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2023 DIGILAW 321 (JK)

Mudasir Ahmad Dar v. State Of J&K

2023-08-01

SANJAY DHAR

body2023
ORDER : 1. The petitioner has challenged Communication bearing No.CEO/Bpr/Estt/013/4437 dated 19.08.2013, issued by respondent No.3, whereby a direction has been issued to the Zonal Education Officer Quilmuqam to continue respondent No.6 as Contingent Paid Worker (CPW) for Government Upper Primary School Khusmullah Kchnusa District Bandipora. The petitioner has also sought a direction upon the respondents to allow him to continue his duties as Contingent Paid Sweeper in the afore noted school with a further direction to the official respondents that he should be paid wages as prescribed under the Minimum Wages Act. The petitioner has sought a further direction upon the respondents to consider his case for regularization of his service. 2. Briefly stated, the case of the petitioner is that in October, 2011 he applied to respondent No.5, Headmaster Boys Primary School, Khudmulla Kehnusa Bandipora for engaging him as a Sweeper in the said school. The said application was entertained and was processed to respondent No.4, Zonal Education Officer Quilmuqam and accordingly respondent No.5 issued an order dated 21.10.2011, whereby the petitioner was engaged as a Sweeper in the afore noted school on monthly wages of Rs.50/-. 3. According to the petitioner he is continuously working as a Sweeper on a meager sum of Rs.50/- per month and he has been receiving the wages from the official respondents. It has been submitted that the school was shifted to the Government building in the year 2010 and prior to that it was functioning from the house belonging to respondent No.6 and during this period no Sweeper was engaged in the School. It has been alleged by the petitioner that respondent No.6 has made a false claim that she was working as a Sweeper in the School from the year 2003 to 2010 and she has managed the impugned letter dated 19.08.2013 wherein it has been maintained that respondent No.6 is working as a Sweeper and she should be allowed to continue as such. The petitioner on the basis of the documents obtained by him in answer to the queries under RTI Act claims that right from the year 2011 till the filing of writ petition he has received wages for performing his duties. On this basis it has been contended that the impugned communication deserves to be quashed and that the petitioner is entitled to be paid wages at the rates prescribed under the Minimum Wages Act. On this basis it has been contended that the impugned communication deserves to be quashed and that the petitioner is entitled to be paid wages at the rates prescribed under the Minimum Wages Act. It has also been contended that the petitioner is entitled to regularization of his services. 4. Respondents No.1 to 5 have filed reply to the writ petition in which it has been submitted that respondent No.5 had vide his Communication No.BPSK/2100/224 dated 21.10.2011 forwarded the proposal to respondent No.4 for engaging a contingent paid employee in the School and in this regard the School Management Committee also passed a resolution proposing the name of the petitioner for his engagement as contingent paid employee for the said school. It has been submitted that the petitioner was accordingly engaged as contingent paid employee by respondent No.5 in terms of Order No.BPSK/2100/224 dated 21.10.2011 and his said action was confirmed by respondent No.4 in terms of Communication No.BPSK/2011/226 dated 15.11.2011. 5. According to the official respondents the petitioner has been working as contingent paid employee in the afore noted school w.e.f 21.10.2011 and he is receiving the wages @Rs.50/- per month. It has been submitted that father of respondent No.6 approached the office of respondent No.3 claiming that respondent No.6 is working as Sweeper in the aforesaid school since the year 2003. The representation was forwarded by respondent No.3 to respondent No.4 for furnishing report, whereafter the impugned communication came to be issued by respondent No.3 directing respondent No.4 to allow respondent No.6 to continue her as contingent paid employee in the said school. The impugned communication was forwarded to respondent No.5, the Headmaster of the School who vide communication No.BMS/2013/285 dated 24.08.2013 reported that as per school records respondent No.6 has not worked as contingent paid employee of the said school and that no contingent paid employee was engaged by any authority during the period between 2003 to September, 2011. It was also reported by the Headmaster that no sweeping charges have been ever utilized/provided during the aforesaid period as per the school record. It is claimed by the official respondents that in view of the aforesaid report of the Headmaster the impugned communication was not implemented and that the petitioner is still continuing to work as contingent paid employee in the school since his engagement there. 6. It is claimed by the official respondents that in view of the aforesaid report of the Headmaster the impugned communication was not implemented and that the petitioner is still continuing to work as contingent paid employee in the school since his engagement there. 6. Respondent No.6 has filed separate reply to the writ petition in which it has been submitted that brother of the petitioner namely Bilal Ahmad Dar is working as an ReT in the school in question and he has forged the documents to sabotage the interests of respondent No.6. It has been submitted that previously the school was functioning from the building belonging to father of respondent No.6 who was working there as a Sweeper. It has been further submitted that the honorarium of Rs.50/- per month was being drawn by the brother of the petitioner and that inquiry is required to be conducted in the matter. In this regard respondent No.6 is stated to have filed a complaint before the CEO concerned, whereafter the impugned communication came to be issued by the said authority. 7. I have heard learned counsel for the parties and perused the record of the case. 8. The petitioner claims that he was engaged as a contingent paid employee for working as a Sweeper with Government Primary School Khusmullah Kchnusa District Bandipora. This according to the petitioner was done pursuant to Communication issued by the Headmaster on 21.10.2011, a copy whereof has been placed on record. The said order bears endorsement of Zonal Education Officer concerned confirming the action of the Headmaster. The petitioner has also placed on record documents obtained in answer to an RTI query, which include communication dated 24.08.2013 of the Headmaster of the concerned school, according to which the petitioner was engaged as contingent paid employee as a Sweeper and his wages were fixed at Rs.50/- per month. Copy of the drawal statement has also been placed on record which shows that the petitioner has been regularly drawing Rs.50/- per month as wages from the school in question. The stand of the petitioner that he has been engaged as a contingent paid employee is supported by the official respondents in their reply, who have, in categoric terms, submitted that the petitioner has been engaged as a contingent paid employee and that his services are continuing even as on date and he is drawing monthly wages of Rs.50/-. 9. The stand of the petitioner that he has been engaged as a contingent paid employee is supported by the official respondents in their reply, who have, in categoric terms, submitted that the petitioner has been engaged as a contingent paid employee and that his services are continuing even as on date and he is drawing monthly wages of Rs.50/-. 9. As against this, respondent No.6 has not placed on record even a single document to show that she was at any point of time engaged as a contingent paid employee in the school. The only document which respondent No.6 has placed reliance upon is the impugned communication dated 19.08.2013 issued by the Chief Education Officer Bandipora wherein it has been requested that respondent No.6 be permitted to continue as CPW. The Chief Education Officer Bandipora in his affidavit filed before this Court has clearly stated that aforesaid communication has not been given effect to because as per the record, respondent No.6 was never engaged as CPW and it is the petitioner who has been engaged as Contingent paid worker in the year 2011. In the face of the affidavit of the Chief Education Officer and the material on record, the claim of respondent No.6 that she was engaged as a CPW in the School appears to be without any substance. She may have filed a complaint against the petitioner but that is a matter to be inquired into by the official respondents. So far as the pleadings and the material brought on record of this Court are concerned, there is no manner of doubt in the engagement of the petitioner as a Contingent Paid Worker with the school in question, whereas, the claim of respondent No.6 that she was engaged as CPW, is not substantiated from the record. The impugned communication issued by respondent No.3 as per own stand of the said respondent cannot be acted upon. Thus the said communication is not sustainable in law. 10. So far as prayer of petitioner for regularization of his services is concerned, the same cannot be granted for the reason that the petitioner admittedly is a contingent paid employee and is not working against a regular post. He is not engaged as a full time worker, therefore his services cannot be regularized. 10. So far as prayer of petitioner for regularization of his services is concerned, the same cannot be granted for the reason that the petitioner admittedly is a contingent paid employee and is not working against a regular post. He is not engaged as a full time worker, therefore his services cannot be regularized. The petitioner has not placed on record any scheme or guidelines issued by the official respondents that would bind them to regularize services of a contingent paid employee. In the absence of any right of regularisation accruing in favour of the petitioner and a corresponding obligation of official respondents to regularize his services, no mandamus can be issued against the respondents for the said purpose. 11. That takes us to the claim of the petitioner for grant of minimum wages under the Minimum Wages Act. There is no doubt to the fact that a person cannot be asked to work as a sweeper on a meager wages of Rs.50/- per month. Having regard to the rate of inflation, asking a person to work on meager wages of Rs.50/- per month is nothing but sheer exploitation. The State as a model employer has to act fairly with its employees that would include even a contingent paid employee. It is not only the duty of official respondents but it is also their constitutional obligation to pay reasonable wages for the work which they extract from the petitioner. Rs.50 per month can by no stretch of imagination be termed as reasonable wages. The official respondents are obliged to pay wages to the petitioner at the rate prescribed under the Minimum Wages Act, if the petitioner works for full day or else the petitioner is entitled to payment of wages at the same rate proportionate to the hours of work put in by him. 12. For what has been discussed hereinabove, the writ petition is partly allowed, while declining the relief relating to regularization of services of petitioner, the impugned communication dated 19.08.2013 issued by respondent No.3 is quashed and the respondents are directed to pay wages to the petitioner at the rate prescribed under the Minimum Wages Act in proportionate to the working hours that are being put by the petitioner while performing his duties with the school.