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2004 DIGILAW 114 (JK)

State Of J. &K. v. Maharaj Krishan Bhat

2004-04-22

S.N.JHA, Y.P.NARGOTRA

body2004
Per S.N.Jha, Chief Justice. 1. The dispute in this appeal relates to the effective date of regularization of the respondents. 2. The short facts of case are that the respondents fourteen in number, were engaged as Daily Rated Workers in the Power Development Department on different dates between 1979 and 1989. The proposal for regularization of their services under SRO 64 of 1994 was considered by the Empowered Committee constituted in terms of the Rules, in its 141st meeting of 4-4-2002. The Empowered Committee decided to create a total of 70 posts including 20 posts in the Power Development Department. The decision was communicated vide memo No. 409 on 23-4-2002. On 6-6-2002, the appointing authority i.e. Chief Engineer, M&RE Wing, Jammu, issued order regularizing the services of the respondents from the dates they had completed seven years of continuous service on daily wage as per details mentioned in the chart enclosed as annexure-A to the order. A modification order, however, was issued on 6-1-2003 directing that the regularization of daily wagers shall be deemed to be sanctioned with effect from 6-6-2002 i.e. the date of the order. The order dated 6-1-2003 also referred to another order dated 16-7-2002 in respect of one Rajinder Tickoo, with which we are not concerned in this case. 3. The respondents filed writ petition, SWP No. 31/2003, challenging the said order dated 6-1-2003. The learned Single Judge observed that in terms of the decision of the Empowered Committee, though the posts were created prospectively, retrospective benefit was to be given from the date of their continuous employment after necessary verification and, therefore, making regularization effective from the date of issue of the order dated 6-6-2002 was not correct. The learned Single Judge also observed that no reason whatsoever had been assigned in the impugned order taking away the benefit of retrospective regularization. The learned Judge also took view that the retrospective benefit having been given by the Empowered Committee with the approval of the Finance Department, the Chief Engineer was not competent to take away the benefit. The learned Judge also accepted the submission of the counsel for the petitioners that the impugned order was in violation of the principles of natural justice. The learned Judge also accepted the submission of the counsel for the petitioners that the impugned order was in violation of the principles of natural justice. The learned Judge accordingly passed the impugned order dated 31-10-2003, with direction to the respondents i.e. the appellants herein, to allow retrospective benefit of regularization to the writ petitioners from the date each one of them had completed seven years of service and to give consequential benefits thereof to them with effect from the said dates. The State of Jammu and Kashmir and others have come in letters patent appeal against the said order of learned Single Judge. 4. Before going into the merits of the case of the parties, the relevant provision of SRO 64 of 1994 may straightway be noticed. By the said SRO dated 24-3-1994, the Government of Jammu and Kashmir framed rules titled The Jammu and Kashmir Daily Rated Workers/Work Charged Employees (Regularization) Rules, 1994, in exercise of the powers conferred on it by proviso to section 124 of the Constitution of Jammu and Kashmir. As per the charging provision contained in rule 5 of the said Rules: All the Daily Rated Workers who on 31-3-1994 are eligible under rule 4 for regularization shall with effect from 1-4-1994 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� 5. The eligibility for regularization is laid down in rule 4 clause (f) whereof which is relevant for the purpose of this case runs as under: 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.� Another provision which is relevant in this case dealing with creation of posts in rule 3 may also be quoted as under: Creation of the posts. - (1) the Committee may from time to time on receipt of proposal from any Administrative Department approve the creation of posts for the purpose of regularization of Daily Rated Workers or Work Charged Employees. (2) After the approval under sub-rule (1) above is conveyed to the Administrative Department, the Administrative Department concerned shall issue the orders of creation of the posts. (2) After the approval under sub-rule (1) above is conveyed to the Administrative Department, the Administrative Department concerned shall issue the orders of creation of the posts. The posts so created shall be- (a) borne on the Plan or Non-plan establishment as the classification of the scheme or work may be on which such eligible persons are deployed, and (b) in conformity with the existing sanctioned designation in the pay scale of Rs. 750-940. 6. It may be mentioned here that the term ˜Committee™ (occurring in rule 3) has been defined in rule 2(c) of the Rules to mean: the Committee as may be constituted by the Government and for the time being means the Committee appointed under Government order No. 26-F of 1994 dated 31-1-1994.� 7. It was submitted on behalf of the respondents that the scheme for regularization of Daily Rated Workers or Work Charged Employees under SRO 64 of 1994, was framed in the light of the decision of the Supreme Court in State of Haryana Versus Piara Singh, AIR 1992 SC 2130, in which direction was issued to all the State Governments to frame a scheme to provide for regularization of the daily wage employees. The scheme framed by the Government of Jammu and Kashmir contemplates regularization of all daily rated workers or work charged employees who completed seven years continuous service as such. The earlier order of the Chief Engineer dated 6-6-2002 regularization the respondents services from the dates these Daily Wages have completed seven years of continuous daily wage service� was a perfectly correct order and in accordance with the Regularization Rules, but arbitrarily, without disclosing any reason, the effective date of regularization was changed to the date of issue of the order i.e. 6-6-2002. So the impugned order dated 6-1-2003 being arbitrary and contrary to the Scheme/Rules, the direction issued by learned Single Judge does not warrant any interference in letters patent jurisdiction by this court. 8. On behalf of the appellants it was submitted that the regularization can be made only against a post and as the posts in question were created only on 4/23-4-2002, the regularization of the respondents cannot be made effective since prior to that date as was purportedly done, and therefore the effective date was rightly changed to the date of the order. 9. Mr. 9. Mr. Jalali for the respondents submitted that though posts were created by the Empowered Committee on 4-4-2002, communication by memo dated 23-4-2002, even the Committee had resolved to give retrospective effect to the creation of the posts. He referred to relevant part of the minutes of the Empowered Committee which reads as follows: The posts are created prospectively and retrospective effect is given after verification of date of engagement, their continuity and confirmation from Relief Commissioner that they have not got any assistance from that organization in excess of daily wage and if so, that excess drawn should be worked out and recovered before giving retrospective effect.� 10. The words the posts are created prospectively and retrospective effect is given� at the first instance appear to be contradictory, but when read as a whole, it becomes clear that giving ˜retrospective effect™ in context, only means that the benefit of regularization is not to be denied for the period spent on verification and confirmation of the relevant particulars regarding the date of engagement of the person(s) concerned, their continuity, their getting assistance from the concerned authority in excess of daily wage so that the excess money drawn by them may be recovered before giving retrospective effect. The underlying idea being that the process of verification may consume some time and it may not be proper to deny the actual benefit of regularization from the due date. The question is whether such due date can be any date prior to the date of creation of the post? 11. The question in fact is the moot question for consideration in this appeal and to answer that, it may be apposite to refer once again to rule 5 of the Regularization Rules i.e. SRO 64 of 1994. The said rule in terms provides that all daily rated workers eligible under rule 4 for regularization on 31-3-1994 shall with effect from 1-4-1994 be appointed in the regular pay scale of class IV employees. Though the rule itself provides a cut off and appointed day for the purpose of regularization, does it mean that the date of regularization i.e. appointment in the regular pay scale shall be one and the same in all cases? Though the rule itself provides a cut off and appointed day for the purpose of regularization, does it mean that the date of regularization i.e. appointment in the regular pay scale shall be one and the same in all cases? If it were so, 9 out of 14 respondents who were engaged as daily rated workers between March 1979 and September 1986 should have been regularized if not in 1996 on 1-4-1994 as they had completed continuous seven years service by 31-3-1994. Their services were not regularized earlier apparently because posts were not available against which they could be regularized i.e. appointed in the regular pay scale. It is to be kept in mind that completion of seven years continuous period of working as daily rated worker or work charged employee is one of the conditions of eligibility under clause(f) of rule 4, like other conditions enumerated in other clauses which does not mean that all those who possessed or possess the eligibility are to be regularized i.e. appointed in the regular pay scale, irrespective of the availability of the posts or not. It is also relevant to mention that the notification, SRO 64 of 1994, was published on or about 24-3-1994 i.e. on the eve of coming into force of the rules with effect from 1-4-1994. That is how rule 5 provides that all the Daily Rated Workers who on 31-3-1994 i.e. (seven days hence) are eligible under rule 4, shall with effect form 1-4-1994 be appointed on regular pay scale. Though this was supposed to be one time regularization of all daily rated workers etc. eligible as on the cut off day i.e. 31-3-1994. We are told the benefit of regularization has been extended also to those who completed seven years of service later by making suitable provisions. Indeed, if it were not so, such of the respondents who had not completed seven years of continuous service up to 31-3-1994 could not be regularized. 12. The validity of the order dated 6-6-2002 (supra) under which the services of the respondents were regularized and they were appointed in the regular temporary establishment as class IV employees in the scale of Rs. 2550-3200, which is the erstwhile scale of Rs. 750-940 mentioned in SRO 64 is to be considered in this back ground. 12. The validity of the order dated 6-6-2002 (supra) under which the services of the respondents were regularized and they were appointed in the regular temporary establishment as class IV employees in the scale of Rs. 2550-3200, which is the erstwhile scale of Rs. 750-940 mentioned in SRO 64 is to be considered in this back ground. The order so far as relevant reads as under: - In pursuance of Finance Departments communication No. referred to above sanction is hereby accorded to the conversion of daily rated workers who have completed seven years service and fulfill the conditions as provided in SRO 64 on Regular Temporary Establishment as class-IV in the (pay scale of 2550-3200) from the dates these daily wagers have completed the seven years of continuous Daily wage service as per the details in Annexure A� to this order. The unit posting is made against the created posts and shall add to the existing sanctioned strength to the officers in that particular cadre where these incumbents are adjusted.� 13. Going by the terms of the order, the respondents stood regularized from the dates these daily wagers have completed seven years of continuous daily wage service�. As per details mentioned in the accompanying chart, following nine respondents had completed seven years of continuous service as daily rated workers between March 1986 and September 1993. Bushan Lal, Makhan Lal Bhat, Rajnath, Mahraj Krishan Bhat, Surinder Kumar, Avtar Krishan, Ashok Kumar Bhat, Nandan Kumar, Omkar Nath Saroop. 14. Their dates of engagement being, respectively, March 1979, July 1979, August 1980, February 1981, April 1982, January 1984, May 1984, June 1985 and September 1986, in terms of the order thus they stood regularized, (on different dates between 1986 and 1993 on completion of seven years continuous service), but this apparently could not be so because the rules came into force from 1-4-1994 and thus, to say the least, there could not be any regularization from any date prior to the appointed day i.e. 1-4-1994. The order therefore ex-facie was not correct and required modification. By the impugned order, regularization of the respondents was made effective from the date of creation of the posts i.e. 6-6-2002. The case of the respondents that their regularization should be made effective as per the order dated 6-6-2002 from the date(s) when they completed continuous seven years service, therefore, cannot be accepted. By the impugned order, regularization of the respondents was made effective from the date of creation of the posts i.e. 6-6-2002. The case of the respondents that their regularization should be made effective as per the order dated 6-6-2002 from the date(s) when they completed continuous seven years service, therefore, cannot be accepted. The question then is what should be the effective date of their regularization? 15. As seen above, under rule 3 of SRO 64 of 1994, the Committee known as Empowered Committee is competent to approve creation of posts for the purpose of regularization of daily rated workers/work charged employees on receipt of proposal from the concerned departments. From the minutes of the proceedings of the Empowered Committee dated 4-4-2002, it appears that proposals were received for creation of 70 posts from various departments including 20 posts in the Power Development Department. The Empowered Committee considered the proposals and approved creation of posts of Helpers in the pay scale of Rs.2550-3200 to regularize DRWs� which included 20 posts for the Power Development Department. This was communication by the Director, Codes, Finance Department on 23-4-2004 vide memo No. 409. The posts in question thus came into existence only on 23-4-2002, or at the most on 4-4-2002. The effective date of regularization of the respondents could not be a date prior to the date of sanction or creation of the posts. The impugned order dated 6-1-2003 modifying the effective date of regularization, as directed by the earlier order dated 6-6-2002, therefore, cannot be said to be a wrong order except that such regularization should be effective from 23-4-2002 when the creation of posts was communicated. 16. Mr. Jalali submitted that in similar cases, regularization was made with retrospective effect but in the case of respondents, the government is giving a different treatment. The facts of those cases are not on record. The persons concerned are not party to the proceeding and, therefore, it is not possible to record any finding one way or the other on the plea. Even if it were so, any wrong committed earlier would not justify committing another wrong. Article 14 of the Constitution can not be stretched to perpetuate the wrong or illegality. 17. In Ashwani Kumar Versus State of Bihar, AIR 1996 2833 = 1997 (2) SCC 1 on which heavy reliance was placed on behalf of the appellants Ms. Even if it were so, any wrong committed earlier would not justify committing another wrong. Article 14 of the Constitution can not be stretched to perpetuate the wrong or illegality. 17. In Ashwani Kumar Versus State of Bihar, AIR 1996 2833 = 1997 (2) SCC 1 on which heavy reliance was placed on behalf of the appellants Ms. Shaista Hakim, 2250 class III and class IV posts had been created to implement the Tuberculosis Eradication Scheme, as part of the 20 Point Programme as a plan expenditure. One Dr. A.A.Mallick Deputy Director in the Health Department, taking advantage of his position appointed over 6000 persons. The appointments were latter cancelled by the State Government. One of the ground on which Supreme Court declined to interfere in the matter was that the appointments could not be made without sanction of posts and beyond the budgetary provisions. The Court observed that the vacancies or posts created for implementation of the scheme may not be a part of the regular service but nonetheless, recruitment to the sanctioned vacancies would have to be necessarily backed up by the financial budget support, to be made available by the State as per 20-Point Programme under its liability to contribute towards the same along with Central Government. There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions.� 18. As seen above, rule 5 of the rules contemplates appointment on regular pay scale�. Such appointment can be made only against a post. If there are no posts available, sanctioned/created by the competent authority, there cannot be any appointment. It is one thing to give notional benefit, such as in the matter of seniority, it is anther thing to make appointment beyond budgetary provision. In absence of any budgetary provisions, neither any appointment can be made on a ˜post™ nor salary/pay etc. can be paid to the appointee. The posts in question having been created only on 4/23-4-2002, regularization of the respondents cannot relate back to a prior date. The impugned order directing the respondents to give benefit of regularization with effect from the date each one of them completed seven years of service� and also to give them consequential benefits with effect from such dates, cannot be said to be in accordance with law. The impugned order directing the respondents to give benefit of regularization with effect from the date each one of them completed seven years of service� and also to give them consequential benefits with effect from such dates, cannot be said to be in accordance with law. In the result, the appeal is allowed, the order of the learned single Judge is set aside and the writ petition of the respondents is dismissed.