Bashir Ahmad Dar vs State Of Jk & Ors
2021 Latest Caselaw 1340 j&K/2

                  IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                                     AT SRINAGAR

                                           LPAOW No. 123/2018

                                                                Reserved on 30.09.2021
                                                                 Decided on 28.10.2021

          Bashir Ahmad Dar                                                  ...Petitioner(s)

          Through: Mr Syed Manzoor, Adv.

                                                   Vs.

          State of JK & Ors.                                               ...Respondent(s)

          Through: Ms. Asifa Padroo, AAG

          CORAM:
                HON'BLE THE CHIEF JUSTICE
                HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                            JUDGMENT

28.10.2021 PANKAJ MITHAL, CJ

1. Under challenge in this Letters Patent Appeal is the judgment and order dated 22nd November 2018 passed by the learned Single Judge dismissing SWP No. 657/2018 Bashir Ahmad Dar vs. State of JK & Ors.

2. The petitioner-appellant in the aforesaid writ petition claimed regularization of his services in terms of SRO 64 of 1994 and to accord him the same treatment as was given to one Ali Mohammad Bhat vide order dated 10th August 2012. At the same time he prayed for the quashing of the order dated 12th February 2018 by which his claim for regularization as aforesaid was rejected.

3. The writ court in dismissing the petition held that in exercise of writ jurisdiction, the court cannot enter into any fact-finding mission so as to ascertain the disputed questions regarding continuous discharge of duties by the petitioner-appellant for a continuous period of seven years which is one of the conditions for regularization in terms of SRO 64 of 1994.

MOHAMMAD ALTAF NIMA
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integrity of this document

4. The facts as revealed are that the petitioner-appellant was allegedly appointed as a daily-wager in the Agriculture/Sericulture Development Department sometime in the year 1986. On completion of seven years of continuous service, he claimed regularization in terms of SRO 64 of 1994. Since his case was not considered for regularization, he preferred SWP No. 624/1995, but the said writ petition was disposed of on 12 th February 1996 with the direction to the respondent-department to consider the case of the petitioner-appellant for regularization.

5. In pursuance to the above direction, the case of the petitioner-appellant for regularization was considered by the department and it was rejected vide order dated 24th August 1998. The petitioner-appellant challenged the above rejection order by filing SWP No. 297/2002 which came to be disposed of vide order dated 7th April 2008 with the direction to the respondent-department to reconsider the case of the petitioner-appellant for regularization afresh.

6. Since as per the above direction, the case of the petitioner-appellant was not considered afresh, the petitioner-appellant initiated proceedings for contempt by filing a contempt petition No. 311/2008, wherein the respondents had produced the consideration order dated 25th October 2008 rejecting the claim of the petitioner-appellant. Accordingly, the contempt proceedings were closed on 12th March 2009 giving liberty to the petitioner to challenge the aforesaid consideration order.

7. The petitioner-appellant accordingly filed SWP No. 1883/2009 challenging the order dated 25th October 2008 whereby his claim had been rejected.

8. The aforesaid petition was disposed of vide order dated 4 th April 2016 with the direction to the respondents to extend the benefit of the judgment and order dated 17th March 2016 passed in SWP No. 519/2016 to the petitioner-appellant also, provided he is similarly circumstanced with the petitioner of the said writ petition.

9. Since again no consideration was accorded as directed, petitioner-

appellant initiated fresh contempt proceedings No. 491/2016 wherein

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integrity of this document the consideration order dated 8th October 2016 was produced rejecting the claim of the petitioner-appellant.

10. Aggrieved by the aforesaid order dated 8th October 2016, the petitioner-

appellant filed SWP No. 1711/2016 which upon consideration was disposed of on 10th August 2018 with the direction to the respondents to consider the case of the petitioner-appellant afresh after examining the entire records as to whether the petitioner-appellant has completed seven years of continuous service or not.

11. In pursuance of the above directions of this Court, the respondent-

department reconsidered the matter and vide order dated 12 th February 2018 refused to regularize the services of the petitioner-appellant on the ground that he is not eligible for regularization under the aforesaid SRO 64 of 1994.

12. The submission of learned counsel for the petitioner-appellant is that the learned Single Judge manifestly erred in law in dismissing the writ petition when similar other petitions were allowed, the petitioner- appellant was entitled to the same benefit as was extended to other employees and, as such, the court erred in relegating the petitioner- appellant to file civil suit as the matter involves disputed questions of law.

13. A perusal of the order dated 12th February 2018 which was impugned in the writ petition reveals that the Director of Sericulture Development Department J&K has considered the entire facts and circumstances of the case pertaining to the petitioner-appellant and by a detailed and comprehensive order has refused to regularize the services of the petitioner. The averments made in the said order also reveals that the Director, Sericulture Development Department had even constituted a committee to find out the correctness of the facts and the said committee had even examined the ex-officers of the department so as to ascertain the truth. It was upon undertaking of the above exercise of in-depth enquiry, it was concluded that the engagement of the petitioner- appellant is in contravention of the records available; there is no evidence on recording of any certificate alleged to have been issued to MOHAMMAD ALTAF NIMA 2021.10.28 13:20 LPAOW I attest to the No.

integrity of this document the petitioner-appellant; and that the documents relied upon by the petitioner-appellant appears to be manipulated. The order further records that on the basis of the records available with the department, the status of the petitioner-appellant is that of a casual labourer who is not entitled to benefit of any regularization under SRO 64 of 1994.

14. The aforesaid SRO obliges regularization of only daily-rated workers/work charged employees provided inter alia he has completed seven years of continuous service as a daily rated worker/work charged employees. The petitioner-appellant has failed to substantiate that he has seven years of continuous service at his back and, as such, does not fulfill the minimum eligibility criteria.

15. The aforesaid findings returned by the Director are all findings of fact and the learned Single Judge is right in observing that the writ court cannot go into those fact-finding mission so as to verify their veracity or the genuineness by making a roving enquiry. The argument that few other employees have been extended the benefit of regularization is completely misconceived inasmuch as they may be similarly situated, but their regularization appears to have been ordered on being satisfied that they have completed seven years of continuous service which fact is lacking in the present case. The department upon verification of the aforesaid fact alone ordered for their regularization pursuant to the direction of the court. Moreover, extension of benefit of regularization incorrectly to any employee would not entitle the petitioner-appellant to the same benefit until and unless the petitioner-appellant is able to make out a case for regularization in terms of SRO 64 of 1994.

16. The aforesaid SRO 64 of 1994 promulgates J&K Daily Rated Workers/Work-Charged Employees (Regularization) Rules, 1994 which have been framed in exercise of powers under Section 124 of the then Constitution of Jammu and Kashmir. The said rules vide Rule 4 provides for the eligibility for regularization. It categorically lays down that a daily rated worker/work charged employee shall be eligible for regularization on fulfilment of certain conditions, one of which happens to be that the person must have completed seven years continuous MOHAMMAD ALTAF NIMA 2021.10.28 13:20 LPAOW I attest to the No.

integrity of this document period of work as daily-rated worker/work charged employee. Rule 4 of the aforesaid Rules is reproduced herein below:-

"4. Eligibility for regularization.

A Daily Rated Workers/Work Charged Employee shall be eligible for regularization on fulfilment of the following conditions; namely:-

(a) that he is a permanent resident of the State;

(b) that on the date of his initial appointment his age was within the minimum and maximum age limit as prescribed for appointment in Government Service;

(c) that he possesses the prescribed academic and/or technical qualification for the post against which he is required to be regularized:

Provided that in case of eligible Daily Rated Workers to be regularized against Class IV posts, relaxation of qualification and/or age shall be considered on merits by the concerned Administrative Department;

(d) that he is not retiree from any State or Central Government service or any Local Body, Public Sector Undertaking or Autonomous Body in or outside the State;

(e) that his work and conduct has remained satisfactory during the period he worked as Daily Rated Worker or Work- charge Employee and no disciplinary proceedings are pending against him; and

(f) that he has completed seven years continuous period of working as Daily Rated Worker or Work-charged Employee or partly as Daily Rated Worker and partly as Work-charged Employee."

17. In view of the aforesaid provisions for the purposes of regularization for our purposes, two conditions are essential i.e., a person seeking regularization must be a daily rated worker/work charged employee and that he has completed seven years of continuous period of work as daily rated worker or work charged employee.

18. The definition clause of the aforesaid rules defines daily rated worker/work charged employee as well as the continuous working. It has been held repeatedly by this Court that SRO 64 of 1994 does not apply to casual labour/workers or seasonal/labour workers inasmuch as there is a difference between the daily rated worker/work charged employee and casual workers as defined under the Rules. It has also been held in several decisions that break in service upto two days in a period of 90 calendar days would not affect the continuous working, MOHAMMAD ALTAF NIMA 2021.10.28 13:20 LPAOW I attest to the No.

integrity of this document but the break of long terms for weeks and months would disrupt the continuous service. The petitioner-appellant in the entire writ petition filed before the court (copy of which is enclosed with the appeal) has not uttered a single word alleging that he has uninterrupted continuous seven years of continuous service to his credit as a daily rated worker/work charged employee. He has not even brought on record any material/document to substantiate his claim to the above effect. Thus, in the absence of any pleadings or the material to establish that the petitioner-appellant was eligible for regularization, we are of the opinion that the writ court has not committed any error in dismissing the writ petition.

19. On the request of the counsel for the petitioner-appellant, we have also directed the learned counsel for the respondents to produce the service record of the petitioner-appellant to establish if there were breaks in his service.

20. we have perused the record. It contains the monthly attendance sheet of the petitioner-appellant as Casual/Seasonal Labourer from 1986 onwards prepared under the signatures of Deputy Director, Sericulture Development Department Budgam. In the said chart, petitioner- appellant has been shown as having working for the month of January, 1987 and thereafter in the month of March onwards, but with a complete break in the month of February 1987. In the year 1988, he has not worked for the full month of August. Again, in the year 1991 he has not worked in the month of March, April, May, June and December. In 1983, he has not worked in the month of January to August, November and December, so on and so forth.

21. A glance at the above chart clearly reveals that there are enough breaks in service of the petitioner-appellant in almost all the years and he has not worked for months together. In this view of the matter, the findings that the petitioner-appellant has not put in seven years of continuous service is not against the record or incorrect.

22. It may not be out of context to mention here that in these matters of regularization of services based upon factual aspects, it is not always MOHAMMAD ALTAF NIMA 2021.10.28 13:20 LPAOW I attest to the No.

integrity of this document possible for the writ court to verify the factual aspects on the basis of the record produced or the documents on record. Moreover, when repeatedly a consideration has been accorded in the matter of regularization by the authorities and every time the claim has been rejected on the factual aspects, the court cannot permit the person to keep invoking the extraordinary jurisdiction of the court pleading for justice and in such circumstances, it is always better that the recourse to the appropriate forum be allowed to be taken so that the parties may lead evidence on the disputed aspects of the facts and get the matter adjudicated upon. The repeated filing of successive writ petitions virtually for the same cause of action in seeking regularization after rejection of their claim by the authorities, time and again, is more or less the abuse of the process of law and in these circumstances, the writ court may be justified in refusing to exercise discretionary powers.

23. Thus, in the overall facts and circumstances of the case, we do not find it to be a fit case for interfering with the decision of the learned Single Judge.

24. The appeal lacks merit and is accordingly dismissed.

25. Record is returned to Ms. Asifa Padroo, learned AAG in the open court.

                      (VINOD CHATTERJI KOUL)                        (PANKAJ MITHAL)
                                     JUDGE                            CHIEF JUSTICE
          SRINAGAR
          28.10.2021
          Altaf



                                 Whether the order is reportable?    Yes




MOHAMMAD ALTAF NIMA
2021.10.28 13:20
             LPAOW
I attest to the           No.

integrity of this document