Jammu, March 08: In Transfer Application No. 5352/2021 (SWP No. 2222/2018) Alongwith Transfer Application No. 5358/2021 (SWP No. 2221/2021) titled Kulvinder Versus 1. State of Jammu & Kashmir 2. The Director Health Services Jammu & others after hearing a bench of HON’BLE MR. RAJINDER SINGH DOGRA , MEMBER (J) HON’BLE MR. RAM MOHAN JOHRI, MEMBER (A) ordered as under:-
(Per :- Hon’ble Mr. Rajinder Singh Dogra, Judicial Member 1. Since the subject matter involved in both these petitions/TAs is similar as such both these TA/petitions were being taken up together from various dates of hearing and are also decided by way of a common order.
2. Both these petitions were initially filed by the applicants before the Hon’ble High Court of J&K and came to be transferred to this Tribunal in view of notification no. GSR. 267 (E) dated 29-04-2020 read with notification no. GSR 317(E) dated 28-05-2020 issued by the ministry of Personal , Public Grievances and Pensions (Department of Personal and Training
3. Applicants in the instant TAs who are working as Safaiwalas in Medical Block Dansal District, Jammu have by way of filing SWP No. 2222/2018 & SWP No. 2221/2018 respectively approached the Hon’ble High feeling aggrieved of inaction and action on part of the respondents firstly in not giving final nod to their case for the purpose of regularization despite the applicants having been working against the post of safaiwalas on full time basis for the last many years as having been appointed in the year 1992 and secondly in deducting the emoluments in the shape of DA, CA, MA, HRA ad 2 1⁄2 Days Salary on the basis of order No.. 4737-47 dated 25th March 2015, which stood already quashed by the Hon’ble High Court vide judgment dated 12- 12-2017 passed in SWP No. 1037/2015 alongwith other connected matters, which has the effect of depriving the applicants the benefits towards DA, CA & 2 1⁄2 days allowances received by them since their engagement as safaiwalas made way back more than 25 years from the date of filing of these petitions.
4. Facts giving rise to the filing of both these petitions/TAs emerging from the record and also as explained by Mr. F A Natnoo Ld. Counsel appearing for the applicants during the course of arguments are that the applicants were initially appointed on stop gap basis/contingent paid whole time Safaiwalas in Medical Block Dansal of District Jammu initially for a period of sixty days in the year 1992 more particularly vide order no. Est-2/570-76 dated 15-05-1992 in the pay scale of 750- 940 and thereafter their grades were regularized by the respondent no.3 vide order no. CMO-J/Est-2/4692 dated 15-01-1993 and since then the applicants are discharging their duties continuously and as evident from the copies of salary statements annexed with the petitions/TA were getting monthly emoluments in regular grade and its revisions from time to time viz basic pay plus usual allowances as admissible under rules since the date of their initial appointment from the year 1992 to March 2015, and the monthly pay received was Rs. 10,906/- ( Basic Pay Rs. 4440+ DP Rs. 1300 + DA Rs. 5166) and from April , 2015 till the date of filing of these petitions , the monthly salary viz Basic Pay of Rs. 4440/- Plus DP Rs. 1300/- total Rs. 5750/- was being paid to the applicants.
5. Mr. F A Natnoo Ld. Counsel for the applicants submits that in terms of the provisions of J&K Civil Services ( Revised Pay ) Rules, 1998 issued vide SRO 18 of 1998 dated 19-01-1998 more particularly in terms of Rule 19 of the said SRO, all such employees as were working on consolidated/contingent basis prior to or since 01-01-1996 would respectively be placed in regular pay scale attached with the post on which they were serving on consolidated pay from the said date and in terms of the Rule 19 the respondents as submitted and explained by Mr. Natnoo were required to allow consideration to the cases of applicants for their formal regularization which the respondents had failed to do. 6. In the year 2013 the respondent no. 2 appears to have initiated the process of regularization of the applicants by issuing a communication bearing no. DHS-J/BS/NP/4187 dated 24-12-2013 whereby while seeking clarification in respect of drawal of salary of the applicants , the said respondent have in categorical terms communicated the respondent no.1 that the applicants are working against the vacant posts and their case has been referred to the higher authorities for regularization vide communication no. ES- 5/NG/6379 dated 08-02-2010, but contrary to the said fact the respondent no.2 by way of communications/orders dated 25-03- 2015 and 27-03-2015 directed release of wages only to the extent of basic pay and not allowances as were being paid to the applicants since their engagement, though the similar action of respondents initiated in the year 2001 on being put to challenge by the counterparts of the applicants in District Poonch before the Hon’ble High Court by way of filing SWP No. 799/2001 wherein the Hon’ble Court vide interim order dated 30-08-2001 has restrained the respondents from deducting the pay of the petitioner in the said writ petition and on final consideration of the matter vide judgment dated 29-09-2010 has also directed to accord consideration to the case of the petitioner therein for regularization.
The communications /orders dated 25-03-2015 and 27-03-2015 referred above also came to be challenged by the counter parts of the applicants belonging to other districts by way of filing various writ petition, wherein the Hon’ble High Court has restrained the authorities from deductions of any allowance. Even the Hon’ble Court in these TA’s also vide interim orders dated 31-10-2018 passed in TA No. 5352/2021 (SWP no. 2222/2018) & order dated 31-10-2018 ( SWP No. 2221/2018 ) had also restrained the respondents from effecting any deduction on account of DA, CA, and 2 1⁄2 days allowances from the salary of the applicants before this Tribunal.
7. Mr. Natnoo further submits that the respondents had even allowed regularization of persons/Safaiwala's having been engaged much after the applicants but due to the unknown reasons had deprived the applicants of their formal regularization although the applicants in light of the provisions of SRO 64 of 1994 were eligible to be regularized in view of their continuous service. Respondents had even allowed regularization of some of the persons who were working on part time basis but deprived the applicants for their consideration for regularization although the applicants are working on full time basis since decades. The applicants herein who as would be evident from the documentary proof annexed with the TA are discharging their duties from more than three decades that too against the available posts and are being allowed regular pay scale and allowances were required to be regularized in terms of SRO 64 of 1994.
8. Heard learned counsel for the applicants and Mr. Sudesh Mangotra Learned AAG for respondents and perused the record.
9. About the engagement of the applicants and continuation thereof there is no dispute as the respondents have admitted that the applicants are working against the clear vacancies , meaning thereby that the arguments of Mr. Mangotra regarding that the applicants are not working as daily wager in not in proper tune and line.
The said stand of the respondents, as rightly pointed out by Mr. F.A.Natnoo learned counsel for the applicants, is also not tenable , in view of the legal position settled on the issue by the Hon’ble Division Bench of the Hon’ble High Court in cases titled as State of J&K & Ors. Vs Mushtaq Ahmed Sohail , State & Ors. Vs Anuradha and Ghar Singh Vs University of Jammu & Ors.
The relevant extracts of both the aforesaid judgments cited by Mr. Natnoo is reproduced as under:- Relevant extract of the Hon’ble Division Bench judgement in case titled State of J&K & Ors Vs Mushtaq Ahmed Sohail:- 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 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 employees engaged even after 01.04.1994 till 6th November, 2001, were also entitled to be regularized in terms of the Jammu and Kashmir Daily Rated Workers/Work- Charged Employees (Regularization) 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 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 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.” Relevant extract of the Hon’ble Division Bench passed in case titled State & Ors Vs Anuradha :- “ 8. There is no scope for any disagreement with the writ court that mere nomenclature is not decisive for opining 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.**********”. Relevant extract of judgment passed in case of Ghar Singh Vs University of Jammu & ors,
“For the forgoing reasons, I find no merits in the pleas taken by Mr. Abrol, Learned counsel appearing on behalf of the University, to justify denial of relief prayed for by the petitioner.
This Writ petitioner is, accordingly, allowed and the petitioner is held entitled to regularization as Security Guard w.e.f 1st April, 2005 with all consequential benefits including arrears of Salary w.e.f 1st April, 2005 till actual realization made in the year 2010.
The pensionary benefits, if any, received by the petitioner from University of Jammu shall also be suitably revised and arrears, if any, due to him paid to the petitioner.
Let the requisite exercise to comply with these directions be undertaken and completed by the University within a period of two months from the date copy of this judgment is served upon the respondents.
10.Even the Hon’ble Apex Court in latest judgment passed in CIVIL APPEAL No. 9729/2024 Ushaben Joshi Vs Union of India & Ors. has held as under: “17. The respondents have not indicated anything in the affidavit filed in pursuance of the order dated 27th February, 2024, that the nature of duties or the hours of work being performed by Smt. K.M. Vaghela were any different from that of the appellant.
Thus, the defence taken by the respondents for their decision not to confirm the appellant in services that she was only performing duties as a contingency worker(water woman) for four hours a day is not substantiated from any acceptable material on record. Indisputably, the appellant continuously served the department for more than three decades as a contingency ‘water woman’.
Keeping in view the fact that an employee similarly placed but inducted in service after nearly six years from the date of employment of the appellant with the respondent-Department has been conferred the benefits of confirmation in service by way of appointment to the post of MTS, the appellant is entitled to claim the same benefits.
19. In view of the foregoing discussion, the impugned orders are set aside. the respondents are directed to treat the appellant at par with Smt. K.M. Vaghela and shall pass the order of regularization/appointment as MTS in favour of the appellant, on similar terms as was done in the case of Smt. K.M. Vaghela.
The order of regularization will be effective from the date on which Smt. K.M. Vaghela was appointed as MTS with all consequential benefits. Compliance of this order shall be effected within a period of three months from the date of this order.”
11. In view of the above discussions and facts and circumstances of the case, these TA’s are allowed, the respondents are directed to regularize the services of the applicants from the dates the applicants have completed their seven years service with all benefits including arrears from such dates.
The needful as above shall be done within a period of two months from the date of receipt of copy of the order.
19. No order as to costs.
|