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2006 DIGILAW 288 (JK)

Ab. Gani Wani v. State Of J. &K.

2006-12-01

MANSOOR AHMAD MIR

body2006
Petitioner has averred in this writ petition that he came to he appointed as Gardener in Government Girls Higher Secondary School, Pulwama in terms of order No. 221-22 dated 28.03.1989 passed by respondent No.5 on monthly wages of Rs. 100/- per month-contained in annexure-A, and is continuously working in the department-respondents. It is further averred that he is working as Class IV employee for the full day against the post which is vacant in the said school and entitled to equal pay for equal work. 2. He has prayed that respondents he directed to, regularize the services of the petitioner as Class-IVth employee and, pay monthly salary and other service benefits as Class-IVth employee. 3. Respondents have filed reply and specifically pleaded that petitioner is working as contingent employee, not as a Gardener, on consolidated wages of Rs.100/- per month. It is further pleaded by respondents that no post of Gardener is on the establishment of respondent department as per the Educational (Subordinate) Service Recruitment Rules, 1979. Petitioner has no right and is not entitled to any regularization. 4. Petitioner has filed rejoinder and pleaded that he is performing the job of Laboratory Bearer right from last 11 years without any break from 10 AM to 4 PM. Considered. 5. Admittedly, petitioner is performing job of Gardener and is being paid Rs. 100/- per month out of the contingent funds. Thus is working as a contingent paid worker. However, in rejoinder petitioner has pleaded that he is working as a Laboratory Bearer. He has not pleaded in the writ petition that he came to be appointed as Laboratory Bearer and is working as Laboratory Bearer but his specific plea is that he is working as Gardener and is entitled to regularization as Class-IVth employee. 6. While going through Educational (Subordinate) Service Recruitment Rules, 1979and schedule attached thereto it is crystal clear that post of Gardener is not existing in the Education Department. There is also no such scheme whereby and whereunder the service of an employee working as contingent paid could be regularized. Thus the petition merits to be dismissed only on this count. 7. Division Bench of this Court in case titled Anjum Noore Bano Vs. State and others, reported in 2000 SLJ 150 has held that contingent paid employees who is not working against a post is not entitled to regularization. Thus the petition merits to be dismissed only on this count. 7. Division Bench of this Court in case titled Anjum Noore Bano Vs. State and others, reported in 2000 SLJ 150 has held that contingent paid employees who is not working against a post is not entitled to regularization. It is profitable to reproduce para-3 of the said judgment herein: "3. We have heard learned counsel for the parties and perused the memorandum of appeal and record. Learned counsel for the appellants has not made out that she was engaged and is working against the post. Mr. I.H. Qadri, Learned Additional Advocate General has submitted that in Government Primary School, there is no post of sweeper and the arrangement has been made for cleaning the school premises by engaging the appellant on contingent basis to be paid out of contingent funds. Learned counsel for the appellant could not make out that there is a post against which she is working. Unless there is a post no such direction can be issued." 8. Apex Court in case titled M.P. Housing Board & anr. Vs. Manoj Shrivastava, reported in 2006 AIR SCW 1235, held that if an employee is not appointed against a vacant post duly sanctioned by statutory authority his status cannot be made permanent. It is profitable to reproduce para-8 of the said judgment herein: 8. A person with a view to obtain the status of a "permanent employee" must be appointed in terms of the statutory rules. It is not the case of the Respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating in the field. 9. Apex Court in case titled State of Gujarat & anr. V. Karshanbhai K. Rabari & Ors., reported in 2006 AIR SCW 3692 held that before directing respondents to consider the case of the petitioner the question of entitlement and right should be decided. Admittedly the petitioner, as discussed hereinabove is contingent paid, has no right and entitlement to seek direction for directing respondents to regularize his services. 10. Apex Court in case titled A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy & Ors., reported in 2006 AIR SCW 1108 has laid down how and when respondents can be directed to consider the case of a petitioner for regularization of his services. 11. 10. Apex Court in case titled A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy & Ors., reported in 2006 AIR SCW 1108 has laid down how and when respondents can be directed to consider the case of a petitioner for regularization of his services. 11. Having glance of the above discussion, I am of the considered view that contingent employee cannot seek regularization. Moreso, when he is not working against a vacant post coupled with the fact that no such post is existing in the department. 12. Accordingly, this petition is dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated. Writ petition (SWP) No. 1967/1998 be detached.