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2009 Supreme(J&K) 529
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Muzaffar Hussain Attar, J.
Mohd. Akbar Dar & Ors. - Appellant
Versus
State & Ors. - Respondent
OWP No. 62/2008
Decided On : 07 December, 2009
Advocate For Appellant: G.Q. Bhat
Advocate For Respondent: T. Khawaja
Engaging individuals in breach of constitutional mandate does not confer any right to seek continuation or permanent absorption in government service.
Headnote:
unpaid workers - Employment Dispute - Article 14, Article 16, Article 23 - The court discussed the engagement of unpaid workers, the constitutional mandate for filling government posts, and the entitlement to wages under Article 23 of the Constitution. The court emphasized that engaging individuals in breach of constitutional mandate does not confer any right to seek continuation or permanent absorption in government service. It also highlighted the prohibition of forced labor under Article 23 and directed the consideration of the claim for minimum wages.
Fact of the Case:
The petitioners were engaged under the promise of future absorption in the respondent-department, but wages were not paid to them. The respondents disputed the engagement and argued that the petitioners had voluntarily worked on apprenticeship terms.
Finding of the Court:
The court dismissed the petition seeking quashment of the government order and direction to create class IV posts. However, it directed the consideration of the petitioners' claim for minimum wages for the period they worked with the respondents.
Issues: Engagement of unpaid workers, entitlement to wages, breach of constitutional mandate, and violation of natural justice.
Ratio Decidendi: Engaging individuals in breach of constitutional mandate does not confer any right to seek continuation or permanent absorption in government service. The prohibition of forced labor under Article 23 of the Constitution applies, and the consideration of minimum wages claim is imperative.
Final Decision: The petition seeking quashment of the government order and direction to create class IV posts was dismissed. However, the consideration of the claim for minimum wages for the period worked was directed.
2. It is further prayed that respondents be commanded to allow the petitioners to continue till the class IV posts are created in the respondent-department, with further direction to respondents to frame the policy for engagement of petitioners against class IV posts lying vacant in the respondent-department.
3. Claim of the petitioners is that in the year 1990 when petitioners were working in private garages of different parts of the State and were trained as mechanics to deal with the overhauling of vehicles, the respondents told the petitioners to work in two workshops of Jammu and Srinagar till the posts of class IVth will be created for them in the department and on this assurance of the respondents, they opted to join the department and worked in different workshops. It is further pleaded that as the petitioners have worked in the respondent-department, the respondents were duty bound to pay minimum wages to them. It is further pleaded that the petitioners worked since 1991 to 2000 in the respondent-department. Claim is laid that persons similarly circumstanced with the petitioners were ordered to be brought on regular establishment and petitioners have been subjected to invidious discrimination by not giving the same treatment. It is also claimed in the writ petition that in view of the communications made by officers, some of which have been placed on the writ record, it is proved that the petitioners have not been paid their wages. Reference is also made to one of the communication to show that class IV posts are available with the respondents.
4. On notice respondents have filed objections. In the objections it is specifically pleaded that petitioners have not at all been engaged by any authority or officer against any post(s). It is further pleaded in the objections that in-fact the petitioners had approached the State Motor Garages on various occasions from time to time to allow them to work in the workshops of State Motor Garages in order to enable them to gain knowledge and knowhow about motor mechanism. It is further pleaded that they have given undertakings to the effect that they will not claim for any service benefits including the relief which is being sought for in this writ petition. It is also pleaded that petitioners had undertaken to work on their own risk and responsibility on apprenticeship only. It is further pleaded that communication of which reliance is placed in the writ petition, cannot be treated to have engaged the petitioners and would not confer any indefeasible right on them. It is prayed that writ petition merits dismissal.
5. Heard. Considered the matter.
6. Mr. G.Q. Bhat, ld counsel for the petitioners submitted that petitioners were engaged on the promise that posts will be created and they will be absorbed against those posts in the respondent- department. It is further submitted by the learned counsel, that though the work has been taken from the petitioners but wages have not been paid to them and it tantamounts to taking of "begaar" from petitioners. Ld counsel further submitted that while passing the impugned order no notice has been issued to the petitioners. Ld. counsel also referred to and relied upon judgment of this court reported in SLJ 1988.
7. Ld counsel for respondents, however, submitted that the petitioners were never appointed in the respondent-department, ld counsel also referred to annexure "F" of the writ petition i.e communication No. RCD/35/3626-27 dated 21.06.2007 addressed to the Secretary to Government, Transport Department, J&K, Srinagar by Director, State Motor Garages Department, J&K Srinagar, perusal of which reveals that some persons have been engaged in State Motor Garages Department for learning Motor Mechanic Trade and they have
