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2010 DIGILAW 526 (JK)

State Of J&K v. Maharaj Krishan Bhat

2010-10-13

Aftab H.Saikia, Sunil Hali

body2010
Dr. Saikia, CJ. 1. Heard Mr. G. S. Thakur, learned counsel for the appellants as well as Mr. K. L. Pandita, learned counsel for the respondents. 2. This appeal has been taken up for final disposal on being remanded by the Supreme Court vide order dated April 6, 2010. 3. The fundamental issue which has come up for resolution in this appeal is that as to whether the respondents, who were appointed as daily rated workers/ work charged employees (Migrant) during the period between 1979 and 1986, are entitled to get regularization after completion of a period of seven years of service. 4. The Supreme Court, while entertaining the Civil Appeal no. 1056/2005, which was filed by the respondents herein as appellants, assailing the judgment and order dated April 22, 2004, passed by Division Bench of this Court in LPA(SW) no. 48/2004, whereby the High Court rejected the claim of respondents for regularization with effect from any date prior to their actual regularisation and creation of post, remanded the matter to the High Court for hearing afresh in accordance with the Circular/Cabinet Decision no. 29/8 dated December 12, 1996. 5. The relevant portions of the order dated April 6, 2010 rendered by the Supreme Court read as under:- "2. In the course of arguments before us, Mr. M. L. Bhat, learned senior counsel for the appellants referred to Annexure RA/1 annexed to the rejoinder affidavit filed by the appellants before this Court in which it is stated that the daily rated workers/work charged employees (Migrants) who have completed 7 years or more continuous working prior to their migration from the valley and have been re-engaged/re-deployed in the same department outside the Valley even after a break beyond the admissible limit and are continuously working as such in the same department, may be regularized w.e.f. 1.4.1994 provided they were re-engaged/re-deployed on or before 1.4.1994 in the same department and are continuously working and paid from the date of their re-engagement/re-deployment. 3. Mr. Bhat submitted that the High Court has not considered this decision of the Cabinet dated 30.12.1996, as circulated by the Finance Department, Govt. of J&K in Annexure RA/1. "4. Mr. Anis Suhrawardy, learned counsel for the respondents submitted that the case of the appellants herein will have to be considered strictly in accordance with the circular Annexure RA/1 by the Finance Department, Govt. of J&K in Annexure RA/1. "4. Mr. Anis Suhrawardy, learned counsel for the respondents submitted that the case of the appellants herein will have to be considered strictly in accordance with the circular Annexure RA/1 by the Finance Department, Govt. of Jammu and Kashmir and only if the case of the appellants is covered by the said circular, they may be considered for regularization w.e.f. 1.4.1994 and not otherwise and this can be done by the High Court. 6. Considering the aforesaid submission of learned counsel for the parties, we set aside the impugned judgment and order of the High Court and remand the matter back to the high Court for considering the case of the appellants herein in accordance with the Circular No. 29/8 dated 30.12.1996 of the Finance Department, Govt. of Jammu & Kashmir and any subsequent circulars, if any, of the State Government in this regard and for fresh decision in accordance with law and request the High Court to decide the matter within six months from the date of production of a copy of this order." 6. For the sake of convenience, the Circular in question is also quoted hereinunder : "Government of Jammu and Kashmir Finance Department Subject:- Regularization of migrant daily rated workers/work charge employees. Ref: Cabinet Decision No. 29/8 dated 30.12.1996 In relaxation to Rule 12(a) of Jammu and Kashmir Daily Rates Workers/Work Charge employees (Regularization) Rules, 1994, it is hereby ordered that:- 1. The daily rated workers/work charged employees (Migrants) who had completed seven years or more continuous working prior to their migration from the valley and have been re-engaged/re-deployed in the same department outside the Valley even after a break beyond the admissible limit and are continuously working as such in the same department, may be regularized w.e.f. 1.4.1994 provided they were re-engaged/re-deployed on or before 1.4.1994 in the same department and are continuously working and paid from the date of their re-engagement /re-deployment. 2. 2. Daily rates workers/work charged employees (migrants) who had not completed seven years continuous service on the date of their migration from the Valley but have been re-engaged/re-deployed in the same Department after breaks beyond admissible limit and are continuously working as such in the same department may be regularized from 1st April of the subsequent year(s) provided that the y have completed the prescribed continuous, working of seven years or more on or before 31st March of the preceding year without taken into account the break from the date of migration till the date o re-engagement/re-deployment in same Department for computation of seven years continuous working. By order of the Government of Jammu and Kashmir. Sd/-(M.J.Znajar) 14.01.97 Director (Codes) Finance Department No.A/33(92)-1273 Dated:14.12.1997 7. We have meticulously gone through the contents recorded in the Circular abovequoted. In consideration of the said Circular, which has been placed before the Supreme Court as well as keeping in view the submissions of the learned State Counsel-respondents made before the Supreme Court, as recorded at paragraph 4 in the Supreme Court's order dated 6.4.2010, above referred, we are of the view that the respondents are entitled to get the benefit of regularization, in terms of the Cabinet decision, as quoted hereinabove, in which it is clearly and specifically indicated that the daily rated workers/work charged employees (Migrants), who have completed seven years or more continuous working prior to their migration from the Valley and have been re-engaged/re-deployed in the same department outside the Valley even after a break beyond the admissible limit and are continuously working as such in the same department may be regularized with effect from 1.4.1994 provided they were re-engaged/re-deployed on or before 1.4.1994 in the same department and are continuously working and paid from the date of their re-engagement/re-deployment. 8. At this stage, it is stated at the Bar that all the respondents herein have been engaged as daily rated workers/work charged employees during the period between 1979 and 1986 and, accordingly, they have already completed more than seven years prior to the cut off date, i.e., 01.04.1994, as indicated in the Circular itself. In such premises, all the respondents shall get the benefit of the Circular in question, as already referred to hereinabove. 9. Accordingly, we are of the considered view that the respondents are entitled to regularization including all consequential benefits of regularization. 10. In such premises, all the respondents shall get the benefit of the Circular in question, as already referred to hereinabove. 9. Accordingly, we are of the considered view that the respondents are entitled to regularization including all consequential benefits of regularization. 10. It is ordered accordingly. 11. The entire process shall be undertaken and completed within a period three months from the date when the certified copy of this order is made available to the State-Appellants by the respondents. 12. The appeal stands disposed of accordingly.