State Of Jammu And Kashmir & Ors vs Bashir Ahmad Mir & Ors
2023 Latest Caselaw 655 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                             LPA No. 247/2019

                                                       Reserved On: 9th of March, 2023
                                                     Pronounced On: 26th of May, 2023
                                       Th




State of Jammu and Kashmir & Ors.
                                                                ... Appellant(s)
                               Through: -
                        Mr Mohsin S. Qadri, Sr. AAG.

                                      V/s

Bashir Ahmad Mir & Ors.
                                                             ... Respondent(s)

Through: -

Mr R. A. Jan, Senior Advocate with Mr Suhail Mehraj, Advocate.

CORAM:

Hon'ble Mr Justice Rajnesh Oswal, Judge Hon'ble Mr Justice Mohan Lal, Judge (JUDGMENT)

{Rajnesh Oswal, J:}

01. The respondents, engaged as daily rated workers in the Public Health Engineering Department, though their status was disputed by the appellants subsequently, embarked upon the tedious journey of litigation in the year 1992 to establish the genuineness of their status and also for the regularisation of their services but have not yet reached their destination.

02. This intra Court appeal is directed against the judgment dated 11th of August, 2016 passed in SWP No. 1579/2013 titled 'Bashir Ahmad Mir & Ors. v. State of Jammu and Kashmir & Ors.', whereby the learned Writ Court has quashed the order bearing No. 52-PW(Hyd) of 2012 dated 3rd of February, 2012 and the appellants have been directed to regularize the services of the writ petitioners/ respondents herein in terms of the Jammu and Kashmir Daily Rated Workers/ Work Charged Employees LPA No. 247/2019

(Regularization) Rules, 1994 (SRO 64 dated 24th of March, 1994). The judgment aforesaid has been assailed by the appellants, inter alia, on the grounds: (i) that the learned Writ Court has not taken into consideration the report of the committee constituted by the Chief Engineer, Kashmir, PHE Department, vide circular No. PHE/Extt/ CCs/272/15824-25 dated 30th of October, 2000; (ii) that the learned Writ Court has also not appreciated the findings returned by the four member enquiry committee constituted by the Administrative Department vide Government Order No. 366-PW(Hyd) of 2004 dated 8th of September, 2004; and (iii) that the learned Writ Court has not appreciated the fact that the writ petitioners/ respondents herein were not on the rolls of the 'Daily Rated Workers' and, as such, have not completed seven years of continuous service as envisaged under Rule 4 of SRO 64 of 1994 as the genuineness of the writ petitioners/ respondents herein could not be established by the committee constituted by the appellant Department, particularly when the writ petitioners/ respondents herein had already been disengaged by the Chief Engineer, Kashmir, PHE Department, vide order dated 16th of March, 1992 and later, were re- engaged on need basis in the year 2005.

03. Mr Mohsin-ul-Showkat Qadri, the learned Senior Additional Advocate General, appearing for the appellants, vehemently argued that the genuineness of the writ petitioners/ respondents herein could not be determined despite constitution of various committees on the subject and in that view of the matter, the learned Writ Court was not right in directing the appellants to regularize the services of the writ petitioners/ respondents herein under SRO 64 of 1994.

04. Per Contra, Mr R. A. Jan, the learned Senior Advocate, appearing for the respondents, submitted that the learned Writ Court has appreciated all the contentions raised by the appellants in this appeal and has taken into consideration the report of the committees constituted by the appellants from time to time. He further argued that the matter was referred to the Vigilance Organization, Kashmir to enquire/ investigate the issue in LPA No. 247/2019

respect of identification of the genuineness of the Daily Rated Workers of the PHE, Division Handwara and the Vigilance Organization, Kashmir has found the allegations not to be true and closed the inquiry. He also stressed that, as per the communication dated 10th of October, 2011, the Executive Engineer, PHE, Division Handwara had furnished the requisite documents in terms of the communication dated 23rd of September, 2011 of the Administrative Department and that the communication itself shows that the writ petitioners/ respondents herein were eligible for regularization.

05. Heard and perused the records.

06. Before we appreciate the contentions raised by the appellants in this appeal, it is imperative to take note of the chronology of events, as also the past litigation that ensued between the parties on the subject after the appellants ordered the disbanding of daily wagers of PHE Division Handwara w.e.f. 16th of March, 1992.

07. The learned Writ Court, vide order dated 19th of October, 2000, disposed of 11 petitions filed by the petitioners therein and directed the Chief Engineer, PHE Department, Kashmir to appoint a panel of officers consisting of not less than two members to look into the claim of the petitioners i.e. the genuineness of the engagement of the petitioners as Daily Rated Workers and their subsequent continuation, either pursuant to the directions of the Court or allowed by the respondents/ appellants herein on their own and it was further directed that in case it is made out from the report of the panel that the petitioners have continued as Daily Rated Workers till date, have worked uninterruptedly for a period of seven years as on date and their engagement is genuine, the respondents/ appellants herein shall process their cases for regularization under SRO 64 of 1994. The learned Writ Court further clarified that if the petitioners were continuing on 31st of March, 1994 and they have been discontinued by the respondents, their absence or discontinuation will not be accounted by the respondents as an impediment to their entitlement to seek consideration for regularization. It is worthwhile to mention here that the learned Writ Court LPA No. 247/2019

had taken note of the disengagement of the petitioners w.e.f. 15th of March, 1992. The Chief Engineer, PHE Department, Kashmir, in compliance of the directions of the Writ Court, constituted a committee vide order No. PHE/Extt/CCS/272/15824-25 dated 30th of October, 2000 and the committee arrived at the following conclusion:

"i. The wording used in most of the engagement orders is not official;

ii. The signatures of the officers in most of the orders vary from order to order; and

iii. None of the concerned have been in a position to substantiate their continuation pursuant to a genuine order and as such they are not entitled to any regularization in terms of SRO 64/94 nor are they entitled to any continuation."

08. The Administrative Department, vide Government Order No. 366-PW(Hyd) of 2004 dated 8th of September, 2004, constituted another four-member committee for the purpose of identification of genuine Daily Rated Workers and the committee submitted its report by arriving at the following conclusion:

"The committee after considering all the aspects of the case has reached to the conclusion that it is absolutely difficult, rather impossible to identify the genuine daily wagers at this belated stage. However, the circumstantial evidence raises many doubts about their genuineness. But the fact remains that by appointing various committees by the Government it has given a ray of hope to these so-called daily wagers and may be most of them or some of them have lived with this hope that they will be engaged some day. It is perhaps because of that fact the Government has considered engagement of 236 such so called daily wagers on need basis out of the list of 446 daily wagers on the basis of the fact that they have drawn wages from 8/90 to 3/92 for some period of time it can be seen from the enclosed statement that out of 355 number of daily wagers only 323 have drawn wages from time to time. Out of these 236 numbers stands already engaged on need basis it would be advised if the Govt. considers engagement of remaining 87 persons on need basis who have drawn their wages during the period from 8/90 to 3/92 for one month or more as indicated in Annexure-A on the same analogy on which 236 persons have already been engaged subject to the condition that they are alive and are not already working in any Govt./ Semi Govt. organization."

09. When the appellants did not regularize the services of the respondents herein, a contempt petition bearing No. 466/2007 was filed and in the said contempt petition, a compliance report was filed, stating therein LPA No. 247/2019

that after the perusal of the report pertaining to the case, the committee found that out of 466 Daily Rated Workers, only 236 Daily Rated Workers were cleared. The Administrative Department conveyed the approval of engagement of 236 Daily Rated Workers on a monthly remuneration of Rs.2,100/-. It was also stated in the said report that the Daily Rated Workers represented for regularization to their respective divisions on the plea that their first engagement was of March, 1992 and they have also furnished undertaking to the effect that they will not claim arrears w.e.f. April, 1992 to September, 2005 in case of their conversion to regular establishment by way of regularization and after scrutinizing the record, the report was forwarded to the Administrative Department for communicating instructions. The Finance Department returned the case with certain observations and the Court directed the personal appearance of the Commissioner/ Secretary, Finance Department as well as Commissioner/ Secretary, PHE/ Irrigation and Flood Control Department and the Court, on 17th of August, 2011, granted two weeks' time after taking note of the assurance extended by the Special Secretary to Government, PHE Department that efforts will be made in a week's time to identify the posts available against which the petitioners therein were to be regularized and to do the needful for creation of the posts. The Administrative Department submitted the proposal to the Finance Department vide communication dated 7th of September, 2011, after acquiring the relevant information from the concerned Chief Engineer and finally empowered committee was revived for consideration of cases of 236 Daily Rated Workers of PHE Department in terms of the provisions of SRO 64 of 1994. Thereafter, the Finance Department, vide communication dated 22nd of September, 2011, returned the case with the following observations:

"I. Initial engagement order/ copy of muster roll through which initial wages have been drawn;

II. Attested copy of Muster Rolls from 4/1992 to 8/2005 in token of their active deployment at the place of work;

III. Continuity certificate from the date of engagement up to ending 8/2021 duly countersigned by HoD;

LPA No. 247/2019

IV. Eligibility certificate in terms of rule 4 of SRO-64/1994 duly countersigned by HoD;

V. Service sheets for the period from the date of engagement to ending 8/2021 duly countersigned by HoD; and VI. Head of account to which wages of such incumbent have been debited."

The Administrative Department forwarded the aforesaid observations made by the Finance Department to the Chief Engineer vide communication dated 23rd of September, 2011.

10. From the record, it transpires that the Executive Engineer, PHE Department, Division Handwara forwarded a list of 232 genuine Daily Rated Workers of PHE, Division Handwara to District Superintending Engineer, Hydraulic Circle Kupwara, Headquarter Handwara, vide communication dated 10th of October, 2011. The empowered committee, so constituted in terms of order dated 30th of September, 2011, met on 3rd of October, 2011 and rejected the claim of the 236 Daily Rated Workers of PHE/ I&FC Department with the following remarks:

"(i) The committee headed by the Chief Engineer, PHE constituted on the directions of Hon'ble High Court has actually not found any of the Daily Wagers as 'genuine'. However, this was not presented to the Hon'ble Court by the Administrative department in its entirety.

(ii) Notwithstanding the findings of the committee, the Empowered Committee again went through the entire record meticulously and found that none of the cases is covered under the provisions of SRO-64.

(iii) Since Hon'ble Court has issued directions for regularization of 236 Daily Wagers which are not found to be covered under the provisions of SRO-64."

11. A formal order of rejection of the claim of the respondents for their regularization vide Government Order No. 52-PWD (Hyd) of 2012 dated 03.02.2012 was issued. The said order was impugned by the writ petitioners/ respondents herein before the Writ Court and prayer was also made by them to regularize their services in terms of SRO-64 of 1994. The appellants opposed the writ petition and defended the order impugned by pleading that the claim of the respondents was not covered under the said SRO. The learned Writ Court, vide the impugnment judgment, allowed the Petition filed by the writ petitioners/respondents herein, thereby quashing LPA No. 247/2019

the order dated 3rd of February, 2012 and directed the respondents/ appellants herein to regularize the services of the writ petitioners/ respondents herein in terms of SRO 64 of 1994.

12. The first contention raised by the appellants in the present appeal is that the learned Writ Court has not taken into consideration the report of the committees constituted pursuant to the Writ Court judgment dated 19th of October, 2000. From the record, it is evident that these committees were constituted to determine the authenticity and genuineness of the engagement of the Daily Rated Workers. The report of the committee constituted by the Chief Engineer, PHE Department, Kashmir had raised a dispute with regard to the genuineness of the appointment orders and the committee, re-casted pursuant to the order dated 8th of September, 2004, came to the conclusion that out of the list of 446 Daily Rated Workers, 236 Daily Rated Workers have drawn wages from August, 1990 to March, 1992 for some period of time and because of that reason only, these 236 Daily Rated Workers were again engaged on need basis. It is worthwhile to note here that in the order dated 29th of September, 2005, whereby the fresh engagement orders were issued in favour of 236 persons, it was mentioned that the engagement was made subject to final outcome of the enquiry.

13. The genuineness of the daily rated workers was also the subject matter of enquiry before the Vigilance Organization, Kashmir and the learned Single Judge in contempt petition No. 466/2007, in the order dated 13th of May, 2011, took note of the fact that the Superintendent of Police (B/K), Vigilance Organization, Kashmir has informed Chief Engineer, PHE, Department, Kashmir that the allegations of the irregularities as regards engagement of the daily wagers had not been substantiated. The appellants have not disputed the said finding of the Vigilance Organization, Kashmir. The learned Writ Court has taken into consideration the report submitted by the committees constituted and re- casted from time to time and has rightly come to the conclusion that the documentary evidence buttressed the case set up by the writ petitioners/ LPA No. 247/2019

respondents herein. Once the committee constituted pursuant to the order dated 8th of September, 2004 itself came to the conclusion that 236 Daily Rated Workers have drawn wages from August, 1990 to March, 1992, then the appellants could not have rejected the claim of the writ petitioners/ respondents by virtue of the order impugned, particularly in view of the directions issued by the learned Writ Court vide order dated 19th of October, 2000, wherein certain observations were made by the Court that "it is also brought to the notice of the Court that the Court has passed interim direction in some of the petitions allowing the petitioners to continue to work as Daily Rated Workers. Pursuant to the interim directions, some of the petitioners have been permitted to work and some have not been permitted to work as per the stand taken by the petitioners despite service of the order by such petitioners."

14. The committee constituted pursuant to the order dated 9 th of August, 2002 also made reference to the original muster sheets of the Daily Rated Workers, who were paid wages. The learned Writ Court has also taken note of the communication dated 4th of February, 2002 addressed by the Administrative Department to the Chief Engineer, PHE Department, Kashmir, wherein it has been stated that 'the Department has also authorized you to pay the wages and in that behalf office letter dated 28th of June, 1994 may please be referred to'. It was also stated that the Daily Rated Workers are in engagement, as such, there is no need to issue fresh orders for their engagement. This communication, though, was withdrawn subsequently but it bears reference to the fact that vide communication dated 28th of June, 1994, Chief Engineer, PHE, Kashmir was authorized to pay wages to the daily rated workers meaning thereby that the daily rated workers were working in the year 1994. The whole exercise, in fact, to be undertaken by the appellants, was to determine the genuineness of the Daily Rated Workers and as per the report of the committee, 236 Daily Rated Workers were found to be genuine and the finding recorded by the appellants that their cases were not covered under SRO 64 of 1994 is contrary to the communication dated 4th of February, 2002, though the same LPA No. 247/2019

was subsequently withdrawn, but, as already observed, the communication dated 4th February 2002 bears reference to the communication dated 28th of June 1994 of the Administrative Department. We are at a loss to understand that once the respondents were found to be genuine Daily Rated Workers, engaged prior to year 1994 and the Administrative Department, vide its communication dated 28th of June, 1994, directed release of wages in respect of the petitioners in the writ petitions pending before the Court, then how can the respondents be denied their claim of regularization, more particularly in light of the directions issued by the writ court vide its order dated 19th of October, 2000. It needs to be noted that the communication dated 28th of June, 1994 also finds a mention in the report of the committee constituted pursuant to order dated 9th of August, 2002.

15. We have examined the judgment passed by the learned writ court minutely and find that the learned Writ Court has meticulously dealt with all the issues raised in this intra court appeal after taking note of all the reports of the committees and more particularly, the communication of the Vigilance Organization, Kashmir. That being so, this Court is of the considered view that the present appeal is without any merit and the same is, accordingly, dismissed, along with the connected CM(s).

16. Record be returned with utmost dispatch.

                                  (Mohan Lal)                 (Rajnesh Oswal)
                                    Judge                         Judge
SRINAGAR
May 26th, 2023
"TAHIR"
               Whether the Judgment is reportable?                   No.