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2015 Supreme(J&K) 467
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
N. Paul Vasantha Kumar and Bansi Lal Bhat, JJ.
Ab. Rashid Bhat – Appellant
Vs.
State of J&K and Ors. – Respondents
LPA No. 217/2011
Decided On : 07-09-2015
Advocate Appeared:
For the Appellant : Party-in-Person
For the Respondents: Q.R. Shamus, Dy. A.G. Vice and Asif Ahmad Bhat, A.A.G.
An individual may seek relaxation of rules from the government if strict application of the rule would cause hardship or confer undue benefit, as per Rule 5 of the J & K Civil Services, (Classification, Control and Appeal) Rules 1956.
Headnote:
Regularization - Employment - The court directed the appellant to seek relaxation of the rules from the Government, General Administration Department, in order to consider the appellant's application for regularization, despite not completing the full seven years of service as required by SRO 64 of 1994.
Fact of the Case:
The appellant, a daily wager, sought regularization after working for six years and 11 months, falling short of the required seven years of service as per SRO 64 of 1994. The court directed the appellant to seek relaxation of the rules from the Government, General Administration Department.
Finding of the Court:
The court found that the appellant had not completed the full seven years of service as required by SRO 64 of 1994. However, the court directed the appellant to seek relaxation from the Government, General Administration Department, to consider the application for regularization.
Issues: The main issue was whether the appellant, who had not completed the full seven years of service, could seek regularization under SRO 64 of 1994.
Ratio Decidendi: The court held that while the appellant had not completed the required service, he could seek relaxation of the rules from the Government, General Administration Department, under Rule 5 of the J & K Civil Services, (Classification, Control and Appeal) Rules 1956.
Final Decision: The court directed the appellant to submit an application seeking relaxation before the Government, General Administration Department, and ordered the department to consider the application and pass necessary orders within a specified time period.
1. This appeal is filed against the order made in SWP No. 11/2008, dated 06.07.2011 wherein the writ petition filed by the appellant was dismissed seeking regularization in terms of SRO 64 of 1994, on the ground that the appellant has not completed seven years of 1years. Case of the appellant is that he has passed matriculation examination and he was engaged as daily wager by 4th respondent from 01.03.1994. The petitioner continued to work till February 2001, but thereafter he was not allowed to work as prayed for regularization.
2. The petitioner earlier filed a writ petition SWP No. 177/2004 seeking regularization wherein a direction was issued to consider the case of appellant; for regularization by the official respondents. The respondents having failed to comply with the said direction, the appellant filed a contempt petition bearing Contempt No. 64/2005. In said contempt petition, the following order was passed:-
"....the petitioner has worked only upto February 2001 and his cases does not fall within the ambit of SRO 64 of 1994 and wages have been paid to the petitioner for the period he has worked. The petitioner cannot be re-engaged."
3. An LP appeal was filed against the said order, but the same was dismissed as not pressed on 20.07.2007 before the Division Bench of this Court when the State counsel extended an assurance that official respondents will pass an order in compliance to the direction issued on 23.02.2005. Thereafter an Order No. 04 of 2007, dated 28.07.2007 was passed rejecting the request stating that the appellant was lacking 28 days to complete seven years of service. The said order was challenged by the appellant before the learned Single Judge, and the same was dismissed by holding that the appellant has not completed seven years of service as per SRO 64 of 1994 to seek regularization.
4. Against the said order, the instant appeal is filed. It is not in dispute that the appellant was employed as daily-wager in the departmental of Executive Engineer, Civil Construction Division, Hydro Electric Project (KGHF), Bandipora vide Order No. 361 of 1994, dated 01.03.1994 and he continued to work as daily-wager till the end of January 2001. It is also not in dispute that before completion of seven years of service, the appellant approached the 2nd respondent seeking regularization, but he was disengaged from service on 01.02.2001.
5. The only point urged by the respondents is that the appellant has not completed seven years of service as he was disengaged 28 days prior to the completion of seven years. Thus it is evident that the appellant served six years and 11 months continuously and if he would have been allowed to work for further period of 28 days, his service would have been regularized.
6. Taking note of this situation, the appellant can approach the Secretary, General Administration Department seeking relaxation of Rule 8 of the Jammu and Kashmir Daily Rated Workers/Work Charged Employees (Regularization) Rules, 1994 (SRO 64 of 1994), though there is no power conferred under the said SRO to grant relaxation, there is a general power vested with the Government, General Administration Department in terms of Rule 5 of the J & K Civil Services, (Classification, Control and Appeal) Rules 1956. The said rule reads as under:-
"5. Any of these rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him."
7. In such circumstances, to meet the ends of justice, we are of the view that the appellant can submit an application seeking relaxation before Government, General Administration Department and the application to be submitted shall be considered in light of the said rule bearing in mind the actual hardships faced by the appellant. The appellant is permitted to make an application to the Secretary, General Admi
