Jammu & Kashmir High Court - Srinagar Bench

Ghulam Rasool Parray And Another vs State Of J&K And Others on 14 October, 2025

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH                             2020:JKLHC-SGR:3175
                        AT SRINAGAR
                             ...
                            SWP no.1451/2013

                                                    Reserved on: 24.07.2025
                                                 Pronounced on: 14.10.2025
                                                    Uploaded on: 14.10.2025
                                                         Whether operative part of
                                                full judgement is pronounced Yes
Ghulam Rasool Parray and another
                                                            .......Petitioner(s)

                                Through: Mr M. Ayoub Bhat, Advocate

                                   Versus

State of J&K and others
                                                           ......Respondent(s)

                                Through: Mr Furqan Yaqub Sofi, GA


CORAM:
   HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                               JUDGMENT

1. Petitioners pray to absorb them as daily labourers permanently and

thereafter regularize their services. They seek respondents to follow

directions issued by the Supreme Court in Hassan Anzullah and others

v. State and others, 1999 SLJ 256 and allow them to continue till they

are permanently absorbed in respondent - J&K Board of School

Education. Release of wages and other benefits are also prayed for.

2. I have heard learned counsel for parties and considered the matter.

3. There is no denial to the fact that petitioners had been engaged in 2008

and 2010 respectively. Petitioners admit break of five days after sixty

days in their engagement, which when they represented against was

decreased to one day after sixty days by virtue of Order no.567-B of

Page 1 2012 dated 24th September 2012. Enhancement of wages was also 2020:JKLHC-SGR:3175

made by respondents vide Order no.510-B of 2011 dated 27th August

2011. Petitioners claim that they approached respondents for

regularization of their services but of no avail.

4. On the other hand, when stand of respondent-board is looked into, they

state that petitioners were purely engaged on need basis as temporary

coolies. When there was no requirement, they were disengaged vide

Order no.02-B of 2013 dated 2nd January 2013 and, therefore,

petitioners are not working in respondent-board. According to

respondents, change of break from five days to one day would not

confer any right in petitioners to continue in respondent-board

muchless regularizing their services. It is maintained by respondents

that although petitioners had been paid wages up to March 2013 by

Information Section and Estates Section of respondent-board that too

without any approval of competent authority, yet same does not create

any right in their favour.

5. While considering the case, a Bench of this Court vide order dated 22nd

July 2015, directed respondent-board to file an affidavit in light of

documents submitted by petitioners. Respondents were also directed to

explain about policy of engagement of casual labourers in respondent-

board and indicate in presence of persons who stood already engaged

for what reason and on what basis new persons were engaged without

considering persons whose services were hired earlier.

6. Joint Secretary, J&K State Board of School Education, Srinagar,

submitted affidavit in compliance to the order dated 22nd July 2015. He

states that respondent-board has no set policy for engaging casual

Page 2 labourers. The board required services of labourers for doing menial 2020:JKLHC-SGR:3175

jobs as per requirement particularly in the Textbook Section for

uploading and unloading of textbooks during sale seasoni and in

Secrecy Section for lifting of sealed answer scripts packets during

Examination and evaluation period. For this purpose, concerned section

hire services of labourers on contingency basis only for a particular

period after seeking prior approval from authorities. It is also stated in

affidavit that Government has imposed ban on engagement casual/

seasonal labourers as is reflected by its order no.43-F of 2015 dated 17th

March 2015, issued by Principal Secretary to Government, Finance

Department. Respondent-Board has already vide order no.02-B of 2013

dated 2nd January 2013 disengaged with immediate effect all coolies/

contingency paid workers/labourers who were working in various

sections/ sub/branch offices of Board. No order for their engagement

has been issued by respondent-board since then. However, respondent-

board requires services of labourers on contingency basis for

discharging menial job involving labour work for which services of all

such persons who are in que are being hired on seasonal basis. It is also

stated in affidavit that petitioners are at liberty to work as labourers as

and when needed on the same analogy as others do without any claim

for issuance of any formal orders for their engagement or continuation

on regular basis and that documents produced by petitioners clearly

indicate that payments have been made against labour and freight

charges and no way depicts that any order of engagement of casual

labourers/coolies has been issued by the board.

Page 3

7. There is no denial to the fact that petitioners had been working2020:JKLHC-SGR:3175 as

coolies. There is also no dispute to the fact that there are no sanctioned

posts of Coolies in respondent-Board, in which petitioners were

working. Petitioners services have been discontinued in the year 2013

by virtue of Order no.02-B of 2013 dated 2nd January 2013. It is not the

case of petitioners that their engagement was made after following due

procedure of selection and, as such, in absence of any sanctioned posts

in respondent-Board, in which petitioners were working, there was no

question of engaging/appointing them after following due procedure

and were contingent paid coolies. As said above, there are no

sanctioned posts of coolies in respondent-board in which petitioners

were working, therefore, judicial review under Article 226 of the

Constitution of India is not permissible. The High Court cannot, in

exercise of powers under Article 226, issue a mandamus to direct a

department to sanction and create posts and adjust/absorb particular

persons. The High Court, in exercise of powers under Article 226, also

cannot direct Government and/or Department to formulate a particular

regularization policy. Framing of scheme is no function of the Court

and is the sole prerogative of Government. Even creation and/or

sanction of the posts is also the sole prerogative of the Government ad

the High Court in exercise of power under Article 226, cannot issue

mandamus and/or direct to create and sanction the posts. Even

regularization policy to regularize services of employees working on

temporary status and/or casual labourers is a policy decision and in

judicial review the Court cannot issue mandamus and/or issue

mandatory direction to do so. Reference in this regard is made to Union

Page 4 of India vs. Ilmo Devi and another, 2021 SCC Online SC 899. It 2020:JKLHC-SGR:3175 has

been held by the Supreme Court:

"The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and 17 create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts."

8. In the case of State of Maharashtra and another vs. R. S. Bhonde, (2006)

6 SCC 751, it has been observed by the Supreme Court that status of

permanency cannot be granted when there is no post and that mere

continuance every year of seasonal work during the period when the

work was available does not constitute a permanent status unless there

exists a post and regularization is done.

9. Instant writ petition came to be filed on 3rd August 2013. Reply/

objections were filed by respondent-board on 8th November 2013,

mentioning therein that services of all coolies, labourers, contingency

paid workers were disengaged vide Order no.02-B of 2013 dated 2nd

January 2013 and, as such, no one, including petitioners herein, on the

rolls of respondent-board. Thereafter, on 3rd November 2014, an