Muhammad Muzaffer Jan vs State of J&K & others

Petitioner by means of this writ petition seeks issuance of writ of Mandamus directing the respondents No.2, Director, Technical Education,

Srinagar, not to terminate his services on the basis of the letter dated 26.3.1996 addressed to the Director by Under Secretary to Government,

Technical Education Department and allow him to continue to hold the post of Legal Assistant against which he has been appointed on

consolidated salary of Rs.1,000/ per month.

Respondent have filed objections stating there in that the petitioner was engaged vide order dated 5.12.1994 on consolidated amount of

Rs.1,000/ per month to assist the litigation section. His wages were directed to be drawn by debit to State Project Implementation Unit (World

Bank Scheme).The petitioner attended duties up to April, 1996 and, thereafter, approached this court by means of this writ petition and this court

vide interim order dated 18.6.1996 has directed the continuation of the petitioner. It has been also submitted .therein that as per the record of the

Department and their mustersheets, the petitioner was working on mustersheet basis. A copy of the muster sheet pertaining to the month of July,

1996 has been annexed as annexure. R1 with the objections. The petitioner has absented from the job on his own with effect from 17.7.1996 and

thereafter has not discharged the duties. Therefore, he has no claim to the wages onwards thereafter. The scheme by debit to which the wages of

the petitioner and other similarly situated candidates were drawn has been closed and no further allocation is available under the scheme for

payment of wages.

Heard learned counsel for the petitioner.

Communication dated 26.3.1996 sought to be quashed reads as under:

government of jammu & kashmir civil sectt. technical education dept. to

The Director,

Technical Education, Jammu. No.EduITI16/96

Dt.26.3.1996

Sub: Annual Plan discussionSubmission of details of dailywagers.

Madam,

I am directed to refer your letter No.DTE/Acctt96/5953 dated 11.1.1996, relating to the subject cited above and to say that such of the Daily

wagers as have been engaged after deadlines fixed by the finance department i.e. 24.3.1994 may kindly be identified and terminated with

immediate effect under intimation to this Department. As regard daily wagers engaged prior to the issuance of instructions by the finance

Department, their details together with financial requirements on accounts of their wages may be worked out and intimated to this Department so

that Planning/finance Department is requested for allocation of requisite funds for the purpose.

Your's faithfully,

Sd/

( P.N. Dhar)

Under Secretary to Govt.Tech. Education Deptt.

The petitioner, according to the stand of the respondents, is not working with them since 17.7.1996 onwards and the scheme where in he was

engaged has also been closed. The relief prayed for has rendered inructuous. The petitioner having been engaged and paid against the scheme,

which has been closed, is not entitled to claim the relief prayed for in view of the law laid down by the Supreme Court in State of Himachal

Pradesh v Ashwani Kumar and others, AIR 1997 SC 352 holding that

lt is seen that when the project is completed and closed due to nonavailability of funds, consequently, the employees have to go along with the

closed project. The High Court was not right in giving the direction to regularize them or to continue them in other places. No vested right is

created in temporary employment. Directions cannot be given to regularize their service in the absence of any existing vacancies, nor directions be

given to create posts by the State to a nonexistent establishment. The court would adopt pragmatic approach in giving directions. The directions

would amount to creating of posts and continuing them inspite of nonavailability of the work.

The petitioner is continuing on the strength of the interim direction of the court. He on this Count is also not entitled to the relief of regularization

of his services or continuation as this proposition of law has also been set at rest by the Supreme Court in State of U.P. and others v Raj Karan

Singh, (1998)8 SCC 529 holding that:

..Merely because a person continues under the interim orders of the Court, such continuance on the post cannot and, in this case, does not confer

on him any right for continuance, it does not enhance his case for regularization...

Learned counsel for the petitioner submits that his wages have not been re leased by the respondents for the period he has worked. It is

observed that the petitioner is entitled to the wages and the respondents are under obligation to release the wages for the period he has worked up

to 17.7.1996, If not already paid.

No case for admission of the petition is made out. The petition is, accordingly dismissed along with the connected CMPs