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Judgment
ORDER
Per: - Ram Mohan Johri1, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)That an appropriate writ, order or direction in the nature of writ of certiorari quashing the order impugned No. CDL/EC/2023-24/ 06 dated 12.03.2024 whereby the case of the applicant for regularization has been rejected on false and illegal grounds despite the fact that the applicant has been working with the respondents continuously without any break for a period of more than 22 years.
b)An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to regularize the services of the Applicant in terms of SRO 520 of 2017 dated 21/12/2017 and also keeping in view the fact that the Applicant has served with the respondents for a continuous and uninterrupted service of more than 22 years.
c)An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to regularize the services of the applicant with effect from the date the applicant has competed 10 years of continuous service.
d)An appropriate writ, order or direction in the nature of writ of prohibition restraining the respondents from disengaging the services of the applicant who is continuously working as Safai Karamchari under the respondents for last more than 22 years.
e)Any other relief, which this Hon'ble Court, in the facts and circumstances of the case deems fit and proper.
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The case of the applicant, as projected in the Original Application, is that he was initially engaged as a Safai Karamchari in the year 2000 and has continued to work with the respondent Department since then. According to him, he has rendered continuous service for more than two decades without any break. In support of his claim, the applicant has relied upon the attendance record as well as a list of Daily Wagers/Casual Labourers/Seasonal Workers prepared by the respondents, wherein his name figures at Serial No. 2008. In the said list, the year of his engagement has been shown as 2000, the nature of engagement as “Seasonal” and the place of engagement as Ladakh House, Jammu.
The applicant contends that although his nomenclature in the aforesaid list has been shown as a seasonal worker, he has in fact been continuously working as a Daily Wager. It is pleaded that he has been paid remuneration of Rs.3,000/- per month and that payment at the said rate was also made to him in September, 2024. He claims that the nature and continuity of his engagement bring him within the ambit of the Jammu and Kashmir Casual and Other Workers – Regular Engagement Rules, 2017, notified vide SRO 520 dated 21.12.2017.
The applicant has further relied upon the provisions of SRO 520 of 2017 to contend that a casual, seasonal or other worker engaged on daily-rated basis is covered by the said Rules and that regular engagement is contemplated upon completion of the prescribed period of continuous working. In the case of a seasonal worker, the Rules, according to the applicant, contemplate completion of 120 months of working in aggregate in consecutive years, with at least six months of continuous working in a year. It is, therefore, his case that having been engaged since the year 2000 and having rendered the requisite period of service, he became eligible for consideration for regular engagement.
The applicant had earlier approached this Tribunal by filing O.A. No. 61/08/2023, titled Anwar Massi v. UT of J&K & Ors., which was disposed of on 05.01.2023 with a direction that, in the event of the applicant submitting a comprehensive representation within the stipulated period, the same would be considered by the competent authority and a reasoned and speaking order would be passed in accordance with law. Pursuant thereto, the applicant states that he submitted a representation dated 01.02.2023 to respondent No.2 seeking regularization of his services in terms of SRO 520 of 2017, including the benefit thereof from the date he completed the requisite period of continuous service.
As the representation was allegedly not decided within the time prescribed by the Tribunal, the applicant filed Contempt Petition No.79/2023. During the pendency thereof, the respondents placed on record the consideration order bearing No. CDL/EC/2023-24/06 dated 12.03.2024. In view of the said order, the contempt petition was disposed of with liberty to the applicant to challenge the consideration order, if so advised. It is in these circumstances that the applicant has approached this Tribunal by way of the present Original Application.
The principal grievance of the applicant against the order dated 12.03.2024 is that his claim has not been favourably considered essentially on the grounds that no representation for regularization had been received from him and that no decision had yet been taken by the Government regarding continuation of the policy notified under SRO 520 and SRO 64. The applicant disputes both grounds. He asserts that his representation dated 01.02.2023 was sent through registered post and was served upon the respondents on 13.02.2023. He further contends that SRO 520 of 2017 has neither been repealed nor withdrawn and, therefore, his claim could not have been deferred merely on the ground that the policy was under consideration of the Government. Accordingly, he seeks quashing of the order dated 12.03.2024 and a direction for regularization of his services in terms of SRO 520 of 2017.
The respondents have filed their written statement wherein they have averred as follows: -
The respondents have opposed the Original Application by filing their written statement. At the outset, preliminary objections have been raised to the effect that the Original Application is barred by limitation and suffers from delay and laches. It is further alleged that the applicant has suppressed material facts and that the Original Application has not been filed in the prescribed form in accordance with the applicable rules.
On merits, the respondents submit that the impugned consideration order dated 12.03.2024 is not final in nature and that the claim of the applicant has not been rejected once and for all. According to them, the order itself makes it clear that the applicant's case for regularization would be considered as and when the Government takes a decision regarding continuation of the policy notified vide SRO 520 for regularization of casual labourers in the UT of Ladakh.
The respondents further state that the list relied upon by the applicant had been prepared by the Administrative Department, PW(R&B), in the erstwhile State of Jammu and Kashmir and, therefore, the relevant factual position in that regard is to be answered by the concerned Administrative Department. The specific assertion of the applicant that he was engaged as a Daily Rated Worker has, however, been denied. According to the answering respondent, the applicant was engaged as a seasonal worker on remuneration of Rs.3,000/- per month.
It is also the stand of respondent No.2 that it is not the competent authority to regularize the services of the applicant. Nevertheless, the lists of Daily Rated Workers/Seasonal Workers engaged on need basis, including the name of the applicant, have been forwarded to the higher authorities from time to time for appropriate action. Thus, according to the respondents, whatever was required to be done at the level of respondent No.2 has already been undertaken.
Lastly, the respondents maintain that the direction passed by this Tribunal in O.A. No.61/08/2023 on 05.01.2023 has been complied with by passing the impugned consideration order. Their specific stand is that the applicant's claim for regularization has only been kept dependent upon the Government's decision regarding continuation of the policy under SRO 520 and has not been finally rejected. Accordingly, the respondents seek dismissal of the Original Application.
Heard learned counsel for the parties and perused the pleadings made by them.
At the outset, the preliminary objection regarding delay and limitation does not persuade us. The applicant is specifically aggrieved by the consideration order dated 12.03.2024, which itself came to be passed pursuant to the earlier proceedings before this Tribunal. The present Original Application has been instituted against that order. The grievance, therefore, cannot be rejected merely by referring to the date of his original engagement in the year 2000.
The core issue before this Tribunal is not whether the applicant is entitled to an automatic direction of regularization merely because he has continued for a long period. The question is whether his claim has received a proper consideration in accordance with the applicable rules and the material available with the respondents.
It is evident from the record that the respondents do not dispute the fact that the applicant has been associated with the Department for a considerable period. The dispute is essentially regarding the nature of his engagement. While the applicant claims to have worked as a Daily Rated Worker, the respondents describe him as a seasonal worker. Significantly, however, even the respondents admit that the applicant's name has figured in the relevant lists forwarded to the higher authorities.
The distinction between a Daily Rated Worker and a seasonal worker may have a bearing upon the manner in which eligibility has to be examined under SRO 520 of 2017. The applicant himself relies upon the provisions concerning seasonal workers, under which the period of working has to be computed in accordance with the conditions prescribed therein. Consequently, whether the applicant has actually completed the prescribed period of eligible service is a matter which necessarily requires verification from the attendance registers, wage records, engagement particulars and other official records maintained by the Department.
Such an exercise, in our considered view, cannot appropriately be undertaken by this Tribunal for the first time in exercise of judicial review. It is for the competent departmental authority to verify the service record, determine the precise status of the applicant and thereafter examine his eligibility under the rules or policy governing the field.
At the same time, we find substance in the grievance of the applicant against the manner in which his claim has been dealt with. The applicant has specifically pleaded that pursuant to the order dated 05.01.2023, he submitted a detailed representation dated 01.02.2023 through registered post. He has further pleaded that the same was delivered to the respondents. Yet one of the grounds noticed by the applicant in the impugned order is that no such representation had been received. The said aspect required verification from the record before arriving at any adverse conclusion against the applicant.
More importantly, the respondents themselves state before us that the applicant's case has not been finally rejected and would be considered once the Government takes a decision concerning continuation of the policy under SRO 520. Thus, even according to the respondents, the applicant's substantive claim is still awaiting an effective determination.
A consideration pursuant to a judicial direction is required to be meaningful and based upon the relevant service record and the rules applicable to the employee concerned. Merely keeping the matter open indefinitely without determining whether the applicant otherwise satisfies the prescribed conditions would not bring finality to a claim which has remained pending for a considerable period.
We are, however, unable to accept the prayer of the applicant for issuance of a direct mandamus commanding the respondents to regularize his services from the date of completion of ten years of service. Mere length of engagement, by itself, would not dispense with the requirement of satisfying the eligibility conditions prescribed under the applicable scheme. The status of the applicant, the actual period of qualifying service and fulfilment of the conditions applicable to a seasonal worker/Daily Rated Worker are factual matters which have to be determined by the competent authority.
In view of the foregoing discussion, the Original Application is partly allowed. The consideration order No. CDL/EC/2023-24/06 dated 12.03.2024, insofar as it fails to finally and effectively determine the applicant's entitlement upon examination of the relevant record, is set aside.
The competent authority amongst the respondents is directed to reconsider the case of the applicant afresh. While doing so, the authority shall:
take into consideration the applicant's representation dated 01.02.2023 and verify its receipt from the departmental/postal record;
examine the complete record relating to the applicant's initial engagement, attendance, wages and actual period of working;
determine the correct nature of his engagement, namely whether he is to be treated as a Daily Rated Worker, seasonal worker or otherwise;
examine whether the applicant satisfies the requisite period and other eligibility conditions prescribed under SRO 520 of 2017 or such rules/policy as may presently govern the field; and
thereafter pass a reasoned and speaking order, uninfluenced by the earlier rejection/deferment contained in the impugned order.
The aforesaid exercise shall be completed as expeditiously as possible, preferably within a period of 12 weeks from the date of receipt of a certified copy of this order.
It is made clear that this Tribunal has not expressed any opinion on the applicant's ultimate entitlement to regularization. If, upon verification, the applicant is found eligible under the applicable rules/policy, consequential action shall follow in accordance with law.
Considering that the applicant continues to claim engagement with the respondents and that his claim is being remitted for fresh consideration, the respondents shall not disengage him merely on account of pendency of the claim for regularization, provided he is otherwise continuing in engagement, work is available and there exists no independent lawful ground for his disengagement.
The Original Application stands disposed of in the above terms. Pending Miscellaneous Applications, if any, shall also stand disposed of.
No order as to costs.