Rakesh Singh & Ors vs State Of J&K & Ors

Rajinder Singh Dogra, Member J

The SWP No. 3895/2019 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.1969/2020 by the Registry of this Tribunal.

The present matter was filed before the Hon’ble High Court seeking following relief: -

a) “Mandamus directing and commanding the respondents to engage the petitioners as daily wagers to operate the pumping stations falling in District Udhampur/ Reasi.

b) Prohibition restraining the respondents from engaging another set of daily wagers in place of the petitioners for operating the pumping stations in District Udhampur and Reasi.

c) Such other appropriate writ, direction or order as the Hon'ble Court deems fit and proper in the facts and circumstances of the case;

The present Transfer Application arises out of SWP No.3895 /2019 which was originally filed before the Hon’ble High Court of Jammu and Kashmir at Jammu and subsequently transferred to this Tribunal. The petitioners seek directions to the respondents to engage them as daily wagers for operating pumping stations in District Udhampur and Reasi and to restrain the respondents from engaging another set of daily wagers in their place.

The case of the petitioners is that during the years 2013-2014 several water supply schemes were commissioned by the PHE Mechanical Division, Udhampur for supply of water to rural areas. These schemes involved pumping stations at various locations including Ritti Barta, Hansa Bhugtrain, Romain-Palaran, Kidmoo, Channi Mansar, Tandar, Mahri Basti and Salal. According to the petitioners, since trained Pump Operators and Motormen were not available with the department, the respondents engaged about 73 ITI-trained persons including the petitioners as daily wagers in the year 2014 to operate the pumping stations. Out of these 73 persons, 39 daily wagers were paid wages regularly from the year 2014, whereas 34 persons including the petitioners allegedly remained unpaid for want of funds. The petitioners submit that they continued to work for several years and were eventually compelled to approach the Hon’ble High Court by filing SWP No. 647/2018 seeking release of their wages. It is pleaded that the respondents admitted that wages were payable and the arrears were later released pursuant to orders of the Court up to November 2018, though according to the petitioners the amount paid was less than what was due.

The petitioners further state that soon after the arrears were released in May 2019, the department issued a communication dated 24.06.2019 highlighting shortage of operational staff and exploring outsourcing arrangements for running pumping stations. The petitioners apprehended that the respondents were planning to engage fresh daily wagers in their place. According to them, such an action would amount to replacing one set of daily wagers with another set of daily wagers, which is impermissible in law. They contend that they had continuously worked from 2014 till June 2019 without any complaint and therefore their disengagement and replacement by other persons is illegal and arbitrary. On these grounds, the petitioners seek directions for their engagement and continuation as daily wagers.

The respondents have filed their reply and opposed the petition. It is submitted that the petitioners had been engaged only on a temporary and need-based arrangement in the year 2014 when the department was facing shortage of manpower for running water supply schemes. It is further stated that the petitioners were paid wages for the period during which they actually worked up to November 2018. According to the respondents, the petitioners did not continue to work thereafter and the department mobilized its permanent staff, CP workers and ITI workers from sister divisions for operating the schemes in order to avoid disruption of water supply. The respondents have specifically denied that any fresh daily wagers were engaged in place of the petitioners. It is also submitted that the communication relied upon by the petitioners is merely an internal communication between departmental authorities and does not confer any enforceable right upon the petitioners. It is further pleaded that the petitioners cannot claim engagement as a matter of right because their earlier engagement itself was purely temporary and need-based.

We have heard learned counsel for the parties and carefully examined the record.

From the material placed before the Tribunal it is clear that the petitioners were not appointed through any regular selection process. Their engagement in the year 2014 was admittedly on a temporary and need-based basis in order to operate certain pumping stations when trained manpower was not readily available. Such engagement was purely a stop-gap arrangement and did not create any legal or vested right in favour of the petitioners to claim continuation or regular engagement.

It is also an admitted position that the petitioners were paid wages for the period during which they had actually worked up to November 2018 pursuant to the orders passed in earlier litigation. Once the petitioners ceased to work thereafter, they cannot claim a right to be re-engaged as daily wagers merely because they had earlier worked for some period. The law is well settled that a temporary or daily wage engagement made on a need-based basis does not confer any enforceable right to seek continuation or fresh engagement.

The apprehension of the petitioners that they are being replaced by another set of daily wagers is also not borne out from the record. The respondents have categorically stated that the department mobilized its permanent staff and other available workers from sister divisions to run the schemes and that no fresh need-based workers have been engaged after the petitioners stopped working. The communication dated 24.06.2019 relied upon by the petitioners is only an internal correspondence regarding shortage of manpower and cannot be treated as an order of engagement or as proof that new daily wagers were actually appointed.

In these circumstances, this Tribunal is of the view that the petitioners have not been able to demonstrate violation of any statutory, legal or fundamental right which would justify interference by this Tribunal. The relief sought by them essentially amounts to seeking a direction for engagement as daily wagers, which cannot be granted in exercise of judicial review particularly when their earlier engagement was purely temporary and need-based.

At the same time, it cannot be ignored that the petitioners had earlier worked for the department and possess the requisite ITI training relevant to the work of pumping stations. Therefore, while the petitioners cannot claim a legal right to engagement, equity demands that if in future the department genuinely requires manpower for operating pumping stations and decides to engage workers on need basis in accordance with law, the petitioners may be given due consideration on priority basis, subject to their eligibility and availability of posts.

Accordingly, the present Transfer Application is dismissed. However, it is observed that if in future any engagement of workers for operating pumping stations is undertaken by the respondents in accordance with rules and availability of posts, the petitioners may be considered on priority basis keeping in view their earlier experience, subject to eligibility and other applicable conditions.

No order as to costs.