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2022 Supreme(J&K) 175
In The High Court of Jammu and Kashmir and Ladakh at Srinagar
Sanjeev Kumar, J.
Jaffar Hajam Mohd Abbas and Others – Appellant
Versus
Chairman and Managing Director, FCI and Others – Respondent
WP(C) No.1816/2021 c/w WP(C) No.1892/2021
Decided on : 7-7-2022
For the Petitioner(s):Mr. M.A. Qaoom and Mr. Syed Manzoor Advocates
For the Respondent(s):Mr. Sheikh Umar Farooq, Mr. Manzoor A. Dar and Ms. Sahila Nisar, Advocates vice Mr. T.M. Shamsi ASGI
IMPORTANT POINT : Right to seek judicial review is a vital right conferred by Constitution.
Headnote:
Service Law – Regularisation – Employer cannot impose conditions of employment which have effect of taking away right of its employees to seek judicial review of actions of employer – Right to seek judicial review is a vital right conferred by Constitution and any terms and conditions of employment taking away this right, which restrain a person to seek legal remedies for enforcement of his rights are, null and void – Rest of conditions do not offend Article 14 of Constitution in any manner and cannot be termed as irrational or arbitrary – Petitioners may have lost battle for present, but nothing stops them to come to this Court seeking regularization of their services on the ground of long officiation independently of judgments earned by them in the past – Petitions dismissed. (Para 15, 16, 21 to 23)
JUDGMENT :
These two writ petitions involve identical issues, and are, therefore, disposed of by this common judgment.
2. The petitioners are aggrieved of and have challenged the order of Area Manager, Food Corporation of India issued vide order No.Estt/Casual/DOS/2016 dated 24.11.2016 [“the impugned order’] whereby and whereunder the petitioners along with proforma respondents herein, who were working as casual labourers in FSDs Leh and Kargil have been accorded temporary status subject to certain terms and conditions laid down in the impugned order. The petitioners claim that they are entitled to be brought on permanent establishment in the same manner in which the petitioners of SWP Nos. 1549/1998 have been regularized and brought on the permanent establishment of Food Corporation of India [“FCI”].
3. With a view to appreciate the claim of the petitioners and the challenge thrown to the impugned order on various grounds, it is necessary to set out the material facts.
The FSDs Leh and Kargil were made operational by the FCI in the year 1992-93. Due to cold climatic conditions and the difficult terrain of Ladakh region, no officers/officials from Jammu or Srinagar region were willing to work and, accordingly, the petitioners along with proforma respondents herein were voluntarily engaged as casual workers to perform the duties of watch and ward and some other ancillary work of the Depots. It is submitted that the casual workers similarly situated with the petitioners herein, who were also engaged in the year 1992-93 in the Srinagar region, filed SWP No. 1549/1998 before this Court which was disposed of vide judgment dated 28.12.2002 directing the Food Corporation of India to accord wholesome and due consideration to the petitioners’ case for regularization under law after keeping in view the observations made in the said judgment. In compliance to the said judgment passed by this Court, the writ petitioners of SWP No. 1549/1998, who were working as casual workers like the petitioners and proforma respondents herein, were regularized and brought on permanent establishment of FCI. Relying strongly on the aforesaid judgment passed in the case of counterparts of the petitioners working in Srinagar region, the petitioners along with proforma respondents filed a representation before the officers of FCI.
Hearing no response from the respondents and feeling aggrieved, the petitioners along with proforma respondents (respondent Nos 6 to 11) filed SWP Nos. 1276.2004, 1545/2004 and 1605/2004 before this Court seeking, inter alia, a direction to the respondents to regularize their services in the same manner in which other similarly situated casual labourers working in Kashmir region had been regularized. The said writ petitions came to be disposed of by this Court vide judgment dated 24.05.2007 with a direction to the official respondents to accord consideration to the case of the petitioners and proforma respondents for their regularization in accordance with rules, norms and policy governing the field. The Court also directed that while according consideration to the claim of the petitioners and proforma respondents herein, the judgment passed by the Court in SWP No. 1549/1998 should also be taken into consideration.
4. It is submitted by the petitioners that when the judgment dated 24.05.2007 was not complied with by the official respondents, they along with proforma respondents filed SWP Nos.333/2010 and 09/2011. The said writ petitions were clubbed together and disposed of by a Single Bench of this Court vide its judgment dated 11.03.2015. The learned Single Judge in its judgment noted that though the formal consideration order in terms of the judgment dated 24.05.2007 was yet to be passed by the official respondents, yet their reply filed in the writ petitions divulged that the respondents had taken a decision on 05.01.2009 in 314th meeting of Board of Directors and the case of the petitioners and proforma respondents had been rejected
