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Judgment
Rajinder Singh Dogra, Member (J)
The instant petition has been filed by ld. counsel for the applicant with following relief:
i. Seeking direction to the respondents to allow the applicant to mark attendance in the light of holding no termination order and to regularize the services of the applicant as "Helper Guard" (Class IVth).
ii. May give the seniority with effect from date of joining i.e. Nov. 1993.
The brief facts of the case:
The brief facts of the case are that the applicant was engaged as a Daily Wager in November, 1993 holding serial No. 290 in the list issued by DFO Social Forestry and continue to work till June 2004. Unfortunately, due to mental disturbance could not continue and went under the treatment and on being recovered in the month of May 2015 want to get the job to mark attendance but was refused and to know the legal position of the applicant in respect of the job served notice under RTI reply of the same has been communicated on 31-05-2015 declaring applicant was engaged in March 1994 no enquiry about the absence of the applicant presumption lies applicant is continuous in service and is illegally been refused to continue his service. The applicant has filed accompanying writ petition with the prayer to direct the respondents to allow the applicant to mark attendance and regularize the services of the applicant as Helper Guard. Hence, the present petition.
Arguments made by ld. counsel for the applicant:
(i.) Ld. counsel for the applicant submitted that the petitioner is permanent resident of the state of J&K and is citizen of India hence is entitled to the privileges enshrined in the Constitution of India and of the State of J&K.
(ii.) Ld. counsel for the applicant further submitted that the petitioner was engaged as Daily Wager in the Department Social Forestry and was engaged in Nov. 1993 at Gurah Brahmana Nursery which is transparent from the list attached here and petitioner is holding S. No. 290 issued by DFO (Social Forestry) Division, Jammu.
(iii.) The petitioner continued to serve as Daily Wager/Casual Labourer and has drawn his salaries till June 2004, on the basis of Attendance drawing Rs. 1800/- P.M as per the record duly signed by Range Officer Social Forestry Range, Akhnoor.
(iv.) The petitioner being the only son and parents of the petitioner totally illiterate villagers got the petitioner treated by "Sayanas" etc. without having proper recourse to "Medical Treatment" as petitioner on account of mental disorder became unsound minded loosing awareness about the surroundings a certificate about the illness is attached herewith, later on at the advice of the some prudent persons petitioner was taken to Psychiatric Hospital in 2013 and get treated by the doctors till 04.03.2016 and was declared "doing well" on 04.03.2016, the various medical subscriptions are attached herewith indicating about the mental health of the petitioner.
(v.) On becoming well, petitioner approached to the office of DFO and was refused to allow the petitioner in the Department to serve. The petitioner served a notice for admitting him to serve and also served RTI, for furnishing the disengagement order if any and report of enquiry if any pertaining to absence from duty.
(vi.) The petitioner on receiving the information in response to the RTI from DFO (PIO Social Forestry Division Jammu). As per the reply it is being admitted no enquiry has been conducted and further admitted the engagement of the petitioner w.e.f March 1994 whereas factually the petitioner was engaged in Nov. 1993 and further said petitioner is not working in this division at present. The copy of information letter No. 501-03/DFO/J dated 31.05.2016 is attached herewith for reference. The said letter was received by the petitioner in the second week of June 2016. The petitioner approached to respondent for allowing him to mark attendance in the office of DFO/Range Officer for marking attendance and continuing in the service. Even petitioner approached in the month of March 2016 with the endorsement of fitness of health issued by Psychiatrist Diseases Hospital (GMC Jammu) and also on 10th May 2016 (The copy of the certificate is attached herewith) where it is certified petitioner can do his routine work well.
(vii.) The engagement of the petitioner is indicated in the record attached herewith i.e. since Nov. 1993 is reflected in the said list of daily wagers duly signed by concerned Range Officers including S.F Range Akhnoor and DFO SF Division, Jammu. The petitioner otherwise on the basis of his past services rendered till June 2004 is entitled to be regularized as such the petitioner was never served any notice neither was any enquiry conducted against him which is validly admitted by respondents and no other disengagement, termination order is issued is entitled to continue and be allowed to mark attendance and is entitled the benefit of regularization also. Denial of the respondents in allowing the petitioner and abstaining from marking the attendance is violation of the service norms.
(viii.) In the light of the aforesaid submissions and those to be highlighted at the time of arguments not allowing the petitioners to mark attendance and continuing in the service defends Article 14, 16 of the Constitution.
Arguments made by ld. counsel for the respondents:
(i.) Mr. Sudesh Magotra, ld. AAG appeared for the respondents and vehemently opposed the submission made by ld. counsel for the applicant.
(ii.) Ld. AAG submitted that the petitioner was engaged as Casual Labour but not as Daily Wager in March, 1994 as per available office record & policy do not apply to Casual Labour. Further, he was never regularized as he has never completed 7 years of continuous service and as per the record available with the office since 2001, he has not attended his duties.
(iii.) Ld. AAG further submitted that the petitioner was initially engaged on March 1994, after cut-off date i.e. 31-01-1994 as prescribed for engagement under SRO-64 of 1994. The office Muster roll clearly depicts disengagement and not completion of 07 years. Thereafter, he also had not attended duties as casual labour and was every year disengaged after completion of 256 days and after 2001, the petitioner never attended office.
(iv.) Further, no medical record has been received regarding his illness during the period 2001 onwards. As per the record available duly scrutinized and established that the petitioner (Ajay Kumar) was engaged in March, 1994 & after 2001 he had not attended office of respondents and every year he was disengaged after completion of 256 days & his case was never considered for regularization.
(v.) It is submitted that the petitioner was not engaged after his discontinuance of service & is not on the rolls of Social Forestry Division, Jammu. The SRO-64 of 1994 clearly provides that for regularization as Daily Rated worker/work charge employee is required to complete seven years continues service as on 31.03.1994. The petitioner does not fulfill the requisite requirement under rules and therefore, not entitled for regularization. The powers to engage Daily Wager in the Govt. were withdrawn vide Govt. Order No. 26-F of 1994 dt: 31.01.1994 and hence, any person engaged after the said cut-off date cannot claim to have been engaged in terms of the said order.
(vi.) It is, therefore, respectfully prayed that the above titled petition is dismissed with exemplary cost in the interest of justice.
Heard ld. counsels for both the parties.
Conclusions:
After perusing the records, we came to the conclusions that it is admitted position that the applicant was appointed in the year 1994 and remained in service until 2016. The applicant left the job in 2016 due to medical issues and is not working as of today. Considering his current medical condition, the applicant is not medically fit to resume work, and therefore, cannot be allowed to rejoin service at this stage. Furthermore, the applicant has not completed the mandatory tenure of 7 (seven) years of service required for regularization. In light of the above, the Transferred Application No. 7585 of 2020 is hereby dismissed.
However, there shall be no order as to costs.
Interim orders, if any, stands vacated.