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2009 DIGILAW 36 (JK)

Mohd. Ayoub Hanji v. State

2009-02-05

MANSOOR AHMAD MIR

body2009
1. By the medium of this writ petition, petitioner has questioned the order No.70 of 2007 dated 07.08.2007 passed by respondent No.3 whereby and whereunder, the claim of the petitioner for regularization in terms of SRO 64 came to be rejected on the grounds taken in the writ petition. 2. It is averred in the writ petition that petitioner is working as a Dailywager in the department--Project Construction Corporation (PCC) right from 1st January, 1992 and is holding the position. He had made request to the respondents for accord of consideration for regularization in terms of mandate of SRO 64 but respondents failed to do so constrained the petitioner to invoke the jurisdiction of this court by the medium of SWP No.342/2006--came to be allowed vide judgment/ order dated 11th of September, 2006 with the command to the respondents to consider the case of the petitioner in terms of SRO 64 and take decision within three months. 3. It appears that respondents failed to consider the case within time frame constrained the petitioner to file a contempt petition No.394/2006. In para-2 of the statement of facts, respondents have averred that case of the petitioner was considered and made communication/ request to the concerned authority for creation of post enabling the department-respondent No.3 to regularize the service of the petitioner. It is apt to reproduce para-2 of the said statement of facts herein: - "2) That the present proceedings have been raised by the petitioner out of directions contained in the judgment dated 1.09.2006 whereby respondents are under direction to consider petitioners entitlement to regularization on the strength of SRO 64 and a decision shall be taken within a period of three months from the date of receipt of the order by respondent No.1. In this behalf, the answering respondent has considered the matter and has taken up the matter with the respondent No.1 (Secretary to Govt. PWD (R&B) Department, J&K Govt.) vide office letter No.2736 Dt: 01-02-2007, copy of same is enclosed as Annexure-"A" for kind perusal of this Honble Court. It is submitted that the respondent No.1 has forwarded the case to the Finance Department for creation of post against which petitioner is required to be regularized. Neither respondent No.1 nor respondent No.2 have got power or authority to regularize the services of any daily rated worker in terms of SRO 64 of 1994." 4. It is submitted that the respondent No.1 has forwarded the case to the Finance Department for creation of post against which petitioner is required to be regularized. Neither respondent No.1 nor respondent No.2 have got power or authority to regularize the services of any daily rated worker in terms of SRO 64 of 1994." 4. On 18th of October, 2007 respondents produced copy of impugned order and accordingly contempt petition came to be disposed of with liberty to the petitioner to seek appropriate remedy. This is how the petitioner was constrained to file present petition and has questioned the impugned order. It is stated in the impugned order that entire record was gutted in fire incident and FIR came to be lodged. However, the Finance Department-Empowered Committee directed to consider the case of the petitioner and reject it. It is apt to reproduce para-10 of the impugned order herein: "10. Whereas after examining and scrutinizing all the records including directions of court by them i.e. Finance Department (Empowered Committee) constituted by the Government for regularization of all DRWs who observed as under: - "The Department i.e. JKPCC is advised to consider the case of the petitioner namely Shri Mohd Ayoub Hanji DRW JKPCC Ltd in terms of SRO-64 dated 31.1.1994 and reject the claim by issuing a speaking order as he is not fulfilling the requisite conditions prescribed for regularization under SRO-64 dated 31.1.1994 so that court judgment is complied within letter and spirit"" 5. Respondents have filed reply and have stated that the case of the petitioner was considered and came to be rejected. 6. Admit. With the consensus of learned counsel for the parties, this case is taken up for final disposal. 7. It is apt to reproduce Rule 3 of SRO 64 herein 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 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." 8. In terms of Rule-3 of SRO 64, the concerned department-competent authority has to consider the case of the dailywager and if found eligible for regularization has to make communication/ recommendation to the Government--concerned department for creation of post. Respondents have considered the case of the petitioner and made a request to the Government for creation of the post. How can they now make U-turn and plead that High Level Committee directed the department JKPCC to consider the case of the petitioner and reject it. It can be safely held that case of the petitioner came to be rejected illegally and without application of mind. 9. In the given circumstances, writ petition is allowed and the impugned order No.70 of 2007 dated 07.08.2007 is quashed with the command to the respondents to consider the case of the petitioner while keeping in view the facts (supra) read with the mandate of SRO 64, within three months from the date the copy of this judgment is served upon them. Writ petition disposed of along with all connected CMPs.