Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 59 (JK)

Naresh Kumar v. State

2009-02-13

SUNIL HALI

body2009
1. The petitioner came to be engaged as cook on 4.8.1997 on consolidated pay @ Rs. 35/-per day in the Police Department at Police Lines, Kathua. He remained in the job from 4.8.1997 to 7.4.2005, which is also certified by the Senior Superintendent of Police, Kathua vide his communication dated 6.7.2005. Vide order dated 7.4.2005, the petitioner was disengaged as Daily Rated Worker on the ground that he stood engaged after 31.03.1994. It is this order, which is subject matter of challenge before this court. 2. I have heard learned counsel for the parties and perused the record. 3. SRO 64 of 1994 was issued only to ensure that the persons who are engaged as Daily Rated Workers are not allowed to continue on such temporary appointments without giving permanency to their status. Rule 4 of the said SRO indicates the eligibility for regularization. For facility of reference, Rule 4 is quoted herein below:- "4. Eligibility for regularization:-A Daily Rated Worker/Work Charged Employee shall be eligible for regularization on fulfillment of the following conditions, namely:- (a) that he is a permanent resident of the State; (b) that on the date of his initial appointment his age was within the minimum and maximum age limit as prescribed for appointment in Government Service; (c) that he possesses the prescribed academic and /or technical qualification for the post against which he is required to be regularized. Provided that in case of eligible Daily Rated Workers to be regularized against Class IV posts, relaxation of qualification and /or age shall be considered on merit by the concerned Administrative Department. (d) that he is not a retiree from any State or Central Government service or any Local Body, Public Sector Undertaking or Autonomous Body in or outside the State. (e) that his work and conduct has remained satisfactory during the period he worked as Daily Rated Worker or work Charged Employee and no disciplinary proceedings are pending against him; and (f) that he has completed seven years continuous period of working as Daily Rated Workers or Work Charged Employee or partly as Daily Rated Worker and partly as Work Charged Employee." 4. Rule 5 of SRO 1994 deals with the regularization of Daily Rated Workers. For facility of reference, Rule 5 is quoted herein below:- "5. Rule 5 of SRO 1994 deals with the regularization of Daily Rated Workers. For facility of reference, Rule 5 is quoted herein below:- "5. Regularization of Daily Rated Workers:-All the Daily Rated Workers who on 31.3.1994, are eligible under rule 4 for regularization shall with effect from 1.4.1994 be appointed on the regular pay scale of Class IV prescribed in the concerned department for the relevant category of posts in the scale of Rs. 750-940: Provided that if any of the category have higher pay scale of Rs. 775-1025, such employee(s) shall be placed in the higher pay scale of Rs. 775-1025 after completion of two years of service in the scale of Rs. 750-940." 5. Conjoint reading of the Rule 4 & 5 indicates that a person who has seven years continuous service as Daily Rated Worker, beside other eligibilities which he requires to possess, is eligible for regularization. 6. Rule 6 of SRO 1994 indicates that all the Work Charged Employees who, as on 31.3.1994 fulfill all the conditions as laid down in Rule 4 shall be brought on regular temporary establishment w.e.f. 1.4.1994 in the corresponding pay scale. Rule 6 of the said SRO is quoted herein below:- "6. Absorption of Work Charged Employee on Regular Temporary Establishment-All the work Charged Employees who, on 31.3.1994 fulfill all the conditions as laid down in Rule 4 shall be borough on regular temporary establishment with effect from 1.4.1994 in the corresponding pay scale: Provided that if on absorption of the employee the available pay scale is lower, his pay shall be protected by creating post on regular establishment with corresponding reduction of such work charged post, if no suitable vacancy is available." 7. Interpretation placed by the respondents is that persons who stand engaged prior to 31.3.1994 would be brought on regular establishment provided they fulfill all eligibilities of Class IV. It has been assumed by the respondents that only those persons who are engaged before 31.3.1994 are eligible for regularization. Meaning thereby is that it is onetime regularization. In order to appreciate the controversy involved in this case, Rule 8 of SRO 64 of 1994 is quoted herein below:- "8. It has been assumed by the respondents that only those persons who are engaged before 31.3.1994 are eligible for regularization. Meaning thereby is that it is onetime regularization. In order to appreciate the controversy involved in this case, Rule 8 of SRO 64 of 1994 is quoted herein below:- "8. Application of rules to existing Daily Rated Worker and work charged Employee-The policy of absorption of Daily Rated Worker and Work charged employees shall also apply to such of the existing Daily Rated Workers and Work Charged Employees who may not have completed seven years on 31.3.1994 but may complete by the end of subsequent financial year and their absorption shall be considered in that financial year in accordance with these rules." 8. Rule 8 of SRO 1994 states that any person who has not completed seven years as on 31.3.1994, but may complete by the end of subsequent financial years, their absorption shall be considered in that financial year in accordance with these rules. 9. Plain reading of Rule 8 would reveal that the power of regularization is not onetime exercise, but it is a continuous process. Restricted meaning of Rule 6 of SRO 64 is that all those Daily Rated Workers, who have been appointed after 1994 will have no right of regularization. This cannot be intended object of the policy framed by the legislature. The object of the policy is to provide permanent status to the Daily Rated Workers, who are working continuously. I do not agree with the interpretation of the respondents that a person who stands appointed after 31.3.1994 has no right of consideration. Rule 8 of the above said SRO clearly contemplates that the persons, who have not completed seven years of service but may complete by the end of subsequent financial year, their absorption shall be considered in that financial year in accordance with these rules. 10. It is stated that Rule 8 would apply only to those persons who stand appointed prior to 1994 but have not completed seven years service as on 31.3.1994 and the persons, who stand appointed after 31.3.1994 are not entitle for regularization. Analyzing this provision in the light of object of issuance of the said SRO, it will not be safe to place the restricted interpretation of Rule 8 of the said SRO. Analyzing this provision in the light of object of issuance of the said SRO, it will not be safe to place the restricted interpretation of Rule 8 of the said SRO. This provision is to be harmoniously read with the object of SRO, which provides permanent status to the Daily Wagers and the same is not one time exception. If the restricted interpretation of Rule 8 is taken, no Daily Wager appointed after 31.3.1994 can seek his regularization. 11. This in my view is not aim and object of the Act. The plain reading of the provision does not by its language restrict the regularization of those persons who are appointed after 31.3.1994. All that is sought to be stated is that persons who are appointed before 31.3.1994 but have not completed seven years of service would alone be eligible. If the intention was to confirm the regularization of the services of those persons, who have completed seven year as on 31.3.1994, one can safely state that it is one time exception. It is not intend and purpose of the rules. It permits regularization of those persons also, who have not completed seven years of service on 31.3.1994, but are also eligible for regularization on completion of seven years. Intend and purpose of the rule is to provide permanent status to the Daily Rated Workers who are working continuously for more than seven years. 12. The rule of reading down a provision of law is well recognized. It is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing out the creases found in a statute to make it workable. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfill its purposes. I fortify my view with the judgment of Supreme Court reported in B.R. Enterprises v. State of U. P. SCC 764-66. Para 81 of the said judgment is quoted herein below:- "[F]irst attempt should be made by the court to uphold the charged provision and not to invalidate it merely because one of the possible interpretations leads to such a result, however attractive it may be. Para 81 of the said judgment is quoted herein below:- "[F]irst attempt should be made by the court to uphold the charged provision and not to invalidate it merely because one of the possible interpretations leads to such a result, however attractive it may be. Thus, where there are tow possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavoring, sometimes to give restrictive or expansive meaning keeping the nature of legislation, may be beneficial, penal or fiscal etc. Cumulatively it is to subserve the object of the legislation. Old golden rule is of respecting the wisdom of legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within their track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved he courts shall not hesitate to strike it down. Similarly for upholding any provision, it it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the court to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act. Here the Courts have to play a cautions rule of weeding out the wild from the crop, of course, without infringing the Constitution. For doing this, the courts have taken help from the preamble, Objects, the scheme of the Act, its historical background, the purpose of enacting such provision, the mischief, if any which existed, which is sought to be eliminated.. This principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned provisions clearly shows that it confers arbitrary, uncanalised or unbridled power." 13. Applying these observations to the case in hand, it can safely be stated that any person who has not completed seven years of service as on 31.3.1994 would be entitled for regularization will also apply to those persons who got appointed after March, 1994. Applying these observations to the case in hand, it can safely be stated that any person who has not completed seven years of service as on 31.3.1994 would be entitled for regularization will also apply to those persons who got appointed after March, 1994. This interpretation will achieve the object and purpose of SRO, which came into force for providing permanent status to the Daily Rated Workers under SRO 64 of 1994. The mischief, which is sought to be achieved, if any, in the rules will get eliminated. I, therefore, hold that all those persons who were appointed after 31.3.1994 would be also eligible for regularization under SRO 64 of 1994. 14. In view of the above, I allow this writ petition and set aside the order of termination dated 7.4.2005 so far as it pertains to the petitioner-Naresh Kumar and direct the respondents to re-engage him and take decision for regularization of his services under SRO 64 of 1994 within a period of three months from the date a copy of this order is received by them.