Abdul Hameed Dar & Ors. vs U.T Of Jammu And Kashmir & Ors.

HON’BLE MR. PRASANT KUMAR, MEMBER (Admn.)

The instant OA No. 706 of 2023 is the third round of litigation. The applicants first filed a Writ Petition before the Hon’ble High Court of Jammu & Kashmir which got transferred to this Tribunal and after its disposal, as the respondents were not complying with the directions, the applicants filed a Contempt Petition before this Tribunal. The order passed in consequence by the respondents is challenged in the instant OA.

Through the medium of the present Original Application, filed by 39 applicants, have sought the following reliefs:–

The case as projected by the applicants, in brief, is that they came to be engaged as Need Based Casual Labours on different dates commencing from the year 2006 in various establishments of the Jal Shakti Department. According to them, they continuously discharged their duties under the respondent department and their engagement orders were issued by the competent authorities from time to time. The engagement orders issued were never disputed till 2018.

Applicants submit that in 2015, the respondents undertook the exercise of preparing data base of casual labours and directed the Assistant Executive Engineers to scrutinize the data by calling them in physical parade so as to ascertain their genuineness whether they were working in the department or not.

The Ld. Counsel for the applicants submits that in order to regularize the services of the Need Based and Casual Labours, who fulfilled the eligibility conditions, the Government of Jammu and Kashmir issued the SRO 520 Central Administrative Tribunal^{on 21.12.2017 (Annexure VIII page 113 of the paper} book). Accordingly, process of Aadhar Based Biometric Indentification started.

Applicants submit that it is their specific case that the departmental authorities themselves acknowledged their engagement and participation in the departmental establishment by forwarding their particulars for Aadhaar Based Biometric Identification and Skill Profiling pursuant to the Government policy then in force. Cases of the applicants were further cross-checked by calling their disbursement register / pay acquaintance rolls from the concerned sub-division and the same have been annexed as Annexure-IX.

According to the applicants, despite completion of these formalities of physical parade, verification etc., the respondents failed to upload their particulars in the designated Aadhaar Based Biometric portal, thereby depriving them of the benefits flowing from the Government policy.

Central Administrative Tribunal^{08. It is pleaded that when no action was forthcoming, the} applicants earlier approached the Hon'ble High Court of Jammu & Kashmir by filing SWP No. 2712/2018 seeking, inter alia, a direction for uploading their names in the Aadhaar Based Biometric Identification and Skill Profiling system and for release of their earned wages. During the pendency of the writ proceedings, the matter stood transferred to this Tribunal and was registered as T.A. No. 926/2021 which came to be disposed of by this Tribunal on 21.12.2022 with a direction to the respondents to release the wages of the applicants for the period they had worked in the department within six weeks and also to consider their cases for Aadhar Based Biometric Identification if the scheme continued to remain operational. The applicants assert that instead of implementing the spirit of the directions issued by this Tribunal, the respondents passed the impugned consideration order dated 02.06.2023 rejecting their claim.

Central Administrative Tribunal^{09. The applicants have cited several grounds in support of} their claim. They aver that the impugned order dated 2.6.2023 has been passed without application of mind and the respondents have not considered the physical parade of the applicants before a panel of officers, verification of documents by the respondents, non-consideration of various inter-se communications between the respondents on the subject. Applicants also aver that they have been engaged from 2007 and till date have completed the prescribed eligibility and hence their case comes under the purview of SRO 520 and this has already been verified by the respondents by summoning the register / accq. Roll. Applicants, in para 5.5, also submit that the respondents have admitted that the records of the applicants have been washed off by the floods. In a case SWP No. 2186 of 2018, wherein same issue was raised before the Hon’ble High Court of Jammu & Kashmir, the respondents implemented the order while in the case of applicants, who have a much stronger case, the Central Administrative Tribunal^{respondents have adopted a different approach. The} applicants also submit that once the applicants come under the consideration zone they cannot be discriminated and it is due to delay by the respondents that the applicant’s Aadhar Based Biometric Identification could have been done.

According to the applicants, the impugned order proceeds on a complete misreading of the record and seeks to dispute their very engagement, notwithstanding the earlier departmental communications, physical verification reports and other official records acknowledging their status as Need Based Casual Labours. It is pleaded that the respondents cannot simultaneously rely upon departmental verification exercises while denying the existence of the applicants in service.

The applicants contend that the respondents have adopted contradictory stands at different stages of the litigation. According to them, in the earlier proceedings before the High Court as well as before this Tribunal, the Central Administrative Tribunal^{respondents had acknowledged the conduct of physical} verification and scrutiny of the applicants' cases. However, while passing the impugned order, the respondents have taken the stand that no documentary proof of engagement exists and that none of the applicants are presently working in the department.

The applicants further submit that the impugned order completely ignores the engagement orders placed on record by them as well as various departmental communications demonstrating that their cases had in fact been processed by the departmental authorities. It is their case that the respondents cannot be permitted to take advantage of alleged non-availability of departmental records when the applicants themselves have produced documentary material evidencing their engagement.

It is also pleaded that the applicants had been engaged much prior to the Government Order imposing a ban upon fresh engagements and, therefore, their cases stand on a completely different footing from persons claiming fresh Central Administrative Tribunal^{engagement after the imposition of the ban. According to} them, their claim is not for fresh appointment but for recognition of their already existing engagement and for consequential benefits flowing therefrom.

The applicants further contend that the departmental authorities had themselves called for muster rolls, verification reports and other relevant records concerning the applicants from the subordinate offices. According to the applicants, these communications unmistakably establish that the respondents were fully conscious of the existence of the applicants and their engagement within the department.

Per contra, Ld. Counsel for the respondents has raised preliminary objections regarding the maintainability of the instant Original Application by contending that no legal, statutory or constitutional right of the applicants has been infringed and that the applicants have approached this Tribunal without disclosing the complete facts. The Ld. Counsel for the respondents submits that as per the Central Administrative Tribunal^{available records none of the petitioners are presently} working in the department under any capacity whatsoever and as such uploading of Aadhar Based Biometric Identification in favour of the applicants is out of question. Moreover, neither any documentary proof with regard to the engagement of the petitioners is available in the department nor they have been physically verified by the screening committee or they are enlisted in the list of the registered casual labours. Wages for whatsoever period they have worked has already been paid / considered in compliance to the directions passed by this Tribunal and as such there is no payment due to the petitioners as legitimately earned wages. The Ld. Counsel for the respondents further submits that the Hon’ble High Court of Jammu & Kashmir and Ladakh, vide judgment dated 12.5.2022 in WP(C) No. 1259 / 2021, in the case titled Mushtaq Ahmad Khan and Ors Vs. UT of J&K and Others has already settled down the issue – “that the petitioners cannot, as a matter of right, claim to be Central Administrative Tribunal^{engaged as casual labourers, more particularly, when the} respondents do not require their services. This apart, with the issuance of Government Order No. 43-F of 2015, the respondents are, otherwise, bereft of any legal competence or authority to make such engagement w.e.f 17.3.2015”. Thus, the applicants are seeking, in substance, recognition of an engagement which is not borne out by the official record and, therefore, the Original Application deserves dismissal.

The applicants have filed a rejoinder traversing the stand taken in the reply. They submit that after the applicants challenged the impugned order some of the applicants were not allowed to work, however, some of them are continuously performing their duties however wages are being denied to them by the respondents without any justification. They further submit that the contention of the respondents that there are no engagement orders in the department is misleading as the applicants have placed on record with the OA the engagement orders of the Central Administrative Tribunal^{applicants and they have been engaged prior to imposition} of ban by the Government.

The applicants, in their rejoinder, have annexed the reply of the respondents in SWP No. 2712 of 2018 as Annexure-R1.

We have heard learned counsel appearing for the parties at length, considered the pleadings, perused the material placed on record and examined the impugned consideration order dated 02.06.2023.

The controversy involved in the present Original Application is -

The applicants, in para 4.1 of the paper book, have submitted “Copy of the engagement orders of the applicants is annexed as Annexure-II COLLECTIVELY”. However, perusal of the said Annexure_II reveals that the documents attached are not the engagement orders of the applicants but it is a format for submission of details of the Need Based Casual Labours (NBCL). Fifty Nine (59) Need Based Casual Labours (NBCL) submitted their revised bio-data forms that were duly counter-signed by the panel of officers (Annexure-V page 133 of the paper book).

The claim of the applicants that they have been engaged from 2007, as per records before us, has not been denied by the respondents but they have denied that any of the applicants are presently working with them. The instant OA has been filed in the year 2023 and perusal of Annexure-IX (Page No. 126 to 130 of the paper book), which contains Part I of the Nominal Muster Roll, reveals that these Nominal Muster Rolls pertain to the months of October 2007, March 2008, January 2009. Placement of Nominal Muster Rolls of three different months of the year 2007, 2008 and 2009, as evidence that they have been working in the respondent department, does not support their claim of continuous working in the respondent department beyond 2009 and till the date of filing of the instant OA. Based on the pleadings before us, we also have no reason to believe that the legitimately earned wages have not been paid as the respondents have very clearly averred that the legitimate wages of the applicants have already been paid / considered for the period they have worked in compliance to the orders

The respondents have acknowledged that a committee had been constituted to conduct physical verification of Need Based Casual Labours and that such physical verification was undertaken. It was also stated therein that particulars received from subordinate offices had been forwarded to the higher authorities for scrutiny and further necessary action. We find substance in the submission of the respondents that every administrative verification undertaken by the department cannot automatically mature into a legally enforceable right. The forwarding of particulars by a subordinate authority, calling for records, or conducting physical verification are steps in the decision-making process and cannot, in themselves, constitute proof of entitlement unless supported by relevant documents and governing statutory or executive framework.

Coming to the contention of the applicants that they qualify for regularization under SRO 520 of 2017 (Jammu Engagement Rules, 2017), which came into force on 21^st December, 2017, it would be worthwhile to have a look at various Rules made therein. These Rules, inter alia, classify Casual, Seasonal Worker (CSLW), the eligibility conditions fixed for their regular engagement –

For regularization, a definitive documentary evidence, such as Muster Rolls, Wage Slips, Bank Transfers etc, showing one has worked in the department is required. Without such proof of actual service, a claim is difficult to stand the scrutiny of law.

The records before us, prima facie, do not support the contention of the applicants that they qualify for regularization under SRO 520 of 2017, as they have not presented enough documentary evidence for their completed ten years of continuous working or 120 months of engagement as stipulated in Rule 4(iv) of SRO 520 of 2017 above. The evidence before us, i.e. Nominal Muster Roll, shows their engagements only for the months of October 2007, March 2008, January 2009. In the absence of documents supporting the claim of the applicants, one cannot conclude that the applicants have been continuously working for ten years or for 120 months making them eligible for regularisation.

Moreover, as can be seen from the records before us, the applicants had not been engaged through a proper procedure and consequences of such engagement have view of ours we are fortified by the judgment of the Hon’ble Supreme Court of India in the case titled State of Karnataka Vs. Umadevi reported as (2006) 4 SCC 1 and reads as under–

In the case titled Nand Kumar Vs. State of Bihar and Others, reported as (2014) 5 Supreme Court Cases 300. The Hon’ble Court held that “20. ……considering the facts of the present case, it appears that the appellants were never appointed through proper proceure. It is not in dispute that they all served as daily wagers. Therefore, it was within their knowledge all the consequences of appointment being temporary, they cannot have even a right to invoke the theory of legitimate expectation for being confirmed in the post. Accordingly, we cannot accept the contention of the appellants in the matter”. The Court further held that “26. In these circumstances, in our considered opinion, the regularization / absorption is not a matter of course. It would depend upon the facts of the case following the rules and regulations and cannot be dehors the rules for such regularization / absorption”.

The contention of the applicants that the respondents were under a legal obligation to upload their names in the Aadhaar Based Biometric Identification System and extend all consequential benefits cannot be accepted as verification of claims is only one stage in the administrative process. The ultimate decision necessarily depends upon fulfillment of the eligibility conditions prescribed under the governing policy, rules etc. and the availability of authentic departmental records. Rule 2 (b) of SRO 520 of 2017 refers “Aadhar Based Biometric Identification & Skill Profiling of CSLWs means their online registration / uploading of information in pursuance to Government Order No. 126-F of 2016 dated 28.4.2016”. Thus, uploading of required information is a requisite for online registration of an engage.

Coming to Prayer (v) in the instant OA – “Directing the Respondents to give same treatment as has been given to the applicants in SWP no.2354/2016 and SWP No.2186/2018”, it is seen that the records before us contain the judgment passed by the Hon’ble High Court of Jammu & Kashmir, in the SWP No. 2186 of 2018 only and does not include the judgment passed in SWP No. 2354 of 2016. In SWP No. 2186 of 2018, the respondents have accepted that the applicant in the said SWP is working as a Casual Labour in the Department, but did not present himself before the Empowered Committee at the time of screening of Casual Labours undertaken by the Department. Accordingly, the Hon’ble High Court directed the respondents to include the petitioner in the final list of Casual Labours and release his legitimately earned wages as are being paid to the other similarly situated enlisted Casual Labours. However, in the instant OA, the respondents, in para 2 of their reply, have clearly stated that “……… none of the petitioners are presently working in the department under any capacity whatsoever”. Thus, the case of the applicants is distinguishable from the case of the applicant in SWP No. 2186 of 2018.

In the context of whatever has been discussed above, perusal of the impugned consideration order reveals that the respondents have primarily proceeded on the premise that no authentic departmental record exists establishing the engagement of the applicants; that the applicants do not figure in the registered list of Need Based Casual Central Administrative Tribunal^{Labourers; that the relevant muster rolls pertaining to the} applicants are unavailable; and that none of the applicants were found presently working under the department. On the basis of these findings, the respondents concluded that the applicants were not entitled to the relief claimed.

Perusal of the earlier reply submitted by the respondents (Annexure-R-I of the rejoinder) also consistently maintained that mere physical verification or submission of particulars did not, by itself, confer any legal right upon the applicants for regularization or continued engagement. The respondents had specifically pleaded that only those Need Based Casual Labourers who fulfilled the conditions prescribed under SRO 520 of 2017 and whose engagement stood supported by the requisite records would be entitled to consideration in accordance with law.

We are also of the considered view that the learned counsel for the respondents has rightly relied upon the judgment of the Hon'ble High Court in Mushtaq Ahmad Central Administrative Tribunal^{Khan and others v. Union Territory of J&K and} others (supra), wherein it was held that no person can claim engagement as a casual labourer as a matter of right. Though each case has to be decided on its own facts, the principle that engagement or continuation as a casual labourer cannot be claimed as a matter of right is well settled.

Having considered the pleadings, the documents placed on record and the rival submissions advanced by learned counsel for the parties, we are of the considered opinion that the applicants have failed to establish any enforceable legal right entitling them to the reliefs prayed for. No material has been placed before this Tribunal to conclusively demonstrate that the applicants have worked or have been working in the respondent department for the period, as required in the SRO 520 of 2017, warranting their regularization, the applicants have also not substantiated their case for uploading of their data on Aadhar Based Biometric Identification System or release Central Administrative Tribunal^{of any withheld legitimately earned wages, the applicants} are also not similarly placed as to the petitioner in SWP No. 2186 of 2018. Findings recorded in the impugned consideration order, in our view, are also not arbitrary, irrational or perverse as to warrant interference of this Tribunal in exercise of judicial review. Consequently, no case is made out for quashing Order No.15 of 2023 dated 02.06.2023, passed by the Executive Engineer, Jal Shakti (PHE) Division, Bijbehara and other reliefs as prayed in the instant OA. The challenge laid by the applicants therefore fails.

Resultantly, the Original Application No. 706 of 2023, being devoid of merit, is dismissed. Pending miscellaneous applications, if any, shall also stand disposed of. There shall, however, be no order as to costs.

The interim directions, if any, shall stand vacated.

Registry shall consign the file to the record room after due compliance.