State Of Jk & Ors vs Feroz Ahmad Zargar & Anr
2025 Latest Caselaw 1110 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

State Of Jk & Ors vs Feroz Ahmad Zargar & Anr on 22 May, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                                                             Sr. No. 15
                                                                             Regular Cause List

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

                                           LPASW No. 164/2017

         State of JK & Ors.                                           ...Petitioner(s)/Appellant(s)

         Through:          Mr. Abdul Rashid Malik, Sr. AAG with Mr. Mohd Younus Hafiz, AC

                                                       Vs.
         Feroz Ahmad Zargar & Anr.                                               ...Respondent(s)

         Through:          Mr. Imtiyaz Sofi, Adv.

         CORAM:
              HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
              HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
                              ORDER

22.05.2025 [Oral]

1. This intra-court appeal by the then State of J&K (now Union Territory) is directed against an order and judgment dated 15 th November 2016 passed by the learned Single Judge of this Court ["the Writ Court"] in SWP No. 2231/2015, whereby the Writ Court has disposed of the writ petition of the respondents with a direction to the appellants to frame a policy to ensure filling up of 50% of posts of Class IVth out of the contingent/consolidated paid employees. The Writ Court has also directed the appellants to allow the respondents to continue on their position till the case for regularization is considered. The appellants are further directed to pay the respondents the minimum wages in terms of the Minimum Wages Act till their regularization.

2. Impugned judgment of the Writ Court is challenged by the appellants inter alia on the ground that the respondents being contingent paid workers are not entitled to claim regularization, more particularly, when they are not engaged/appointed against any substantive vacant post of Chowkidar/Sweeper available in the department.

3. Learned counsel for the appellants would argue that in the absence of

Mohd Altaf Nima any post of Chowkidar or Sweeper available in the department, it is I attest to the accuracy and authenticity of this

23.05.2025 not possible for the appellants to regularize the services of the respondents against non-existent posts.

4. During the course of arguments, it was brought to our notice by Mr. Imtiyaz Sofi, learned counsel for the respondents that, apart from what has been held and directed by the Writ Court, the case of the respondents is covered under SRO 520 of 2017 and, therefore, the respondents are also entitled to be regularized in terms of aforesaid SRO.

5. Having heard learned counsel for the parties and perused the material available on record, we are of the considered opinion that having regard to the fact that there are only a couple of consolidated paid employees engaged in the department to perform the duties of Chowkidar and Safaiwala. etc. and, therefore, it would not be appropriate for this Court to direct the appellants to frame a scheme for providing regularization of such contingent or consolidated paid workers. We, however, cannot lose sight of the fact that during the pendency of the writ petition, i.e., SWP No. 2231/2015 filed by the respondents, The J&K Casual and Other Workers-Regular Engagement Rules, 2017 ["the Rules of 2017"] came to be promulgated vide SRO 520 of 2017 dated 21st December 2017. Needless to say that these rules have been framed by the Governor in exercise of powers conferred by proviso to Section 124 of the Constitution of J&K. These rules are applicable to all the Casual, Seasonal and other workers (CSLW) as defined in Rule 2 (c) and Rule 2 (j) respectively of the Rules of 2017.

6. As per the definition of 'Other Workers', any person engaged either through an appointment order or otherwise on consolidated honorarium paid from local funds for rendering in the services in a department falls within a purview of the Rules of 2017 and subject to fulfillment of conditions laid down in Rule 4 is entitled to regular engagement under the rules. It is vehemently argued by Mr. Abdul Rashid Malik, learned Sr. AAG that the respondents being contingent paid employees are not covered by the Rules of 2017.

7. Our attention was invited to Sub-rule (2) of Rule 3, wherein certain categories of Workers have been excluded from the purview of the Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 Rules of 2017. Sub-rule (2) of Rule 3, for facility of reference is reproduced hereunder:

"(2) These rules shall not apply to a -

(i) person engaged in any department as part time, contingent paid worker or any other worker drawing wages at rates lesser than the daily wage rates notified/sanctioned by the Government from time to time;

(ii) person engaged on a tenure post or on academic arrangement for a fixed term in any department;

(iii) person engaged in non-governmental agency or autonomous body or public sector undertaking or corporation or Government company or society or other local authority which have their own rules and regulations governing their functioning;

(iv) person retired from any State/Central Government or any Autonomous Body/Local Body/PSU in or outside the State except Ex-serviceman; and

(v) person working in any department through any Manpower/Private Placement Agency on contract or through outsourcing of services."

8. From reading of the aforesaid rule, it is evident that a person engaged in any department as part-time, contingent paid worker or any other worker drawing wages at rates less than the daily wage rates notified by the Government from time to time are excluded from the benefit of the Rules of 2017.

9. In the instant case, we have gone through the material on record and find that the respondent No. 1 was engaged in the year 1995 and respondent No. 2 was engaged in the year 2008 as Chowkidar and Sweeper respectively on consolidated salary. The Communication of Deputy Director, Law Enforcement, Kashmir dated 23 rd June 2011 clearly indicates that the respondent No. 1 Feroz Ahmad Zargar is working in the department since 1995 as Night Chowkidar on consolidated wages. Similarly, respondent No. 2 namely Hilal Ahmad Shah was engaged as Sweeper on consolidated wages of Rs. 300/- per Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 month w.e.f. 1st April 2008 vide order bearing No. EIB/101/2008-09 dated 7th April 2008. There is no other document brought to our notice which would demonstrate that respondents have been paid from the contingent funds.

10. Whether the respondents have received their wages from the local fund or from other source is not likely to change the nature of their engagement. In the absence of any documentary proof on record, we are not persuaded to accept the stand of the appellants that the respondents being contingent paid workers are not entitled to the benefit of Rules of 2017. Both of them have completed more than ten years of service and have, therefore, become eligible to be regularized under the Rules of 2017 subject to fulfillment of other conditions. The respondents were apparently within age when they were first engaged.

11. Learned counsel for the appellants would submit that SRO 520 of 2017 stands superseded by SO 514 of 2023 and, therefore, no relief could be granted. We have considered the submissions made by learned counsel for the appellants, but we regret our inability to agree with him for the reason that right to regular engagement accrued to the respondents on completion of ten years continuous service. Indisputably, both the respondents had completed their ten years service much before the repeal of SO 520 of 2017 and, therefore, the vested right of consideration accrued to the respondents under SRO 520 of 2017 cannot be said to have been taken away by subsequent repeal in terms of SO 514 of 2023.

12. In view of the aforesaid, we are of the considered opinion that the impugned judgment passed by the Writ Court deserves to be modified. Accordingly, this appeal is disposed of by providing as under:

i. That the case of the respondents shall be considered under the Rules of 2017 (SRO 520 of 2017) for regular engagement in light of the observations made above and appropriate order of their regularization shall be issued within a period of two months.

Mohd Altaf Nima I attest to the accuracy and authenticity of this

23.05.2025 ii. That till the case of the respondents is considered and appropriate orders in respect of their regularization are passed, they shall be permitted to continue and paid the minimum wages in terms of the Minimum Wages Act. The respondents shall receive the minimum wages with effect from the month of June 2025."

13. Impugned judgment shall stand modified to the aforesaid extent.

                                 (SANJAY PARIHAR)             (SANJEEV KUMAR)
                                           JUDGE                       JUDGE
          SRINAGAR:
          22.05.2025
          Altaf


                                 Whether approved for reporting? Yes/No




Mohd Altaf Nima
I attest to the accuracy
and authenticity of this

23.05.2025