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2015 DIGILAW 478 (JK)

ROMAL SINGH v. STATE OF J&K

2015-09-04

DHIRAJ SINGH THAKUR

body2015
JUDGMENT : Dhiraj Singh Thakur, J. By virtue of order dated 30.11.1994, petitioner came to be engaged as Driver on daily wage basis by Assistant Commissioner (Revenue), Doda. The said engagement was extended from time to time till 25.01.2002 and on this date one Faiz Ahmad (Respondent No. 5) was appointed as a Driver on daily wage basis, in place of the petitioner. 2. Immediately thereafter, a petition was filed by the petitioner seeking inter-alia a writ of mandamus, directing the respondents to consider his case for regularization in terms of SRO-64. 3. Objections have been filed by the respondents, wherein a stand has been taken that the temporary arrangement by which the petitioner had been engaged did not confer any right upon the petitioner to appoint him on substantive basis and that he was serving at his own risk and responsibility in the said arrangement, which was purely temporary. 4. It is further stated that after the expiry of the last order the ad hoc arrangement of the petitioner came to an end and that the petitioner had no right whatsoever thereafter. Even otherwise, it was urged, that the petitioner could not claim regularization as he was engaged after the cut-off date prescribed in terms of SRO-64. 5. Per contra, learned counsel for the petitioner has urged that after having completed seven years of satisfactory service as a daily wager, the petitioner had a right of consideration for regularization in terms of SRO-64. 6. It was further urged that the right of engagement beyond the cut-off date in terms of SRO-64, would not come in the way of the petitioner to claim regularization in view of the specific observations made in this regard by the Division Benches of this Court in LPASW No. 33/2010, titled "State of J&K and Ors. v. Mushtaq Ahmad Sohail and Ors. 2012 (4) JKJ 1051 [HC], decided on 20.12.2012 and LPASW No. 115/2002, titled "State of J&K and Ors. v. Niaz Ahmed and Ors. 2016 (3) JKJ 45 [HC] : decided on 25.02.2015. 7. Paragraphs 8 and 9 of the judgment passed in LPASW No. 115/2002, is reproduced as under:- "8. The issue, which arises for adjudication in the present batch of appeals has already been conclusively dealt with by Division Bench of this Court in LPASW No. 33/2010, titled State of J&K and Ors. 7. Paragraphs 8 and 9 of the judgment passed in LPASW No. 115/2002, is reproduced as under:- "8. The issue, which arises for adjudication in the present batch of appeals has already been conclusively dealt with by Division Bench of this Court in LPASW No. 33/2010, titled State of J&K and Ors. v. Mushtaq Ahmad Sohail and Ors., reported in 2013 SLJ 73 : 2012 (4) JKJ 1051 [HC]. 9. What was stated in Paragraphs 13 and 14 of the judgment (supra) is reproduced hereunder: "13. As against Order No. 144-CAD of 2001, dated 2.2.2001, the daily wagers/work charged employees, who were aggrieved, filed number of writ petitions. Finally the judgment passed in those writ petitioner were challenged by medium of bunch of LPAs with lead case Ashok Kumar v. State of J&K and Ors., which have been decided vide judgment dated 26.07.2002, reported in 2003 SLJ 475 : 2003 (4) JKJ 93[HC], In the reported judgment, position vis-a-vis right of casual labour/daily wagers/adhoc employees, has been taken note of and as many as 15 directions were issued as contained in Para 45 of the judgment. It may not be out of place to mention here that the cut-off date has also been extended to 6.11.2001 in terms of Govt. Order No. 1285-GAD of 2001, dated 6.11.2001 which has been issued in pursuance to Cabinet Decision No. 135/11(B), dated 10.09.2001. The above referred judgment was challenged before the Honble Apex Court by medium of Civil Appeal No. 9298 of 2003 and Civil Appeal No. 9299 of 2003. While disposing of Civil Appeal No. 9299 of 2003, the following order has been passed:- "Our attention has been drawn to the judgment of the Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (supra). In our view, this judgment has no application in view' of the fact that the respondents are employed by the State Government and are claiming the benefit of a scheme formulate by the Notification dated 31st of January, 1994, as modified by Notification dated 6th November, 2001. The High Court is perfectly justified in its judgment. We are satisfied that the impugned judgment of the High Court needs no interference at our hands. In the result, the appeal is dismissed. No costs." 14. The High Court is perfectly justified in its judgment. We are satisfied that the impugned judgment of the High Court needs no interference at our hands. In the result, the appeal is dismissed. No costs." 14. What would emerge from above is that the daily rated workers/work charged employees who were appointed after imposition of ban and continued beyond ban period were given benefit of notification dated 6th November, 2001, which, in-effect, would mean that the daily rated workers/work charged employees engaged even after 01.04.1994 till 6th November, 2001, were also entitled to be regularized in terms of the Jammu and Kashmir Daily Rated Workers/Work-charged Employees (Regularization) Rules, 1994." 8. Following the ratio of law as laid down by the judgment (supra), it can been seen that the petitioner on having completed seven years of service, before his disengagement in the year 2002 had a right to be considered for regularization in terms of SRO-64. The fact that the petitioner was disengaged in the year 2002 would make no material difference and the respondents were under an obligation to consider the case of the petitioner for regularization in terms of the relevant SRO. 9. Be that as it may, the present petition is allowed. The respondents shall consider the case of the petitioner for regularization w.e.f. from the date right accrued in his favour after completion of seven years of continuous service for such regularization in terms of SRO-64. 10. Lot appropriate order be passed within a period of two months, from the date a copy of this order is made available to the respondents. 11. Disposed of along with connected MPs.