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2018 DIGILAW 80 (JK)

Nissar Ahmad Itoo v. State of Jammu and Kashmir

2018-02-12

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. This bunch of writ petitions raises analogous and similar submissions, averments and grounds. These involve the same subject-matter, as such, the pleadings summed up therein need not be taken up in ab seriatim, so as to avoid prolixity and the controversy percolating therefrom having akinness, is put at rest by this common judgment. 2. Petitioners, in all the writ petitions on hand, had worked as contingent/local fund paid employees in the Education Department. They in quest of remedying their gravamen, preferred a writ petition, being SWP No. 1857/1998, that culminated in a judgment dated 23rd September 1998. The respondent department was directed to take a decision concerning the regularisation of the services of the petitioners within a period of three months. 3. In order to bring the petitioners in the regular establishment, the Government took a decision to absorb the contingent paid/local fund paid employees/workers in the respondent department, and issued SRO 308 dated 16th October 2008, by which the Jammu and Kashmir (Subordinate) Service Recruitment Rules (for brevity "the Rules of 2008"), were notified. Schedule-II A to the Rules of 2008 envisions the method of recruitment for filling up the various posts. The posts of Class-IV, viz. Orderlies/Chowkidars/Peons etcetera 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. 4. A Committee, pursuant to the guidelines laid down in the Rules of 2008, by Order No. 35-DSEK of 2009 dated 4th April 2009, was constituted for verification of the service particulars of all the contingent/local fund paid employees, working in the various offices/institutions of the Education Department, Kashmir Division. The Committee was asked to furnish a comprehensive/detailed report with the specific recommendations to the Director, School Education, Kashmir, at an earliest. The Committee had several sittings with the concerned Chief Education Officers. During the course of verification it was found that a number of contingent paid workers had increased since 2009. The Committee was asked to furnish a comprehensive/detailed report with the specific recommendations to the Director, School Education, Kashmir, at an earliest. The Committee had several sittings with the concerned Chief Education Officers. During the course of verification it was found that a number of contingent paid workers had increased since 2009. The Director, School Education, Kashmir, vide communication dated 6th April 2010, intimated the Secretary to Government, Education Department, that 3283 contingent paid/local fund paid employees had qualified for the regularisation and most of them had crossed the prescribed age limit for entering into the government service and that a number of writ petitions were pending relating to regularisation of services. The Director, School Education, Kashmir, also sought age relaxation in respect of some of the contingent paid employees. 5. The Commissioner/Secretary to Government, School Education Department vide communication No. Edu-I/227/2009 dated 24th August 2011 asked the Directors, School Education, Kashmir and Jammu, to take immediate action for filling up Class-IV vacancies in the Education Department in pursuance of the Rules of 2008. The Directors, School Education, were also asked to advertise 50% of the Class-IV vacancies district-wise and remaining 50% of the vacancies be utilized for regularisation of the contingent/local fund paid employees, who possess the requisite educational qualification and were 37 years of age and had not crossed 40 years of age in respect of the reserved category as on 01.01.2011. The selection of contingent/local fund paid employees was asked to be made by the Committee after scrutinization of the documents of the eligible candidates on the basis of the seniority. This became the bone of contention for many of the contingent paid employees to knock at doors of this Court with the writ petitions, with lead writ petition, bearing SWP No. 1921/2011, titled Mohammad Ramzan Lone and others v. State of J & K and others. The said writ petitions were disposed of by a Bench of this Court vide judgment dated 11th July 2012, quashing paragraph 2(I) of the aforesaid communication bearing No. Edu-I/227/2009 dated 24th August 2010, issued by the Commissioner/Secretary to Government, School Education Department. The said writ petitions were disposed of by a Bench of this Court vide judgment dated 11th July 2012, quashing paragraph 2(I) of the aforesaid communication bearing No. Edu-I/227/2009 dated 24th August 2010, issued by the Commissioner/Secretary to Government, School Education Department. The respondents were directed to consider the claim of the writ petitioners along with eligible candidates for their recruitment/absorption in the Government service in accordance with the mandate contained in the Rules notified vide SRO 308 of 2008, by considering their age at the time of their initial engagement/recruitment. Respondents were also directed to consider and take a decision in the matter preferably within a period of 12 weeks. 6. In compliance to the judgment dated 11th July 2012, the Director, School Education, Kashmir, vide Notification No. DSEK/NT/CPW-Lit/22/2011/1248-60 dated 4th September 2012, issued the seniority list of the contingent/local fund paid workers and invited the objections from the concerned to be submitted before the respective Chief Education Officers with the documentary proof. The Director, School Education, Kashmir, by communication bearing No. DSEK/NT/CW/42/2013(All)2469-82 dated 2nd February 2013, directed all the Chief Education Officers to update the seniority list of the qualified contingent/local fund paid workers after ensuring due consideration of the dropouts, if any, to give reasonable opportunity to all of them to prove their eligibility for their regularisation and their certificates be got verified from the issuing authority. After a full-dress process, the regularisation orders were issued in favour of the petitioners. As there had been, as contended by petitioners, delay in the regularisation/absorption of the petitioners on the Class-IV posts, the petitioners through the President, J & K Contingent Paid Employees Association, represented to the respondent No. 2, to give the benefit of the regularisation to their services, at least, from the date SRO 308 of 2008 was issued viz. 16th October 2008. The said representation, according to the petitioners, has not seen any consideration from the respondent No. 2, forcing them to knock at the doors of this Court with the writ petitions on hand, in unison, seeking regularisation/absorption of their services against the Class-IV posts, at least, with effect from 16th October 2008, when SRO 308 of 2008 was issued, with all consequential service benefits on the analogy of their counterparts of District Anantnag, who were regularised in service in terms of the order No. 1037 of 1992 dated 7th January 1992. 7. 7. Reply has been filed by the respondents in all the writ petitions. The respondents do not dispute the factual background of the case. Their only assertion is that since the rules were framed by virtue of SRO 308 of 2008 dated 16th October 2008 and the respondent department initiated the process for absorption of the contingent paid workers as Class-IV employees in the Department in due course of time, however, for finalisation it took some time because of the fact that the Committee constituted was to verify the service particulars of each District, which delay is not deliberate or intentional. 8. The petitioners filed the Rejoinder Affidavit, in which they aver that prior to their regularisation, they had worked as the contingent paid local fund employees for decades together and by regularising them at the fag end of their service they would not be able to reap the fruits of such regularisation inasmuch as the petitioners would not qualify for pensionary benefits. 9. I have heard learned counsel for the parties and considered the matter. 10. Learned counsel for the petitioners, while advancing arguments, has invited attention of this Court to a judgment dated 28th June 2011 in SWP No. 1309/1998, passed by the Full Bench of this Court, directing respondents to allow the writ petitioners appointed against the migrant vacancies to continue till the appropriate scheme for their regularisation was formulated or till concerned migrant employees returned to their duties in the Kashmir Valley, to contend that subsequent to passing of the aforesaid judgment dated 28th June 2011, a Government order bearing No. 1304-GAD of 2001 dated 9th November 2001 was issued, whereby a Committee was constituted to consider the regularisation of the candidates appointed from time to time on ad hoc basis against the migrant vacancies in accordance with the principles outlined in the aforesaid judgment dated 28th June 2001. The Government order No. 1304-GAD of 2001 dated 9th November 2001 was substituted by the Government Order No. 610-GAD of 2006 dated 16th May 2006, whereby another Committee was constituted for regularisation of the migrant substitutes, where the posts were vacant. The Government order No. 1304-GAD of 2001 dated 9th November 2001 was substituted by the Government Order No. 610-GAD of 2006 dated 16th May 2006, whereby another Committee was constituted for regularisation of the migrant substitutes, where the posts were vacant. In terms of the Government order No. 579-GAD of 2009 dated 17th July 2009, besides, creating 197 posts of Teachers and 12 Class-IV employees of erstwhile Falah-i-Aam Trust and utilization of left out 25 posts of Teachers out of 538 posts of Teacher created earlier as also utilization of 26 posts of Class-V posts available in the Department, sanction was also accorded to regularisation of 222 Teachers and 28 Class-IV employees of erstwhile Falah-i-Aam Trust from the date of their actual joining in the Education Department after banning of the Falah-i-Aam Trust notionally. The learned counsel's next contention is that by virtue of the Government order No. 1061-GAD of 2014 dated 16.10.2014, the past service rendered by the migrant substitutes prior to their regularisation shall be counted for the purpose of the pensionary benefits. In furtherance to this submission, the learned counsel for the petitioners avers that the petitioners are also entitled to the same treatment as has been bestowed unto the migrant substitutes. 11. The petitioners, in the writ petitions on hand, exhort retrospective effect to their regularisation/absorption, principally from the date, SRO 308 of 2008 was issued, viz. 16th October 2008, with all consequential service benefits. The petitioners' chief grouse is as about minimal term of office due to delay in regularisation of their services incapacitating them for qualifying-service, resultantly turning them ineligible for pension and other retiral benefits. 12. J & K School Education (Subordinate) Service Recruitment Rules, 2008, have been notified vide SRO 308 dated 16th October 2008. Amongst other things, Schedule-II A, attached to the Rules of 2008, provides that Class-IV posts, viz. 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 to be filled up 50% by direct recruitment and 50% by selection from Middle pass contingent/local fund employees by a Committee duly constituted for the purpose by the concerned Director School Education. The scheme of the recruitment in terms of SRO 308 qua Class-IV in the School Education Department, procreated hopefulness and optimism in the contingent/local fund employees working in the School Education Department and they exhorted remedying of their gravamen. The scheme of the recruitment in terms of SRO 308 qua Class-IV in the School Education Department, procreated hopefulness and optimism in the contingent/local fund employees working in the School Education Department and they exhorted remedying of their gravamen. With a view to give effect to the aforesaid beneficial provisions incorporated in the Service Rules of the School Education for welfare of the contingent paid/local fund employees, Director School Education, Kashmir, vide Order No. 35-DSEK of 2009 dated 4th April 2009, constituted a Committee of the officers of the School Education Department, to verify the service particulars of all the contingent/local fund paid employees, working in various offices/institutions of the Education Department. 13. Perusal of the record on file reveals that the process for regularisation of the contingent paid/local fund employees was not processed and squared off in a hit-or-miss method, but their credentials were meticulously scrutinized. Even during scrutinization, it was found that some of the workers did not possess the genuine credentials and therefore, the cases of such workers were put on the backburner till they could establish the veracity of their credentials. The seniority lists of the workers were issued and the objections thereto were invited. The objections were considered and the seniority list was got authenticated through respective Zonal Education Officers in the capacity of Drawing and Disbursing Officers of their respective workers and in the capacity of Nodal Officers at the zonal level for verification of the credentials of such workers. As a consequence whereof, the contingent/local fund paid workers, fulfilling all prerequisite and fundamental eligibilities, were regularised/absorbed as Class-IV in the respondent department. Be that as it may, the respondent department did not induce gratuitous deferral in meting out and squaring off petitioners' case for regularisation. Nevertheless, it as well cannot be left unattentive that the delay in regularisation of the petitioners' service has lessened their tenure of service and put them in melancholy. However, it is germane to point out here that otherwise also the service rendered by the petitioners as the contingent paid workers is also to be counted for the pension together with the service rendered or to be rendered by the petitioners in regular establishment. However, it is germane to point out here that otherwise also the service rendered by the petitioners as the contingent paid workers is also to be counted for the pension together with the service rendered or to be rendered by the petitioners in regular establishment. Article 177-A of the J & K Civil Service Regulations, 1956, explicitly enjoins and stipulates that a work charge employee/whole time contingent paid staff including the daily rated workers, who is/are brought on regular establishment and retires/retire without having been declared substantive or quasi-permanent, shall be allowed to count 50%, of his/her work charged contingent paid service as qualifying for the pension together with the period of service rendered in regular establishment. Having said so, the trepidations nursed by the petitioners in the writ petitions on hand, are put to rest. But, simultaneously, respondents ought to, at best, vouchsafe the benefit of SRO 308 of 2008, from the date of its coming into being. 14. Based on the discussion and the reasons discoursed herein supra, the writ petitions are disposed of with a direction to the respondents to consider the case of the petitioners for giving them the benefit of regularisation/absorption against the Class-IV posts in terms of and from the date when SRO 308 of 2008, was issued, with all the consequential benefits attached thereto as has been done in respect of the contingent paid workers of District Anantnag, who were regularised in service in terms of the Order No. 1037 of 1992 dated 7th January 1992. Disposed of.