Back
2018 Supreme(J&K) 205
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohammad Magrey, J.
Wali Mohammad Bhat & Anr. - Petitioners
Vs.
State of JK & Ors. - Respondents
SWP No. 1422 of 2017 & MP No. 01 of 2017
Decided On : 10-05-2018
For the Petitioners: Mr. Alla-ud-Din Ganai.
For the Respondents: Mr. M.A. Rathore.
The need for establishing the right with reference to disputed facts and seeking remedy in a Civil Court when a disputed question of fact is raised.
Headnote:
Regularization - Employment Dispute - Jammu & Kashmir Civil Services (Special Provisions) Act 2010, Section 5
Fact of the Case:
The petitioners sought regularization of their services as casual laborers in the respondent Department, claiming more than 15 years of service. The respondents denied the claim, stating that the services of casual laborers, including the petitioners, were discontinued in 2003.
Finding of the Court:
The court found that a disputed question of fact had been raised, and it could not go into a fact-finding mission to ascertain the authenticity of the rival contentions. The petition was dismissed, and the petitioners were advised to seek remedy in a Civil Court.
Issues: Dispute over the continuity of services and entitlement to regularization under the Jammu & Kashmir Civil Services (Special Provisions) Act 2010.
Ratio Decidendi: The court emphasized that the petitioners needed to establish their right with reference to the disputed facts raised by the respondents. As the petition lacked merit, it was dismissed, and the petitioners were advised to seek remedy in a Civil Court.
Final Decision: The petition was dismissed, and the respondents were directed to take appropriate steps for the payment of unpaid wages to the casual laborers.
1. In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu & Kashmir, the petitioners beseech the grant of following reliefs in their favour:-
“a. A Writ in the nature of mandamus in favour of the petitioners and against the respondents commanding upon the respondents to release the legally earned wages of the petitioners which have been withheld by the respondents. Further the respondents may be directed to allow the petitioners to work continuously in the respondent department without any impediment;
b. A Writ in the nature of mandamus commanding upon the respondents to regularize the services of the petitioners and give all the benefits to the petitioners as per the Special Provisions Act J&K 2010;
c. A Writ in the nature of mandamus directing the respondents to provide information as per the office memorandum/ Circular No 02-F of 2017 dated 15-06-2017;
Any other writ, order or direction which this Hon’ble Court may deem fit and proper in the present circumstances and facts of the case may also be passed in favour of the petitioners and against the respondents.”
2. Mr. Ala-ud-Din Ganai, the learned counsel for the petitioners, states that the petitioners have been validly engaged as Casual Labourers by the respondent Department in 2001 and 2002 respectively, whereafter they have been discharging their duties as such in the respondents Department with great dedication and honesty. The learned counsel further states that since the petitioners have put in more than 15 years of service in the respondent Department, therefore, the services of the petitioners deserve to be regularized in light of the Cabinet decision bearing No. 23/03/2009 dated 19th of February, 2009, coupled with the enactment of the Jammu & Kashmir Civil Services (Special Provisions) Act of 2010 (hereinafter referred to as the Act of 2010). It has also been pleaded by the learned counsel for the petitioners that the respondents are not paying the due wages in favour of the petitioners for the duties which they are extracting from the petitioners.
3. The respondents, in their objections filed in opposition to the writ petition, have vehemently denied the contentions raised by the petitioners in their writ petition. It has been averred that, in compliance of the instructions of the Chief Agriculture Officer, Baramulla/respondent No.3 issued in terms of communication bearing No.4557-70 dated 29th of August, 2003, the services of casual labourers in the Department were disbanded since the year 2003 vide Circular No. SDA/Spr/2003-04/255-59 dated 3rd of September, 2003 of the Sub-Divisional, Agriculture Officer, Sub Division, Sopore/respondent No.5. It has been also stated that the wages were paid to the casual labourers from time to time, however, there was some liability of some casual labourers upto the date of disbanding, which was put forth to the Budget Controlling Authority, i.e. the Chief Agriculture Officer, Baramulla and the same has not yet been paid due to lack of funds.
4. Heard the learned counsel for the parties, perused the records and considered the matter.
5. The grouse of the petition of the petitioners is that they, after rendering more than 15 years of service in the respondent department as casual labourers, are entitled to regularization of their services as such in the respondent Department in view of the enactment of the Act of 2010 in the State of Jammu and Kashmir.
6. Apparently, the petitioners have based their claim for regularization of their services in the respondent Department on the purport of the Act of 2010. Section 5 of the Act of 2010, which deals with the regularization of ad hoc or contractual or consolidated appointees, reads thus:
“Regularization of ad hoc or contractual or consolidated appointees- Notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal, the ad hoc or
