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2003 DIGILAW 48 (JK)

Ali Mohd. Hajam v. State Of J&K Through Commr. /Secy.

2003-03-19

SYED BASHIR-UD-DIN, Y.P.NARGOTRA

body2003
Syed Bashir-ud-Din, J. Appellant filed writ petition SWP 658/1996 with prayer for regularisation as daily wager on the ground that from 1979, he is permanent labourer as Animal Attendant at Regional Research Station Faculty of Agriculture Wadoora Sopore/ Shalamar. Despite having worked for long, he is not regularised. The writ court vide order dated 11-7-1996 while admitting the writ petition to hearing, issued an ad interin direction to allow the petitioner to work against the said post of Animal attendant. Following this court direction, Appellant was engaged on daily wage basis at Srinagar, at his own risk and responsibility and subject to final outcome of petition, and alleges continuance hereto as such daily wager. 2. This writ petition alongwith number of other writ petitions was decided on 10-10-2002 as clubbed matter. Ld. Single Judge of this court issued several directions for according consideration for regularisation to those of the writ petitioners who are found entitled to regularisation under law and in the light of discussions made in the judgment. The exercise is to be completed within six months. The writ petitions of those of the writ petitioners, who are not entitled to regularisation, are dismissed. 3. The counsel Mr. R.A Khan, submits that the petitioner has completed more than 7 years as daily wager, therefore, he is entitled to regularisation under SRO 64 of 1994 read with Government Order No. 355-GAD of 1996 dated 30-04-1996. The counsel further submits that the petitioner has been engaged in 1979 and worked althrough. He has been paid from 1979 to 1985, but thereafter has not been paid for a period of 10 years from 1985 to 1995. He was not even allowed to work from 1985. However, armed with the court direction dated 11-7-1996 in CMP No. 1432/96 of SWP No. 658/95, he was re-engaged as daily wager by order dated 8.8.1996. 4. It merits to be taken note of that the Appellant has even in memo of Appeal admitted that after his alleged engagement in 1979, he worked till 1985 and was paid for the period. From 1985 till 1995 petitioner/appellant alleges that he worked, but was not paid. However, he has not placed on record any engagement order and there is no proof on record to show that the Appellant was actually engaged and/or worked from 1985-1995. From 1985 till 1995 petitioner/appellant alleges that he worked, but was not paid. However, he has not placed on record any engagement order and there is no proof on record to show that the Appellant was actually engaged and/or worked from 1985-1995. Muster Roll for just one week of May and for the month of June 1983, would hardly do as a proof to show that the Appellant was actually engaged. Even communication of 1993 (Annexure-B) points out that the Appellant having been disengaged as daily wager laid claim to engagement/wages before the Research Station at Wadoora in 1993, after a gap of 8 years. The appellant came to be re-engaged as a daily wager on 11-07-1996, pursuant to the above referred interim direction of the court. The order of re-engagement (Annexure-E) is eloquent proof of this fact. 5. The judgment has clearly dealt with the legal position on this aspect of the case by reference to and discussion of SRO 64 of 1994 read with Order 26-F of 1994. The eligibility for regularisation of a daily rated work/ work charge employee under the said statutory rule/ Govt. order is distincty reproduced and discussed in the judgment. The general principles of law for taking a decision in each individual case is decided by the judgment. The judgment has enumerated legal propositions as applicable to different situations thrown up and circumstnaces attending different cases like these clubbed ones. The principles are discussed to govern the respective cases. The cases do come within the sweep of various prepositions of law discussed and laid thereto. No exception can be taken to the judgment in-as-much as the judgment broadly referes to the law/ while leaving application of the culled legal principles to fact-situation and circumstances of each case to be considered by the competent authority while according consideration to sought regularisation of cases of each of the writ petitioner. Those found entitled to regularistion are directed to be regularised within the stipulated time period and those found not entitled to regularisation their petitions to be treated as dismissed. 6. The counsel contends that the petitioner has been working at least since 1996 for last about 7 years and therefore, he is entitled to regularisation under the statutory rules and orders issued from time to time by the Government. 6. The counsel contends that the petitioner has been working at least since 1996 for last about 7 years and therefore, he is entitled to regularisation under the statutory rules and orders issued from time to time by the Government. However, the counsel is overlooking the fact that petitioner has been engaged in 1996 because there was an interim direction of the court. The engagement order of Appellant daily wager expressly states that the engagement is in pursuance of the direction of the High Court and that too at the petitioners own risk and responsibility and subject to final outcome of the petition. Whether an interim direction can confer benefit of regularisation on petitioner is referred and discussed by the Ld. Single Judge in the judgement. The position in law about the continuance on a post under an interim order of the court is:- 11. Thus it is apparent that a daily wager or casual worker against a particular post when acquires a temporary status having worked against the said post for specified number of days does not acquire a right to be regularised against the said post. He can be considered for regularisation in accordance with the rules.....� (Extract from State of U.P vs. Raj Karan Singh (1998) 8 SCC 529) In N. Mohanan vs. State of Kerala and others (AIR 1997 SC: 1896) while negativing contention of regularisation of provisional appointment based on a interim order of court, the court observed: It is then contended that even though the petitioner has no right to be appointed since he was appointed on the basis of the order of the court provisionally, the appointment already made should be allowed to be continued and should be regularised. The High Court has negatived this contention, and in our view rightly. The interim order is subject to result of outcome of the final adjudication. If the petitioner is not successful in the final decision, the interim order would stand set aside. So appointment by interim order does not create any right nor the petitioner gets any rights to regularisation on that basis.� 7. Mere continuance under interim orders of court cannot confer any benefit on the person unless his case is covered by law. If the petitioner is not successful in the final decision, the interim order would stand set aside. So appointment by interim order does not create any right nor the petitioner gets any rights to regularisation on that basis.� 7. Mere continuance under interim orders of court cannot confer any benefit on the person unless his case is covered by law. If petitioners case comes within the sweep of statutory rules and orders on the subject or in absence of Rules is covered by any executive fiat applicable in the field, the appellants case for regularistion is not barred by the impugned judgment. 8. In the above view of the matter, we do not find that a case is made out for admittance of this appeal to hearing. Dismissed.