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2023 DIGILAW 417 (JK)

Sajad Hussain Najar v. State of J&K

2023-08-19

M.A.CHOWDHARY

body2023
JUDGMENT : 1. Essentially the petitioners through the present writ petitions are seeking direction in the name of the respondents to allow them to continue in the respondent-Corporation; further respondents be directed to release the unpaid salary in favour of the petitioners. Respondents, however, in terms of the Order No.168 of 2018 dated 03.10.2018, impugned in the connected petition i.e., SWP No.2840/2018, have disengaged the petitioners. 2. Briefly stated facts leading to the filing of these petitions, is that the petitioners came to be engaged on need basis in the year 2009-2010 by the then Deputy General Manager, J&KPCC Ltd. Unit 11th Kulgam on his own, without approval from the competent authority, who is vested with the powers to engage any person on casual basis; that in the year 2015, the Government came up with Government Order No.43-F of 2015 dated 17.03.2015, whereby the authority given to various departments to engage casual/seasonal labourers, delegated by the Government from time to time, was withdrawn with immediate effect; that apprehending their disengagement, the petitioners approached this Court by way of SWP No.1536/2017 and a direction dated 08.08.2017 was issued directing the respondents to accord consideration to the release of due wages in favour of the petitioners; that the respondents, did not comply with the said direction constraining the petitioners to file Contempt Petition No. 120/2018; that non-compliance of the said order left the Court with no other option but to direct issuance of bailable warrant against the respondents; that as soon as the respondents got knowledge about the warrant, they issued consideration/disengagement order. 3. 3. The respondent-Corporation resisted the writ petitions vehemently and in their reply affidavit, pleading that the petitioners were engaged by the Corporation on need basis; that the fact the need base casual labourers were engaged on the basis of the Projects executed by the Corporation, once the Projects were completed, same were handed over to the concerned authorities, and accordingly the services of the need base casual labourers, including the petitioners in the instant case, were disengaged; that the petitioners otherwise were engaged by the incompetent authority, devoid of any legal sanction or legal competence; that the Department of Finance issued the order vide Government Order No.43-F of 2015 dated 17.03.2015, in terms whereof it was ordered that the authority to engage casual/seasonal labour delegated to various departments vide Government Order No.239-F of 2005 dated 29.01.2005, Government Order No.138-F of 2013 dated 23.05.2013 and Government Order No.105-PD of 2010 dated 25.10.2010, stood withdrawn with immediate effect; that in pursuance of the said order, the respondent- Corporation vide impugned order No.168 of 2018 dated 03.10.2018, disengaged the petitioners. 4. Feeling aggrieved of the said disengagement order dated 03.10.2018, the petitioners have filed the instant petitions contending that the Deputy General Manager JKPCC is the competent authority to engage casual labourers as he had engaged the maximum number of casual labourers in the Corporation but only petitioners have been targeted. It is pleaded by the petitioners that the respondents, in their objections to SWP No.1536/2017, have not denied the plea of discrimination and unpaid pending wages. It is further pleaded that the interim direction dated 03.10.2018 came to be issued in SWP No.2840/2018, wherein the Court has directed:- “In the meanwhile, the present position of the petitioners shall not be disturbed.” 5. Non-compliance of the said order dated 03.10.2018 gave rise to filing of Contempt Petition No. 575/2022. 6. Heard learned counsel for the parties, perused the record and considered. 7. Admittedly, the engagement of petitioners is need based and temporary in nature. Indisputably, engagement of writ petitioners was not on any substantive post carrying regular pay scale and is purely an interim arrangement without conferring any right on the incumbent to claim permanent absorption in the Corporation. 8. It may be pertinent to take notice that prior to the year 1994, various departments of the Government had made similar engagements, which were continued for years together. 8. It may be pertinent to take notice that prior to the year 1994, various departments of the Government had made similar engagements, which were continued for years together. The Government, with a view to confer benefit of regularization on such daily wagers who had completed seven years continuous service, came up with SRO 64 of 1994. In terms of Rule-5 of SRO 64, all the daily rated workers, who on 31.03.1994 had completed seven years continuous service, were entitled to be appointed on the regular pay scale of Class-IV prescribed in the concerned department for relevant category of posts and those who would complete seven years in the subsequent years were to be accordingly regularized in the relevant financial year. Rule -7 of SRO 64, however, put a complete ban on the fresh engagements of daily rated workers/work-charge employees in any of the department of the Government by providing that with effect from the commencement of the Rules, no field/subordinate officer shall have any power for engagement of daily rated workers or work-charge employees in the department and the existing delegation, if any, in this regard shall stand withdrawn. However, by way of proviso added to Rule-7, it was provided that the competent authority in the department, may engage casual or seasonal labourers, to be specified by notification issued by the Government. This is because of the said proviso, the petitioners got engaged in the respondent-Corporation. It is pertinent to notice that the services of the petitioners have not been terminated by the Corporation on the ground that their services are no more required by them, but have been disengaged in application of Government Order No.43-F of 2015 dated 17.03.2015 read with Government Order No.384- GAD of 2015 dated 17.03.2015. It would be apt to reproduce the Government Order No. 43-F of 2015 dated 17.03.2015 herein below:- “As approved by the Competent Authority, it is hereby ordered that authority to engage Casual/Seasonal Labourer to various Departments as, delegated vide Government orders mentioned below or any other order is withdrawn with immediate effect 1. Government Order No. 239-F of 2005 dated 29.01.2005. 2. Government Order No. 138-F of 2013 dated 23.05.2013. 3. Government Order No. 105-PD 2010 dated 25.10.2010.” 9. Government Order No. 239-F of 2005 dated 29.01.2005. 2. Government Order No. 138-F of 2013 dated 23.05.2013. 3. Government Order No. 105-PD 2010 dated 25.10.2010.” 9. From a perusal of Government Order No.43-F of 2015, it clearly transpires that the authority to engage casual/seasonal labourers delegated by the Government to various departments was withdrawn with immediate effect and as a natural consequence of withdrawal of the authority, none of the authorized departments, including the respondent-Corporation, was left with any authority to engage the casual/seasonal labourers in their departments/corporations. 10. Admittedly, the engagement of the petitioners, as need base labourers to perform the duties in the Corporation, was temporary in nature. The respondent-Corporation had engaged persons including the petitioners, when it was executing certain projects allotted to it, as services of locals were needed till completion of the projects. Contention of the learned counsel that since the project, where the services of the petitioners on ‘need basis’ was required had been completed and handed over to the concerned departments of the Government in the context of no more required, the petitioners cannot be brushed aside. That being the position, the respondent- Corporation had no authority to extend the engagements or permit the petitioners to continue on need basis for the reason that the authority under which the petitioners were being engaged from time to time stood withdrawn by the Government and services of the petitioners were no more required. 11. Undoubtedly, the Government Order No.43-F of 2015 is prospective in operation and would have the effect of taking away the authority of the respondent-Corporation to extend the engagement of the petitioners or to continue their engagements further. 12. The Hon’ble Supreme Court in a case ‘Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors.’ reported as (2006) 4 SCC 1 , has made certain observations regarding temporary/contractual/casual employment, the relevant portion reads as under:- “When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” 13. Having regard to the nature of engagements of the petitioners, no right is vested in them to continue in the respondent –Corporation indefinitely, more-so, when the authority under which the petitioners were being engaged from time to time stood withdrawn by the Government in terms of Govt. Order No.43-F of 2015 dated 17.03.2015. 14. For the afore-stated reasons made and the legal position discussed above, the contentions of the petitioners are misplaced, as such, their petitions are found to be devoid of any merit and substance. As a result, both the petitions are dismissed. Interim orders, if any, shall stand vacated. No order as to costs. CCP(S) Nos. 383/2020, 610/2021 & 575/2022 15. In view of the dismissal of the writ petitions, the proceedings in the aforementioned Contempt Petitions are liable to be closed and, are, accordingly dropped.