Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 96 (JK)

Ab. Rashid Dar v. State Of J. &K.

2005-04-05

MANSOOR AHMAD MIR

body2005
1. The petitioners have averred that they are entitled to regularization from the date they completed seven years of service in terms of annexure-C. In terms of the orders of this Court, the petitioners have been regularized from the date of issuance of order but have not been regularized from the date when they completed seven years of service. Thus the action of the respondents is arbitrary because petitioners are entitled to be regularized from the date of completion of seven years and not from the date of issuance of order and petitioners are also entitled to the same treatment which as been given to other daily wagers. 2. The respondents have resisted the petition on the grounds that in terms of Rule 3 of SRO 64, the constituted Empowered Committee was required to create posts for considering the regularization of eligible daily rated workers. The petitioners along with other daily rated workers approached this court in terms of SWP Nos.1938/99, 1751/99,1169/2000, 1082/98, 333/2000 and sought regularization of their services. The matter was taken up with Administrative Department for creation of the requisite posts and the competent authority directed respondent No. 3 to regularize the services of the petitioners against the post of Helpers and accordingly the petitioners along with other daily rated workers came to be regularized as per the order bearing No. 297 dated 02.12.2000 against available post of Helpers in the grade of Rs. 2550-3200. The effect of regularization was not given retrospectively from the date of completion of seven years of service because of the fact that posts were not available at that relevant point of time and under rules regularization cannot be granted against the non-existent posts. 3. Considered. Rule 3 of SRO 64 reads as under;- "3. Creation of 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. 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. The posts so created shall be:- a. Born on the plan or non-plan establishment as the classification of the scheme or work may be on which such eligible person are deployed, and b. In conformity with the existing sanctioned designation in the pay scale of Rs. 750-940." 4. Thus SRO 64 of 1994 mandates that posts are to be created and then the daily Rated workers are to be regularized in terms of rules, who have completed seven years of service. The SRO 64 nowhere mandates that if the post is not available at the time of completion of seven years of service and if a daily Rated worker is regularized subsequently the regularization is to be given effect retrospectively. A daily Rated worker can be regularized against the post, when no such post is existing then under what rules said daily rated worker can be regularized retrospectively. Mr. Dar has not been in a position to cite any provision of law which mandates such an action from the respondents. 5. The order passed in CMP No. 1848/2000 (SWP No. 1751/99) Abdul Rashid Dar & Ors. v. State and Ors., by this court, directing the regularization of the petitioners reads as under; - "Petitioners, Dailywagers, seek regularization of their services under SRO 64/1994. Petition is admitted to hearing. Heard learned counsel for the respondents also. In reply to para 6 of the petition, the respondents have stated that the case of the petitioners are under active consideration of the higher authorities. As and when the Finance Department gives its sanction and creates the posts, petitioners will be brought on regular establishment in terms of SRO 64/1994. The petition is disposed of directing the respondents to regularize the services of the petitioners within two months." 6. While going through the said order, this court has not commanded the respondents to regularize the services of the petitioners retrospectively. 7. Second limb of Mr. The petition is disposed of directing the respondents to regularize the services of the petitioners within two months." 6. While going through the said order, this court has not commanded the respondents to regularize the services of the petitioners retrospectively. 7. Second limb of Mr. Dars argument is that the same treatment be given to the petitioners which has been given to persons who have been regularized retrospectively and who have completed seven years of service after the present petitioners have completed seven years of service. The petitioners have not arrayed the said persons as respondents and have not challenged the said status of the said persons and the orders in terms of which the said persons have been given the benefit. This court cannot ask the respondents to pass such an order which is not warranted under law even if the respondents have passed such an order in favour of some persons. 8. Viewed thus the argument of the learned counsel for the petitioner is devoid of any force. In the given circumstances, no case for admission is made out. Accordingly the writ petition along with all connected CMPs is dismissed.