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J&K High Court · body

2013 DIGILAW 243 (JK)

All College Local Fund Employees Union v. State

2013-04-24

Hasnain Massodi

body2013
1. Petitioner Union claims to represent Local Fund Employees working in different Colleges of Kashmir Division. The Union is registered under No.67/67/A and authorized through its General Secretary to file the writ petition on hand on behalf of the all the College Local Fund Employees (for short Local Fund Employees) of Kashmir Division. Petitioners are aggrieved that State Government has not made sufficient provisions in Jammu and Kashmir Higher Education (Subordinate) Service Recruitment Rules, 2009,( for short Recruitment Rules 2009) for their regularization and under the prevalent scheme, most of the Local Fund Employees would reach the age of superannuation without their service regularized and therefore would not be entitled to retiral benefits. Petitioner union is aggrieved that the respondents have not acted on the recommendation of the Committee constituted to examine the matter and have failed to bring the Recruitment Rules 2009 in conformity with the recommendations of the Committee. Petitioner union on the strength of averments made in the petition seeks following relief. a. A writ of a certiorari or any other appropriate writ, order or direction, the reservation made in Jammu and Kashmir Higher Education (Subordinate) Service Recruitment Rules,2009, for regularizing graduate, 10+2 and Middle Pass college local fund employees against class IV posts viz. Laboratory Bearer/ Gasman-II/ Chainman/ Light Attendant/ Assistant Gasman/ Waterman/ library Bearer, Hostel Cook/ Waiter, Gardner, Maintenance Attendant and Hostel Bearer/ Masalchi, to a limited extent, be struck down. b. A writ, directing respondents to regularize all the 429 college local fund employees against class IV posts, as one time exception, in the same manner in which such regularization has been ordered by the respondents in terms of SRO 64 of 1994, Act of 2010 for the Daily Wagers, work charge employees FAT teachers, Contingent paid employees and migrant substitutes. 2. The respondents in their counter affidavit plead that the respondents have kept a provision in Jammu and Kashmir Higher Education (Subordinate) Service Recruitment Rules 2009 notified vide SRO 64 of 2009 for regularization of Local Fund Employees against 40% of vacancies in each category of class IV posts in. They claim to have prepared and published the list of Local Fund Employees vide no. EC-Coll-LF/List/2009 dated 31st May 2011, and vide Government Order no. 01-HE of 2011 constituted a team of Senior Officers to examine the case of eligible Local Fund Employees for regularization. 3. They claim to have prepared and published the list of Local Fund Employees vide no. EC-Coll-LF/List/2009 dated 31st May 2011, and vide Government Order no. 01-HE of 2011 constituted a team of Senior Officers to examine the case of eligible Local Fund Employees for regularization. 3. It is stated that in terms of Recruitment Rules of 2009 read with Government Order no. 186/HE of 2009 dated 31st August 2009 the State Government vide order no. 50 -HE 2012 dated 17-02-2012, has accorded approval to regularization of 130 out of 429 Local Fund Employees against different categories of Class IV Cadre. It is insisted that the claim projected by the Local Fund Employees is, in fact, one of appointment and not regularization and as 40 % of Class IV vacancies in all Colleges of Kashmir Division earmarked for Local Fund Employees stand filled up, no vacancy is available as on date against which remaining 299 Local Fund Employees can be considered for appointment. 4. Heard and considered. 5. The final seniority list of Local Fund Employees published on 12 October 2010 in a local Daily (Annexure G) reveals that in all 429 Local Fund Employees are at present working in different Colleges of Kashmir Division. The employees engaged have different academic background. Their educational qualification ranges from Middle standard to Graduation. A good number of employees have been engaged way back in 1994 and are therefore serving the respondent department for last 17 years. Most of Local Fund Employees (300 to 400) are serving the respondent department for more than 10 years and the last candidate engaged is serving the respondent department for 8 years. 6. The State Government vide order No.352- HE of 2002 dated 25-10-2002 Constituted a committee to look into the demands projected by Non Teaching Employees of Colleges. The committee made following recommendations regarding regularization of Local Fund Employees. The Committee felt that the demand for regularization of Local Fund Employees on the basis of their eligibility/suitability against the Class IV available vacancies in the colleges is justified. It is suggested that the quota fixed earlier in this regard at 25 % be increased to 60% rather than 50% for which a Selection Committee may be constituted to determine the suitability of the eligible candidates after assessing their performance report from their respective colleges. 7. This was followed by the Government order no. It is suggested that the quota fixed earlier in this regard at 25 % be increased to 60% rather than 50% for which a Selection Committee may be constituted to determine the suitability of the eligible candidates after assessing their performance report from their respective colleges. 7. This was followed by the Government order no. 87- HE of 2007 dated 10.5.2007 whereby a Committee was constituted to look into the pending demands of All Jammu and Kashmir College Non Teaching Employees Association. The exercise made at different levels to deal with the pending demand of Non Teaching Employees of colleges gave birth to J&K Higher Education (Subordinate) Service Recruitment Rules 2009 notified vide SRO 64 of 16th March 2009. The Recruitment Rules of 2009 identify nine categories in Class IV Cadre, namely Conductor/Orderly/Chowikidar/ Helper, Gardner, Lady Attendant/Assistant/Gasman, Laboratory Bearer/Gasman- II/Chainman, Library Bearer, Hostel Cook-II/Waiter, Hostel Bearer/Masalchi and Safaiwala to be filled up amongst others from Local Fund Employees. The rules earmark 40% of the vacancies in the nine categories for Local Fund Employees subject to fulfillment of criteria laid down therein. It would be appropriate to tabulate the relevant part of the Recruitment Rules of 2009 reproduced in counter affidavit filed by the respondents. S.No. Post Provision laid down in SRO-64 of 2009 dated 16-3-2009 1 Conductor 40% by selection out of local fund employees with experience in line with RTO Chit. 2 Orderly/Chowkidar/Helper 40% by selection from qualified local fund employees working in the college having at least 5 years experience with due regard to their seniority. 3 Gardener 40% from Matriculate local fund employee with 5 years experience and with due regard to their seniority. 4 Lady Attendant/Assistant Gasman 40% by selection out of local fund employees who are Matriculate with 5 years experience and with due to seniority 5 Laboratory Bearer/Gasman-II/Chainman 20% by selection from Graduate Local fund employees. 15%by selection from local fund employees 10+2 qualification. 5%by selection from local fund employees who at least Middle pass. 6 Library Bearer 20% by selection from Graduate Local fund employees. 15% by selection form local fund employees 10+2 qualification. 5% by selection from local fund employees who at least Middle pass. 15%by selection from local fund employees 10+2 qualification. 5%by selection from local fund employees who at least Middle pass. 6 Library Bearer 20% by selection from Graduate Local fund employees. 15% by selection form local fund employees 10+2 qualification. 5% by selection from local fund employees who at least Middle pass. 7 Hostel Cook-II/Waiter 40% from Matriculate local fund employee with 5 years experience and with due regard to their seniority 8 Hostel Bearer/Masalchi 40% from Matriculate local fund employee with 5 years experience and with due regard to their seniority. 9 Safaiwala 100% by selection out of college local fund employees belong to Safaiwala community. 8. A bare look at the above table would reveal that the Middle Pass Local Fund Employees can be considered for the 40% reserved posts of Conductor, Orderly/Chowkidar/ Helper and 5% of the 40% reserved posts of Laboratory Bearer/Gasman-II/Chainman, Library Bearer. The Middle pass Local Fund Employees cannot be considered against the 40% of posts of Gardner, Lady Attendant/Assistant Gasman, Hostel Cook-II/Waiter , Hostel Bearer/Masalchi, as these posts are reserved for Matriculate and cannot be utilized for regularization of services of Middle Pass Local Fund Employees. 5% of the 40% reserved posts of Laboratory Bearer/Gasman-II/Chainman, Library Bearer are to be co- shared by the Middle Pass Local Fund Employees with Matriculate Local Fund Employees. 9. It is pertinent to point out that out of 429 Local Fund Employees 170 are Middle Pass, 96 Matriculate, 78- 10+2 or above and 64 Graduates or above. While the Recruitment Rules of 2009 do not require any experience, in case of Graduate Local Fund Employees, 10+2 Local Fund Employees, Matriculate and Middle Pass Local Fund Employees are to be considered only in case they have five years experience to their credit. 10. A closer look at the Recruitment Rules of 2009 therefore would reveal that the rules do not provide adequate and reasonable opportunity for regularization to majority of Local Fund Employees. This apart, the Recruitment Rules of 2009 do not reflect the recommendation made by the Committee constituted to examine the demands of Local Fund Employees. With the present scheme the Local Fund Employees serving the respondent department for 10-17 years will have no real chance of regularization /substantive appointment against the Class IV vacancies till most of them attain age of superannuation. 11. With the present scheme the Local Fund Employees serving the respondent department for 10-17 years will have no real chance of regularization /substantive appointment against the Class IV vacancies till most of them attain age of superannuation. 11. The state as model employer is expected nay, required to be alive to the plight of its employees and provide reasonable and adequate opportunity not only for their regularization or appointment on substantive basis in a grade, but also create promotional avenues so that it enhances sufficiency in the service and also provides them an incentive to work hard and serve the public. This apart the state is under the constitutional obligations to secure justice in all its manifestations - social, economic, political, to one and all. The obligations become more onerous when target group is under-privileged, down trodden, disempowered and un-attended class of the society. The State Government has to realize that the members of the petitioner union because of non- availability of adequate employment avenues were notwithstanding, their academic qualification constrained to take up a job that entitles them to a meager income. If state has not created adequate employment avenues for the educated un-employed youth, compelling them to take up casual / need based employment, it cannot deny responsibility for pushing them to such a plight. The State Government cannot in the name of rules come up with a scheme that works harshly against an economically disadvantaged segment of the society. 12. The lot of members of the petitioner union may not get ameliorated by even a marginal increase like 60% in quota set apart for Local Fund Employees. The right course would be not only to give a fresh look to the Recruitment Rules of 2009 but also to create 299 Class IV posts in Higher Education Department preferably during the current financial year i.e. 2013-14 and consider regularization /substantive appointment of left out 299 Local Fund Employees against posts so created. The right course would be not only to give a fresh look to the Recruitment Rules of 2009 but also to create 299 Class IV posts in Higher Education Department preferably during the current financial year i.e. 2013-14 and consider regularization /substantive appointment of left out 299 Local Fund Employees against posts so created. In case posts because of financial constraints cannot be created in one go, the respondents may create such posts in three financial years i.e. 2013-14, 2014-15 and 2015-16 i.e. hundred posts each financial year so that the posts created can be utilized to regularize /make substantive appointment of 100 out of 299 left out Local Fund Employees in the order of seniority in each financial year and the rest of them in the meantime can be considered against their quota under Recruitment Rules of 2009 in different categories of Class IV cadre in colleges of Kashmir Division. 13. For the reasons discussed the writ petition is disposed of with the following directions to the respondents. i. To give second look to the J&K Recruitment Rules of 2009 having regard to the recommendations made by the Committee constituted for the purpose and consider increase in percentage of posts reserved for Local Fund Employees 40% to 60% in each category of Class IV cadre. ii. To accord consideration to creation / sanction of 300 posts in different categories of Class IV Cadre in the Higher Education Department preferably during the current financial year i.e. 2013-14, or in case financial constraints do not permit creation in one go, to consider creating the posts during 2013-14, 2014-15, 2015-16 and consider regularization /substantive appointment of Local Fund Employees against the post so created, having regard to the seniority and eligibility requirements under the rules. Disposed of.