Jammu & Kashmir High Court - Srinagar Bench
Imtiyaz Ahmad Bhat vs Union Territory Of Jammu And Kashmir on 14 February, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 09/2023 in
SWP No. 1154/2016
C/w
LPA No. 10/2023
Reserved on: 07.02.2024
Pronounced on: 14. 02 .2024
LPA No. 09/2024
1. Imtiyaz Ahmad Bhat, Aged about 36 years
S/o Ghulam Hassan Bhat
R/o Hatbura, Ganderbal
2. Abdul Rashid Gojri, Aged 45 Years
Late Ghulam Ahmad Gojri
R/o New Colony Tullamullah, Ganderbal
.........Appellant(s)
Through:
Mr. Imtiyaz Ahmad Sofi, Advocate
Versus
1. Union Territory of Jammu and Kashmir,
Through Commissioner Secretary to Govt.,
Health and Medical Education Department, Civil Secretariat,
Srinagar/Jammu.
2. Director Health Services, Kashmir, Srinagar.
3. Chief Medical Officer, Ganderbal
4. Block Medical Officer, Ganderbal
5. Block Medical Officer, Kangan, Ganderbal
6. Block Medical Officer, Lar, Ganderbal
7. Block Medical Oficer, Wakura, Ganderbal
(Contesting respondents)
8. Ab. Rashid Wani
S/o Gh. Mohi ud Din Wani R/o Kachan Ganderbal
9. Rouf Ahmad Dar
S/o Mohd Shafi Dar R/o Herda Merda Bagh, Ganderbal
10. Altaf Hussain Bhat
S/o Mohd Sultan Bhat R/o Kurhama, Ganderbal
11. Naseer Ahmad Dar
S/o Ali Mohd Dar R/o Gratbal Baghwan Mohalla Ganderbal
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12. Abrar Farooq
S/o Farooq Ahmad Jan R/o Treesa Safapora, Ganderbal
13. Mashood Ahmad Ganai
S/o Ab. Rehman Ganai R/o Waskura Ganderbal
14. Irfan Ahmad Wani
S/o Nazir Ahmad Wani R/o Kurhama Ganderbal
15. Zulkarnain Khan
S/o Awrangzaib Khan R/o Chantain Gulabpora, Ganderbal
16. Showkat Ahmat Rather
S/o Ab. Rashid Rather R/o Arhama Ganderbal
17. Neelofar Rashid
D/o Ab. Rashid Shah R/o Beehama Ganderbal
18. Tamseela Jan
D/o Peer Mohd Latief R/o Beehama Ganderbal
19. Parvaiz Ahmad Bhat
S/o Late Mohd Sadiq Bhat R/o Watlar Ganderbal
20. Mohd Shafi Laherwal
S/o Late Wali Mohd Laherwal R/o Kondabal Ganderbal
21. Rouf Rasool Wani
S/o Gh. Rashool Wani R/o Lar Ganderbal
22. Rizwanullah Hassan Lone
S/o Gh. Hassan Lone R/o Bumloora Ganderbal
23. Mohd Shafi Ganai
S/o Ab. Rashid Ganai R/o Hakim Gund Ganderbal
24. Bashir Ahmad Rather
S/o Farooq Ahmad Rather R/o Saturina Margund
25. Ghulam Rasool Rather
S/o Abdul Ahad Rather R/o Kangan, Ganderbal
Proforma Respondent(s)
Through:
Mr. Sajad Ashraf, GA
LPA No. 10/2023
1. Fazul Rehman Kha, Age 44 Years
S/o Qazi Rehman Khan
R/o Mamer District Ganderbal
2. Shabir Ahmad Lone Aged 34 Years
S/o Ab. Rasheed Lone
R/o Haknar Ganderbal
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3. Mukhtar Ahmad Tewda, Aged 31 Years
S/o Mohd Ismail Tewda
R/o Dar Wuddar Yachhama, Ganderbal
.........Appellant(s)
Through:
Mr. Imtiyaz Ahmad Sofi, Advocate
Versus
1 UT of J&K through Commissioner Secretary to Government,
Health and Medical Education Department,
Civil Secretariat, Srinagar/Jammu.
2. Director Health Services, Kashmir, Srinagar.
3. Chief Medical Officer, Ganderbal
4. Block Medical Officer, Kangan, Ganderbal
5. Block Medical Officer, Ganderbal
(Contesting respondents)
6. Aijaz Ahmad Thekrie
S/o Noorani Thekrie R/o Urpash Ganderbal
7. Khalid Kasana
S/o Mohd Shafi Kasana R/o Ganiwan Ganderbal
8. Bilal Ahmad Lone
S/o Mohd Abdullah Lone R/o Chinner, Ganderbal
Proforma Respondent(s)
Through:
Mr. Sajad Ashraf, GA
CORAM:
HON'BLE, MR JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MRS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
Per Moksha, J
1. These intra Court appeals bearing LPA No. 09/2023 and 10/2023 have
been preferred against the Judgment dated 04.11.2022, passed in SWP
1154/2016 titled Abdul Rashid Wani and Ors. Vs. State of J&K and Ors., and
SWP No. 1374/2016 titled Aejaz Ahmad Thekria and Ors., Vs. State of J&K
and Ors., whereby the said writ petitions, seeking regularization and
quashment of disengagement order of the appellants-petitioners therein have
been dismissed.
2. Since in both the appeals common Judgment dated 04.11.2022, has been
challenged by the appellants-petitioner Nos. 8 and 15 of SWP 1154/2016, and
petitioners 3, 4 and 5 of SWP No. 1374/2016, as such, are taken together for
deciding perversity, if any, in the Judgment passed by the learned Single Bench.
Factual Matrix
3. That in the year 2014, the Government of Jammu and Kashmir issued
Government order No. 585-HME of 2014 dated 17.10.2014, whereby a number
of Sub Centers in the Health Department were ungraded/created and at the same
time a number of posts were created in the Department. The said 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.
4. The appellants herein came to be engaged as casual workers in the
respondent department in the year 2014/2015, in terms of various engagement
orders issued by the respondent No. 3-Chief Medical Officer, Ganderbal. The
appellants herein had been continuously working as casual workers, as such,
had approached the official respondents for their regularization and for release
of their earned wages.
5. The services of the appellants were disengaged in terms of order No.
CMO/GBL/Casual Worker/569-75 dated 14.05.2016. The said order has been
challenged by way of abovementioned SWP No. 1154/2016 and SWP No.
1374/2016. The appellants herein had also sought direction for the release of
their earned due wages and further to allow them to continue and regularize
their services.
6. In the reply filed by the official respondents to the writ petition, it was
stated that the disengagement order of the appellants herein has been passed on
the basis of Circular dated 17.03.2015, issued by the Finance Department,
which relates to ban on engagement of casual workers. It was further stated in
the reply that the engagement of the appellants was subject to release/allocation
of funds by the Government and when the funds were not released by the
Government, their engagement was cancelled. Moreover, the Chief Medical
Officer, Ganderbal, had no authority to engage the services of the appellants
herein without the authorization from the competent authority and it is only the
Chief Medical Officer, Ganderbal, who has engaged the services of casual
workers without any authority that too on the basis of nominations of local
MLAs and Ministers, as such, no procedure/norms were followed while
engaging the services of the appellants herein.
7. Learned writ Court after hearing the parties passed the impugned
Judgment dated 04.11.2022. Paragraph 11 of the said Judgment being relevant
is reproduced as under:-
" 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."
8. The appellants herein have challenged the Judgment passed by the learned
Single Bench on 04.11.2022, on the ground that the Circular dated 17.03.2015
was issued much after the engagement of appellants herein, therefore, the said
Circular had no applicability on the cases of the appellants. It is also stated that
the post of Medical Officers so created have been selected and appointed and
the Centers have been made functional for providing manpower at Class IV
level. The appellants herein were engaged in District Ganderbal in the said
newly created and upgraded Centers. It is stated that the respondent State has
provided the funds for the Medical Officers so engaged and the respondents
cannot take the stand that they have not been allocated the funds for class IV,
casual workers. Moreover, the respondents cannot act arbitrarily even for
releasing the earned wages of the appellants herein.
9. We have heard learned counsel for the parties and perused the record
available on file.
10. In terms of the engagement orders of the appellants herein annexed with
these appeals, it is clearly reflected that hiring of casual workers was subject to
release/allocation of funds under the then scheme. Once the appellants herein
had accepted the terms and conditions of the order passed by the Chief Medical
Officer, Ganderbal, then they cannot turn around and challenge their
disengagement on stoppage of allotment of funds by the competent authority.
In the impugned order of disengagement/cancellation of the casual workers, it
is mentioned that the Finance Department imposed complete ban on the
engagement of Casual/Seasonal Labourers (CSLWs) in Government
Departments/ State owned PSUs in terms of Circular No. A/Misc/2015-364
dated 17.03.2015, as the casual workers which includes appellants herein also
were engaged at the cost of State exchequer that too without following any
transparent mechanism.
11. It is specifically referred that continuation of casual workers was
cancelled as it was at the cost of State exchequer. Government was not having
sufficient funds and means to extend engagement of the appellants herein.
Respondents had engaged the appellants subject to the allocation of funds by
the Government, as such, due to stoppage of funds respondents were having no
option other than to disengage/cancel the engagement of the appellants herein.
Since the department does not require the services of the appellants in the
department at the cost of Government exchequer, the appellants herein have no
indefeasible right to continue to discharge their duties as Casual Labourers.
Moreover, the engagement of the appellants herein have been issued on the
basis of nominations of the then local MLAs and Ministers, as such, the
procedure/norms were not followed while engaging the services of the
appellants, as such, the learned Writ Court has rightly held that the appellants
herein are not entitled to any regularization of their services 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. It
has also been appreciated by the learned Writ Court that the Government had
stopped the allocation of funds for the scheme, therefore, in absence of requisite
funds, the appellants herein could not be continued as Casual workers by the
respondents.
12. It is well settled law that the services of the Casual workers can be
continued only on need basis subject to the funds provided by the Government.
Moreover, the appellants herein had only worked for one and a half year, as
such, they have no right of regularization. The Government has rightly
disengaged /cancelled the engagement of the appellants. The learned writ Court
has rightly directed the respondents to ensure that the legitimately earned wages
for the period for which the appellants herein have actually worked, either on
the basis of interim orders passed by this Court or otherwise, are to be released
in favour of the appellants till date.
13. The aforesaid principal and view has been laid down and taken by the
Apex Court in case titled as Union of India and Others Vs. Vartak Labour
Union (2), reported in (2011) 4 SCC. Paragraph 17 of the Judgment being
relevant is reproduced as under:-
" 17. We are of the opinion that the respondent Union's claim for
regularization of its members merely because they have been working for
the BRO for a considerable period of time cannot be granted in light of
several decisions of this Court, wherein it has been consistently held that
casual employment terminates when the same is discontinued, and merely
because a temporary or casual worker has been engaged beyond the period
of his employment, he would not be entitled to be absorbed in regular
service or made permanent, if the original appointment was not in terms of
the process envisaged by the relevant rules."
14. The Hon'ble Supreme Court in another case titled Secretary State of
Karnataka and Ors. Vs. Uma Devi and Ors, reported as AIR 2006 Supreme
Court 1806, in paragraph 38 held as under:-
"38. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement is
not based on a proper selection as recognized by the relevant rules or
procedure, he is aware of the consequences of the appointment being
temporary, casual or contractual in nature. Such a person cannot
invoke the theory of legitimate expectation for being confirmed in the
post when an appointment to the post could be made only by following
a proper procedure for selection and in concerned cases, in
consultation with the Public Service Commission. Therefore, the theory
of legitimate expectation cannot be successfully advanced by
temporary, contractual or casual employees. It cannot also be held that
the State has held out any promise while engaging these persons either
to continue them where they are or to make them permanent. The State
cannot constitutionally make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of being made
permanent in the post."
15. Mr. I. Sofi, learned counsel for the appellants submits that the respondents
have not released the legitimately earned wages of the appellants till date.
16. In view of above, we do not find any merit in both these appeals filed by
the appellants herein, as such, are dismissed. However, the respondents are
directed to ensure that the legitimately earned wages of the appellants herein
for the period for which they have actually worked, including the period for
which they have worked on the basis of interim orders passed by this Court or
otherwise be released in their favour within four weeks from today.
(MOKSHA KHAJURIA KAZMI) (ATUL SREEDHARAN)
JUDGE JUDGE
Srinagar
14.02.2024
"Mohammad Yasin Dar"
Whether the Judgment is reportable: Yes/No.
Whether the Judgment is speaking: Yes/No.
