Rabia Kouser vs Managing Director, Jammu And Kashmir Projects Construction Corporation Ltd

Ali Mohammad Magrey, J

The precise case set up by the petitioner, in her petition, is that she was engaged as Casual Labour in the respondent Corporation for 89 days on need basis with effect from 23rd of July, 2002. However, in appreciation of the excellent work rendered by the petitioner, the petitioner was retained as such in the Corporation for a long number of years. The petitioner claims that since she, besides being well qualified, also has three years Diploma in Architectural Engineering to her credit and has given her blood and youth to the Corporation, coupled with the fact of she having reached 42 years of age and, therefore, represented before the respondent Corporation for seeking regularization of her services which representation, however, did not yield any fruits for the petitioner. It is stated that the action and inaction of the respondent Corporation in not regularizing the services of the petitioner constrained the petitioner to approach this Court through the medium of a writ petition, being SWP No. 1710/2015, seeking directions upon the respondent Corporation for regularizing her services on the analogy of some similarly situated appointees. It is further stated by the petitioner that the said writ petition came to be disposed of by this Court vide order dated 25th of August, 2017 directing the respondents therein to consider the case of the petitioner for regularization of her services in the Corporation. In compliance of the aforesaid order passed by this Court, the respondent Corporation have issued order bearing No. 133 of 2017 dated 14th of November, 2017 whereby the claim of the petitioner stands rejected. It is this rejection order issued by the Corporation that has been called in question by the petitioner through the medium of the instant petition.

Objections stand filed on behalf of the respondent Corporation, resisting and controverting the averments made by the petitioner in her petition. It is stated that the petitioner is not working at part with regular employees of the Corporation or on any substantive post. The petitioner is simply a Casual Labour and cannot claim that she is working at par with regular employees. It is further stated that different assignments have been given to various Casual Labours who are similarly situated as that of the petitioner and their wages are being drawn as per Government Order issued by the Finance Department. It is contended that in compliance of the order of this Court dated 25th of August, 2017 passed in SWP No.1710/2015, filed by the petitioner earlier in point of time, stands implemented by the respondent Corporation in letter and spirit by issuing order bearing No. 133 of 2017 dated 14th of November, 2017 whereby the claim of the petitioner has been considered and rejected. In the end, the respondent Corporation have prayed that the petition of the petitioner be dismissed.

Heard the learned counsel for the parties, perused the pleadings on record and considered the matter.

At the outset, what requires to be stated is that it is cardinal principle of law that reason is the heart beat of an order and that an order without reasoning is unsustainable in law. Every statutory authority has to act in accordance with the Statute and has to pass the discretionary order judicially and after recording detailed reasons in support of such an order. The order has to be a speaking order and if the order is arbitrary, fanciful or cryptic, a 'Writ of Mandamus' will be issued to such an authority to rehear and determine the matter afresh, according to law. In the case on hand, from a bare perusal of the order impugned, whereby the claim of the petitioner has been rejected, it is apparent that it does not contain any reasons in support of the conclusion arrived therein. While rejecting the claim of the petitioner, the concerned authority in the respondent Corporation was acting under the Statute and was, thus, required to pass a well-reasoned order, which has not been done. The respondent Corporation, while considering the case of the petitioner, should have kept in mind the fact that since they were exercising administrative action and, thus, same had to be exercised in a reasonable manner and not arbitrarily.

It is well settled proposition of law that the action of the respondent authorities, being the official functionaries, has to be transparent. They cannot discriminate between similarly circumstanced persons. Ours is a welfare Society which aims at the goal where everyone is/has to be, as far as possible, looked after. The case of the petitioner had to be considered on the same parameters and analogy as was evolved in the cases of the similarly situated persons, whose services stand regularized in the respondent Corporation. The respondents have treated the case of the petitioner as a 'sui generis' case and have invidiously discriminated her.

Justice is not only law and its administration, but is, in most cases, above law and is done to save the individual from whatever he/ she seeks protection. Our country, in particular, aims at the goal of achieving the welfare State where everyone is/ has to be, as far as possible, looked after. There can be no discrimination between two individuals who are equally placed.

Looking at the petition of the petitioner from another perspective, the respondent Corporation, admittedly, has been extracting the services of the petitioner as Architect from the last so many years. The petitioner, on the basis of said services being discharged by her, claimed her regularization as such in tune with the decision of the Corporation adopted in the case of other Trainee Engineers, who were allowed to undergo training for gaining experience, and, subsequently, the said training had become a ground for them to get the benefit of regularization. The petitioner has placed on record order bearing No. Estt/117 of 2011 dated 12th of February, 2011 accompanied by list of Trainee Engineers, in terms whereof they have been placed in the regular grade on the analogy of one Saleem Jan. The aforesaid order has been issued by the Managing Director, JKPCC Limited on the decision taken by the Board of Directors of JKPCC Limited in its 85th meeting held on 22nd of November, 2010 vide item No. 85.01(B). The order reveals that these Trainee Engineers were paid on consolidated basis and the Annexure enclosed with the said order gives the details of the Trainee Engineers who were paid on consolidated basis in various wings of the Corporation, i.e., Mechanical Engineering, Civil Engineering and Electrical Engineering and other branches, including one Shaista Tabasum, who was engaged as Casual Architect and was similarly situated with the petitioner. The respondents, even though having been granted ample opportunity to deny these specific contentions made by the petitioner in her petition, could not place anything substantial on record to rebut the said contentions made by the petitioner.

In view of the preceding analysis, the petition of the petitioner is allowed, as a corollary to which, the impugned order bearing No. 133 of 2017 dated 14th of November, 2017, issued by respondent-Managing Director, JKPCC Limited is quashed. The respondent is directed to regularize the services of the petitioner in the Corporation on the same parameters as have been laid down in the cases of other similarly situated Casual Labours/ Trainee Engineers/ Architect whose services stand regularized in the Corporation. The respondent Corporation shall do the needful, as directed hereinabove, expeditiously, preferably within a period of two months' time from today.

Writ petition disposed of as above, alongwith all connected CM(s).