Mushtaq Ahmad Khan And Others vs Union Territory Of J&K And Others
2022 Latest Caselaw 577 j&K/2

                                     h475




      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                                             Reserved on : 06.04.2022
                                            Pronounced on : .05.2022

                                            WP(C)No.1259/2021
                                            CM No.4302/2021


Mushtaq Ahmad Khan and others                                   ...Petitioner(s)

                          Through:- Mr. Shafqat Nazir, Advocate
      V/s
Union Territory of J&K and others                            ...Respondent(s)
                         Through:- Mr. Irfan Andleeb, Dy. AG

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                JUDGMENT

1. The petitioners are aggrieved of the Government Order No.22-

JK(JSD) of 2021 dated 25th January, 2021 ['impugned order'], whereby the

claim of the petitioners for being engaged as casual labourers, considered

in terms of order dated 30.01.1999 passed by this Court in SWP

No.123/2019, has been found to be bereft of any merit and accordingly,

rejected.

2. Briefly put, facts, as projected in this petition by the

petitioners, are that vide advertisement notification dated 27.07.2006, the

Superintending Engineer, PHE Mechanical Circle South, Srinagar invited

applications from ITI trained plumbers for engagement as casual/seasonal

labourers purely on need basis. This advertisement notification, it is

contended, was issued by the Superintending Engineer concerned having

regard to the authorization given by the Government in terms of proviso to

Rule 7 of SRO 64 of 1994. This authorization in favour of PHE/Irrigation

and Flood Control along with Agricultural Production Department, Public

Works Department and Power Development Department was given by the

Government vide Order No.239-F of 2005 dated 29.11.2005. The

petitioners claiming to be the ITI trained plumbers submitted their

application forms to the respondents. Before the respondents could

consider and engage the petitioners, various complaints poured in with

reference to authenticity of Plumber Trade Certificates produced by many

candidates. So much so, even FIR bearing No.31/2007 under Section 420,

468, 471 RPC also came to be registered. It is submitted that the

Investigating Officer could only find ITI certificates of nine candidates as

fake and forged. Accordingly, charge-sheet against nine candidates was

filed before the Judicial Magistrate (Sub Judge), Baramulla.

3. The contention of the petitioners is that their certificates were found

to be genuine. Despite certificates of the petitioners having been

found/declared genuine by the Crime Branch, services of the petitioners

were not utilized by the respondents constraining the petitioners to file

SWP No.1240/2007 titled PHE Plumber Trade Union District Baramulla

v. State of J&K and others, which was disposed of by a Bench of this Court

on 27th September, 2007 giving liberty to the petitioners to project their

grievance before the competent authority by way of representation with a

further direction to the competent authority to dispose of the same with due

dispatch provided the petitioners were in position under a valid order of

engagement as skilled labour. It is submitted that in the above writ

petition, apart from the petitioners, there were 180 other candidates

belonging to PHE Division Hydraulic Uri. The grievance of the petitioners

was considered and disposed of by the respondents by passing a

consideration order on 28th March, 2013, whereby the Executive Engineers

of Hydraulic Division Baramulla and Uri were asked to take steps for

implementation of directions of the Court and to initiate the process of

verification as per the procedure in vogue for engagement of ITI trained

plumbers as casual labourers on need basis subject to confirmation by the

Chief Engineer, PHE Srinagar.

4. Feeling aggrieved, the petitioners and others challenged the

consideration order dated 28th March, 2013 in SWP No.2179/2013. The

writ petition was allowed and the consideration order was quashed. The

candidates belonging to Sub Division numbering 180 filed a separate writ

petition SWP No.1312/2014 in which a Bench of this Court vide order

dated 26.06.2014 directed the respondents to consider the representation of

the petitioners in terms of order dated 26.02.2013 passed in Contempt

Petition No.81/2008. It is submitted that pursuant to the aforesaid order,

180 casual labourers of Hydraulic Division Uri were engaged. The

grievance of the petitioner is that they were similarly situated with 180

candidates of Uri Division and, therefore, similar treatment ought to have

been accorded to them. Having been denied the similar treatment claimed

by the petitioners, the petitioners filed SWP No.266/2018 in which the

Court once again directed the respondents to consider the case of the

petitioners in accordance with law. Since there were several writ petitions

filed from time to time and directions issued therein by this Court, as such,

the Government considered the matter at length having regard to the

directions passed by this Court in various petitions filed by the petitioners

and others from time to time and rejected the claim of the petitioners vide

Government Order No.351-PW(Hyd) of 2018 dated 17th October, 2018.

This consideration order, it appears, became subject matter of challenge in

SWP No.123/2019 in which this Court passed an interim order dated

30.01.2019 providing that pendency of the writ petition would not come in

the way of the respondents to consider the petitioners for engagement as

casual labourers, if they were similarly situated with those 180 incumbents,

who had already been considered by the respondents. It is pursuance of the

aforesaid interim direction, the impugned order was passed by the

respondents.

5. The impugned order is assailed by the petitioners primarily on the

ground that the petitioners are similarly situated with 180 candidates, who

have been engaged as causal labourers by the PHE Hydraulic Division Uri.

The petitioners were the candidates, who were selected to be engaged as

casual labourers pursuant to the advertisement notification issued by the

respondents and their engagement was kept in abeyance only pending

verification of genuineness of their ITI trade certificates. Once their

certificates, upon verification, have been declared genuine by the Crime

Branch, there remains no reason or excuse with the respondents to deny

them the engagement. The petitioners have, thus, been subjected to hostile

discrimination by the respondents by their arbitrary acts and omissions.

6. On being put on notice, the respondents have filed their objections

and have justified the consideration order on the ground that the

advertisement notification for engagement of ITI trained plumbers as

casual labourers in the twin divisions of Uri and Baramulla clearly

provided that the engagements to be made were on need basis and,

therefore, by the time the claim of the petitioners came up for

consideration, the Hydraulic Division Baramulla did not have any

requirement of the petitioners and the local casual labourers already

engaged were found sufficient to run the schemes. Referring to

Government Order No.43-F of 2015 dated 17.03.2015, it is submitted that

the power to engage casual labourers given under Government Order

No.239-F of 2005 dated 29.11.2005 was subsequently taken away by the

Government under the aforesaid order and, therefore, even if, the

respondents need services of the petitioners, they are not in a position to

issue any engagement order.

7. Having heard learned counsel for the parties and perused the record,

I am of the view that the petitioners, who were applicants in response to

advertisement notification dated 27.07.2006 and were shortlisted for

engagement do not have a right to be necessarily engaged by the

respondents irrespective of the need of the department.

8. From a bare reading of the advertisement notification dated

27.07.2006, it is abundantly clear that applications were invited by the

Superintending Engineer concerned in the exercise of authorization

conferred on the department of Public Health Engineering vide

Government Order No.239-F of 2005 dated 29.11.2005. A look at

Government Order No.239-F of 2005 would show that the departments of

Public Health Engineering/Irrigation and Flood Control along with three

other departments were authorized to engage casual/seasonal labour from

time to time on the minimum need basis. Clause-(a) of the Government

Order (supra) clearly laid down that it would be the endeavor of the

department to meet the need out of the DRWs regularized as Helpers

available in the department by way of internal adjustment only without

bringing any additional burden on the scarce resources of the State. In the

advertisement notification dated 27.07.2006, it was made clear that the

engagements to be made were of casual/seasonal labourers purely on need

basis. It is true that the petitioners, who along with others had responded to

the advertisement notification, were shortlisted for engagement in the twin

divisions of Public Health Engineering Mechanical Circle, Srinagar.

9. Before the petitioners and others could be engaged, selection made

by the respondents mired in controversy, in that, many complaints poured

in before the respondents with regard to the genuineness of ITI trade

certificate submitted by the applicants. This resulted in an enquiry and

registration of criminal case in the matter. By the time dust was settled, the

Government came up with Government Order No.43-F of 2015 dated

17.03.2015 withdrawing the powers from all the departments including the

department of Public Health Engineering/ Irrigation and Flood Control to

engage causal labourers. That apart, on the fresh assessment of the need,

the respondents found that due to change of government policy, there was

hardly any need to make fresh engagement of casual labourers and the

existing demand was being taken care of by the local casual labourers

already working in the Division. On the basis of these twin grounds, the

claim of the petitioners was rejected by the respondents by issuing detailed

speaking order vide order No.351-PW(Hyd) of 2018 dated 17.10.2018.

This order, as noted above, became subject matter of challenge in SWP

No.123/2019 in which this Court passed an interim order on 30.01.2019

providing that pendency of the writ petition would not come in the way of

the respondents to consider petitioners for engagement a casual labourers,

if they were similarly situated with 180 incumbents, who had already been

considered by the respondents in the Uri Division. This is how the matter

was again considered by the respondents and vide order impugned the

claim of the petitioners was rejected by the Government. The petitioners

were not found similarly situated with 180 incumbents, out of which the

Uri Division had engaged 166 after verification of their ITI trade

certificates.

10. Having carefully examined Government Order dated 17.10.2018 and

the impugned order dated 25.01.2021 passed by the Government, I am of

the view that the respondents have correctly concluded that the petitioners

cannot seek any parity or analogy with 166 candidates, who were engaged

as casual labourers on need basis in the Uri Division. It may be true that

both set of candidates i.e. the candidates, who were considered and

engaged in Uri division and the petitioners, who were shortlisted for

engagement in Baramulla Division, had responded to the same

advertisement notification but the engagement of the petitioners= was

dependent upon the need of the time in the Division. Whatever be the

circumstances, the engagement of the petitioners was delayed and fresh

developments intervened by the time the directions passed by this Court to

consider them on the analogy of those engaged in Uri Division, came up

for consideration. The authority of the respondents to make engagement of

casual labour stood withdrawn with the issuance of Government Order

No.43-F of 2015 dated 17.03.2015 and also with the change in Government

policy, the Hydraulic Division Baramulla was not in need of engagement of

casual labourers and was self sufficient to carry its existing duties and

responsibilities with the help of casual workers already working in the

Division . It is correctly contended by the respondents that no right of

engagement vested in the petitioners merely on their being shortlisted for

engagement. Their engagement was subject to need of the time and the

competence/authority of the respondents to engage them.

11. It is true that the circumstances, which delayed the engagement of

the petitioner, were not their creation but the fact remains that the matter

lingered on because of reasons which are also not attributable to the

respondents. In the year 2019, when this Court passed interim order on

30.01.2019 in SWP No.123/2019, the position had undergone substantial

change. Government Order No.43-F of 2015 dated 17.03.2015 snatched

power and the authority of the respondent-department to engage any causal

labourer and that due to change of government policy, there was no

requirement left with the various divisions including Baramulla division to

engage fresh casual labourers for running the water supply schemes, for,

the demand in the Division was being well taken care of by the local casual

labourers already working in the Division.

12. For the foregoing reasons, I find no illegality or infirmity in the order

impugned. The petitioners cannot, as a matter of right, claim to be engaged

as casual labourers, more particularly, when the respondents do not require

their services. This apart, with the issuance of Government Order No.43-F

of 2015, the respondents are, otherwise, bereft of any legal competence or

authority to make such engagement w.e.f. 17.03.2015. The cumulative

effect of the discussion made above is that the petition is without any merit

and the same is, accordingly, dismissed.

(Sanjeev Kumar) Judge

SRINAGAR .05.2022 Vinod.

Whether the order is speaking: Yes/No Whether the order is reportable : Yes/No