Abdul Rashid Wani & Ors vs State Of J&K & Others
2022 Latest Caselaw 1925 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR

                                         Reserved on:   28.10.2022
                                         Pronounced on: 04.11.2022


                         SWP No.1040/2016
                         CM No.3824/2022
                               c/w
                         CCP(S) No.189/2021
                         CPSW No.949/2017
                         SWP No.1154/2016
                         SWP No.1374/2016

ABDUL RASHID WANI & ORS.                      ... PETITIONER(S)

                  Through: - Ms. Saima Mehboob, Advocate.
                             Mr. Lone Altaf, Adv-for Petition
                             Nos.1, 8 & 18 (in SWP No.1154
                             /2016)

Vs.

STATE OF J&K & OTHERS                       ...RESPONDENT(S)
                  Through: - Mr. Raees-ud-din Ganai, Dy. AG.

CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                          JUDGMENT

SWP No.1040/2016 CM No.3824/2022 c/w SWP No.1154/2016 SWP No.1374/2016

1) Initially the petitioners filed writ petition bearing SWP

No.1040/2016, whereby they sought a direction upon respondents to

release legitimately earned wages in their favour with a further

direction that their services should be regularized and that they

should not be disengaged. When the respondents filed their response Page |2

to the writ petition, it came to the knowledge of the petitioners that

their services have been disengaged. The petitioners filed two more

petitions i.e. SWP No.1154/2016 and 1374/2016 challenging their

order of disengagement.

2) Briefly stated, the case of the petitioners is that in the year

2014 Government order No.585-HME of 2014 dated 17.10.2014

was issued by the Government of Jammu and Kashmir whereby a

number of sub centres in the Health Department were

upgraded/created and at the same time a number of posts were

created in the said Department. The aforesaid Government Order

also provided for hiring of 1284 casual workers to work as Nursing

Orderlies for the newly upgraded/opened health institutions on the

notified minimum wages.

3) The petitioners came to be engaged as casual workers in the

respondent Department in the year 2014/2015 vide various

engagement orders issued by respondent No.3-Chief Medical

Officer, Ganderbal. It is contended by the petitioners that pursuant to

the engagement orders, they performed the duties assigned to them

in a sincere manner. According to the petitioners, it is the

constitutional obligation of the respondents to regularize their

services as they have been continuously working as casual workers.

It is further contended by the petitioners that the respondents without Page |3

any reason stopped the wages of the petitioners and at the same time

they extracted work from them.

4) As already noted, in the reply filed by the respondents to the

first writ petition, it was claimed that the services of the petitioners

have been disengaged in terms of order No.CMO/GBL/Casual

Worker/569-75 dated 14.05.2016. While challenging the said action

of the respondents by subsequent two writ petitions, the petitioners

have contended that the said order has been passed in complete

disregard of Cabinet decision and the Government Order dated

17.10.2014. It has been further contended that the impugned order of

disengagement has been passed on the basis of circular dated

17.03.2015 issued by the Finance Department but the same relates to

ban on engagement of casual workers and it does not cover the cases

of those casual workers who have already been engaged prior to the

coming into force of the said circular. It has also been contended that

the petitioners had a legitimate expectation that their

services/engagement would be continued and that their services will

be regularized but the action of the respondents has resulted in

violation of their rights.

5) The writ petitions have been contested by the respondents by

filing replies thereto. In their reply, it is contended by the respondents

that the engagement of petitioners was subject to release/allocation

of funds by the Government and when the funds were not released Page |4

by the Government, their engagement was cancelled. It has been

further submitted that the Chief Medical Officer, Ganderbal, had no

authority to engage the services of the petitioners without the

authorization from the competent authority and it is only the Chief

Medical Officer, Ganderbal, in whole of the Kashmir Division who

has engaged the services of casual workers without any authority. It

is also contended that the Chief Medical Officer, Ganderbal, had

engaged the services of the petitioners without following any

procedure/norms and for this reason their engagement had to be

cancelled.

6) I have heard learned counsel for the parties and perused the

record of the case.

7) The admitted facts which emerge from the pleadings of the

parties and the documents on record are that the petitioners have been

engaged as casual workers in terms of various orders issued by Chief

Medical Officer, Ganderbal. The engagement orders bear reference

to Government Order Nos.584-HME of 2014 and 585-HME of 2014

dated 17.10.2014, whereby sub centres of the Health Department

were upgraded/established. As per the aforesaid Government Orders,

besides creation of a number of posts, a provision was made for

hiring of 1284 casual workers to work as Nursing Orderlies. It seems

that engagement of the petitioners has been made by respondent Page |5

Chief Medical Officer, Ganderbal, pursuant to the aforesaid clause

of the Government Order.

8) A perusal of the engagement orders issued in favour of the

petitioners reveals that the same have been issued on the basis of

nominations of local MLAs and Ministers, meaning thereby that the

contention of the respondents that no procedure/norms were

followed while engaging the services of the petitioners appears to be

well-founded. Engagement of the petitioners on the basis of

recommendation of MLAs or Ministers without inviting applications

or devising any process that would give any semblance of fairness

and transparency in the matter of selection of these casual employees

makes the whole exercise of their engagement illegal and arbitrary.

The prayer of the petitioners that they are entitled to regularization

of their services is grossly misplaced for the reason that if such a

relief is granted, then their backdoor engagement created by the

Chief Medical Officer, Ganderbal, would become an illegal channel

of appointment and consequently it would amount to violation of the

constitutional mandate.

9) That takes us to the question as to whether disengagement of

services of the petitioners is not in accordance with law. For the said

purpose, we need to have a look at the conditions of engagement of

the petitioners as contained in their engagement orders. All the

engagement orders issued in favour of the petitioners specifically Page |6

provide that their engagement is subject to the allotment funds under

the scheme. It has been specifically stated by the respondents in their

reply that the Government has stopped allocation of funds for the

scheme. Therefore, in the absence of the requisite funds, the

petitioners' engagement as casual workers could not be continued

due to non-allocation of funds by the Government for payment of

their wages. In these circumstances, there was no option left for the

respondents but to disengage the services of the petitioners.

10) Apart from the above, the respondents have specifically stated

in the disengagement order dated 14.05.2016 that the department

does not require the services of the petitioners. It is a settled law that

the services of casual/seasonal labourers are need based and once an

employer does not need the services of a seasonal/casual labourer, it

cannot be forced to continue with their engagement. Therefore, the

petitioners cannot claim continuation of their engagement with the

respondents, more so because their services have been disengaged

by the respondents after serving only for about one and a half year

with the respondents. It is not a case where the petitioners have put

in long years of service as casual labourers with the respondents that

would give rise to legitimate expectation of continuation of their

engagement or regularization of their services but it is a case where

the petitioners have only put in a few months of service with the

respondents and the finances regarding the scheme under which they Page |7

were engaged have been stopped. Thus, their engagement as casual

workers cannot be continued once the respondents have decided that

their services are not needed.

11) For the foregoing reasons, I do not find any merit in these

petitions. The same are, accordingly, dismissed. However, it is made

clear that the respondents shall ensure that the legitimately earned

wages for the period for which the petitioners have actually worked,

either on the basis of interim orders passed by this Court or

otherwise, are released in their favour.

CCP(S) No.189/2021 CPSW No.949/2017

Since the writ petitions, out of which the instant contempt

petitions arise, stand dismissed, therefore, the contempt petitions do

not survive for further consideration. The same are, accordingly,

dismissed.

(SANJAY DHAR) JUDGE Srinagar, 04.11.2022 "Bhat Altaf, PS"

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