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2018 DIGILAW 287 (JK)

Wali Mohammad Bhat v. State of JK

2018-05-10

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu & Kashmir, the petitioners beseech the grant of following reliefs in their favour:- “a. A Writ in the nature of mandamus in favour of the petitioners and against the respondents commanding upon the respondents to release the legally earned wages of the petitioners which have been withheld by the respondents. Further the respondents may be directed to allow the petitioners to work continuously in the respondent department without any impediment; b. A Writ in the nature of mandamus commanding upon the respondents to regularize the services of the petitioners and give all the benefits to the petitioners as per the Special Provisions Act J&K 2010; c. A Writ in the nature of mandamus directing the respondents to provide information as per the office memorandum/ Circular No 02-F of 2017 dated 15-06-2017; Any other writ, order or direction which this Hon’ble Court may deem fit and proper in the present circumstances and facts of the case may also be passed in favour of the petitioners and against the respondents.” 2. Mr. Ala-ud-Din Ganai, the learned counsel for the petitioners, states that the petitioners have been validly engaged as Casual Labourers by the respondent Department in 2001 and 2002 respectively, whereafter they have been discharging their duties as such in the respondents Department with great dedication and honesty. The learned counsel further states that since the petitioners have put in more than 15 years of service in the respondent Department, therefore, the services of the petitioners deserve to be regularized in light of the Cabinet decision bearing No. 23/03/2009 dated 19th of February, 2009, coupled with the enactment of the Jammu & Kashmir Civil Services (Special Provisions) Act of 2010 (hereinafter referred to as the Act of 2010). It has also been pleaded by the learned counsel for the petitioners that the respondents are not paying the due wages in favour of the petitioners for the duties which they are extracting from the petitioners. 3. The respondents, in their objections filed in opposition to the writ petition, have vehemently denied the contentions raised by the petitioners in their writ petition. 3. The respondents, in their objections filed in opposition to the writ petition, have vehemently denied the contentions raised by the petitioners in their writ petition. It has been averred that, in compliance of the instructions of the Chief Agriculture Officer, Baramulla/respondent No.3 issued in terms of communication bearing No.4557-70 dated 29th of August, 2003, the services of casual labourers in the Department were disbanded since the year 2003 vide Circular No. SDA/Spr/2003-04/255-59 dated 3rd of September, 2003 of the Sub-Divisional, Agriculture Officer, Sub Division, Sopore/respondent No.5. It has been also stated that the wages were paid to the casual labourers from time to time, however, there was some liability of some casual labourers upto the date of disbanding, which was put forth to the Budget Controlling Authority, i.e. the Chief Agriculture Officer, Baramulla and the same has not yet been paid due to lack of funds. 4. Heard the learned counsel for the parties, perused the records and considered the matter. 5. The grouse of the petition of the petitioners is that they, after rendering more than 15 years of service in the respondent department as casual labourers, are entitled to regularization of their services as such in the respondent Department in view of the enactment of the Act of 2010 in the State of Jammu and Kashmir. 6. Apparently, the petitioners have based their claim for regularization of their services in the respondent Department on the purport of the Act of 2010. Section 5 of the Act of 2010, which deals with the regularization of ad hoc or contractual or consolidated appointees, reads thus: “Regularization of ad hoc or contractual or consolidated appointees- Notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in Section 3 shall be regularized on fulfillment of the following conditions, namely:- i. that he has been appointed against a clear vacancy or post; ii. that he continues as such on the appointed day; iii. that the possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service of post; iv. that he continues as such on the appointed day; iii. that the possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service of post; iv. that no disciplinary or criminal proceedings are pending against him on the appointed ay; and v. that he has completed seven years of service as such on the appointed day. {Emphasis supplied}” 7. From the perusal of the above Section of the Act of 2010, what comes to the fore is that, among other conditions, the eligibility for regularization of services of an ad hoc or contractual or consolidated appointee is that the said employee must be continuing as such in the Department and must have completed seven years’ period in the department. 8. In the present case, it is the specific case of the respondents that, admittedly, the petitioners were engaged in the respondent Department on consolidated wages in 2001 and 2002 respectively, however, in the year 2003, vide Circular No. SDAO/Spr/2003-04/255-59, the services of the casual labourers, including the petitioners, have been discontinued, as such, the question of regularization of the services of the petitioners does not arise at all. 9. The petitioners claim that they have been discharging their duties in the respondent Department for the last more than 15 years, but, on the contrary, the respondents, while vehemently denying the said fact, categorically state that the services of the casual labourers in the Department, including those of the present petitioners, have been discontinued in the year 2003. In such view of the matter, a disputed question of fact has been raised in this petition and, this Court, in exercise of powers under Article 226 of the Constitution of India, cannot go into a fact finding mission so as to ascertain the authenticity of the rival contentions. Moreso, the petitioners have not chosen to file any rejoinder to rebut the averments made by the respondents in their objections. The petitioners have to first establish their right with reference to the disputed facts raised by the respondents. 10. Viewed in the context of all that has been said and done above, the petition of the petitioners, at this stage, is found to be devoid of any merit, as such, same is dismissed alongwith connected MP(s). The petitioners have to first establish their right with reference to the disputed facts raised by the respondents. 10. Viewed in the context of all that has been said and done above, the petition of the petitioners, at this stage, is found to be devoid of any merit, as such, same is dismissed alongwith connected MP(s). The petitioners, however, shall be at liberty to work out their remedy in a Civil Court for establishing their right vis-à-vis the disputes raised by the respondents. Furthermore, the respondents shall take appropriate steps for the payment of unpaid wages in favour of the casual labourers, which, according to the respondents, have remained outstanding due to lack of funds.