD of 2001 dated 2.2.2001? (iii) Whether the Government orders, issued from time to time ipso facto become applicable to the Board or the Board has to adopt these orders by passing separate resolutions ? (iv) As to what is the effect of Rule 10 of the J&K Daily Rated Workers/Work Charged Employees (Regularisation) Rules, 1994. Rule 10 of the Rules, referred to above is to the effect that all the existing Rules, Regulations and orders except Government Order No. 26-F of 1994 dt. 31st Jan 1994, shall stand repealed. 4. With a view to sustain `the argument that the State Government does not have all the pervasive control over the Housing Board, and the control is limited to the extent as indicated by the J&K Housing Board Act of 1976, reliance is being placed on proviso to Sections 6 and 7. For facility of reference, these Sections are reproduced below: 6. Appointment of Staff: -- (1) The Board shall have a Managing Director to be appointed by the Government on such terms and conditions as it may specify. (2) That the Board may appoint a Secretary and such other officers and servants as may be required to enable the Board to carry out its function under this Act: Provided that the appointment of the Secretary and other officers of the Gazetted rank shall be subject to the approval of the Government. Provided further that in making appointment of officers and servants under this Section, the rules and orders, from time to time, issued by the Government in making provision for reservation of appointments and posts in favour of the Scheduled Castes and Backward Classes shall apply in the same manner as they apply in respect. Provided further that in making appointment of officers and servants under this Section, the rules and orders, from time to time, issued by the Government in making provision for reservation of appointments and posts in favour of the Scheduled Castes and Backward Classes shall apply in the same manner as they apply in respect. of appointments and posts under the Government. 7: Conditions of Service of Officers and Servants -- The conditions of service of the officers and servant of the Board shall be such as may be determined by regulations." 5. It is on the basis of the sections noticed above submitted that the power to appoint primarily vests in the Board and in the matter of making appointments, Rules have been framed and orders have been issued from time to time. It is stated that for making appointments, reservations have to be made for Scheduled Castes and Backward Class candidates. The Reservation Rules, it is submitted would apply but not other Rules, It is submitted that the Reservation Rules do apply even if they are not adopted by the Board; other Rules and Regulations, it is submitted, will have to be adopted. 6. The learned counsel for the respondents submits that Sections 6 and 7 of the aforesaid Act are not only the statutory provisions. He has placed reliance on Section 59, which permits the Government to frame Rules. These Rules can be framed subject to the condition of previous publication. This is so provided in Section 59(l). So far as the service matters are concerned, these are specifically dealt with in sub-rule (2) thereof. It is, however, submitted that as Section 59 provides that Rules can be framed for carrying out the purposes of the Act, then even for the purposes of Section 6 and 7, Rules can be framed, In addition to this, it is submitted that the Board may from time to time and with the previous sanction of the Government, make Regulations, which are consistent with the provisions of the Act. It is submitted that Section 60(c) specifically deals with the remuneration and conditions of service as visualised under Section 7. Reference is also being made to Section 66, which authorises the Government to give directions. It is submitted that Section 60(c) specifically deals with the remuneration and conditions of service as visualised under Section 7. Reference is also being made to Section 66, which authorises the Government to give directions. It is submitted that once these directions are given, then these are supposed to be carried out by the Board Section 59(1) Section 60(1)(c) and Section 66 are required to be taken note of. These reads as under:-- 59(1). Power to make rules. -- The. Government may by, notification in the Government. Gazette and subject to the condition of previous publication, make rules, for carrying out the purposes of this Act. 60(1)(c). Regulations --The remuneration and conditions of service under Section 7; 66. Governments powers to give directions to Board. The Government may give the Board such directions as in its opinion are necessary or expedient for carrying out the purpose of this Act and it shall be the duty of the Board to comply with such directions." 7. So far as Section 59 is concerned, there is nothing on the record to indicate that any Rule has been framed in terms of Section 59 or any Regulation has been framed in terms of Section 60. Not only this, when there is a requirement that a rule has to be framed after previous publication, then this condition has to be complied with. The requirement of previous publication is not an empty formality. This was so observed by the Supreme Court of India in the case of Raza Buland Sugar Co. Ltd. Rampur v. The Municipal Board, Rampur. It was observed that the requirement of previous publication is mandatory and it has to be complied with. However, if there is some lacuna in the matter of publication, that may not effect the rule or regulation. Therefore, as and when any rule is framed, than the condition of previous publication has to be complied with. So far as Section 60 is concerned, this enables the Respondent Board to frame regulations. No such Regulation has been placed on the record. The requirement under Section 60 is that the Regulations can be made with the prior approval of the Government. So far as Section 60 is concerned, this enables the Respondent Board to frame regulations. No such Regulation has been placed on the record. The requirement under Section 60 is that the Regulations can be made with the prior approval of the Government. As indicated above, the learned counsel for the respondents has failed to indicate as to which Regulation has been framed in terms of Section 60, therefore, the argument based on Sections 59 and 60 would not be attracted to the facts of this case, as no factual foundation has been laid down for the applicability of these two statutory provisions. 8. So far as Section 66 is concerned, the Government is competent to give directions to the Board, which are necessary for carrying out the purpose of the Act, and it is the duty of the Board to comply with such directions. 9. According to the learned counsel appearing for the Board, Government Order No. 26-F of 1994 would govern the subject of regularisation. For facility of reference, this circular is being reproduced below:- Government Order No. 26-F of 1994 `Dated 31.1.1994. It is hereby ordered that:- I. (a) All the daily rated workers who have completed seven years continuous period of working or who may complete seven years period on 31st March, 1994 shall be appointed in a regular scale of Rs. 750-940 with effect from 1.4.1994. Likewise all work charged employees who have completed or may complete seven years continuous service as such on 31st March, 1994 shall be brought on regular establishment w.e.f. 1.4.1994 in the corresponding pay scale. (b) ....... (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 worker in the Government in any form is hereby withdrawn retaining only the concept of casual labour/seasonal labour for specified development departments. (d) The practice of engagement of daily wager/daily rated worker in the Government in any form is hereby withdrawn retaining only the concept of casual labour/seasonal labour for specified development departments. The engagement of such casual/seasonal shall be on the muster roll for payment of wages and no engagement/appointment orders shall be issued. Further modalities for the purpose shall be worked out as a part of the scheme to be issued in the statutory form. The existing delegation of powers for engagement of daily wagers/work charged employees available to field officer is also withdrawn. For future, the work charged posts should be created only by the Government in consultation with the Finance/Planning Departments. II ......................... III. The Scheme of regularisation shall also be applicable mutatis mutandis to the Public Sector Undertaking/Autonomous Bodies and their cases shall be settled by the Committee set up for the daily rated workers in the Government with suitable modification in its constitution to include Managing Directors of Corporations/Senior Executive of the Autonomous Bodies in place of Head of the Departments." 10. At this stage it would be apt to notice Government Order O.M. No. A/33(92)--JKI-229 dt. 8th April 94, which has also been relied upon by the respondents. It reads as under:- O.M. No. A/33(92)-JKI-229 Dt. 8.4.1994 Subject:- Regularisation of Daily Rated Workers/Work Charged Employees. Reference:- Government Order No. 26-F of 1994 dt. 31.01.1994. The undersigned is directed to invite attention of all Managing Directors/Chief Executives of State Public Sector Undertakings/Autonomous Bodies to Government Order No. 26-F of 1994 dated 31.1.1994, regarding regularisation of Daily Rated Workers/Work Charged Employees whereunder, inter alia, it has been ordered:- (i) The scheme of regularisation shall also be applicable mutatis mutandis to the Public Sector Undertakings/Autonomous Bodies and their cases shall also be settled by the Committee set up for the daily rated workers in the Government with suitable modification in its Constitution to include Managing Directors of Corporations/Senior/Executive of the Autonomous Bodies in place of Heads of the Departments. (ii) .................... 2. As per aforementioned stipulations in the said order the J&K Daily Rated Workers/Work Charged Employees (Regularisation) Rules, 1994 have already been issued vide Notification SRO 64 dt. 24th March, 1994 (..............) The said rules are applicable to the Government Departments only. (ii) .................... 2. As per aforementioned stipulations in the said order the J&K Daily Rated Workers/Work Charged Employees (Regularisation) Rules, 1994 have already been issued vide Notification SRO 64 dt. 24th March, 1994 (..............) The said rules are applicable to the Government Departments only. Since Public Sector Undertakings/Autonomous Bodies are having their own Boards of Directors they may have to adopt the said rules, mutatis mutandis pursuant to the Cabinet Decision as quoted in the Government Order under reference, by an appropriate resolution by the concerned Board of Director for application in the Public Sector Undertaking/Autonomous Body concerned. 3. Accordingly the undersigned is further directed to request all the concerned Managing Directors/Chief Executives of State Public Sector Undertakings/Autonomous Bodies for taking further appropriate action in the matter..." 11. The respondent-Board submits that the Rules, Regulations, notifications and more particularly SRO 64/94 dated 24th March, 1994 would be applicable to the Board. 12. So far as this aspect of the matter is concerned, all that is required to be said is that the circular noticed above lays down in categoric terms that SRO 64/94 is applicable to Government Departments only and as Public Sector Undertaking/Autonomous Bodies are having their own Boards of Directors, they may have to adopt the said rules, mutatis mutandis pursuant to the Cabinet Decision as quoted in the Government Order. Therefore, to say that SRO 64/94 or Government Order 26-F became applicable to the Board merely because it came to be issued or circulated by the Government would not be correct. The conditions of employment are regulated by Sections 6 and 7 of the J&K Housing Boards Act of 1976. These Sections have been noticed above. Even if it is presumed that some Government order was issued, then before it could be made applicable, this should have either assumed the shape of a Rule or Regulation. If it was to be given the shape of a Rule, then, the concept of previous publication was required to be complied with. If it is to be treated as a Regulation, then the conditions of Section 7 are supposed to be fulfilled. This has not happened in this case. 13. At this stage, it would also be apt to take notice of another Government order bearing. No. 1285-GAD of 2001 dt. 6th Nov. If it is to be treated as a Regulation, then the conditions of Section 7 are supposed to be fulfilled. This has not happened in this case. 13. At this stage, it would also be apt to take notice of another Government order bearing. No. 1285-GAD of 2001 dt. 6th Nov. 2001 The above said order insofar as relevant is being reproduced below:-- Whereas in the writ petition No. 283/94 Uttam Singh (a class IV post on ad hoc basis) v. State of Jammu and Kashmir and others, and connected writ petitions, the Honble High Court of J&K vide its Judgment dated 12.2.1998 inter-alia observed as under: ................................ Whereas under the Jammu and Kashmir Daily Rated-Workers Regularization Rules, 1994 a daily rated worker engaged prior to 31.1.1994 is eligible for regularisation after seven years. Whereas a number of appointments have also been made on ad hoc basis in different Government Departments and the Government is of the view that their cases also need to be considered in the light of the broad principles discussed by the Honble High Court in its judgment referred to above i.e. they be also considered for regularisation after putting in seven years of continuous service like daily wagers appointed prior to 31.1.1994. Now therefore, it is hereby ordered that all ad hoc appointees to non-gazetted posts recruited from time to time beyond 29.12.1988 till the date of issue of this order who are still in service considered for regularisation after completing seven years of continuous service from the date of appointment dispensing with reference of posts held by them to Service Selection Board....." 14. Therefore, if the argument put across by the learned counsel for the Board is to be taken to its logical end, then, even Government Order dt. 6th Nov. 2001, referred to above, which lays down that the services of all those employees who came to be appointed after Dec. 1988 till the issue of the above said order are supposed to be regularised, would become applicable to the Board and the petitioners would become entitled to the benefit of the said Government order. Thus, looking from any point of view, the action taken by the Board cannot be sustained. 15. 1988 till the issue of the above said order are supposed to be regularised, would become applicable to the Board and the petitioners would become entitled to the benefit of the said Government order. Thus, looking from any point of view, the action taken by the Board cannot be sustained. 15. So far as the concept of regularisation is concerned, this has been considered by a Division Bench of this Court in LPA (SW)-D-21/2002 and other connected matters titled Ashok Kumar & Ors. v. State & Ors., decided on 26th July 2002. After taking note of the Government orders issued by the State from time to time and several judicial pronouncements on the subject, the conclusions which have been arrived at are as under: (i) That an employee who has completed seven years of service before 31st March 1994 is entitled to regularisation in terms of SRO 64/94; (ii) That the employees who were engaged before 31st March 1994 but have not completed seven years of service are entitled to the benefit of regularisation after completion of this tenure in the later financial years. This becomes apparent from the perusal of Rules 8 and 9 of the Rules, referred to above; (iii) That a further right stands conferred on the employees who have been engaged on daily rated/work charged basis. This right is conferred by Rule 9. This is to the effect that no direct recruitment is to be made unless and until the claims of the persons already appointed are duly considered for regularisation, (iv) That the case of those employees who were not, strictly speaking covered by SRO 64/94 are now to be dealt with in terms of Government Order dt. 6th Nov. 2001; (v) That, so far as the industrial workers are concerned, they are entitled to the protection of Industrial Disputes Act, 1947 and in case, they have completed 240 days of service and in case their services are to be brought to an end, then the provisions of Section 25-F of the aforesaid Act are required to be complied with; (vi) That the fact that someone has been appointed contrary to the rules is an issue which is to be decided on the facts of each case. In case, it is shown that there was one collusion between the employee and the person issuing the appointment order, something can be said against the employee, otherwise, the concerned employee would normally be entitled to the benefit of the order passed in his favour; (vii) That so far as the casual employees are concerned, they are not regulated by the rules in question but the fact would remain that an employee who has completed a tenure of four years and in case, the need is permanent then the said employee would be protected by the observations made by the Supreme Court in the case of Piara Singhs judgment (supra). Paragraph 51 stands quoted above. The State Government would accordingly consider the claims of this category of employees and deal with them individually or frame a scheme in this regard; (viii) That a Government employee can also fall within the definition of workman; (ix) That even in the case of employee who is working with a contractor under the Contract Labour (Regulations and Abolition) Act, 1970, direction can he given to the Principal employer to bring the employee on its rolls; (x) That even in the case of seasonal employee, direction for regularisation of services can be given under circumstances noticed above; (xi) That an employee who is engaged under a scheme can be adjusted in another suitable work if it is possible to do so. However, no vested right exist in that person; (xii) That an employee working under the courts directions acquires no right to Claim regularisation; (xiii) That if similarly situated employees services are regularised, then direction can be given for regularising services of other also; (xiv) That an employee who has been appointed de hors the rules or does not possess the qualifications cannot claim regularisation. (xv) That a person can claim compassionate appointment if the deceased employee was entitled to regularisation but was not so regularised." 16. The present case would be governed by the conditions indicated at Sl. Nos. (i) to (iv). Thus, it is concluded: (i) That the Government Order No. 26-F of 1994 dt. (xv) That a person can claim compassionate appointment if the deceased employee was entitled to regularisation but was not so regularised." 16. The present case would be governed by the conditions indicated at Sl. Nos. (i) to (iv). Thus, it is concluded: (i) That the Government Order No. 26-F of 1994 dt. 31.1.1994 calling upon the appointing authorities in the State Government to not to engage daily wagers or daily rated workers after 31.1.1994 would apply to the State Government employees only; (ii) That the Government order dated 8th April 1994 deals with the subject of regularisation and not for bringing an end to the service tenure of those persons who stood disengaged on account of the fact that Government order dated 2nd Feb. 2001 has not been adopted by respondents; (iii) That in any case, if the argument as projected by the respondent has to be accepted, then the Government order issued on 6th Nov. 2001, is also required to be followed by the Board and on that basis, the petitioners are entitled to get their service regularised. 17. There is yet another aspect of the matter. The appointing authority of the petitioners is the Board. If any order to detriment of the petitioners is to be passed, then that has to be passed by the Board itself. The order of termination passed on the basis of a Government order, without application of mind on the part of the Board would be bad. See Kans Raj Nathu Ram v. Deputy Excise and Taxation Commissioner, Jullundur and others, AIR 1965 Punjab 284. The Punjab High Court placed reliance on the decision given by the Supreme Court in the case of Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16. The relevant para is being reproduced below: .... It is settled law that if any authority has been vested with the power to grant a licence, it is that authority which must exercise that power, and if power is exercised by some other authority, the exercise of that power will be wholly void. In this connection reference may be made to the decision of the Supreme Court in Commissioner of Police v, Gordhandas Bhanji, AIR 1952 SC 16 ......� 18. In present case also, there is no independent application of mind, and therefore, this action on the part of Board is held to be bad. In this connection reference may be made to the decision of the Supreme Court in Commissioner of Police v, Gordhandas Bhanji, AIR 1952 SC 16 ......� 18. In present case also, there is no independent application of mind, and therefore, this action on the part of Board is held to be bad. It is accordingly concluded: (i) That no Rule or Regulation exists for determining the conditions of services of the category of employees to which the petitioners belong; (ii) That if Rules are to be framed, then there has to be previous publication; (iii) That Government Order 26-F of 1994 makes it clear that these Rules are to be adopted. Nothing has been placed on the record that this has been done; (iv) That if a particular action has to be taken by an authority then it is only that authority which is to apply its independent mind. Any action taken on the direction of another authority would be bad; 19. These petitions are accordingly allowed. The petitioners who were permitted to continue in service in pursuance of interim orders, passed by this Court, shall be permitted to perform their duties and they would also be paid their salaries. The order by which the service tenure of the petitioners has been brought to an end shall not be given effect to. The respondent Board would consider the claims of the petitioners for regularisation within a period of three months from the date, a copy of this order becomes available to them. 20. So far as writ petitioner Pyarey Lal Sharma is concerned, he came to be appointed on Ist Dec. 1993 i.e. before the issuance of Government Order 26-F of 1994, therefore, the said Government order would not be attracted to the facts of this case. 21. The net result is that these petitions, as indicated above, are allowed, petitioners are held entitled to continue in service. Let their claims for regularisation be considered within the period stipulated above. Disposed of accordingly.