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2022 Supreme(J&K) 329
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Pankaj Mithal, Javed Iqbal Wani, JJ.
State of JK & Ors. – Petitioners
Versus
Mushtaq Ahmad Naik & Ors. – Respondents
LPA No. 111 of 2019
Decided On : 28-07-2022
Advocate Appeared:
For the Petitioner: Usman Gani
For the Respondent: S.A. Makroo, Mohd. Amin Bhat
Completion of seven years of continuous daily wage service alone does not entitle a daily wager for regularization unless all other eligibility conditions are fulfilled.
Headnote:
Regularization - Service Benefits - SRO 64 of 1994 - [Rule 4 of SRO 64] - The court discussed the eligibility conditions for regularization under Rule 4 of SRO 64, emphasizing that completion of seven years of continuous daily wage service alone would not entitle a daily wager for regularization unless all other eligibility conditions are fulfilled. The court highlighted the inter-dependence of all conditions and the necessity for a daily wager to fulfill them for regularization. The court also emphasized that the writ petitioners lacked the qualification and age conditions, and the appellants initiated a process for relaxation, ultimately regularizing the writ petitioners after they fulfilled the complete eligibility conditions. The court noted that the writ petitioners had submitted affidavits consenting to the conditions imposed by the appellants and had not reserved any right for enforcement of their rights or expressed any protest. The court also distinguished the case of the writ petitioners from that of Ms. Rashida Akhtar, emphasizing the distinct and different circumstances between the two cases.
Fact of the Case:
The writ petitioners sought service benefits and retrospective regularization of their services as daily wagers, contending that they were entitled to regularization from 01.04.2001 after completing seven years of daily wage service.
Finding of the Court:
The court dismissed the writ petitioners' claim for retrospective regularization, emphasizing that they lacked the qualification and age conditions for regularization until the appellants initiated a process for relaxation, ultimately regularizing the writ petitioners after they fulfilled the complete eligibility conditions. The court also highlighted the writ petitioners' submission of affidavits consenting to the conditions imposed by the appellants and their lack of parity with Ms. Rashida Akhtar in the matter of regularization.
Issues: Eligibility for Retrospective Regularization, Submission of Affidavits, Parity with Another Employee
Ratio Decidendi: Completion of seven years of continuous daily wage service alone does not entitle a daily wager for regularization unless all other eligibility conditions are fulfilled. Submission of affidavits consenting to the conditions imposed by the employer without reserving any right for enforcement of rights or expressing protest is significant. Unequals in law cannot be treated as equals.
Final Decision: The appeal was allowed, the impugned Judgment and order dated 15th November, 2017 of the writ court was set aside, and the writ petition of the writ petitioners was dismissed.
JUDGMENT :
Javed Iqbal, J.
1. The instant appeal is directed against Judgment and order dated 15th November, 2017 passed in SWP No. 963/2017 titled as "Mushtaq Ahmad Naik & Ors. v. State of JK & Anr." (hereinafter for short the impugned judgment).
2. Before adverting to the grounds of challenge urged in the appeal against the impugned Judgment, it would be appropriate to give a brief background of the case. The petitioners/respondents herein filed the aforesaid SWP with the following reliefs:
"Writ of mandamus commanding the respondents to count the service of the petitioners from 01.04.2001 to30.12.2009 for all service benefits viz. promotion, seniority, pensionary benefits and other monetary benefits.
Writ of mandamus commanding the respondents to give retrospective effect to the order of regularization of the petitioners bearing Horticulture Order No. 412/E of 2009, dated 30.12.2009 and give effect to the order of regularization from 01.04.2001.
Writ of mandamus commanding the respondents to pay all the monetary benefits to the petitioners after counting their service for all service benefits w.e.f. 01-04-2001 and make the payments to the petitioners in the grade of Rs.4440-7440 and also promote the petitioners to the next higher post and also reckon their seniority accordingly".
The reliefs aforesaid had been claimed by the writ petitioners on the premise that they came to been gaged as daily wagers in the respondents department (appellants herein) in March, 1994 and became entitled, as such, to regularization in terms of SRO 64 of 1994. The petitioners contended that they were entitled to such regularization from 01.04.2001 on which date the petitioners completed seven years of their daily wage service.
3. It had been further stated in the petition that the petitioners' case for regularization was processed in the year, 2001 by the respondents however, was not finalized for unknown reason and finally petitioners came to be regularized against Class IV posts of Chowkidar in the pay scale of 4440-7440 in terms of order dated 412/Eof 2009, dated 30.12.2009 with prospective effect.
4. It had been further stated in the petition that respondents before regulating the services of the petitioners had obtained affidavits from them to the extent that the petitioners will not press for previous service either for the purpose of seniority or for any monetary benefit taking undue advantage of their hardship and because of unequal bargaining power despite the fact that the respondents had retrospectively regularized the services of one Ms. Rashida Akhtar also having been engaged as a daily wager in the year, 1994 along with the petitioners upon a representation filed by the said Rashida Akhtar before the respondents/appellants herein.
5. The petitioners have had further contended in the petition that they approached the respondents and sought extension of all service benefits like seniority, promotion, pensionary benefits and all monetary benefitsas had been extended in favour of similarly situated Ms. Rashida Akhtar granted to her in terms of order No.361/E of 2016, dated 3rd January, 2017, but their requests and representations made in this regard did not evokeany response from the respondents compelling them to file the writ petition seeking therein the reliefs aforesaid.
6. The respondents in the writ petition being appellants herein had filed objections to the petition resisting and opposing the claim of the petitioners on the grounds that the petitioners' services were regularized vide order dated 30th December, 2009, and though being satisfied, yet the petitioners challenged the conditions therein after more-than eight years and that the petitioners have no parity with Ms. Rashida Akhtar as in her case the post was identified in the year, 2001 and, as such, she had been regularized w.e.f. 2001 and that the case of the petitioners was not been covered under the policy invoked and that the petitioners after having accepted prospective regul
