Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Others vs Abdul Ahad Lone on 29 January, 2021
h475
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
(through virtual mode)
LPA No.269/2019
CM Nos.6766/2019 5512/2020 &
5513/2020
c/w
LPA No.270/2019
CM Nos.6768 & 6769 of 2019
LPA No.271/2019
CM Nos.6771 & 6772 if 2019
LPA No.272/2019
CM Nos.6775 & 6776 of 2019
LPA No.273/2019
CM Nos.6777 & 6778 of 2019
LPA No.274/2019
CM Nos.6781 & 6782 of 2019
LPA No.275/2019
CM Nos.6784 & 6785 of 2019
LPA No.276/2019
CM Nos. 6787 & 6788 of 2019
LPA No.277/2019
CM Nos.6793 & 6794 of 2019
LPA No.278/2019
CM Nos.6795 & 6796 of 2019
LPA No.279/2019
CM Nos.6797 & 6798 of 2019
LPA No.280/2019
CM Nos.6799 & 6800 of 2019
LPA No.281/2019
CM Nos.6802 & 6803 of 2019
LPA No.282/2019
CM Nos.6805 & 6806 of 2019
Reserved on : 23.12.2020
Pronounced on : 29.01.2021
2
LPA No. 269/2019
State of J&K and others ...Petitioner
Through:- Mr. Bikramdeep Singh, GA
V/s
Abdul Ahad Lone ...Respondent(s)
And connected matters
Through:- Ms. Saima Mehboob, Advocate
Mr. M.A.Wani, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
Sanjeev Kumar-J
1. Since the issue involved in all these appeals is common, as
such, these are taken up together and are disposed of by this common
judgment.
2. These intra Court appeals are directed against the order and
judgment dated 04.06.2019 passed in a batch of writ petitions leading case
being SWP Nos.481/2016, whereby all the writ petitions except SWP
No.521/2015 have been allowed and the reliefs prayed for in the writ
petitions have been granted.
3. Briefly put, the facts leading to the filing of these appeals,
which have been disposed of by a common judgment impugned in these
appeals, are that the writ petitioners came to be engaged on need basis in
various Farms of the department of Sheep Husbandry, Kashmir in the year
2014. The engagement of the writ petitioners was for a period of 89 days but
they were continued thereafter by giving them one day's break after every
LPA No. 269/2019
spell of 89 days. In the year 2015, the Government came up with
Government Order No.43-F of 2015 dated 17.03.2015, whereby the
authority given to various departments to engage casual/seasonal labour,
delegated by the Government from time to time, was withdrawn with
immediate effect. Apprehending their disengagement, the petitioners
approached the Writ Court by way of different writ petitions. The Writ Court
while entertaining the writ petitions in terms of different interim orders also
directed the appellant-department to allow the petitioners to continue and
pay them legally earned wages. In the writ petitions filed by these need
based labourers, following reliefs were claimed:-
i) Writ, order or direction in the nature of mandamus
commanding upon the respondents not to disengage the
services of the petitioners and allow them to continue on
the posts held by them.
ii) Writ, order or direction in the nature of mandamus
commanding upon the respondent-appellants to release the
unpaid wages due to the petitioners for the period they had
worked in the department.
4. The appellant-department resisted the writ petitions vehemently
and in the reply affidavit filed before the Writ Court, it was pleaded that the
writ petitioners were engaged by the appellant-department on need basis and
that too for a period of 89 days in the first instance. It was also pleaded that
the orders of engagement of the writ petitioners were subject to two specific
conditions, i) that the arrangement was purely an interim arrangement and
would not confer any right to lay claim on the post(s) on permanent basis
LPA No. 269/2019
and (ii) the services of the engaged workers would cease at any time in case
his/their performance is reported to be poor or if his/their services are no
more required by the department. The further stand taken by the appellants
was that the department of Finance issued Government Order No.43-F of
2015 dated 17.03.2015 in terms whereof, it was ordered that the authority to
engage casual/seasonal labour delegated to various departments vide
Government Order No.239-F of 2005 dated 29.01.2005, Govt. Order
No.138-F of 2013 dated 23.05.2013 and Govt. Order No.105-PD of 2010
dated 25.10.2010 stood withdrawn with immediate effect. In pursuance of
the said order, the Director, Sheep Husbandry Department, Kashmir
forwarded the aforesaid Government Order along with Govt. Order No.384-
GAD of 2015 dated 17.03.2015 and the clarification issued by the General
Administration Department (GAD) vide communication dated 18.03.2015 to
all the subordinate offices of the directorate for immediate necessary action.
Acting swiftly on the instructions of the Director, Sheep Husbandry,
Kashmir, it is claimed, that the Deputy Director, Sheep Breeding Farm,
Daksun and other subordinate offices disengaged the writ petitioners and
others engaged on need basis.
5. The Writ Court, after considering the rival contentions and
going through the material on record, came to the conclusion that the Govt.
order No.43-F of 2015 dated 17.03.2015 was prospective in operation and,
therefore, not applicable to the engagements made prior to its issuance i.e.
17.03.2015. Similarly, the Writ Court also concluded that Government Order
No.384-GAD of 2015 dated 17.03.2015 and the clarification issued by the
GAD were applicable to the engagements made under Schemes against the
LPA No. 269/2019
sanctioned post(s) without any selection process and, therefore, not
applicable to the writ petitioners. The Writ Court, thus, allowed the writ
petitions and quashed all the orders issued by the appellant-department for
disengaging the writ petitioners in pursuance of Govt. Order No.43-F of
2015 dated 17.03.2015 and directed the respondents to continue the
petitioners as casual labourers on need basis, in terms of their engagement
orders and to give benefit, which has accrued to them in terms of policy
decision of the Government. There was a further direction issued to the
appellants to release the unpaid wages of the petitioners.
6. The appellants are aggrieved and have challenged the impugned
judgment, inter alia, on the ground that the Writ Court has not appreciated
that the engagement of the writ petitioners-respondents was on need basis
and subject to the condition that their services were liable to be disengaged
at any time either for poor performance or for the reason that their services
were no more required. The Writ Court also did not appreciate the true
import of Govt. Order No.43-F of 2015 dated 17.03.2015, whereby the
authority under which the writ petitioners had been engaged on need basis
had been withdrawn with immediate effect and as a result whereof, the
appellants had lost their competence to make need base arrangements in the
department. Similar error was committed by the Writ Court in appreciating
the scope of Govt. Order No.384-GAD of 2015 dated 17.03.2015 and the
clarification issued by the GAD.
7. Heard learned counsel for the parties and perused the record.
8. Admittedly, the engagement of writ petitioners is need based
and temporary in nature subject to the terms and conditions laid down in the
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orders of their engagement. Indisputably, engagement of the writ petitioners
was not on any substantive post carrying regular pay scale. For facility of
reference, engagement order of some of the writ petitioners issued by the
Director, Sheep Husbandry Department, Kashmir may be reproduced here
under:-
"In view of the dire requirement in the Department at different
Districts and different Sheep Breeding Farms, the following persons are
hereby engaged on need basis with one day break after every 89 days @
Rs. 3000/- per month ( Rupees Three
Thousand Only) at Sheep Breeding Farm, Daksurn.
S.No. Name Parentage Residence
1 Shakir Ahmad Bhat Gh. Qadir Bhat Larnoo Batpora,
Kokernag
Anantnag
2 Ab. Ahad Lone Ab. Rashid Soaf, Kokernag,
Anantnag
3. Ajaz Ahmad Ganie Abdul Ahad Soaf Kokernag,
Anantnag
4. Zahid Ahmad Zagoo Manzoor Ahmad Panzgam,
Kokernag, Ang.
5. Farooq Ahmad Mir Gh. Ahmad Mir Bindoo Zalangam,
Kokernag
The above engagements are made subject to the following terms
and conditions:-
1. This arrangement is purely and purely an interim arrangement and shall
not confer any right to the incumbent to lay claim on the post or
permanent absorption in the department.
2. The services of the engaged worker shall cease at any time in case of
his/their poor performance report or if his /their services are not
required by this department."
9. From a plain reading of the order of engagement, it clearly
transpires that the engagement of the writ petitioners on need basis is purely
an interim arrangement without conferring any right on the incumbent to
claim permanent absorption in the department. Initially the engagement was
for a period of 89 days and could cease at any time in case of poor
performance or if the services were not required by the department any
more. There is also no dispute that these engagements, made on need basis,
LPA No. 269/2019
were not in pursuance of any selection process conducted by the appellants.
It was done purely on pick and choose method.
10. It may be pertinent to take notice that prior to the year 1994,
various departments of the Government had made similar engagements,
which were continued for years together. The Government with a view to
confer benefit of regularization on such daily wagers, who had completed
seven years continuous service, came up with SRO 64 of 1994. In terms of
Rule 5 of SRO 64, all the daily rated workers, who on 31.03.1994 had
completed seven years continuous service, were entitled to be appointed on
the regular pay scale of Class-IV prescribed in the concerned department for
relevant category of posts and those who would complete seven years in the
subsequent years were to be accordingly regularized in the relevant financial
year. Rule 7 of the SRO 64, however, put a complete ban on the fresh
engagements of daily rated workers/work-charge employees in any of the
department of the Government by providing that with effect from the
commencement of the Rules, no field/subordinate officer shall have any
power for engagement of daily rated workers or work-charge employees in
the department and the existing delegation, if any, in this regard shall stand
withdrawn. However, by way of proviso added to Rule 7, it was provided
that the competent authority in the department, may engage casual or
seasonal labourers, to be specified by notification issued by the Government.
Acting under the proviso to Rule 7 of SRO 64 of 1994, the Government vide
order No.239-F of 2005 dated 29.11.2005 authorized the Agriculture
Production Department, PWD(R&B) Department, PHE, I&FC Department
and Power Development Department to engage casual or seasonal labourers
LPA No. 269/2019
from time to time on need base on muster roll for payment of wages. Similar
delegation was made in favour of the Finance Department vide Order
No.138-F of 2013 dated 23.05.2013 etc.
11. Although, the department of Animal Husbandry was not
specifically and separately authorized to make the need base engagement of
casual/seasonal labourers, yet the department of Agriculture Production
being the administrative department of the Directorates of Animal
Husbandry, Jammu and Kashmir shall be deemed to have been authorized to
make such engagements. It, thus, appears that in exercise of the powers
delegated in terms of Government Order dated 29.11.2005, the Directorate
of Animal Husbandry, Kashmir made several engagements on need basis to
cater to the need of different Sheep Breeding Farms in the valley. This is
how the writ petitioners came to be engaged. It is also worthwhile to notice
that the services of the writ petitioners have not been terminated by the
appellants on the ground that their services are no more required by the
department, but have been disengaged in application of Government Order
No.43-F of 2015 dated 17.03.2015 read with Government Order No.384-
GAD of 2015 dated 17.03.2015. With a view to appreciate the stand of the
appellants, it is necessary to set out both government orders (supra) herein
below:-
Govt. order No.43-F of 2015
"Government Order No. F of 2015
Dated: 17/03/2015
As approved by the Competent Authority, it is hereby ordered that
authority to engage Casual/Seasonal Labourer to various Departments
as, delegated vide Government orders mentioned below or any other
order is withdrawn with immediate effect
1. Government Order No. 239-F of 2005 dated 29.01.2005.
2. Government Order No. 138-F of 2013 dated 23.052013.
3. Government Order No. 105-PD 2010 dated 25.10.2010 .
LPA No. 269/2019
By order of the Government of Jammu & Kashmir."
Govt. Order No.384-Gad of 2015
"GOVERNMENT ORDER NO: 384-GAD of 2015
DATED: 17-03-2015
It is hereby ordered that:
a) all the re-employment orders issued by various Government
Departments are revoked with immediate effect;
b) all the engagements/arrangements made by the different
Departments/Public Sector Undertakings/Boards/ Autonomous
Bodies under any scheme against sanctioned posts without any
selection procedure even on Contractual basis, shall cease to
exist with immediate effect;
c) any other engagement/arrangement, made by the
Departments/Public Sector Undertakings/Boards/Autonomous
Bodies, at their own level shall also be governed by (a) and (b)
above.
By order of the Government of Jammu and Kashmir."
12. From a perusal of Government Order No.43-F of 2015, it
clearly transpires that the authority to engage casual/seasonal labourers
delegated by the Government to various departments including the
department of agriculture has been withdrawn with immediate effect and as
a natural consequence of withdrawal of the authority, none of the authorized
departments including the department of agriculture was left with any
authority to engage the casual/seasonal labourers in their departments.
13. Whether Government Order No.43-F of 2015 is prospective or
retrospective is not likely to change the position in any manner. Admittedly,
the engagement of the writ petitioners, as need base labourers to perform the
duties in different Sheep Breeding Farms, was temporary in nature, initial
engagement order being only for a period of 89 days, though the engagement
of the writ petitioners has been extended from time to time by giving them a
break of one day after every spell of 89 days. That being the position, on or
LPA No. 269/2019
after the issuance of Government Order No.43-F of 2015, the appellant-
department had no authority to extend their engagements or permit them to
continue on need basis for the reason that the authority under which the writ
petitioners were being engaged from time to time stood withdrawn by the
Government.
14. Undoubtedly, as rightly held by the Writ Court, Government
Order No.43-F of 2015 is prospective in operation and would have the effect
of taking away the authority of the appellants to extend the engagement of
the writ petitioners or to continue their engagements further. The Writ Court
has not appreciated the Government Order from this perspective and, has
thus, erroneously held that the services of the writ petitioners were not liable
to be disengaged or discontinued by application of Govt. Order No.43-F of
2015 dated 17.03.2015. Govt. Order No.384-GAD of 2015 dated 17.03.2015
is clearly not attracted in the case on hand, for, the same pertains to the
engagements/arrangements made by different Government Departments,
PSUs and other autonomous bodies under schemes against the sanctioned
posts and without any selection process. In the instant case, the engagement
of the writ petitioners was neither under any scheme nor against any
sanctioned post(s) and, therefore, applicability of Govt. Order No.384-GAD
of 2015 is clearly ruled out. To the similar effect is the clarification issued
by the GAD with regard to the import of Govt. Order No.384-GAD of 2015.
15. That apart, the services of the writ petitioners, as is apparent
from the record, stood disengaged on the date the writ petitions were
entertained and interim directions were passed by the Writ Court. The mere
fact that the engagement of the writ petitioners was on need basis and
LPA No. 269/2019
without following any due process of selection would justify their
disengagement by the appellants. The authority delegated to the appellants
by the Government in terms of Govt. Order No.239-F of 2005 dated
29.01.2005 stood withdrawn and, therefore, the appellants were devoid of
any authority or competence to extend or continue the engagement of the
writ petitioners further. That being the position, the appellants were well
within their powers to disengage the writ petitioners. The direction of the
Writ Court to allow the writ petitioners to continue on 'need basis'
arrangement was not justified in the facts and circumstances of the case.
16. We are, therefore, of the view that having regard to the nature
of engagements of the writ petitioners, no right was vested in them to
continue in the department indefinitely, more so, when the authority under
which the writ petitioners were being engaged from time to time stood
withdrawn by the Government in terms of Govt. Order No.43-F of 2015
dated 17.03.2015.
17. Mr. M.A.Wani, learned counsel appearing for some of the writ
petitioners has raised the issue of applicability of SRO 520 of 2017 and
urges that the writ petitioners having been engaged before 17.03.2015 were
entitled to the benefit of regular engagement under the said SRO. This issue
has been raised for the first time during the hearing of these appeals. We
could not find any whisper about SRO 520 of 2017 in the pleadings that
were before the Writ Court. Applicability of SRO 520 of 2017 may involve
determination of other allied questions of fact and law, which this Court
hearing appeal may not be able to determine in the absence of pleadings.
We, therefore, keep this issue open for the writ petitioners to agitate before
LPA No. 269/2019
appropriate forum by way of appropriate proceedings. Nothing said in this
judgment shall prejudice their right to claim the benefit of SRO 520 of 2017,
if that is attracted in their case.
18. We are not adverting to judgments relied upon by the learned
counsel appearing for the parties, for, they deal with the issue of
regularization of daily wager/need based casual workers. In the instant case,
the writ petitioners are only claiming their continuous engagement and are
not praying for the regularization of their services.
19. In view of the foregoing, all the appeals are allowed and the
impugned judgment passed by the Writ Court is set aside.
(Rajnesh Oswal) (Sanjeev Kumar)
Judge Judge
Srinagar.
29.01.2021
Vinod.
Whether the order is speaking : Yes
Whether the order is reportable: Yes
VINOD KUMAR
2021.02.01 13:08
I attest to the accuracy and
integrity of this document
