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2013 DIGILAW 169 (JK)

State of J&K and ors v. Bharat Ji Bhat

2013-04-01

DHIRAJ SINGH THAKUR, M.M.KUMAR

body2013
Per D.S. Thakur, J.;— 1. This Letters Patent Appeal has been preferred by the State against the judgment and order dt. 14th of Nov'08, passed in SW No. 677-A/2002, whereby the learned Single Judge while allowing the writ petition has directed regularization of the services of the respondent-writ petitioner as a daily wager after he completes seven years of service. Not only this, the respondent was also held entitled to all consequential benefits. 2. Briefly stated, the facts as seen from the record are as under:- 2.1 Respondent came to be engaged on daily wage basis as Chain-man and worked as such from 29th of April'93, till March'98, and was paid his dues also. 2.2. It was only in the year 2002, that the respondent filed the aforementioned writ petition claiming the following reliefs:- "......Writ in the nature of mandamus commanding respondents to: i/consider petitioner for regularization as a Daily Wager and take him back on work; ii/consider petitioner for age relaxation and by granting him age relaxation further consider him for appointment as Patwari on the basis of his merit and suitability as determined by the selection/interviewing Committee constituted for the said purpose......" 3. The genesis of the relief of regularization of services of the respondent as Daily wager emanates from SRO 64 of 1994 dt. 24th of March'94 (here-in-after referred to as the SRO). 4. The eligibility for regularization as contained in Rule 4(f), of the SRO, envisages that a Daily Rated Worker or Work Charged Employee would be eligible for regularization inter-alia if he had completed seven years continuous period of working as Daily Rated Worker or Work Charged Employee or partly as Daily Rated Worker and partly as Work Charged Employee. 5. Rule 8 of the SRO prescribes as under:- "8. Application of rules to existing Daily Rated Worker and Work Charged Employee.- The policy of absorption of Daily Rated Workers 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 years and their absorption shall be considered in that financial year in accordance with these rules." 6. The learned Single Judge proceeded to allow the writ petition by relying upon Rule 8 of the SRO noticed above, on the ground that even if someone had not completed seven years of continuous service as a Daily Rated Worker on 31st of March'94, but may complete the same by the end of subsequent financial years, such a Daily Rated Worker would be entitled to regularization. 7. Heard learned counsel for the parties. 8. Reference to the writ petition filed by the respondent would clearly show that he worked as a Chain-man on daily wage basis w.e.f. 29th of April'93 to Dec'97, and for some period in the year 1998 also. This is further buttressed by the letter dt. 30th of April'04, addressed by the Administrative Officer with the Financial Commissioner (Rev.), to the Commissioner/Secretary to Government, General Administrative Department, J&K, Srinagar, wherein it has been reflected that the respondent was engaged as Chainman (Casual Labour) and paid his dues upto March'98. The aforementioned letter further clearly suggests that after March'98, the respondent was not working as such. 9. Be that as it may, the respondent had not completed seven years of continuous service in terms of Rule 4(f) of the SRO, and was, thus, not eligible for regularization. 10. Rule 8 of the SRO would have come into operation only if the respondent was in service as a Daily Wager as on 31st of March'94, and would have completed seven years of continuous service by the end of subsequent financial years. The pre-requisite, however, continues to hold good that right to regularization could be enforced only upon completion of seven years of continuous service. A co-ordinate Bench of this court in the case of Ghulam Ahmad Bhat and anr v. State of J&K and ors, reported in 2001 Srinagar Law Journal 72, while interpreting 8 Rule of the SRO, held as under:- “..........We have perused rule 8 of SRO 64. We do not find any such indication in the said rule. A co-ordinate Bench of this court in the case of Ghulam Ahmad Bhat and anr v. State of J&K and ors, reported in 2001 Srinagar Law Journal 72, while interpreting 8 Rule of the SRO, held as under:- “..........We have perused rule 8 of SRO 64. We do not find any such indication in the said rule. Rule 8 merely extends the benefit of the policy of absorption of daily rated workers and work charged employees who have completed seven years continued service on 31st March, 1964, to those employees of the above categories also who might not have completed 7 years service as on that date but might complete the same by the end of subsequent financial years and provides that their case for absorption shall be considered in that financial year in accordance with those rules. Rule 8 does not contemplate and cannot be construed to contemplate, that all those persons who were working as daily rated workers or work charged employees on the coming into force of SRO 64 will have to be allowed to continue in service till they complete 7 years of service to enable them to get the benefit of regularization. Such an interpretation runs counter to the object, scheme and the clear provisions of SRO 64. Such an interpretation would convert an engagement of a person as daily rated worker even for a period of 89 days as a permanent appointment for a period of 7 years with a right to be considered for regularization on the expiry of the said period. In our opinion, it is not possible to construe rule 8 in that manner by application of any principle of interpretation. Rule 8 is intended only to extend the benefit of regularization to those existing daily rated workers who did not complete 7 years continuous service on 31.03.1994 but did so in subsequent financial years. It does not confer an indefeasible right only a daily rated worker to continue in engagement for 7 years to enable him to get a right to be considered for regularization......" 11. In the present case, the respondent was out of service, admittedly, after March'98, and having not challenged his ouster at that time, he could not have made a claim for regularization under the SRO. 12. In the present case, the respondent was out of service, admittedly, after March'98, and having not challenged his ouster at that time, he could not have made a claim for regularization under the SRO. 12. It is well settled principle of law that a writ of mandamus can be issued for the purposes of enforcement of a legal, statutory or a fundamental right. In the present case, the respondent has failed to establish any right in terms of Rules 4 or 8 of the SRO. The respondent, admittedly, did not have seven years of continuous service to his credit as he was not in service after March'98, and was, therefore, clearly in-eligible for regularization. 13. For the reasons mentioned above, this appeal is allowed. The judgment and order impugned dt. 14th of Nov'08, passed by the learned Single Judge is set aside with no order as to costs.