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2017 DIGILAW 331 (JK)

Kher Singh v. State of J&K

2017-07-15

SANJEEV KUMAR

body2017
JUDGMENT : 1. The short grievance raised in all these writ petitions is that the petitioners are working as contingent paid employees and are serving as sweeper/waterman in different schools in the District, Doda. They claim to have been appointed on different dates and have been receiving the minimum salary ranging from Rs.500/- to Rs.1,000/- per year. It is claimed by the petitioners that the Government with a view to provide for their regular absorption framed Jammu & Kashmir School Education (Subordinate) Service Recruitment Rules, 2008 vide SRO 308 dated 16.10.2008. By virtue of aforesaid Rules, the posts of Orderlies/ Peons/Chowkidars/Mallies/Garnders etc. are to be filled up 50% by direct recruitment and 50% by selection from middle pass contingent/local fund paid employees by a Committee duly constituted for the purpose by the concerned Director School Education. The grievance projected by the petitioners in all these writ petitions is that, although the respondents have been appointing the contingent paid/local fund paid employees as Class-IV i.e., Orderlies/Peons/Chowkidars etc in terms of SRO 308 of 2008 but while making selection of the candidates for appointment, the respondents are acting arbitrary and in the process many senior persons like the petitioners have been left out and the contingent paid employees, who were appointed later in point of time than the petitioners have been absorbed. The petitioners are, therefore, aggrieved of the discriminatory attitude adopted by the respondents while making appointments to the Class-IV posts from amongst the available contingent paid/local fund paid employees. 2. For the sake of brevity and proper appreciation, the facts as projected in these writ petitions may be noticed:- SWP No.3037/2015 In this writ petition, petitioners two in number namely Shabir Ahmed and Jan Mohd. have called in question the order of respondent No.2 dated 21.08.2015, whereby, as claimed by the petitioners, respondent Nos. 7 to 9, who are junior to the petitioners have been appointed to the Class-IV posts in the School Education Department. Similarly, the petitioners have also assailed the order No. DSEJ/Legal/20486-92 dated 21.08.2015 whereby case of the petitioners for regularization as Class-IV employees has been rejected. Besides, seeking setting of the aforesaid order, petitioners also claim that they be held entitled to minimum wages till they are regularized. Petitioner No.1 in the writ petition was engaged as Waterman/Sweeper in the place of his father in the year 2000. Besides, seeking setting of the aforesaid order, petitioners also claim that they be held entitled to minimum wages till they are regularized. Petitioner No.1 in the writ petition was engaged as Waterman/Sweeper in the place of his father in the year 2000. He was paid the wages @ Rs.500/- per year till 2011 and thereafter the wages were raised to Rs.1,000/- per year. The petitioner’s wages were thereafter decreased to Rs.600/- and then to Rs.500/- per year. However, he claims that he has been in continuous service of the respondents since the year 2000. Insofar as petitioner No.2 is concerned, it is claimed that he was engaged by the Headmaster Government Upper Primary School, Amritpura in the year 2005 vide order dated 28.09.2008 his appointment was confirmed by the Zonal Education Officer, Bhatyas. The petitioners have further submitted that the similarly situated contingent paid employees, particularly respondent Nos. 7 to 9, who were engaged after the petitioners and were junior to them, have been absorbed/appointed as Class-IV employees in the School Education Department vide order impugned and the better claim of the petitioners was arbitrarily rejected by respondent No.2. SWP No. 2903/2015 This writ petition is filed by two petitioners, namely Mohd. Iqbal and Shamima Banoo, who claim to have been engaged as Sweeper/Water man on 06.08.2008 and December, 2008 respectively. The short grievance of the petitioners is that in terms of SRO 308 of 2008, they are entitled to be regularized as Class-IV employee based on their seniority but the respondents, particularly respondent NO.2 acting arbitrarily has regularized the services of similarly situated contingent paid employees, some of whom are even junior to the petitioners but have not accorded any consideration to the cases of the petitioners. It is pointed out by the petitioners that the respondent Nos. 8 to 11 were also working as contingent paid employees like the petitioners but their cases were considered and they have been given regular employment as Class-IV but the better claim of the petitioners has not been considered. SWP No. 721/2016 This is a petition filed by two petitioners, namely Kher Singh and Zarina Begum, who also claim to have been engaged as waterman/sweeper on 31.03.2008 and 29.02.1996 respectively. SWP No. 721/2016 This is a petition filed by two petitioners, namely Kher Singh and Zarina Begum, who also claim to have been engaged as waterman/sweeper on 31.03.2008 and 29.02.1996 respectively. To the similar effect is the grievance of the petitioners that their juniors working in the similar capacity have been given the benefit of regular appointment in terms of SRO 308 of 2008 but their better claim has not been considered at all. The petitioners have also arrayed three candidates as respondent Nos. 6 to 8, who the petitioners claim, were juniors to them and have wrongly been considered ignoring the better claim of the petitioners. 3. From the facts of the aforesaid petitions, it is abundantly clear that the grievance of the petitioners in all the three writ petitions is common and the petitioners, as stated herein above, have been working in different schools of District Doda as contingent paid employees having been engaged on different dates. It is also not in dispute that the contingent paid employees like petitioners engaged in different schools as Sweepers/ waterman/water woman were being paid a meager sum of Rs.500/- to Rs.1000/- per year. These employees accepted to work for this small amount legitimately expecting that sooner than later they would be absorbed in regular government service. Many contingent employees like the petitioners, therefore, approached this Court by way of different writ petitions claiming, inter alia, that they should be paid atleast minimum wages as laid down in the Minimum Wages Act, 1948 and that there should be some scheme for their regularization in government service after completing requisite number of years in service as contingent paid employees. Pursuant to the directions issued by this Court from time to time, respondents ultimately conceded the demand of these contingent paid employees and made a provision for their regular appointment while promulgating Jammu & Kashmir School Education (Subordinate) Service Recruitment Rules, 2008 issued vide SRO 308 of 2008. In the aforesaid Recruitment Rules, it was for the first time provided that 50% of the Class-IV posts like Orderlies/Peon/Mallies/Chowkidars etc. would be filled up by selection from middle pass contingent paid/local fund employees to be selected by a Committee constituted by the concerned Director School Education. 4. In the aforesaid Recruitment Rules, it was for the first time provided that 50% of the Class-IV posts like Orderlies/Peon/Mallies/Chowkidars etc. would be filled up by selection from middle pass contingent paid/local fund employees to be selected by a Committee constituted by the concerned Director School Education. 4. With a view to give effect to the aforesaid beneficial provisions incorporated in the Recruitment Rules for the welfare of the contingent paid/local fund employees, respondent No.1 issued guidelines, which are contained in Communication No.Edu-I/227/2009 dated 24.08.2011 in which it is, inter alia, provided that the list of eligible contingent paid employee/local fund employees would be prepared in different districts and subject to the availability of posts in the district they would be regularly absorbed on the basis of their seniority. In the aforesaid communication, it was also provided that all those contingent paid/local fund paid employees, who were not found eligible for regularization, would be paid wages at the rate of Rs.110/- per day. 5. The grievance projected by the petitioners in all these writ petitions is that the Rule of seniority, as was specifically mentioned in the aforesaid communication of respondent No.1 has been ignored and the persons have been picked up for regularization arbitrarily. Therefore, the petitioners though, seniors to many, who have been absorbed have been put to serious prejudice. The petitioners in SWP No.3037/2015 appear to be seniors to respondent Nos. 7 to 9 and therefore, had a better claim of regularization viz-a-viz the aforesaid respondents. It further appears that their case along with others was considered by the respondents but the same was rejected on the ground that their documents, which are pre-requisite for consideration of the claims, were not available in their district office, therefore, they could not be considered. Insofar as writ petitioners in other writ petitions are concerned, they claim that they were not considered at all, though; they were eligible and possessed all requisite documents. 6. Mr. Amit Chopra, learned Govt. Advocate appearing for the respondents submitted that the case of the petitioners, who were eligible and were possessing all the requisite documents were considered but they could not be regularized in view of their seniority. However, case of the petitioners in SWP No.3037/2015 was rejected due to non-availability of the requisite documents in the office of the Chief Education Officer, Doda. However, case of the petitioners in SWP No.3037/2015 was rejected due to non-availability of the requisite documents in the office of the Chief Education Officer, Doda. However, he could not give any explanation as to why the juniors to the petitioners have been considered and appointed against the Class-IV posts ignoring better claim of the petitioners. There appears to be callousness in the consideration of the cases of the petitioners. As per the procedure laid down by respondent No.1, respondents are under an obligation to prepare an updated seniority list of all eligible contingent/local fund paid employees at the district level and thereafter make selection strictly as per the seniority. The documents to which the reference is being made by the respondents are the documents, which are supposed to be in possession of the official respondents. It is only the permanent resident certificate and the qualification certificate, which are required to be submitted by the candidate concerned. It appears that proper exercise was not undertaken as a result whereof many candidates were not enlisted for consideration. It is because of this reason the claim of the writ petitioners in these writ petitions except in SWP No.3037/2015 was not considered at all. In SWP No.3037/2015, case of the petitioners was rejected on totally flimsy and untenable grounds. So far as claim of the petitioners for payment of wages at the rate of Rs.110/- per day is concerned, it is observed that only such contingent paid workers would be entitled, who are not found eligible for regularization due to having become overage or lacking basic qualification. That being the position, such relief is not available to the petitioners, who claim to be eligible both in terms of age and qualification to be appointed as Class-IV employees in the Govt. Relief of payment of wages @ Rs.110/- per day, claimed by the petitioners pending their regularization, is found not admissible and therefore, declined. 7. Although, the petitioners in these writ petitions have claimed a writ of certiorari for quashing appointment of the private respondents, yet during the course of arguments, learned counsel for the petitioners made a statement that he would not press for the aforesaid relief and it is because of this reason the petitions were heard in absence of the private respondents, who were yet to be served in the matter. 8. 8. Be that as it may, in the given facts and circumstances of the case, without quashing the impugned orders whereby the private respondents have been appointed as Class-IV employees, it is directed that the cases of the petitioners shall be considered in light of the provisions of SRO 308 of 2008 and communication of the respondent No.1 dated 24.08.2011 and in case it is found that the petitioners are eligible and similarly situate contingent paid employees, juniors to them have already been regularized as Class-IV employees then necessary orders of appointments in favour of the petitioners shall also be issued. In that event the petitioners would be entitled to appointment with effect from the date immediate juniors to them have been so appointed with all consequential benefits. The aforesaid exercise of considering the petitioners shall be completed by the official respondents within a period of two months from the date of receipt of copy of this order. 9. With the aforesaid directions, all these writ petitions along with connected MPs stand disposed of.