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2016 Supreme(J&K) 39
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mohammad Yaqoob Mir, J.
Radhey Sham – Petitioner
Vs.
State of Jammu & Kashmir and Others – Respondents
SWP No. 1081 of 2002 & connected MPs
Decided On : 16-03-2016
For the Petitioner:Mr. M.K Bhardwaj, Sr. Advocate with Ms. Yoshita, Advocate.
The central legal point established is that continuous service as a daily rated worker entitles an employee to regularisation under the Jammu and Kashmir Daily Rated Workers/Work-charged Employees (Regularisation) Rules, 1994, regardless of the formal nature of their engagement.
Headnote:
Regularisation - Jammu and Kashmir Daily Rated Workers/Work-charged Employees - Rules 1994 - Rule 4, Rule 5, Rule 7
Fact of the Case:
The petitioner, engaged as a Casual Labourer, claimed regularisation under the Jammu and Kashmir Daily Rated Workers/Work-charged Employees (Regularisation) Rules, 1994. The respondents disengaged the petitioner, leading to a legal battle over his entitlement to regularisation.
Finding of the Court:
The court found that the petitioner had completed seven years of continuous service and was entitled to the benefits of the Rules. The court also noted that the petitioner had been working as a daily rated worker despite being engaged as a Casual Labourer.
Issues: The key issues included the petitioner's eligibility for regularisation under the Rules, the nature of his engagement, and the compliance of the respondents with the court's previous judgment.
Ratio Decidendi: The court held that the petitioner, having worked continuously for seven years, was entitled to regularisation under the Rules. The court also emphasized that the nature of the petitioner's work as a daily rated worker superseded his formal engagement as a Casual Labourer.
Final Decision: The petition succeeded, and the court directed the respondents to finalise the petitioner's regularisation, determine his work status post-disengagement, and deferred framing a rule against the Director, Rural Development, Jammu for violating the previous judgment.
Mohammad Yaqoob Mir, J.
Instead of producing the requisite record, respondents have chosen to remain absent.
2. From the respective pleadings, the position as emerged is that the petitioner had been engaged as Casual Labourer on 07.03.1994 On completion of seven years of service, he had claimed the benefit of the provisions of Jammu and Kashmir Daily Rated Workers/Work-charged Employees (Regularisation) Rules, 1994 notified vide SRO 64 of 1994 (hereinafter referred to as “The Rules”).
3. Rules 4 and 5 of “The Rules”, for facility of reference, are quoted hereunder:-
“4. Eligibility for Regularisation:- A daily rated worker/work charged employee shall be eligible for regularisation on fulfilment of the following conditions; namely:-
a. that he is a permanent resident of the state;
b. that on the date of his initial appointment his age was within the minimum and maximum age limit as prescribed for appointment in Government service;
c. that he possesses the prescribed academic and/or technical qualification for the post against which he is required to be regularised: provide that in case of eligible daily rated workers to be regularised against class IV posts, relaxation of qualification and/or age shall be considered on merits by the concerned administrative department.
d. that he is not retiree from any state or central Government service or any local body. Public sector undertaking or autonomous body in or outside the state;
e. that his work and conduct has remained satisfactory during the period he worked as daily rated worker or work charged employee and no disciplinary proceedings are pending against him; and
f. that he has completed seven years continuous period of working as daily rated worker or work charged employee or partly as daily rated worker and partly as work charged employee.
5. Regularisation of daily rated workers: All the daily rated workers who on 31-3-1994, are eligible under rule 4 for regularisation shall with effect from 1-4-1994, be appointed on the regular pay scale of class IV category of posts in the scale of Rs. 750-940;
Provided that if any of the categories have higher pay scale of Rs. 775-1025, such employees shall be placed 2 years of service in the scale of Rs. 750-940.
4. The respondents instead of extending the benefit of said “Rules” to the petitioner, disengaged him vide order dated 31.03.2001
5. Against the said order of disengagement, petitioner filed petition (SWP No. 698/2001), which has been disposed of on 24.07.2001 The operative portion of the judgment is quoted hereunder:-
“Heard the learned counsel for the parties.
Petition is admitted to hearing and at the request of the learned counsel for the parties, petition is taken up for final disposal.
This petition is disposed of with a direction to the respondents to consider the case of the petitioner for regularisation of his service under the provisions of SRO 64 of 1994, provided he has completed seven years of service as Daily Rated Worker un-interruptedly and continuously and further provided that the evidence annexed with the petition with regard to his engagement as Daily Rated Worker and his un-interrupted continuation is borne by the record of the respondents. This consideration would be accorded by the respondents within four months.”
6. In compliance whereof, respondent (Director) has accorded consideration, which culminated into issue of order No. 414-DRD of 2001 dated 07.12.2001 where-under claim of the petitioner for regularisation has been rejected. Dissatisfied therewith, instant petition has been filed.
7. According to learned counsel for the petitioner, petitioner had been engaged as Casual Labourer on 07.03.1994, but he has been working uninterruptedly upto date of his disengagement i.e 31.03.2001, so had completed seven years of continuous service entitling him to get the benefits of “The Rules”.
8. Similarly circumstanced Casual Labourers have been extended the benefit of “The Rules”, but for unknown reasons, petitioner has b
