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2013 DIGILAW 361 (JK)

Parvaiz Ahmad Bhat v. State Of J&K

2013-06-06

ALI MOHAMMAD MAGREY

body2013
1. The petitioners, four in number, have filed this writ petition for issuance of writ of mandamus commanding the respondents to regularise their services against the available class IV posts as per the recommendations approved by the competent authority; or, in the alternative, to direct them to take appropriate steps for regularising the services of the petitioners in light of settled principles of law. The petitioners have also sought prohibition against filling up the available class IV posts unless and until the petitioners are not regularised. 2. When this petition first came up for consideration on 05.04.2013, notice was directed to be issued only to respondent no. 2, i.e., the Director, Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar, (SKIMS) for the limited purpose of showing as to under what circumstances the said respondent had submitted the case of the petitioners to the Finance Department and to detail out the provisions of the rules and the law which warranted consideration of the case of casual labourers for regularisation. On asking of the Court, Mr. Shah Aamir, Government Advocate, had taken notice and he was directed to file an affidavit of the Director, SKIMS in this behalf. On the subsequent date, Mr. M. I. Dar, learned counsel, now representing SKIMS, appeared and sought time to file the requisite affidavit. The affidavit in question has not been filed so far. 3. Today Mr. J. A. Kawoosa, Sr. AAG, appeared for respondents 1 and 3, though no notice had been issued to the said respondents. Though the respondents have yet to file their respective responses, the learned counsel stated at the Bar that in view of the short controversy involved in the case, it be taken up for final disposal at this very stage. Accordingly, with consent of learned counsel for the parties, the matter has been heard for final disposal. 4. The case set up by the petitioners is that they are duly qualified and have been engaged as casual labourers by respondent no.2. They have continued for periods ranging from 6 to 8 years, working in different departments of the Institute and performing varied jobs assigned to them. It is averred that they are being paid their consolidated wages from a special local fund created by the respondent. They have continued for periods ranging from 6 to 8 years, working in different departments of the Institute and performing varied jobs assigned to them. It is averred that they are being paid their consolidated wages from a special local fund created by the respondent. In paragraph 9 of the petition, it is averred that cases of 179 persons were sent to the Government on 11.01.2012 for purposes of regularising their services, but till date nothing has been done. Hence the present writ petition. 5. Perusal of the records attached with the writ petition by the petitioners as annexures thereto reveal that on 09.09.2011 the Administrative Officer, Personnel, of the Institute issued a notice whereby all the casual labourers, who had completed seven years of service and had academic qualification of Matriculation or above, were advised to submit to the Personnel Section attested copies of Matriculation Certificates, Marks Card of Matriculation Examination, Academic qualification certificate, State Subject and Category certificate, if any. The notice does not disclose the purpose of calling for such certificates. However, thereafter, on 16.11.2011 the Administrative Officer (G-I), Personnel, put up a note before the Administrative Officer, Hospital Administration, of the Institute to the following effect: "The regularization case of casual labourers is under process and there is need to identify the vacancies of Class IV employees. Therefore, you are requested to please intimate the vacancies of Class IV employees available in the departments falling under the administrative control of Hospital Administration at an earliest." 6. Subsequently, it transpires that after consolidating the information about the total number of casual labourers working in different departments / wings / sections of the Institute, a detailed note was prepared. However, who prepared it or before whom it was to be placed, or had been placed, is not coming forth from the said note. It only bears initials of someone, nothing more than that. However, its contents, as narrated hereafter, are revealing and having a material bearing on the reliefs sought for in this petition. 7. It mentions that about 300 casual labourers have been engaged prior to the year 2007. Majority of them are paid wages only on Eid or other festivals. It only bears initials of someone, nothing more than that. However, its contents, as narrated hereafter, are revealing and having a material bearing on the reliefs sought for in this petition. 7. It mentions that about 300 casual labourers have been engaged prior to the year 2007. Majority of them are paid wages only on Eid or other festivals. The matter was accordingly brought to the notice of Hon'ble Chief Minister (Chairman Governing Body) vide communication dated 28.09.2007 for permission to authorize the Director, SKIMS to engage casual labourers/Seasonal Labourers on need basis strictly in terms of Government order no.239-F of 2005 dated 29.11.2005. On instructions from the Government, the issue was taken up with Finance Department, however, without any decision. Since the liability of casual labourers engaged by previous Director was causing problems to the present administration and that the issue remained unsettled, a committee comprising of senior officers of SKIMS, comprising Medical Superintendent; Joint Director (Admn); Director, Finance; and Sr. Administrative Officer (Personnel) was constituted to look into the matter in order to establish the credibility of engagement of these casual labourers vis-a-vis their requirement in various areas of the Institute. The Committee examined the issue in detail and physically verified the position. The Committee reported that 221 casual labourers were working, out of whom 40 persons had more than 7 years of service and 181 had less than 7 years service and that only 70 casual labourers were getting their wages regularly by debit to office expenses and other maintenance grants. In the said note, it was proposed that SKIMS be authorized to draw their wages against the salary budget of Class IV and other vacant posts as detailed in the said note, pending advertisement of these posts for proper selection. It was also proposed that in the event inservice officials (permanent employees) attain eligibility for promotion against any of the identified vacancies, the resultant vacancies as would become available on promotion of such permanent employees be utilized for drawal of wages of equal number of casual labourers. 8. In the aforesaid note, the total number of vacancies available in different categories was shown to be 227. The aforesaid note appears to have been placed before the Governing Body for consideration and decision. 9. The Governing Body seems to have considered the matter and decided to create a local fund to address the grievance of casual labourers. 8. In the aforesaid note, the total number of vacancies available in different categories was shown to be 227. The aforesaid note appears to have been placed before the Governing Body for consideration and decision. 9. The Governing Body seems to have considered the matter and decided to create a local fund to address the grievance of casual labourers. Consequently, Senior Administrative Officer (Personnel) put up a note before Director, Finance, SKIMS, on 22.12.2010 to provide details pertaining to the local funds generated under revenue component alongwith list of bonafide and genuine casual labourers to be forwarded to the Government in the Finance Department for their examination and needful action. 10. Thereafter, on 11.02.2011 the Director, SKIMS has addressed a communication to the Administrative Secretary, Finance Department, to the following effect: "The Governing Body in its XXXIV meeting held on October 21, 2010 noted that there are 221 casual labourers working at SKIMS at present for the last many years and (as) desired that particulars of all such casual labourers be submitted to Finance Department for examination. It was further desired that the option of creating a local fund for payment of wages to casual labourers may be seriously explored for which purpose, revenue sources need to be carefully identified with a view to ensuring sustainability of this fund. As a follow up action, the identification / verification process of the casual labourers has been completed and their particulars consolidated. 31 out of 221 casual labourers have, however, discontinued as such 190 are left whose particulars are appended in the list annexed. Further as regards creation of a local fund for payment of wages to the casual labourers, in this connection it is submitted that on an average an amount of Rs. 1.20 lacs is generated on car parking, cloak room, visitors fee and token fee which is credited to the account head CD-164 and at present utilized to meet part payment of wages to the casual labourers which is not sufficient to meet the actual quantum of wages payable to the casual labourers. The actual wages payable work out to Rs.6,03,300/- per month which has no match to the revenue realized from the generating areas. As such necessary budgetary support needs to be extended to meet the required payment of wages to the casual labourers." (Underlining supplied) 11. The actual wages payable work out to Rs.6,03,300/- per month which has no match to the revenue realized from the generating areas. As such necessary budgetary support needs to be extended to meet the required payment of wages to the casual labourers." (Underlining supplied) 11. The aforesaid communication, relied upon by the petitioners, makes it self evident that Government in the Finance Department had been approached for allocating funds for creating local fund; not for regularizing the services of these casual labourers. 12. Finally, vide communication dated 22.02.2012 the Senior Administrative Officer (Policy) of the Institute has forwarded the list of 179 casual labourers working in the Institute to the Chief Accounts Officer (Codes), Finance Department, Government of J&K, for further necessary action. This seems to have been done in response to Cabinet Decision No. 109/21/2011 dated 21.09.2011 read with Circular No. OM No.A/14(2009)-64 dated 11.01.2012. 13. It is not disclosed in the petition or by the respondents as to what is the aforesaid Cabinet Decision about and what was the subject matter of circular dated 11.01.2012 referred to in the aforesaid communication. However, what transpires from the aforesaid records placed on this writ petition is that the respondent Institute has been trying to devise some methodology to meet the wage demand of these casual labourers, and in that connection, the communication dated 11.02.2011, addressed by the Director of the Institute to the Finance Department, makes it abundantly clearly that what the Institute has sought is budgetary allocations to meet the wages of these casual labourers. 14. The claim of the petitioners that the matter has been referred to the Government for regularization of their services and that the Government is sitting over the matter is not borne out by the records placed by the petitioners with this petition to support their claim. The petitioners have also not shown that the Government has, in fact, framed any policy or that any such policy exists whereby it could be said that any right has accrued to the petitioners for their regularization. 15. Learned counsel for the petitioners has cited and placed reliance on a Division Bench decision of this Court in Ashok Kumar v. State of J&K & Ors, 2003 (II) SLJ 475 : 2003 (Supp.) JKJ HC-93 (DB), to argue that the petitioners, casual labourers, are entitled to regularization after putting in seven years of continuous service. 15. Learned counsel for the petitioners has cited and placed reliance on a Division Bench decision of this Court in Ashok Kumar v. State of J&K & Ors, 2003 (II) SLJ 475 : 2003 (Supp.) JKJ HC-93 (DB), to argue that the petitioners, casual labourers, are entitled to regularization after putting in seven years of continuous service. It would suffice to say that in relation to casual labourers, the Court in that case had simply said that "if the State Government has decided to comply with the judgment given in Piara Singh's case in the case of Daily Rated / Work charged employees, then, it would be apt to take notice of the view expressed by the Supreme Court vis-a-vis casual labourers also". However, no such scheme or policy, has been framed by the Government till now, nor has any such scheme been brought to the notice of the Court. 16. On the contrary, it is settled law that a mandamus can be issued by the Court when the applicant establishes that he has a legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to do something which is contrary to, or absent in, law. Reference in this connection may be made to the decision of the Supreme Court in State of U.P. v. Harish Chandra, AIR 1996 SC 2173 . In the instant case, the petitioners have not been engaged pursuant to any selection process. Therefore, this Court would be loath in issuing a blanket direction to regularize the services of the petitioners on the available Class IV vacancies, as prayed in the petition. 17. However, from the records placed on this writ petition, it is made out that the casual labourers have been working in the Institute for quite some years now. It is also established that they are not being paid their wages regularly. Effective efforts seem to be afoot to ensure that they get their monthly wages. 17. However, from the records placed on this writ petition, it is made out that the casual labourers have been working in the Institute for quite some years now. It is also established that they are not being paid their wages regularly. Effective efforts seem to be afoot to ensure that they get their monthly wages. I refrain from issuing any direction in that behalf, for, it is expected that the Government would soon, preferably within next two months, take a decision on the issue of providing funds to the Institute for meeting the monthly wages of these casual labourers. 18. The petitioners have also prayed for a mandamus to direct the respondents not to fill up the identified, available class IV posts in the Institute till they are regularized against these posts. This Court cannot issue a command to perpetuate, or to commit, a wrong, and against the mandate of Articles 14 and 16 of the Constitution. Vacancies in public services are supposed to be public property and each and every citizen has a right to compete for selection and appointment against these posts. All citizens eligible to compete for such posts have a right to seek their consideration for appointment against these posts. This is the mandate of Articles 14 and 16 of the Constitution. True it is that classification is permissible, but the petitioners have not made out a case that they constitute a class in themselves. 19. However, it is provided that as and when the identified available Class IV vacancies are advertised, petitioners and similarly placed casual labourers would be free to apply for their selection, subject to the condition that they fulfill the eligibility criteria as may be laid down. While doing so, if any of the casual labourers is found to have crossed the prescribe age limit, it is provided that the respondents would consider their cases for age relaxation. 20. Nonetheless, given the fact that these casual labourers have been continuously working in the Institute for long now, it would be appropriate that the Government devise a scheme to regularize these casual labourers, since, it is within the competence of the Government to frame law to meet such eventualities. 21. This petition is, accordingly, disposed of together with the connected CMP. There shall be no order as to costs.