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Judgment
Moksha Khajuria Kazmi, J
These intra Court appeals bearing LPA No. 09/2023 and 10/2023 have been preferred against the Judgment dated 04.11.2022, passed in SWP 1154/2016 titled Abdul Rashid Wani and Ors. Vs. State of J&K and Ors., and SWP No. 1374/2016 titled Aejaz Ahmad Thekria and Ors., Vs. State of J&K and Ors., whereby the said writ petitions, seeking regularization and quashment of disengagement order of the appellants-petitioners therein have been dismissed.
Since in both the appeals common Judgment dated 04.11.2022, has been challenged by the appellants-petitioner Nos. 8 and 15 of SWP 1154/2016, and petitioners 3, 4 and 5 of SWP No. 1374/2016, as such, are taken together for deciding perversity, if any, in the Judgment passed by the learned Single Bench.
Factual Matrix
That in the year 2014, the Government of Jammu and Kashmir issued Government order No. 585-HME of 2014 dated 17.10.2014, whereby a number of Sub Centers in the Health Department were ungraded/created and at the same time a number of posts were created in the Department. The said Government order also provided for hiring of 1284 casual workers to work as Nursing Orderlies for the newly upgraded opened Health Institutions on the notified minimum wages.
The appellants herein came to be engaged as casual workers in the respondent department in the year 2014/2015, in terms of various engagement orders issued by the respondent No. 3-Chief Medical Officer, Ganderbal. The appellants herein had been continuously working as casual workers, as such, had approached the official respondents for their regularization and for release of their earned wages.
The services of the appellants were disengaged in terms of order No. CMO/GBL/Casual Worker/569-75 dated 14.05.2016. The said order has been challenged by way of abovementioned SWP No. 1154/2016 and SWP No. 1374/2016. The appellants herein had also sought direction for the release of their earned due wages and further to allow them to continue and regularize their services.
In the reply filed by the official respondents to the writ petition, it was stated that the disengagement order of the appellants herein has been passed on the basis of Circular dated 17.03.2015, issued by the Finance Department, which relates to ban on engagement of casual workers. It was further stated in the reply that the engagement of the appellants was subject to release/allocation of funds by the Government and when the funds were not released by the Government, their engagement was cancelled. Moreover, the Chief Medical Officer, Ganderbal, had no authority to engage the services of the appellants herein without the authorization from the competent authority and it is only the Chief Medical Officer, Ganderbal, who has engaged the services of casual workers without any authority that too on the basis of nominations of local MLAs and Ministers, as such, no procedure/norms were followed while engaging the services of the appellants herein.
Learned writ Court after hearing the parties passed the impugned Judgment dated 04.11.2022. Paragraph 11 of the said Judgment being relevant is reproduced as under:-
“ 11) For the foregoing reasons, I do not find any merit in these petitions. The same are, accordingly, dismissed. However, it is made clear that the respondents shall ensure that the legitimately earned wages for the period for which the petitioners have actually worked, either on the basis of interim orders passed by this Court or otherwise, are released in their favour.”
The appellants herein have challenged the Judgment passed by the learned Single Bench on 04.11.2022, on the ground that the Circular dated 17.03.2015 was issued much after the engagement of appellants herein, therefore, the said Circular had no applicability on the cases of the appellants. It is also stated that the post of Medical Officers so created have been selected and appointed and the Centers have been made functional for providing manpower at Class IV level. The appellants herein were engaged in District Ganderbal in the said newly created and upgraded Centers. It is stated that the respondent State has provided the funds for the Medical Officers so engaged and the respondents cannot take the stand that they have not been allocated the funds for class IV, casual workers. Moreover, the respondents cannot act arbitrarily even for releasing the earned wages of the appellants herein.
We have heard learned counsel for the parties and perused the record available on file.
In terms of the engagement orders of the appellants herein annexed with these appeals, it is clearly reflected that hiring of casual workers was subject to release/allocation of funds under the then scheme. Once the appellants herein had accepted the terms and conditions of the order passed by the Chief Medical Officer, Ganderbal, then they cannot turn around and challenge their disengagement on stoppage of allotment of funds by the competent authority. In the impugned order of disengagement/cancellation of the casual workers, it is mentioned that the Finance Department imposed complete ban on the engagement of Casual/Seasonal Labourers (CSLWs) in Government Departments/ State owned PSUs in terms of Circular No. A/Misc/2015-364 dated 17.03.2015, as the casual workers which includes appellants herein also were engaged at the cost of State exchequer that too without following any transparent mechanism.
It is specifically referred that continuation of casual workers was cancelled as it was at the cost of State exchequer. Government was not having sufficient funds and means to extend engagement of the appellants herein. Respondents had engaged the appellants subject to the allocation of funds by the Government, as such, due to stoppage of funds respondents were having no option other than to disengage/cancel the engagement of the appellants herein. Since the department does not require the services of the appellants in the department at the cost of Government exchequer, the appellants herein have no indefeasible right to continue to discharge their duties as Casual Labourers. Moreover, the engagement of the appellants herein have been issued on the basis of nominations of the then local MLAs and Ministers, as such, the procedure/norms were not followed while engaging the services of the appellants, as such, the learned Writ Court has rightly held that the appellants herein are not entitled to any regularization of their services for the reason that if such a relief is granted, then their backdoor engagement created by the Chief Medical Officer, Ganderbal, would become an illegal channel of appointment and consequently it would amount to violation of the constitutional mandate. It has also been appreciated by the learned Writ Court that the Government had stopped the allocation of funds for the scheme, therefore, in absence of requisite funds, the appellants herein could not be continued as Casual workers by the respondents.
It is well settled law that the services of the Casual workers can be continued only on need basis subject to the funds provided by the Government. Moreover, the appellants herein had only worked for one and a half year, as such, they have no right of regularization. The Government has rightly disengaged /cancelled the engagement of the appellants. The learned writ Court has rightly directed the respondents to ensure that the legitimately earned wages for the period for which the appellants herein have actually worked, either on the basis of interim orders passed by this Court or otherwise, are to be released in favour of the appellants till date.
The aforesaid principal and view has been laid down and taken by the Apex Court in case titled as Union of India and Others Vs. Vartak Labour Union (2), reported in (2011) 4 SCC. Paragraph 17 of the Judgment being relevant is reproduced as under:-
“ 17. We are of the opinion that the respondent Union’s claim for regularization of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules.”
The Hon’ble Supreme Court in another case titled Secretary State of Karnataka and Ors. Vs. Uma Devi and Ors, reported as AIR 2006 Supreme Court 1806, in paragraph 38 held as under:-
“38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”
Mr. I. Sofi, learned counsel for the appellants submits that the respondents have not released the legitimately earned wages of the appellants till date.
In view of above, we do not find any merit in both these appeals filed by the appellants herein, as such, are dismissed. However, the respondents are directed to ensure that the legitimately earned wages of the appellants herein for the period for which they have actually worked, including the period for which they have worked on the basis of interim orders passed by this Court or otherwise be released in their favour within four weeks from today.