Ghulam Mohi Ud Din Malik vs D/o Forests Ut Of Jammu & Kashmir on 31 December 2024

O R D E R

(Delivered by Hon’ble Mr. Rajinder S Dogra, Member-J)

1. The present TA has been filed by the applicant before Hon’ble High Court as SWP 1075/2016 against rejection of his regularisation. Thereafter, in terms of Section 29 of the CAT Act, this petition was transferred and registered as TA 7757/2021.

2. Being aggrieved, the present petitioner has come in the present Transfer Application, seeking the following relief: i. To regularize the services of the petitioner on permanent basis against the post of Mali with effect from 1-1-2002 with all consequential benefits i.e. arrears of pay and salary, seniority etc. ii. To promote him to the post of Forest Guard with effect from 25-2-2011 when the similar persons who have been shown in the order No. 21 of 2011 dated 25-2-2011 have been promoted with all consequential benefits.

3. On Admission of the Writ Pretition notices were issued to the respondents and official respondents have filed their counter affidavit.

4. The learned Senior Counsel for the applicant reiterated the ground taken by applicant in his TA. The grounds taken by the applicant is as follow:

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i. Petitioner has been appointed against the post of Mali vide order dated 7-12-1994 and started performing the duties with effect from 29-12- 1994 and continuing till date. Also, the respondents also started deducting the GP fund contribution from the petitioner with effect from August, 2000 onwards continuously till April 2015 and the petitioner was also deputed for training course which he successfully completed. ii. That the GAD issued a Govt order No. 1285-GAD of 2001 dated 6-11-2001 whereby it was provided that adhoc employees who have been appointed against the non-gazetted posts beyond 29- 12-1988 till date of issuance of the said order were entitled to be regularized on permanent basis on the completion of 7 years of service.

iii. That the petitioner filed a writ petition bearing SWP No. 607/1995 titled Gh. Mohi-ud-Din Vs State of J&K and others in which the then Divisional Forest Officer Doda was also arrayed as party respondent in his personal capacity and The Hon'ble High Court vide order dated 1- 6-1995 has held as: - “Issue notice to respondents 3 and 4. Mr. Kotwal accepis the notice. Objections in 4 weeks.

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In the mean while status quo shall be maintained in respect of the petitioner's status till the objections to be filed by the other side are considered.” iv. That the copy of the aforesaid order was delivered to the respondent No. 4 who did not allow the petitioner to perform further duties. Then respondent No. 3 vide his letter No. 3278-79/CCF/J dated 4-7-1995 directed the then. DFO Doda to implement the order passed by this Hon'ble Court dated 1-6-1995 and to submit the compliance report to him. v. That the then Divisional Forest Officer, Doda also tampered the attendance register on which the petitioner had marked his signature regarding his presence. The record, therefore, was tampered with. In these circumstances the petitioner filed a contempt petition bearing COA (S) No. 103/1996 before Hon’ble High Court. vi. That after filing the contempt petition, the respondent No. 4 vide his letter No. 1253/CFC dated 24-2-1997 advised respondent No. 5 to implement the court order till the final disposal of the case and then the respondent No. 5 allowed the petitioner to perform his duties with effect from 25-2-1997.

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vii. That the respondent No. 5 vide his letter No. 8143- 44/DFD dated 18-3-2011 submitted the detailed report. He has almost referred to all the development work done by the petitioner. He has clearly stated that the petitioner has been working as Mali with effect from 29- 12-1994 and he had not been given the annual increment and other service benefits during 2004-2005.

viii. That the respondent No. 3 vide his letter No. CCF/Estt/NG/53-55 dated 9-4-2011 and letter dated 26- 12-2010 submitted the case of the petitioner to respondent No. 2 for his regularization on permanent basis. The respondent No. 2 vide his letter No. PCCF/Estt/NG/WMC/122-292 dated 8-2-2012 directed the respondent No. 3 that the case of the petitioner was not covered by an Act known as the J&K Civil Services (Special Provisions) Act, 2010. Further petitioner was appointed against the clear vacancy of Mali by respondent No. 4 vide order dated 7-12-1994 as such his confirmation could be done by the same office which had appointed him after seeing the merit of the case under Rules. ix. That the respondent No. 2 vide his letter No. PCCF/Estt/NG/WMC-122/353 dated 23-2-2012 submitted the case of the petitioner to respondent No. 1.

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In the aforesaid communication the respondent No. 2 has stated that the petitioner was allowed to continue against the available vacancy since 29-12-1992 but no service benefits as admissible to the regular employees have been given to him. x. Hon'ble Division Bench in the batch of appeals with the lead appeal being LPA (SW) No. 333/2002 titled Ashok Kumar Vs State of J&K and others has held that:- “38. The further question is as to which is the category of employees who is entitled to get the benefit of Government order issued on 6 Nov.2001, which stands issued on the basis of decision given by this court in Uttam Singh v/s State of Jammu & Kashmir, 1998(2) SCT 223.

39. It be seen that Uttam Singh's case did not directly deal with the issue of regularization. That was a case where appointments were made without resorting to the procedure of issuing a public notice. So far as uttam Singh was concerned, the facts stand noticed in para 8 of the judgment. He was appointed in Nov 90. He continued to work till 10th September, 94. The plea raised was that he was also entitled to regularization in terms of SRO

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64/94. Taking note of the above facts and the view expressed by the Supreme Court of India in the case of State of Haryana v/s Piara Singh, AIR 1992 SC 2130, it was observed that if the work and conduct of aforementioned petitioner was found good and was retained in service for four years, as to why he was not selected, was required to be elaborated. It was in this context reference was made to Piara Singh's case. It is this decision which has assumed the shape of the Government order, referred to above. Therefore, the category of employees who are adhoc and were placed at a pedestal lower than the Daily Rated Worker/Work Charged Employees, are entitled to the benefits of the Government order, referred to above. Their claims are required to be considered in terms of the said order.” xi. That the Forest Department filed a Special Leave Petition bearing Civil Appeal No. 9299 of 2003 in the Hon'ble Supreme Court titled Balbir Singh and others Vs State of J&K and others and Sh. Balbir Singh and others filed a writ petition and claimed the regularization in terms of SRO 64 of 1994 who were appointed after 1994.

xii. That vide judgment and order dated 3-5-2006, the Hon'ble Supreme Court has clearly held that the

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Government order No. 1285-GAD of 2001 dated 6-11- 2001 was part of SRO 64 of 1994 and by virtue of said Government order the cut of date has been extended. Accordingly, a direction was given for regularization after completing of 7 years of service.

xiii. That applicant is also covered by the judgment and order dated 3-5-2006 passed by the Hon'ble Supreme Court and he is also entitled to be regularized with effect from 1-1- 2002 on permanent basis with all consequential benefits.

5. Learned Counsel for respondents vehemently denied the contention of the applicant and submitted that It is the admitted case of the petitioner that the joining report of the petitioner was not entertained by the respondent no.5 and the petitioner was not allowed to perform his duties as Mali and it was only from 25- 02-1997, the petitioner was allowed to perform his duties as Mali in compliance to the directions issued by this Hon'ble Court in SWP No.607/95 titled Ghulam Mohiuddin Malik v/s JK state. He further submitted that the petitioner is continuing on the post of Mali on the basis of the directions issued by this Hon'ble court and, as such, cannot claim regularization to the said post of Mali for being a case of 'litigious employment' as has been held by the Hon'ble Supreme Court in case titled Secretary, State of Karnataka &

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Ors. v. Umadevi & Ors. (2006) 4 SCC 1. Hence, the instant petition is without merit and deserves to be dismissed.

6. We have heard the parties and gone through the records.

7. Reliance upon judgement in case titled State of J&K & Ors Vs Mushtaq Ahmed Sohail in which Honble Division Bench has held on similar issue:- “13. As against order No. 144-GAD of 2001 dated 02.02.2001, the daily wagers/work charged employees, who were aggrieved, filed number of writ petitions. Finally the judgment passed in those writ petitions were challenged by medium of bunch of LPAs with lead case Ashok Kumar v. State of J&K &Ors. which have been decided vide judgment dated 26.07.2002, reported in 2003(II) S.L.J 475, 2003 (4) JKJ [HC] 93. In the reported judgment, position vis-a-vis right of casual lab- our/daily wagers/adhoc employees, has been taken note of and as many as 15 directions were issued as contained in Para 45 of the judgment. It may not be out of place to mention here that the cut-off date has also been extended to 06.11.2001 in terms of Govt. order No. 1285-GAD of 2001 dated 06.11.2001 which has been issued in pursuance to Cabinet Decision No. 135/11(B) dated 10.09.2001. The above referred judgment was challenged before the Hon'ble Apex Court by medium of Civil

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Appeal No. 9298 of 2003 and Civil Appeal No. 9299 of 2003. While disposing of Civil Appeal No. 9299 of 2003, the following order has been passed:- "Our attention has been drawn to the judgment of the Constitution Bench of this Court in Secretary, State of Karnataka and others v. Umadevi and others (supra). In our view, this judgment has no application in view of the fact that the respondents are employed by the State Government and are claiming the benefit of a scheme formulated by the Notification dated 31st January, 1994, as modified by Notification dated 6th November, 2001. The High Court is perfectly justified in its judgment. We are satisfied that the impugned judgment of the High Court needs no interference at our hands. In the result, the Appeal is dismissed. No costs."

14. What would emerge from above is that the daily rated workers/work charged employees who were appointed after imposition of ban and continued beyond ban period were given benefit of notification dated 6th November, 2001, which, in-effect, would mean that the daily rated workers/work charged employ- ees engaged even after 01.04.1994 till 6th November, 2001, were also entitled to be regularised in terms of the Jammu and

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Kashmir Daily Rated Workers/Work- Charged Employees (Regularisation) Rules, 1994.

15. Again another aspect regarding writ petitioners is that they are stated to have been engaged as casual labours. The question for consideration is as to whether they, in-effect, were casual labours or under the style of casual labourers, in effect, they were working as daily rated workers. Casual labour/Worker and Daily Rated Worker are defined under Section 2(b) and (f) of the Rules of 1994 which reads as under:- "(b) "Casual Labour/Worker" means a person who is engaged through an appointment order or otherwise on daily rated basis for rendering casual services to a Department.

(f) "Daily Rated Worker" means a person engaged on daily wage basis at the rates sanctioned by the Government from time to time."

16. The marking difference in between two clauses is that the engagement of the casual labour has to be occasional otherwise daily wages payable to the daily rated workers or the casual labours is the same but casual labour will get daily wages only for such period for which he shall be occasionally engaged whereas

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engagement of daily rated workers is not on occasional basis.

17. In the instant case writ petitioners styled to have been engaged as casual labours, in-effect, were daily rated workers because they were not engaged occasionally. They have been working continuously. Division Bench of this Court in the reported judgment, as referred above, at para 40 have dealt with the position of casual labours, same is reproduced herein-below: "CASUAL EMPLOYEES: The cases of casual employees be also examined. In this regard, it would be apt to note the dictionary meaning of the work 'casual'. In Black's Law Dictionary, Sixtl. Edition, the meaning of word 'casual' has been defined as "occurring without regularity", "occasional", "impermanent" and "as employment for irregular periods". A perusal of above meaning would indicate that where an employee has continued to work for sufficiently long period, then, it would not be apt to call him having been appointed on casual basis. As a matter of fact, this aspect of the matter was considered in Piara Singh's case (supra). The relevant observations made in para 51 of the judgment stand already noticed above For facility of

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reference, the relevant observations made in this paragraph are being quoted again:- "If a casual labourer is continued for a fairly long spell say two or three years- a presumption may arise that there is a regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation, while doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person."

18. In view of the observations of the Hon'ble Apex Court quoted above, the writ petitioners having been working for long period are also entitled to be considered for regularization. 19. For the reasons stated hereinabove, the appeal is dismissed, judgment impugned dated 05.02.2010 providing for according consideration to the cases of the writ petitioners for regularization of their services is maintained. The appellants are directed to consider the cases of the writ petitioners for regularization within three months from today.

8. We have gone through the judgment passed by Honble Division Bench in case titled State & Ors Vs Anuradha where Hon’ble Bench has held as:- “There is no scope for any disagreement with the writ court that mere nomenclature is not decisive for opining

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on status of a worker engaged in any of the Government Departments. *****

In case, the worker is allowed to continue for sufficiently long time without his engagement being dependent upon chance or actual requirement of his service and is transferred from one position to another position, such worker, notwithstanding nomenclature used by the authority engaged, is to be taken as daily wager and not a casual worker.***.

9. The Hon’ble Apex Court in case of State of Karnataka vs Uma Devi under paragraph no.44 has directed all states/UTs to regularize the services of those employees having worked for ten years or more, but in the instant case the applicants admittedly having been working for now more than two decades are being deprived of their regularization. The observation made by the Hon’ble Apex Court is reproduced as under:- “44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V Narayanappa ( Supra ) , R.N. Nanjundappa ( supra) and B.N.Nagrajan ( Supra ), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten

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years or more but without the intervention of orders of Courts or of Tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme”

10. In latest judgment passed by Hon’ble Apex Court in Jaggo Vs Union of India has held as:

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“20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly “irregular,” and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time transform what was initially ad-hoc or temporary into a scenario demanding fair regularization. In a recent judgement of this Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors. 5, it was held that held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgement have been reproduced below:

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“6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra). 7. The judgement in the case Uma Devi (supra) also distinguished between “irregular” and “illegal” appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case…”,”

11. Having regard to the nature of issue involved here, the respondent’s department clearly fell in error rejecting the

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case of applicant for regularisation of his services for holding this case as of litigious employment. We are in view that applicant is entitled for his regularization after completing his 7 years services.

12. For what has been observed, considered and analyzed hereinabove and as per Judgment passed by Hon’ble Apex Court in Jaggo Vs Union of India, the T.A succeeds as a consequence whereof the TA is allowed and respondents are directed to regularize the services of the applicant on permanent basis against the post of Mali with effect from 1-1- 2002 with all consequential benefits including arrears of pay and salary. Respondents are further directed to promote him to the post of Forest Guard with effect from 25-2-2011 when the similar persons who have been shown in the order No. 21 of 2011 dated 25-2-2011 have been promoted with all consequential benefits.

13. With these directions TA No. 7757/2021 is disposed of.

14. This exercise will be completed within 8 weeks from the receipt of certified copy of this order.

15. No order as to cost.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)

MEMBER (A) MEMBER (J)

AK/PS/PK/RP/VS/