Mohd. Akbar Dar and Others vs State and Others

Muzaffar Hussain Attar, J.—Order No. 1513-GAD of 2007 dated 31st of Dec. 2007 passed by the Government which has the effect of

disengaging the arrangement made under ""unpaid workers category"" against non existing posts, is called in question in this petition.

It is further prayed that respondents be commanded to allow the petitioners to continue till the class IV posts are created in the respondent-

department, with further direction to respondents to frame the policy for engagement of petitioners against class IV posts lying vacant in the

respondent-department.

Claim of the petitioners is that in the year 1990 when petitioners were working in private garages of different parts of the State and were trained

as mechanics to deal with the overhauling of vehicles, the respondents told the petitioners to work in two workshops of Jammu and Srinagar till the

posts of class IVth will be created for them in the department and on this assurance of the respondents, they opted to join the department and

worked in different workshops. It is further pleaded that as the petitioners have worked in the respondent-department, the respondents were duty

bound to pay minimum wages to them. It is further pleaded that the petitioners worked since 1991 to 2000 in the respondent-department. Claim is

laid that persons similarly circumstanced with the petitioners were ordered to be brought on regular establishment and petitioners have been

subjected to invidious discrimination by not giving the same treatment. It is also claimed in the writ petition that in view of the communications made

by officers, some of which have been placed on the writ record, it is proved that the petitioners have not been paid their wages. Reference is also

made to one of the communication to show that class IV posts are available with the respondents.

On notice respondents have filed objections. In the objections it is specifically pleaded that petitioners have not at all been engaged by any

authority or officer against any post(s). It is further pleaded in the objections that in-fact the petitioners had approached the State Motor Garages

on various occasions from time to time to allow them to work in the workshops of State Motor Garages in order to enable them to gain knowledge

and knowhow about motor mechanism. It is further pleaded that they have given undertakings to the effect that they will not claim for any service

benefits including the relief which is being sought for in this writ petition. It is also pleaded that petitioners had undertaken to work on their own risk

and responsibility on apprenticeship only. It is further pleaded that communication of which reliance is placed in the writ petition, cannot be treated

to have engaged the petitioners and would not confer any indefeasible right on them. It is prayed that writ petition merits dismissal.

Heard. Considered the matter.

Mr. G.Q. Bhat, Ld Counsel for the petitioners submitted that petitioners were engaged on the promise that posts will be created and they will be

absorbed against those posts in the respondentdepartment. It is further submitted by the learned Counsel, that though the work has been taken

from the petitioners but wages have not been paid to them and it tantamounts to taking of ""begaar"" from petitioners. Ld Counsel further submitted

that while passing the impugned order no notice has been issued to the petitioners. Ld. Counsel also referred to and relied upon judgment of this

Court reported in SLJ 1988.

Ld Counsel for respondents, however, submitted that the petitioners were never appointed in the respondent-department, Ld Counsel also

referred to annexure ""F"" of the writ petition i.e. communication No. RCD/35/3626-27 dated 21.06.2007 addressed to the Secretary to

Government, Transport Department, J&K, Srinagar by Director, State Motor Garages Department, J & K Srinagar, perusal of which reveals that

some persons have been engaged in State Motor Garages Department for learning Motor Mechanic Trade and they have been engaged under the

verbal orders of Hon'ble Ministers/senior officers from time to time and there is no record available about their engagement. Perusal of the

communication reveals that such persons have learnt the trade of motor mechanic in different workshops of SMG which includes regional and

district workshops. The request was made that these incumbents be considered for engagement on consolidated basis at a monthly remuneration of

Rs. 3000/- per head. Communication also reveals that request was made for engagement of unpaid workers in SMG department to reduce the

work load.

No authority, howsoever, high, has any right to appoint a person to a post in government in breach of mandate as contained in Article 14 and 16

of Constitution of India. When the post in the government becomes available same is to be filled up by considering all eligible candidates, by

following the proper selection process. A person who would be engaged at the recommendations of the authorities, howsoever, high same may be,

having been engaged in breach of constitutional mandate and the rules governing the field would not be clothed with any right to seek continuation

or permanent absorption in the government service.

The position in this case is worst, petitioners are designated as ""unpaid workers"". The claim of the petitioners is that they have been engaged and

then denied regularization interalia on the plea that there is no post available in the respondent-department and secondly the petitioners of their own

volition approached the respondents and requested to allow them to work in the SMG department and for that an undertaking was also given. The

petitioners may have worked, either of their own volition or at the behest of respondents, but the legal position would not change in either of the

cases, no direction can be issued to respondents to either create post(s) for petitioners or to regularize their services. Such directions would be

dehors of constitutional provisions and rules.

The petitioners claim to have rendered work to respondents, when the work is taken by respondents from petitioners then they are entitled to

wages in accordance with the rules occupying the field as otherwise it would tantamount taking ""begaar"" from petitioners which is forbidden by

Article 23 of the Constitution.

As two contrary stands have been taken in the pleadings of this petition, one that the petitioners in order to learn the trade offered voluntary

service, and other that the petitioners were ordered to work by the respondents. These conflicting stands taken by the authorities in this writ

petition can be resolved by directing the respondents 3 and 4 to consider the claim of the petitioners to the extent of claiming wages and to pass

appropriate orders thereof.

The contention of Ld. Counsel for petitioners is that the notice has not been issued before passing the impugned order, would otherwise mean

that the impugned order has been passed in violation of the procedure of Natural Justice.

Petitioners have not been engaged against any post(s), so no right in law was vested in them. It is only when a vested right in law is sought to

be taken that compliance of Natural Justice becomes imperative. The Doctrine of Natural Justice is not an unbridled horse, that one would ride

roughshod. The reference of judgment reported in 1988 is also misplaced in as much as the service of employees were terminated in that case. In

the present case the impugned order clarifies the legal position that no person can be engaged against a non available post, which fact position is

not in dispute in this petition. Issuance of notice would not change the nature of the order passed.

This petition is dismissed to the extent of seeking quashment of Government order No. 1513-GAD of 2007 dated 31.12.2007 and to the

extent it seeks direction to respondents to create class IV posts and regularize petitioners on those posts. The respondents 3 and 4 however, is

directed to consider the claim of the petitioners for being paid minimum wages for the period they have worked with the respondents in

accordance with the rules and orders occupying the field.