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Jammu, Feb 22: Govt vide Government Order No: 39 - JK(FST) of 2025 Dated: 2/.02.2025 rejects claim for regularization of services of father along with "CA" case of applicant, order copy with CTN reads as under:-
Whereas, the applicant namely Sh. Mohammad Yasir Khan S/0 Late Mohammad Rafiq R/o Village Dhargloon, Tehsil Mendhar, District Poonch approached the Hon'ble Central Administrative Tribunal, Jammu-Bench through the medium of an application that came to be numbered as O.A. No.105/2022 titled Mohammad Yasir Khan Vs UT of J&K and others, seeking, inter alia, regularization of his father's services and also his appointment on compassionate grounds under SRO 43 of 1994;
Whereas, the aforesaid O.A came to be disposed of by the Hon'ble Central Administrative Tribunal, Jammu-Bench vide its order dated 10.02.2022, operative part whereof reads as under:- "...Looking to the limited prayer made by the learned counsel for the applicant, we dispose of the O.A with direction to the respondents to treat this O.A as representation of the applicant and dispose of the same by passing a reasoned and speaking order..."
Whereas, the applicant filed contempt petition that caime to be numbered as C.P No. 24/2023 seeking implementation of aforesaid order dated 10.02.2022 passed in O.A No.105/2022 titled Mohammad Yasir Khan Vs UT of J&K and others;
Whereas, the case of the petitioner was examined and the following came to fore:-
i. That the deceased father of the applicant was working as Daily Rated Worker whose case was cleared by the Empowered Committee in its 3rd meeting held on 05.02.2016 that was followed by accord of sanction to the creation of 23 tem porary posts of ii. iii. iv. Helper vide G.O. No. 135-FST of 2016 dated 22.04.2016, wherein the deceased employee figured at S. No. 22 in the Annexure to G.O. (supra).
That G.O. (supra) further provided that formal orders of regularization shall be issued by the Principal Chief Conservator of Forests, J&K, besides, that in the event, relaxation of age/qualification is needed in any case, same shall be submitted to the Administrative Department, for considering in terms of rule 4 (c) of SRO 64 of 1994.
Given that the deceased employee required relaxation in educational qualification, Principal Chief Conservator of Forests, J&K vide its communication dated 15.07.2020 sought sanction to the relaxation in educational qualification in respect of the deceased employee.
That number of such cases were forwarded to the General Administration Department through coordination, for accord of relaxation, however, all those cases were returned by the General Administration Department vide its O.M. dated 23.02.2021 and sought the information as per the devised proforma enclosed therein.
Although, the desired information was forwarded to the General Administration Department after obtaining same from all concerned quarters, vide its O.M. FST- Estt/6/2021-02 dated 26.05.2022.
That GAD vide its aforesaid O.M. dated 23.02.2021 has also conveyed that the regularization schemes are under administrative scrutiny and the issue is required to be placed before Establishment-cum-Selection Committee for taking a decision in the matter.
Whereas, the provisions of equality enshrined in the Constitution of India deal with the right to equality among its subjects and prohibits/prevents from any sort of discrimination among the equals.
In terms of these provisions the state shall not deny to any person equality before the law or equal protection of the laws and assures equality of opportunity in matters of public employment, whereas, the legislative policies/enactment/rules framed for engagement/regularization of the DRWs gave discretion in the hands of the officials to engage people on daily wage basis and such discretion was totally unguided and was exercised by the officials while engaging the DRWs on their whims and caprices and there was no defined criteria, as such, the engagement of the petitioners as casual labours was against the principles of equality enshrined in the Constitution of India.
Reliance in this regard is placed on judgment dated 10.04.2006 passed in Secretary, State of Karnataka and others Vs Uma Devi and others whereby the Hon'ble Supreme Court has held that engagement/appointment without giving an opportunity to the people/public at large in matter of public employment as violative of right to equality as enshrined under the provisions of Constitution of India.
Although there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and are required to be filled in terms of the relevant procedure established by the Constitution, however, the fact is that such engagements cannot be used to defeat the very scheme of public employment.
All the engagements made illegally are void-abinitio and the same would not give any justifiable right to the illegal appointee to claim regularization; Whereas, the Administrative Department Forest, Ecology & Environment in similar cases has taken up the matter with the General Administration Department and the General Administration Department vide its U.O dated 18.07.2023, advised as under:
"Returned. The Department is intimated that the matter with regard to regularization schemes was referred to Finance Department for their opinion. The later vide their U.O. No. FD-Code/445/2021-02-345 dated 01-05-2023 conveyed as under: 'Returned: The General Administration Department, in consultation with Department of Law, Justice and Parliamentary Affairs, has firmed up the following view:
a. All the engagements made illegally are void ab-initio and the same would not give any justiciable right to the illegal appointee to claim regularization. The said principle has been upheld by the Hon'ble Supreme Court in State of Karnataka V/s Uma Devi and the ratio of the said case can be taken as a defense before the concerned forum to deny regularization of an illegal engagement.
b. where the Hon'ble Court have passed directions, in a particular case for regularization of an engagement and contempt proceedings have been initiated, the Department may project and express the inability to implement the said directions, in view of the fact that such action would contravene and infract the express directions laid down in Uma Devi case and other similar binding precedents.'
Accordingly, the department is advised to proceed further in the matter." Whereas, since the father of the applicant is not entitled for regularization, the applicant is also not entitled for compassionate appointment under SRO 43 of 1994 which is applicable to the family members of the Permanent Government Employees.
Now, therefore, keeping in view the afore-stated position, claim of the petitioner having been considered in compliance with the order dated 24.03.2022, passed by the Hon'ble Central Administrative Tribunal, Jammu-Bench in O.A No. 265/2022 titled Gian Singh Vs UT of J&K and others, for regularization of his father's services under SRO 64 of 1994 is found meritless. Accordingly, claim of the applicant for regularization of services of his father along with the compassionate appointment case of the petitioner is hereby rejected.
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