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2018 DIGILAW 492 (JK)

Mudasir Ahmad Beigh v. State of JK

2018-07-10

M.K.HANJURA

body2018
JUDGMENT : 1. Since Government order bearing No. 690-Edu of 2018 dated 18th of May, 2018, issued vide endorsement No. Edu/Plan-SE/898/2018-19 dated 18th of May, 2018, is the subject matter of both these two writ petitions, being SWP Nos. 1213/2018 & 1237/2018, therefore, both shall be determined and decided by a common order. Moreover, the respondents have filed their objections in SWP No.1213/2018, as such, it shall be appropriate to refer to the facts as raised in this petition. 2. The crux of the petition of the petitioners in SWP No.1213/2018 is that they have been engaged in the respondent Department in the capacity of Sweeper-cum-Chowkidar (Watch and Ward) and are working as such for the last more than two decades. They have proceeded to state that they are entitled to regularization in terms of the rules and, therefore, they approached the respondents for their absorption, but, since no action in respect thereto was taken by the respondents, they were constrained to file SWP No.2045/2016 before this Court. The said writ petition was disposed of on the reply affidavit filed by the respondents that as and when the posts become available, they shall be brought on the regular establishment. The grievance of the petitioners is that the respondent Department has issued the impugned order in terms of which the Sweeper/Watch and Ward posts have been created and process has been initiated for their fresh recruitment, ignoring the petitioners who have served the Department for the last more than three decades. On the above set of facts, the petitioners have implored for the grant of following relief’s in their favour: “(A). By allowing the petition, the issuance of writ of writ of Certiorari the order No. Edu/Plan-SE/898/2018-19 dated 18.05.2018 be quashed and set aside. (B.) By allowing the petition, by issuance of writ of Mandamus or any other writ, order or direction, directing respondents to regularize the service of the petitioners in terms of rules on the positions created by the respondent department in terms of impugned order, being entitled under rules.” Likewise, the petitioners in SWP No.1237/2018 have sought the indulgence of this Court in granting them the following relief’s: (I) Writ in the nature of Certiorari, quashing the purport of the order No.690 EDU of 2018 dated 18-5-2018 so far it provides direct recruitment of 20,000 School Guards (Watch and Ward). (II) Writ in the nature of Mandamus, whereby official respondents are commanded to appoint the petitioners (Contingent Paid Workers) as School Guards (Watch and Ward) on the posts created by virtue of government order No.690-EDU-2018 dated 18-5-2018 to the extent of 50% as provided by SRO 308/2008. (III) Writ in the nature of Mandamus, whereby official respondents are commanded to grant wages in favour of the petitioners under Minimum Wages Act till they get appointed/engaged as School Guards. (IV) Writ in the nature of prohibition, whereby respondents may be restrained from terminating the services of the petitioners which they are performing. (V) Writ in the nature of Mandamus, whereby official respondents are commanded to formulate a scheme for the Contingent Paid Workers who are not eligible qualification vise as per SRO 308/2008 for their regularization.” 3. The respondents have resisted and controverted the petition of the petitioners on the grounds, inter alia, that the Government order bearing No. 690-Edu of 2018 dated 18th of May, 2018, issued vide endorsement No. Edu/Plan-SE/898/2018-19 dated 18th of May, 2018, impugned herein these petitions, whereby sanction has been accorded for the engagement of 20,000 School Guards (Watch and Ward staff) in Government schools, indicates that the same falls within the realm of a policy decision. The objective sought to be achieved by the issuance of the impugned order is that of providing Watch and Ward staff to the schools as it was found that out of 23,773 State run schools of different categories, 22,623 are without any Chowkidars, thus making the schools vulnerable and a safe haven for the unruly miscreants found involved in committing anti-social activities and other juvenile crimes. Besides, the Department had to brace up stiff challenge on the law and order front as a number of schools were targeted during the unrest of 2016. In order to protect the schools and school children from trespassers, hooligans, anti-social and anti-national elements, the engagement of School Guards was found to be highly desirable which shall go a long way in safeguarding the assets in the form of infrastructure and human resource from the onslaught of socio-cultural degradation which has engulfed our Society in a big way. In order to protect the schools and school children from trespassers, hooligans, anti-social and anti-national elements, the engagement of School Guards was found to be highly desirable which shall go a long way in safeguarding the assets in the form of infrastructure and human resource from the onslaught of socio-cultural degradation which has engulfed our Society in a big way. It is also stated that the State cannot be complacent and continue to procrastinate over an issue of grave importance, therefore, the Cabinet, in terms of Cabinet decision No.111/6/2018 dated 11th of May, 2018, approved a proposal for the engagement of 20,000 Watch and Ward Staff for Government Schools across the State over two years. This policy decision so issued is an outcome of deliberations of the technical experts in the field and has been taken in public interest. It has also been pleaded by the respondents that minimal interference is called for by the Courts, in exercise of judicial review of a policy decision on matters affecting policy and which required technical expertise. The Courts ought to leave such matter for decision by those who are qualified to address the issues. Unless policy or action is inconsistent with the constitution and the laws or is arbitrary/irrational or constitutes an abuse of power, the Courts should be loath to interfere with such matters. No case is made out by the petitioners so as to warrant interference by this Court. It is also contended by the respondents that the petitioners, as admittedly, are claiming to have been engaged as Contingent Paid Workers. The rights in the matter of regularization of Contingent paid employees are crystallized in terms of the Jammu & Kashmir School Education (Subordinate) Service Recruitment Rules, 2008, in terms whereof 50% Class-VII posts of Orderlies/Peons/Chowkidars/Book Keepers/Lab Bearers/Lib. Bearers/Attendants/Mallies/Gardeners/Ground Coolies/Waterman/Chainmen/Farmhands/Animal Keepers/Gasman/Farashes/Packers/Conductors and Safaiwalas are required to be filled up by selection from middle pass Contingent Local Funds paid employees, therefore, the petitioners have no right to challenge the Government order dated 18th of May, 2018. It is stated that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, a discretionary one. There must be judicially enforceable right for the enforcement of which a mandamus would lie. It is stated that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, a discretionary one. There must be judicially enforceable right for the enforcement of which a mandamus would lie. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. The right of regularization is not a vested right. The regularization is governed by the applicable rules and in the absence of a vested right, a writ of mandamus is not maintainable. In the end, it has been urged that no legal right of the petitioners has been infringed, therefore, the petition of the petitioners merits dismissal. 4. Heard and considered. 5. The judicial review is a developing subject. Its scope varies from case to case. It is considered to be a basic feature of the Constitution. The Apex Court has, in a catena of judgments, defined the outline of the sovereign power, as vested in the three pillars of the Government, that are, the Legislature, the Executive and the Judiciary. In Kesavananda Bharti’s case, the Apex Court explained the term ‘basic feature’. The Court said that it is supposed to be the sum total of the core of our Constitution. The Apex Court, while interpreting the meaning of ‘judicial review’, said that the power of the ‘judicial review’ is, however, confined not merely to deciding whether, in making the impugned laws, the Central or State Legislatures, have acted within the four corners of the legislative lists earmarked for them; the Courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution. It further said that as long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened…………Review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. If the provisions of the Statute are found to be violative of any Article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. 6. The law also provides that the correctness of the reasons that prompted the Government to take a decision and take one course of action instead of the other, is not a matter of concern in the judicial review and the Court is not the appropriate forum for conducting such investigations. The scope of the judicial review has to be confined to find out whether the Government decision was against the statutory provisions or violative of the fundamental rights of the citizens of the State. 7. In the case of ‘Federation of Railway Officers Association & Ors. v. Union of India’, reported in ‘ AIR 2003 SC 1344 ’, the Apex Court said that the wholesome rule in regard to judicial interference in an administrative decision is that if the Government takes into consideration all the relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, Courts would keep off the same. 8. In the case of ‘BALCO Employees Union (Regd.) v. Union of India & Ors.’, reported in ‘MANU/SC/0779/2001’, the Apex Court said that it is evident that it is neither within the domain of the Court nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. 9. The object of the policy evolved by the Government in terms of the impugned order is laudable. It is a policy decision taken by the Government, the aim being to provide Watch and Ward staff to the schools spreading over the length and breadth of the State, whose number has been spelt out at 22,623. 9. The object of the policy evolved by the Government in terms of the impugned order is laudable. It is a policy decision taken by the Government, the aim being to provide Watch and Ward staff to the schools spreading over the length and breadth of the State, whose number has been spelt out at 22,623. The decision has been taken to ensure that the schools which are vulnerable and a safe haven for the unruly miscreants, found involved in committing anti-social activities and other juvenile crimes, are watched properly so that they are not targeted as was found in the unrest of 2016. This decision has emanated in order to protect the schools and the school going children from trespassers, hooligans, anti-social and anti national elements and that taking such a step was found to be highly desirable which willl go a long way in safeguarding the assets in the form of infrastructure and human resource from the onslaught of social and cultural degradation which has engulfed the Society in a big way. This decision has been taken in public interest and the Courts cannot embark upon an inquiry into the policy decision so arrived by the Government. The policy is not inconsistent with the Constitution and the laws of the land, nor does it appear to be arbitrary or irrational or the outcome of an abuse of power. 10. The impugned order does not, at any place, state that the same shall have the effect of terminating the petitioners and, to cap it all, it does state that the engagees shall be engaged on a monthly honorarium of Rs. 7,500/- per month with 5% hike every year. The posts created are neither temporary nor permanent in nature and, therefore, the petitioners cannot take shelter and umbrage under and in terms of SRO 308 dated 16th of October, 2008, i.e. School Education (Subordinate) Service Recruitment Rules, 2008. Schedule II-A of which provides for the appointment of Orderlies/Peons/Chowkidars/Book Keepers/Lab Bearers/Lib. Bearers/Attendants/Mallies/Gardeners/Ground Coolies/Waterman/Chainmen/Farmhands/Animal Keepers/Gasman/Farashes/Packers/Conductors and Safaiwalas. The method of recruitment of this class of employees has been prescribed as 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. 11. Rule 4 of the SRO cited above is of essence and it reads as under: “4. The method of recruitment of this class of employees has been prescribed as 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. 11. Rule 4 of the SRO cited above is of essence and it reads as under: “4. Strength and composition of the service: (1) The authorized permanent and temporary strength of the cadre and the nature of the posts included therein shall be determined by the Government from time to time and shall at the initial constitution of the services without these rules, be such as specified in the Schedule-I annexed to these rules. Provides that the Government may create temporary posts in the cadre of the service for specified period as may be considered necessary from time to time. (2) The Government shall, at the interval of every five years or such other intervals as may be necessary, re-examine the strength and composition of the cadre of the service and make such alteration therein as it deems fit.” 12. Risking repetition, the order impugned does not have the color of the creation of posts which may be temporary or permanent ones in nature. It provides that the School Education Department shall appropriately work out a framework/mechanism for regularization of these engagees after seven years of continuous and satisfactory engagement separately. So, it is only when the posts are created which may be temporary ones or permanent ones or if the engagees are allowed to steal a march over the heads of the petitioners and are regularized that will a give a cause to the petitioners to assert their right. 13. In view of the preceding analysis, the petitions of the petitioners do not merit any consideration. These entail dismissal and are, accordingly, dismissed along with all connected MPs. 14. Registry to place a copy of this order on each file.