Mohd Rafi vs D/o Forests Ut Of Jammu & Kashmir on 31 December 2024

O R D E R

Per:- Rajinder Singh Dogra, Judicial Member The facts of the case, in brief, as stated in the T.A. are that the applicants were appointed as daily wagers in the Social Forestry Department, Division Doda, from March 1989 onwards and have been continuously working since their appointment. The Government of Jammu & Kashmir issued SRO-64 of 1994, which provided for the regularization of daily wagers who had completed seven years of service prior to January 1994. Having completed the requisite period of service by March 1996, the applicants became eligible for regularization under this provision. Despite fulfilling the eligibility criteria and multiple representations to the respondents, their cases for regularization were not finalized. Aggrieved, applicants No. 1 to 5 approached the Hon'ble High Court through SWP No. 904/2012, which was decided in their favor on 20.04.2012, directing regularization under SRO-64 of 1994. However, the judgment was not implemented, compelling the applicants to file a contempt petition. In subsequent communications and meetings, respondents No. 1 to 4 recommended the applicants for regularization. Notably, a communication dated 29.07.2015 clarified that no criminal or departmental proceedings were pending against the applicants, and their records were in order. During the 6th Empowered Committee meeting held on 31.03.2016, the cases of the applicants were reviewed, and necessary documentation deficiencies were pointed out. These deficiencies were rectified, and on 16.08.2018, respondent no. 2

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issued Order No. 72 of 2018, confirming the applicants’ eligibility for regularization under SRO-64/1994. Despite this, the 15th Empowered Committee meeting, held on 04.01.2019 under respondent no. 5, inexplicably declared the applicants’ ineligible for regularization without adequate justification. This contradictory finding has caused grave injustice to the applicants, who challenged the validity of the report/finding dated 04.01.2019 before the Hon'ble High Court in SWP No.829 of 2019 praying for the following reliefs:- “(a) Quashing the report/finding of the respondent No. 5 dated 04.01.2019 as contained in Annexure-I.

(b) Commanding the respondents to implement the order no. 72/2018 dated 16.08.2018 in letter and spirit by regularizing the service of the applicants retrospectively with all consequential benefits.”

2. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of the Notification No. G.S.R. 267 (E) dated 29.04.2020 read with notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of UT of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of Service Writ Petition No. 829 of 2019 was ordered to be transferred by the Hon’ble High Court to this Tribunal on 23.06.2020 and renumbered as Transferred Application No. 2815 of 2020.

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3. The respondents No. 2 to 4 have filed counter affidavit to the T.A. stating therein that the Finance Department placed the cases of the applicants along with others before the Empowered Committee in its 15th Meeting held on 04.01.2019 for consideration. However, Empowered Committee observed that the cases of the applicants do not fall within the mandate of Empowered Committee, having been engaged as Casual Labourers.

4. The respondent No. 5 in reply stated that the erstwhile Empowered Committee for regularization of Daily Rated Workers in terms of SRO 64 of 1994, constituted vide Government Order No. 26-F of 1994 dated 31.01.1994 stands wound up vide Government Order No. 224-F of 2006 dated 12.07.2006 and the powers of creation of posts for remaining Daily Rated Workers as had been engaged upto 31.01.1994, were ordered to vest in Finance Department. However, in pursuance to State Cabinet Decision No. 70/80/2015 dated 19.08.2015, the Empowered Committee was reconstituted vide Government Order No. 139-F of 2015 dated 19.08.2015 to approve formal creation of posts for regularization of left over eligible Daily Rated Workers after scrutiny of the proposals in terms of SRO 64 of 1994 dated 24.03.1994 and the Empowered Committee had the mandate to clear the cases for regularization of Left Over Daily wagers only whose status is recorded as Daily Wagers in records and have been engaged prior to 31.01.1994 only. In the information furnished by the Forest Department, the nomenclature of the applicants is indicated as Casual Labourers. The SRO 64 of 1994 provides

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regularization of Daily Wagers engaged prior to 31.03.1994 only and not to Casual/Seasonal Labourers and since the applicants were engaged as Casual/Seasonal Labourers and not Daily Wagers, hence, the applicants do not fall within the mandate of Empowered Committee having been engaged as Casual Labourers.

5. Mr. P N Bhat, learned counsel for the applicants stated that the applicants were recommended for regularization, however, Respondent No. 5 sought some clarification from the respondents No. 1 to 4 by asking them to submit the status, date of initial engagement, continuous working and the eligibility certificate and Respondents No. 1 to 4 responded to the queries of Respondent No. 5 while submitting documents related to their status, initial engagement orders, eligibility certificate and their continuous working. However, the Empowered Committee held on 04.01.2019 considered the cases of various Daily Wagers including applicants but to the dismay of the applicants, without any reason rejected their cases for regularization under SRO- 64/1994. As per Mr. Bhat, once Respondents No. 1 to 4 have recommended the cases of the applicants for regularization under SRO 64, the respondent No. 5 does not have any power to reject the recommendation of the respondent No. 1 to 4 without assigning any reason.

6. Learned counsel for the applicants further contended that the respondent authorities have failed to accord consideration to the case of the applicants for their regularization in terms of SRO 64 of 1994 and in a discriminatory manner have regularized the services of

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similarly situated persons. As per Mr. Bhat, the respondents cannot deny the benefits of regularization by misinterpreting the provisions of SRO 64 of 1994, more so, when there was recommendation in favour of the applicants for their regularization and similarly situated persons already stand regularized. It has further been stated that the applicants were engaged as Daily Wagers, and, are, therefore, entitled for regularization in terms of SRO 64.

7. On the other hand, Mr. Sudesh Magotra, learned A.A.G. stated that the applicants were engaged as Casual/Seasonal Labourer, as such, they are not eligible for regularization in terms of SRO 64 of 1994.

8. Heard the learned counsels for the parties and perused the records.

9. Brief submission of Mr. P N Bhat, learned counsel for the applicants was that the applicants having been engaged, as Daily Wagers, are entitled to regularization in terms of SRO 64 and they were illegally denied the benefits of regularization on the excuse that they have been engaged as Casual Labourers. Mr. Bhat has placed reliance on a Division Bench judgement of Hon’ble High Court of Jammu & Kashmir in State of others Vs Mushtaq Ahmed Sohail and another 2013 SLJ 74 and also on a recent judgement of Hon’ble High Court of Jammu & Kashmir dated 19.03.2024 in Ghar Singh Vs University of Jammu and others in SWP No. 1611 of 2016.

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10. In Mushtaq Ahmed Sohail’s case (supra), the Division Bench of the Hon’ble High Court had taken up an aspect for consideration, which similarly arises in case in hand, that the, writ petitioners of that case as the applicants in the T.A., on hand, had been engaged as Casual Labourers. The question taken up was “whether they, in effect, were Casual Labourers or under the style of Casual Labourers in effect, they were working as Daily Rated Workers.” The Hon’ble Court after interpreting Rule 2 (b) and (f) of SRO 64, which define “Casual Labourer/Worker” and “Daily Rated Worker” respectively pointed out that the “marking difference in between two clauses is that the engagement of Casual Labourer was to be occasional otherwise daily wages payable to the Daily Rated Workers or the Casual Labourers is the same, but Casual Labourer will get daily wages only for such period for which he shall be occasionally engaged whereas, engagement of daily rated workers is not on occasional basis. The Hon’ble High Court in regard to the case under consideration held that “Writ Petitioners styled to have been engaged as Casual Labourers, in-effect, were daily rated workers because they were not engaged occasionally. They have been working continuously.

11. The judgement rendered by the Hon’ble High Court in the Mushtaq Ahmed Sohail’s (supra case) squarely applies to the case in hand and rather we may state that applicants herein are even well placed than the petitioners of that case. In Mushtaq Ahmed Sohail’s

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(supra case) the petitioners undisputedly were engaged after imposition of ban, that is, after the cut of date 31.03.1994.

12. In Ghar Singh (supra) case, the petitioner therein who was engaged as Casual Labourer in the year 1997 and was posted as Security Guard in the University of Jammu, was regularized in the month of March 2010. The claim of the petitioner for his regularization was allowed by the Hon’ble High Court with retrospective effect from 01.04.2005, that is, after seven years of continuous service as security guard.

13. Applicants of the case in hand have been engaged prior to 31.03.1994, that is, before imposition of ban in terms of SRO 64 with effect from 01.04.1994. They have already completed seven years of their engagement and some of them have retired and others till date are continuously working as Daily Rated Workers, which is evident from the service history/list of Daily Rated Workers engaged before 31.01.1994, prior to imposition of ban placed on record by the learned counsel for the applicants and other documentary material in the shape of various correspondence exchanged inter se department. Even though, engagement of some of the applicants were initially styled as a ‘Casual Labourer’ but later on they were treated as Daily Wagers, besides it is not the respondents case, that from the date of their engagements they have been engaged occasionally as and when their services were required and were paid wages accordingly. Had it been so, the respondents were required to state specifically in response to

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applicants’ averment that they have rendered continuous service of more than seven years.

14. In the light of legal position summarized above, and facts and circumstances of the case, we are of the firm opinion that applicants having been working for a long period are entitled to be considered for regularization.

15. Viewed thus, the Transferred Application filed by the applicants has merit and is allowed by directing that the respondents shall accord consideration to the regularization of the applicants having rendered more than seven years continuous service as Daily Wagers, in terms of SRO 64 of 1994, having regard to the observations made hereinabove and issue the appropriate orders within eight weeks time hereafter. The applicants shall be entitled to all consequential benefits including arrears of salary w.e.f. the date they qualified for the said regularization as per aforesaid SRO. The applicants who have retired during the pendency of this T.A., shall also be entitled to pensionary benefits, under rules.

16. With the above direction, the Transferred Application stands disposed of.

17. No order as to costs.

(Pragya Sahay Saksena)

(Rajinder Singh Dogra) Administrative Member

Judicial Member

Indrani…