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2013 DIGILAW 397 (JK)

Ab. Rashid Naik v. State

2013-07-12

TASHI RABSTAN

body2013
1. Petitioner was appointed as a daily wager in the Social Forestry Department by respondent No. 3 w.e.f. Ist April, 1993 in Gujjar Nar Closure in Tehsil Banihal. It is contended that he has been performing his duties as a daily rated worker w.e.f. April, 1993 without any break, but, has not been regularised as yet by the respondents. Petitioner also made an application for regularization of his services, but, all in vain. 2. Vide Order No. 144-GAD of 2001 dated 02.02.2001, General Administration Department ordered that all the daily rated workers, who were appointed after imposition of ban, i.e., after 31.01.1994 and were performing their duties be paid their wages upto 31.01.2001 and thereafter their services be disengaged. Since the petitioner was appointed before the aforesaid ban, he was allowed to continue. It is also contended that after discharging/dis-banning the casual labourers, who were engaged after 31.01.1994, some Units in the Social Forestry Department remained without watch and ward. In order to meet the aforesaid requirement and in the interest of administration, the Block Officers/Forester Banihal/Khari submitted a proposal to respondent No. 4 for adjustment of daily wagers, who were engaged before the imposition of ban. Accordingly, petitioner was transferred to Wagon Extension Closure and was shown at S.No.1 in the said proposal, which came to be approved by respondent No. 4 on 30.06.2001, but, the respondents have not regularised his services. 3. Thereafter, the petitioner approached this Court by way of writ petition (SWP No. 1017/2003) for regularization of his services, which came to be disposed of vide order dated 07.07.2003 directing the respondents to treat the writ petition as representation and examine the case of the petitioner in the light of the averments made in the writ petition. When his case was not considered by the respondents, the petitioner filed a contempt petition bearing COA(S) No. 6-B of 2004. Respondents filed the statement of facts pleading therein that since the petitioner was engaged on 01.04.1994, i.e. after 31.03.1994, therefore, he was not entitled to regularization. Accordingly, his case came to be rejected by the respondents vide Order No. 621-25/SF/RBN dated 20.10.2003. In view of the rejection order, contempt proceedings were dropped vide order dated 26.05.2005 with liberty to the petitioner to challenge the rejection order. 4. Accordingly, his case came to be rejected by the respondents vide Order No. 621-25/SF/RBN dated 20.10.2003. In view of the rejection order, contempt proceedings were dropped vide order dated 26.05.2005 with liberty to the petitioner to challenge the rejection order. 4. Being aggrieved of the rejection order dated 20.10.2003, present writ petition has been filed by the petitioner on the grounds taken in it. 5. Respondents have filed objections stating therein that petitioner is not entitled to regularization in terms of SRO 64 of 1994 on the ground that there is clear cut stipulation in the said SRO that only those daily rated workers/work charged employees are eligible for regularization, who have completed seven years continuous period of working as on 31.03.1994. It is submitted that as per the records, the petitioner was engaged on 01.04.1994, that is, after the cut off date, therefore, is not entitled for regularization under the aforesaid SRO, and the engagement of petitioner after the cut off date is dehors the rules. It is also contended that to claim regularization, the petitioner was required to complete seven years of service as on 31.03.1994 and as per the records the petitioner was engaged after the cut off date, therefore, he is not entitled to any benefit. Moreso, a Division Bench of this Court in LPA No. 249/1998 Ghulam Ahmed Bhatt v. State and others has clearly laid down that a daily rated worker/work charged employee was required to complete seven years as on 31.03.1994. 6. I have heard learned counsel for the parties and perused the record. 7. From the perusal of the record, it transpired that the petitioner was engaged as a daily wager in April, 1993 and was detailed to work in Gujar Nar Closure in Tehsil Banihal. It is disputed by the respondents that petitioner was transferred to Wagon Extension Closure. His name also figured at one of the proposals submitted by Block Officers/Forester Banihal/Khari, which was also approved by respondent No. 4. It is also contended by the petitioner that respondent No. 4 in his report clearly stated that he was engaged on 23.03.1993. Now, respondent No. 4 has taken a plea that copy of engagement order of the petitioner though was available in his office, but due to over sight his actual date of engagement could not be incorporated in the list. Now, respondent No. 4 has taken a plea that copy of engagement order of the petitioner though was available in his office, but due to over sight his actual date of engagement could not be incorporated in the list. In these circumstances, the contention of respondents that the petitioner was engaged only on 01.04.1994 is not correct, more so when the respondents themselves have not controverted the stand taken by the petitioner that he was engaged in April, 1993. Even otherwise also, the relevant documents available in the petition do not support the submission made by learned counsel for the State. That being so, the petitioner, who was admittedly engaged prior to 31.03.1994 and has completed more than seven years of continuous service as a daily wager, is entitled to the benefit of regularization of his services as envisaged under SRO 64 of 1994. The order impugned passed by the respondents rejecting the claim of petitioner is, therefore, not sustainable in the eyes of law. 8. The contention of the petitioner that he was engaged prior to imposition of ban is forthcoming from the averments made in paragraph No. 8 of the writ petition, which is reproduced hereunder:- 8. That however, the service of the petitioner was/is required to be regularised w.e.f. 01.04.2000. The petitioner submitted an application to respondent No. 3 for regularization of his service. Respondent No. 3 directed respondent No. 4 for detail report regarding the verification of the record of the petitioner. In pursuance of the said direction respondent No. 4 vide his No. 1/BNL dated 01.04.2000 submitted the said application in original to respondent No. 3 with the report that the Divisional Forest Officer Social Forestry Division Ramban directed the respondent No. 4 on 23.03.1993 for considering the appointment of the petitioner. It was further that the village level committee also recommended for the engagement of the petitioner. The respondent No. 4 also attached a photostat copy of the order which was available with the said office. Respondent No. 4 further reported that due to over sight the actual date of appointment of the petitioner was not incorporated in the list. A copy of the application on which the aforesaid direction was given by Divisional Forest Officer and the report submitted by Range Officer Social Forestry Banihal is annexed herewith and marked as Annexure-B. 9. Respondent No. 4 further reported that due to over sight the actual date of appointment of the petitioner was not incorporated in the list. A copy of the application on which the aforesaid direction was given by Divisional Forest Officer and the report submitted by Range Officer Social Forestry Banihal is annexed herewith and marked as Annexure-B. 9. In reply to paragraph No. 8, respondents have contended hereunder:- "7 to 14. That it is submitted that the case of the petitioner is not covered under the provisions of SRO 64 of 1994. The petitioner was required as per mandate of SRO aforesaid to complete 7 years of service as on 31.03.1994 and as per record the petitioner was engaged after the cut off date fixed in the said SRO and therefore, the petitioner is not entitled to any benefit as alleged in these para. 10. The contention of the petitioner that respondent No. 4 had reported that due to over sight, the actual date of appointment of the petitioner could not be incorporated in the list, has not been specifically controverted by the respondents in their reply. The specific submissions made in the petition, as reproduced hereinabove, have remained un-rebutted and have not been adverted to in the reply. Therefore, there is a legal inference available to the Court that the same are admitted as true and correct. 11. It is beaten law of the land that when averments contained in the writ petition are not specifically denied, the same are deemed to have been admitted. Same view was taken by the Apex Court in case, titled as, Asha v. PT. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 . It would be relevant to reproduce paragraphs 17, 18 & 19 herein. "17. It is a settled principle of the law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the abovenoted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the abovenoted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus expected of the respondents to reply to these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on the part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference. 12. Learned counsel for the petitioner has also placed reliance on a judgment dated 20.12.2012 passed by a Division Bench of this Court in LPASW No. 33/2010 in case titled State of J&K and others v. Mustaq Ahmad Sohail and others, wherein it has been observed that the persons, who have been working for long period are also entitled to be considered for regularization. 13. In view of what has been observed hereinabove, this writ petition is allowed. Order impugned No. 621-25/SF/RBN dated 20.10.2003 passed by respondent No. 3 is quashed. Respondents are directed to consider the case of the petitioner for regularization of his services in terms of SRO 64 of 1994 dated 24.03.1994 with effect from the date he completed his seven years of continuous service while taking into consideration Govt. Order No. 1285-GAD of 2001 dated 06.11.2001, within a period of two months from the date a copy of the order is made available to them by the petitioner. 14. Disposed of as above along with connected CMA(s).