Mahesh Sharma & Others vs State & Others

R.C. Gandhi, J.—The petitioners have been engaged as daily rated workers and assigned the work of Pump Operators. In para3 of the

petition it has been stated that petitioners were engaged as daily rated workers within the period ranging from May 1994 to March 1996 and have

been continuously working since then. They have approached the court seeking regularisation of their service against the posts of Pump

Operators/classIV and to restrain the respondents from terminating their services. They also seek that they are working against clear vacancies and

respondents be restrained from filling up the said vacancies.

Admittedly the petitioners have not been engaged prior to promulgation of SRO 64 of 1994, Rule7 whereof imposes a restriction to such

engagement of daily rated workers which is extracted below and reads thus :

Restriction on engagement of Daily Rated Worker/Work Charged Employees:

With effect from the commencement of these Rules, no field/subordinate officer shall have the power for engagement of a Daily Rated Worker

for work charged Employees in the Department and the existing delegation if any, in this regard is withdrawn;

Provided that the Competent Authority may engage casual Labour or Seasonal Labour in any of the Department to be specified by Notification

from time to time by the Government and such Labour shall be on the Muster Roll for payment of wages and no engagement or appointment order

shall be issued.

After the commencement of these rules the work charged posts shall be created only by the Administrative Department in consultation with the

Finance and Planning Department.

The record reveals that the petitioners have been engaged by the Executive Engineer who is a field/Subordinate officer and in terms of Rule7 of

said SRO was not competent to engage the petitioners as daily rated workers. In terms of proviso to Rule7, the Government has also not specified

by the notification the Department of Public Health Engineering or specified the competent authority to engage a casual labour, that too on muster

roll. The proviso further provides that no engagement or appointment order shall be issued. The engagement of the petitioners being dehors the

rules cannot be maintained. The petitioners, therefore, are not entitled to seek regularisation on the basis of their illegal appointment which does not

create any right much less enforceable in the court of law.

It is also not made out from the pleadings that the petitioners have been engaged against clear vacancies. Assuming that the petitioners are

engaged against the clear vacancies that can be only an adhoc arrangement. Rule14 of J&K Classification, Control and Appeal Rules 1956

provides of such ad hoc appointments' continuation for a period of nine months only. The posts are required to be filled up by the candidates duly

selected by the selection Committee. On this score also, the petitioners cannot seek regularisation against those posts though there is no evidence

on the record that the petitioners have been engaged against the posts. The petition fails on both the counts and is dismissed.