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2004 DIGILAW 68 (JK)

Hem Raj v. State

2004-03-19

S.K.GUPTA

body2004
Petitioners are daily wagers having put in service of more than 9 years in various capacities as waiters, salesman, chowkidar, plumber and electrician who claim to be entitled to seek regularization. The petitioners have earlier also filed writ petition (SWP) No. 306/90 in which the judgment and order was passed by this court on 4.3.98 with the following directions; "(i) that the writ petition be treated as representation; (ii) that the claims of the petitioners be considered in terms of the various standing orders and the policy decisions; (iii) respondents would also take notice of the decision given by the Supreme Court of India in the case reported as "State of Haryana v. Paira Singh, AIR 1992 SC 2130". Let appropriate steps be taken as early as possible preferably within a period of three months. The period of three months would begin from the date, the copy of the order passed by this court alongwith the writ petition and annexures is made available by the petitioner to the concerned authorities. (iv) that the claim of the petitioners for monetary benefits be also considered within the aforementioned period. In case, the monetary claims are due and these are not settled within the stipulated period, then the petitioners would be entitled to the interest. The rate of interest would be 12%. (v) during the period, the matter is under consideration with the respondent-authorities they would maintain status-quo with regard to the service condition of the petitioners. In case any adverse order is passed, that be kept in abeyance for a period of four weeks." It is further stated that when the directions in the aforesaid writ petition were not complied by the respondents, a contempt petition bearing No.58-B/98 also came to be initiated seeking implementation of the order. While disposing of the contempt petition vide its order dated 08.10.99, the following direction was passed: "This petition is disposed of with a direction that final decision be taken within four months failing which petitioners shall be deemed to have been regularized." According to the petitioners they are deemed to be the regular employees of the corporation in view of the directions of this court in contempt petition and entitled to get their salary and other allowances payable to other employees performing the similar duties and discharging same functions. But the petitioners are only paid wages of a daily wager and are even without arrears of salary on the basis of equal pay for equal work from the date of their engagement as daily wager. Reliance is placed on the judgment of this court in SWP No. 306/98 entitled "Tirath Chand and Ors. v. State and Ors. The petitioners, therefore, seek the issuance of writ of mandamus commanding the respondents to pay salary as is payable to regular employees of J&K TDC and further pay the arrears of salary at the same rate as is being paid to other employees of corporation, performing the same functions from the date they are deemed to have been regularized, by issuance of writ in the nature of mandamus, in exercise of jurisdiction under article 226 of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir. Respondents have not disputed regularization in terms of SRO 64 of 1994. It is however, stated that there are 123 daily wagers like the petitioner(s) in this petition whose services are to be regularized. The government has been approached to provide funds and for creation of posts, this involves financial liability of about Rupees one crore for their regularization and proper grade and also subject to availability of the posts which are not available till date. The respondents did not dispute that the case of the petitioners alongwith similarly situated daily wagers shall be considered for regularization on the availability of the posts, funds and creation of posts. It was further pointed out that there are many other senior persons appointed much prior to the petitioners as daily wagers and are in pipe line for their regularization. Heard L/C for the parties in extenso, and also perused the record meticulously. It may be pointed out at the first flush that while giving directions for regularization of services, the court must take due care and caution. It must first ascertain the relevant facts, and must be cognizant of several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. It is the Executive again that lays down the conditions of service subject, of course, to a law made by appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under proviso to Article 309 of the Constitution or( in the absence of such rules) by issuing Rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. It is settled proposition of law, that no direction for regularization of services can be issued unless there is existing post against which the petitioner has been working. No vested right is created in a temporary employment, directions cannot be given to regularize their services in absence of vacancies. The main thrust of L/C for the petitioners is that in view of order passed in COA No.58-B/98, the petitioners are deemed to be regularized. It is on the basis of deemed regularization they are claiming salary equal lent to the salary paid to the regular employees in the J&K State of TDC. Without commenting much on the aforesaid submission of the Learned Counsel with regard to order passed in COA. 58-B/98, it is relevant to point out that the court cannot enlarge the scope of judgment passed in the writ petition, in a contempt applications. It is not in dispute that there are no vacancies available in the respondents department. The regularization can be made only when the vacancies are available. The respondents have admitted that the government has been approached for creation of 123 posts for Daily wagers in the department who are eligible for regularization. However, petitioners services cannot be regularized unless there are posts. It is settled law that no direction for regularization of service can be issued unless there is existing post against which the petitioner has been working. However, petitioners services cannot be regularized unless there are posts. It is settled law that no direction for regularization of service can be issued unless there is existing post against which the petitioner has been working. The Apex court in H.P v. Ashwani Kumar, AIR 1997 SC 352 held as: -- "No vested right is created in a temporary employment, directions cannot be given to regularize their services in the absence of any existing vacancies nor direction be given to create posts by the State to non-existing establishment. The court would accept pragmatic approach in giving direction. The directions would amount to creating of posts and continuing them in spite of non availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside." The plea put across by the L.C for the petitioners for regularization in such circumstances, therefore, cannot be accepted. It was next contended by the petitioners Advocate that the salary payable to the regular employees in the J&K TDC be also paid to the petitioners. In this context, it may be pointed out that unless the petitioners are regularized against substantive basis, they are entitled only to the wages of the daily wagers. It is settled law that where the workers on temporary, adhoc or daily wagers, casual workers, they could not be treated at par for purposes of pay scales with regularly employed permanent staff in the establishment. To claim the relief on equality it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights at par with other regular employees in the department of respondents. Reliance placed on case "State of Orrisa v. Balaram Sahu and Ors., AIR 2003 SC 33. Therefore, the petitioners being engaged as daily wagers cannot be treated at par with the regular services of the State. A scale of pay is attached to a definite post, and in case of daily wager, he holds no post. The petitioners workers cannot be held to hold any posts so as to claim comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowance. A scale of pay is attached to a definite post, and in case of daily wager, he holds no post. The petitioners workers cannot be held to hold any posts so as to claim comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowance. Judged in the background of the aforesaid principles, I do not find any merit in this petition, and the same is accordingly dismissed.