Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 900 (JK)

Gulla Dobi v. State of J&K

2018-11-22

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : Ali Mohammad Magrey, J. Petitioners in the instant petition are seeking the following reliefs; I. Issuance of Writ of Certiorari for quashment of order bearing No. DS/LS/2016/516-18 dated 18-05-2018. II. Issuance of Writ of Mandamus, commanding the respondents to implement the judgment of this Hon’ble Court passed in SWP No. 1811/2015 in its letter and spirit by forming their legal obligation and duty of fairness bye terminating, discrimination and denial of accord of regularization under SRO-64 of 1994 vis-à-vis the treatment of regularization accorded to their counterparts who belonging to the same service category and class. 2. Perusal of order impugned reveals that the petitioners’ continuation has been disputed and their engagement is stated to be purely on needs basis as and when required for nursery operations in different nurseries for the period for which they have been paid and are being disengaged as soon as time bound nursery operations are over. Petitioners continuation is vehemently denied by the respondents, therefore, with such contention, the respondents have disputed the claim of the petitioners. 3. Prior to filing of the instant writ petition, the petitioners had also filed writ petition bearing SWP No. 1811/2015 and this Court on consideration of the matter, in terms of order passed on 20.08.2015, disposed of the same and directed the respondents to consider the regularization of the petitioners in terms of SRO 64 of 1994. The operative partition of order is taken note of; “This petition is accordingly disposed of with direction to the respondents to consider the cases of the petitioners are par with the similarly situated persons who are petitioners in SWP No. 1690/2006 and have been regularized in terms of SRO 64 of 1994. This would be appropriate only in case petitioners are at par with the said petitioners…….” 4. The respondents have considered the claim of the petitioners on the touchstone of applicable rules and consideration resulted into rejection of their claim. The petitioners having questioned the rejection, have placed on record instead their continuation orders, the orders of some other daily wagers, whose serves are stated to be regularized on the said set of facts. 5. The Court cannot give the benefit of regularization to the petitioners on the strength what has been given to others but may direct the respondents to give the benefit of regularization to the petitioners on the touchstone of SRO 64 of 1994. 5. The Court cannot give the benefit of regularization to the petitioners on the strength what has been given to others but may direct the respondents to give the benefit of regularization to the petitioners on the touchstone of SRO 64 of 1994. 6. Responses are on record, wherein it is stated that the petitioners are not fulfilling the eligibility as stipulated under the provisions of SRO 64 of 1994, with special reference that they huge breaks in their services. 7. Learned counsel for the petitioners submits that the even there is provision for relaxation of breaks when the petitioners have worked with the respondents for decades together. It is submitted that the petitioners cannot be exploited by denying them the benefit of regularization which has been given to similarly situated workers. 8. Court feels it necessary to observe that the respondents have not considered the case of the petitioners in light of their claim, which has reference to relaxation of breaks but have not adhered to the manner so provided and passed the impugned order. Court is not satisfied with consideration having been accorded to the petitioners in tune with the final orders passed in their case in SWP No. 1811/2015 on 20.08.2015. 9. In the above background, this writ petition is allowed and the order impugned bearing No. DS/LS/2016/516-18 dated 18-05-2018, shall stand quashed and by a writ of mandamus, the respondents are directed to re-consider the case of the petitioners in tune with the directions passed by this Court in SWP No. 1811/2015 dated 20.08.2015, on the basis of material available on record. SWP No.1137/2017 Mr Syed Manzoor, Advocate for petitioner. Mr B.A. Dar, Sr AAG for respondents. 10. Petitioners eight in number are seeking their regularization in terms of SRO 64 of 1994, on the grounds that they have put more than 18 years’ service as casual labourers in the Sericulture Department filed the instant petition for their regularization on the pattern that similarly situated persons have been regularized but the petitioners have been left out for the reasons best known by the respondents. 11. Petitioners have been engaged as casual labourers in the respondent-department for the last more than two decades. It is submitted that the respondent department created the posts of Watch and Ward of Nurseries in three shifts up to 01/1994 and the total number of posts were 1095. 11. Petitioners have been engaged as casual labourers in the respondent-department for the last more than two decades. It is submitted that the respondent department created the posts of Watch and Ward of Nurseries in three shifts up to 01/1994 and the total number of posts were 1095. It is submitted that the petitioners who were already working as labourers were engaged as Watch and Ward against the said vacancies including the petitioners and all were allowed to work for about three decades without any break, which also becomes evident from the attendance of the petitioners along with other colleagues from time to time. It is submitted that there were number of petitions filed on the subject, wherein similar directions have been issued i.e. for accord of regularization, in most of cases the directions have been implemented by the authority concerned. It is further submitted that the petitioners deserve regularization of their services on the strength of the orders passed by this Court in case of Ali Mohammad Bhat vs. State & Ors, in whose case, the respondents have regularized the services of the petitioners, as also on the analogy of the petitioners of case titled Naba Lone vs. State & Ors, bearing SWP No. 2152/2014, which came to be decided on 06.03.2015, against, which order, the respondents had filed Letters Patent Appeal bearing No. 121/2015, which too came to be dismissed. It is further submitted that the decision of the Division Bench was questioned in SLP and the SLP also came to be dismissed vide order dated 11.12.2015 and the respondents implemented the judgment and regularized the services of the petitioners in case of Naba Lone vs. State. The petitioners claim the same benefits. 12. Respondents have filed their reply, where they have stated that the petitioners are merely casual labourers engaged on need basis for different spells as such SRO 64 of 1994 is not applicable to them and they cannot claim nor can they be considered for regularization against the vacant posts. 13. Heard learned counsel for the parties, considered the matter. 14. Ongoing through various annexures placed on file I find substance in the pleas raised by the petitioners. The petitioners have placed on file statement showing the details of attendance issued by the competent authority. 13. Heard learned counsel for the parties, considered the matter. 14. Ongoing through various annexures placed on file I find substance in the pleas raised by the petitioners. The petitioners have placed on file statement showing the details of attendance issued by the competent authority. The petitioners have also placed on file various communications of the concerned department which depicts that the petitioners are working in the Department on full time basis for the last more than a decade. There is also a communication addressed to the Director, Sericulture Development Department, J&K Srinagar, regarding the conditions (report) for regularization of the petitioners services in terms of SRO 64 of 1994, which shows that the petitioners are working in the Department for last over 10 years for which month wise attendance has been submitted to the concerned office. All these documents show that the petitioners are working on full time basis. The meaning and scope of casual employment was dealt with and discussed by this Court in SWP No. 437/1997 decided on 28.08.2000. The Court observed as under:- “The word ‘casual’ has been defined in the Reader’s Digest Universal Dictionary 1988 Edition at Page 256 as something resulting from or occurring by chance, irregular, occasional part time. It also makes reference to the word ‘casual Labourer’. According to this dictionary the Casual Labourer would be a person who works at irregular intervals.” The term casual employment has also been defined in Black’s Law Dictionary at page 218 is as under:- “Casual employment: Employment at uncertain or irregular times. Employment for short time and limited and temporary purpose, occasional, irregular or incidents, employment. Such employee thus not normally receive seniority rights nor if hours worked are below a certain number each week, fringes benefits. By statue in many states such employment may or may not be subject to workers compensation at the discretion of the employer. The test is the nature of the work or the scope of the contract of employment or the continuity of employment. Thus a person who continued to work for a period of six and half years cannot be called as casual worker or a labourer plea taken by the respondents that he continued to remain casual worker is contrary to the very concept and plain meaning of the term casual. This cannot be accepted. Thus a person who continued to work for a period of six and half years cannot be called as casual worker or a labourer plea taken by the respondents that he continued to remain casual worker is contrary to the very concept and plain meaning of the term casual. This cannot be accepted. By no stretch of imagination petitioner who has worked for six and half years whereas beyond that is when rule referred to above coming force. In this situation petitioner was well within his right to content that he should have been allowed to continue in service and should have been allowed to complete 7 years of service. As a matter of fact that he should have been allowed in continue in terms of Rule 8.” 15. This Judgment was later on followed in Chander Prakash v. State of J&K SWP No. 07/99 decided on 5.9.2000, in which the court directed the regularization of the petitioners therein. 16. The law laid down by this Court in SWP No. 437/97 squarely applies to the facts of the present case. Since the petitioners are working and performing the duties of watch and ward on regular basis they cannot be treated as merely casual labourers and denied the benefit of regularization. 17. The respondents have denied the claim of the petitioners for regularization as being not eligible in terms of provisions of SRO 64 of 1994, on the ground that there are huge breaks in their services. 18. A right has accrued to the petitioners for seeking consideration for regularization of their services in terms of SRO 64 of 1994, denial whereof, forms a ground for maintaining the instant writ petition. Petitioners while strengthening their claim seeking regularization of their services, have also supported it by the cases of similarly situated casual workers/daily wagers. 19. Ordinarily, there shall be no occasion for the respondents to deny consideration but having failed to do, has formed the ground for filing the instant writ petition. Mr B.A. Dar, learned Sr AAG, has vehemently denied the claim of the petitioners on the ground that their services are extracted on need basis during progression of nursery operations and once nursery operations are over, they are being discontinued. Mr B.A. Dar, learned Sr AAG, has vehemently denied the claim of the petitioners on the ground that their services are extracted on need basis during progression of nursery operations and once nursery operations are over, they are being discontinued. The claim of the petitioners deserve to be considered on the touchstone of mandate of provisions of SRO 64 of 1994 read with orders passed by this Court in different writ petitions and Letters Patent Appeals. 20. In light of above, this writ petition is disposed of with the direction to the respondents to consider the case of the petitioners for regularization of their services in tune with the mandate of SRO 64 of 1994. Consideration shall be affected and decision taken expeditiously 21. Both the petitions are disposed of as indicated above. 22. Registry to place copy of this order on each file.