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2006 DIGILAW 75 (JK)

Asger Ali Sofi v. State Of J. &K.

2006-04-05

MANSOOR AHMAD MIR

body2006
1. It is averred in this petition that petitioners came to be engaged as daily-wagers in the year 1988 in terms of order contained in annexure-A to the writ petition. Petitioners were constrained to file SWP No.1099/98 which came to be allowed by this Court in terms of judgment and order dated 14.08.2000, contained in annexure-B to the writ petition. Respondents failed to comply with the directions contained in annexure-B, which constrained the petitioners to file contempt petition which came to be disposed of vide order dated 21.07.2001, contained in annexure-C to the writ petition. Thereafter, it appears that sanction was accorded to the regularization of petitioners in terms of order No.243/PHE/Estt of 2002 dated 29.04.2002, contained in annexure-D, against "non-plan posts" with immediate effect. 2. The petitioners feeling aggrieved of the said order filed SWP No.1306/02 and prayed for regularization of their services retrospectively. The said writ petition came to be disposed of vide order dated 1st December, 2004. Respondents accorded consideration and rejected the claim of petitioners for retrospective regularization vide order No. PHE/LS/8094-98 dated 14.07.2005, contained in annexure-H to the writ petition (for short, hereinafter, to as impugned order). 3. Petitioners have prayed for quashing of the impugned order and commanding the respondents to regularize their services retrospectively w.e.f. 01.06.1995 and 01.09.1995. Respondents have filed objections. Heard. Perused. Considered. 4. It is profitable to reproduce the relevant portion of the order contained in annexure-B, herein, which reads as under:- "The petition is disposed of with the direction to the respondents to consider and having the petitioners on regular establishment in terms of SRO-64/1994. The respondents will also release the pay/dues withheld wages if the petitioners have physically works with the respondents." 5. It is also useful to reproduce order dated 21st July, 2001, contained in annexure-C, herein, which reads as under:- "During the course of debate Mr. Attar learned AAG, stated that as reflected in the statement of facts also the case of the petitioners has been processed and as soon as the process is completed consideration for their regularization in terms of SRO-64 of 1994 shall be accorded in terms of the court judgment within a reasonable time. In view of the statement made by Mr. Attar at the bar Mr. B. A. Khan petitioners advocate, does not press the contempt petition. The contempt petition stands disposed of as not pressed. In view of the statement made by Mr. Attar at the bar Mr. B. A. Khan petitioners advocate, does not press the contempt petition. The contempt petition stands disposed of as not pressed. However in case the consideration is not accorded in terms of the court direction within a reasonable time, the petitioners shall be at liberty to seek redressal in accordance with law." 6. Respondents had taken stand that the case of the petitioners was under process and would be considered after the process was complete in terms of SRO 64 of 1994, for short "SRO". It appears that after completing the process, case of petitioners was considered and accordingly order No. 243/PHE/Estt of 2002 dated 29.04.2002, contained in annexure-D, came to be passed whereby services of the petitioners came to be regularized. 7. The moot point for consideration in this writ petition is whether the services of a daily-wager, who completed seven years service, is to be regularized from the date he actually completed seven years of service or from the date when order of regularization is passed? 8. In order to return finding on this issue, it is necessary to notice relevant provisions of "SRO", herein. Rule 2(c) of "SRO" defines "committee", which reads as under:- "2. Definitions:- In these rules. Unless the subject or context otherwise requires: ................... (c) "Committee" means 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. 9. Rule 3 of "SRO provides how posts are to be created which reads as under:- 3. 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. 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. 10. 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. 10. In terms of Rule 3 of "SRO", the Committee after receiving proposal from Administrative Department may approve the creation of posts for purposes of regularization of daily-rated workers or work-charged employees and after approval is granted by the said committee in terms of sub-rule 1 of Rule 3 of "SRO", the same is to be conveyed to Administrative Department and thereafter Administrative Department has to issue orders for creation of posts. The posts so created shall be born on the plan or non-plan establishment in the pay-scale of Rs.750-940 and thereafter, the order of regularization can be issued in terms of Rule 5 of "SRO". 11. Rule 8 of "SRO" provides that if a daily-rated worker who had not completed seven years on 31st March, 1994 but was working as daily-rated worker or work-charged employee and who would complete seven years of service by the end of subsequent financial year(s) his or their regularization/absorption was to be considered in that financial year in accordance with "SRO". 12. Learned counsel for petitioner argued that petitioners 1 and 2 had completed seven years as daily-rated workers on 1st June, 1995 while as petitioner No.3 completed on 1st September, 1995. Thus, their services were to be regularized from 1st June, 1995 and 1st September, 1995, respectively. 13. The respondents have taken stand that basically petitioners were not entitled to regularization because they were working as casual labourers, however, their services came to be regularized in terms of the court orders. I deem it proper to refrain from offering comments on this question for the reasons that this matter stands clinched. But the question which needs adjudication is, whether petitioners were entitled to regularization retrospectively. I am of the considered view that petitioners are not entitled to the said relief for the following reasons. 14. I deem it proper to refrain from offering comments on this question for the reasons that this matter stands clinched. But the question which needs adjudication is, whether petitioners were entitled to regularization retrospectively. I am of the considered view that petitioners are not entitled to the said relief for the following reasons. 14. It appears that case of the daily-rated workers who had completed seven years was to be processed in terms of the mandate of "SRO" which mandates that case was to be sent by the Administrative Department to the concerned committee and the committee on the basis of proposal had to consider it for approval and if approval was granted the same was to be conveyed to the Administrative Department and thereafter, the administrative department had to issue orders of creation of posts. This means that services of those daily-rated workers who were entitled to regularization in terms of "SRO" could be regularized only after posts were created. The services could not be regularized against the non-existent post because it involves financial implication. Salary is to be drawn against the post whether plan or non-plan. Thus, services of daily-rated worker can be regularized provided post is vacant. "SRO" also nowhere mandates that services of daily-rated worker can be regularized retrospectively. This court in judgment delivered in case State of J&K & Ors. Vs. Maharaj Krishan Bhat and others, reported in SLJ 2004 Vol.II page 612 held as under:- "7. 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. 17. 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 another 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. It is one thing to give notional benefit, such as in the matter of seniority, it is another 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." 15. The petitioners have not given the names and particulars of the daily-wager(s) whose services came to be regularized retrospectively. However, if the respondents have committed any wrong the Court cannot direct the respondents to commit another wrong. 16. In view of the above discussion, I am of the considered view that impugned order has been passed rightly. Viewed thus, writ petition is dismissed along with all connected CMP(s).