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Judgment
D. S. Mahra Member (J)
The applicant was initially engaged as a daily rated worker on 05.07.1988 in the Department of Geology and Mining, Jammu and Kashmir. Due to the prevailing militancy in the Valley, the applicant was compelled to migrate to Jammu and took shelter at the Muthi Camp. Upon the normalization of the situation, the applicant returned to his native place on 09.08.1994 and approached the Geology and Mining Department for re-engagement.
In response, he was accordingly re-engaged in the same department on 08.08.1994 by the then Director, Geology and Mining Department, and continued working thereafter. The applicant continued in service until the year 2000, when he was constrained to file SWP No. 871/2000 titled Shadi Lal Raina Vs. State of J&K before the Hon’ble High Court of J&K for his regularization. The said writ petition was finally disposed of by the Hon’ble High Court vide order dated 10.10.2002 as follows:
“Now I proceed to deal with the Daily Rated Workers who migrated to Jammu on account of militancy. In this behalf, it would be appropriate to refer to Government Order No. 27 of 1997 dated 14th January, 1997:
Government Order No. 27 of 1997 Dated 14.1.1997
In relaxation to Rule 2(e) of J&K Government Daily Rated Workers/Work Charged Employees (Regularisation) Rules, 1994, it is hereby ordered that:
1.The daily rated workers/work charged employees (migrants) who had completed seven years or more of continuous working prior to their migration from the Valley and have been re-engaged/re-deployed in the same department outside the Valley, even after a break beyond the admissible limit, and are continuously working as such in the same department, be regularised w.e.f. 1.4.1994, provided they were re-engaged/re-employed on or before 1.4.1994 in some department and are continuously working and paid from the date of their re-engagement/re-deployment.
Daily rated workers/work charged employees (migrants) who had not completed seven years of continuous service on the date of their migration from the Valley but have been re-engaged/re-deployed in the same department after breaks beyond the admissible limit and are continuously working as such in the same department, may be regularised from 1st April of the subsequent year(s), provided that they have completed the prescribed continuous working of seven years or more on or before 31st March of the preceding year, without taking into account the break from the date of migration till the date of re-engagement/re-deployment in the same department for computation of seven years continuous working.”
“A perusal of the aforesaid Government Order reveals that it provides an exception to the general mandate contained in Rules, 1994. It contemplates dealing with two different categories of the Daily Rated Workers/Work Charged Employees who had to migrate from the Valley, viz.:
(1) Those of the Daily Rated Workers/Work Charged Employees who, on the date of their migration outside the Valley, had completed seven or more years of continuous working; and
(2) Those of the Daily Rated Workers/Work Charged Employees who, on the date of their migration outside the Valley, had not completed seven years of continuous working.
In relation to the Daily Rated Workers falling in the first category (1) above, the following conditions have been laid down in the Government Order, on the fulfillment of which such a Daily Rated Worker could be regularised:
(i) They should have been re-engaged/re-deployed in the same department outside the Valley;
(ii) Such re-engagement/re-deployment should have taken place before 1st April, 1994;
(iii) They should have been continuously working till date;
(iv) They should have been paid from the date of their re-engagement/re-deployment in the same department.
In the case of Daily Rated Workers/Work Charged Employees who had not completed seven years of continuous service on the date of their migration, the conditions enumerated above have not been made applicable. In their case, the only condition laid down is that they should have been re-engaged/re-deployed in the same department. The conditions "outside the Valley" and "before 1st April, 1994" are not applicable to them. In other words, a Daily Rated Worker/Work Charged Employee who had not completed seven years of continuous service on the date of migration from the Valley and was re-engaged/re-deployed in the same department, notwithstanding the extent of the break, and after re-engagement has been continuously working in the same, is entitled to regularisation after completing seven years of working, and for computation of such continuous working, the period from the date of migration till the date of re-engagement is to be excluded.
Let it be seen in one of the cases. As per the object form filed, one petitioner was engaged with effect from 1988. He continued up to 18th January, 1990 and was re-engaged on 8th August, 1994 in the same department and ever since has been continuously working. Therefore, in terms of Government Order dated 14th January, 1997, he is found entitled to seek regularisation after completing seven years or more of working on or before 31st March of the year, without taking into account the break from the date of migration till the date of re-engagement for computation of seven years continuous working.
These writ petitions are, accordingly, disposed of with direction to the respondents to accord consideration for regularization of services of those of the writ petitioners who have been found entitled to regularization as discussed in detail in this judgment. The respondents shall take steps and process their cases for regularization and issue formal orders within a period of six months.
In pursuance of the said directions issued by the Hon’ble High Court, the respondents considered the applicant’s case and rejected his claim for regularization vide communication dated 02.01.2006.
The applicant challenged the said rejection order by filing SWP No. 2349/2011, which came to be finally decided by the Hon’ble High Court on 10.07.2018 as follows:
(03) The only ground on the basis of which the case of the petitioner for regularization has been rejected is that the petitioner was engaged after the imposition of the ban on engagement of Daily Wage workers in the year 1994.
(04) The issue as to whether a daily wager engaged after the ban has any right of consideration for regularization came up before this Court in the case titled State of J&K and ors. v. V. Shahida Bano, LPASW No. 207/2014, decided on 02.07.2015, and this Court held that even those daily rated workers appointed after April 1994 are entitled to regularization on completion of seven years of continuous service. Paragraph 10 of the aforementioned judgment is reproduced as under:
Thus, the issue as to whether a daily rated worker appointed after 01.04.1994 is entitled to regularization on completion of seven years' continuous service is finally settled by this Court. The learned Single Judge having arrived at such a conclusion and granted relief to the respondent and ordering regularization of her service from the date of completion of seven years of service, we are unable to find any reason to interfere with the order of the learned Single Judge. The appeal is dismissed. The Court is of the view that the appeal should not have been filed by the State as the issue raised was settled by earlier Division Bench order. The Law Officer must consider every aspect before giving opinion to prefer an appeal. We restrain ourselves from saying anything further in this case."
(05) This Court, while dealing with the issue in question, in LPA(SW) No. 33/2010 titled Mushtaq Ahmad Sohail and ors. v. State of J&K and ors. reported in 2013 (1) SLJ 73, decided on 05.02.2010, in paragraphs 13 and 14 has observed as under:
As against Order No. 144-GAD of 2001 dated 02.02.2001, the daily wagers/work charged employees, who were aggrieved, filed a number of writ petitions. Finally, the judgments passed in those writ petitions were challenged by way of a bunch of LPAs with lead case Ashok Kumar v. State of J&K and ors., which have been decided vide judgment dated 26.07.2002, reported in 2003 (II) SLJ 475. In the reported judgment, the position vis-à-vis the rights of casual labour/daily wagers/adhoc employees has been taken note of and as many as 15 directions were issued, as contained in paragraph 45 of the judgment. It may not be out of place to mention here that the cut-off date has also been extended to 06.11.2001 in terms of Government Order No. 1285-GAD of 2001 dated 06.11.2001, which has been issued in pursuance to Cabinet Decision No. 135/11(B) dated 10.09.2001. The above-referred judgment was challenged before the Hon’ble Apex Court by way of Civil Appeal No. 9298 of 2003 and Civil Appeal No. 9299 of 2003. While disposing of Civil Appeal No. 9299 of 2003, the following order was passed:
“Our attention has been drawn to the judgment of the Constitution Bench of this Court in Secretary, State of Karnataka and others v. Umadevi and others (supra). In our view, this judgment has no application in view of the fact that the respondents are employed by the State Government and are claiming the benefit of a scheme formulated by the Notification dated 31st January, 1994, as modified by Notification dated 6th November, 2001. The High Court is perfectly justified in its judgment.
We are satisfied that the impugned judgment of the High Court needs no interference at our hands.
In the result, the appeal is dismissed. No costs.”
What would emerge from the above is that the daily rated workers/work charged employees who were appointed after the imposition of the ban and continued beyond the ban period were given the benefit of Notification dated 6th November, 2001, which in effect, would mean that the daily rated workers/work charged employees engaged even after 01.04.1994 till 6th November, 2001, were also entitled to be regularized in terms of the Jammu and Kashmir Daily Rated Workers/Work-Charged Employees (Regularization) Rules, 1994."
While allowing the writ petition, the Hon’ble High Court set aside the impugned rejection order dated 02-01-2006 and directed by respondents to reconsider the claim of the applicant for regularization of his service.
Pursuant to the directions of the Hon’ble High Court, the respondents once again considered the claim of the applicant for regularization, but in a mechanical manner they rejected it again vide order dated 16.04.2019. Aggrieved by the said rejection order, the applicant filed SWP No. 2409/2019, which was later on transferred to this Tribunal and renumbered as TA No. 1738/2021.
Learned counsel appearing on behalf of the applicant submitted that the applicant’s case is covered under the exception carved out in Government Order dated 14.01.1997, which specifically provides for the re-engagement and regularization of migrant daily rated workers. He contended that the period of absence due to migration cannot be counted as a break in service for the purpose of regularization under SRO 64 of 1994.
He further submitted that the Government Order dated 14.01.1997 is in the nature of an exception to SRO 64 of 1994 and entitles migrant workers, who were re-engaged in the same department and continued thereafter, to be considered for regularization after completing seven years of service, excluding the break due to migration.
Per contra, Learned counsel for the respondents argued that the applicant was re-engaged after the cut-off date of 01.04.1994 and, therefore, is not entitled to the benefit of regularization under SRO 64 of 1994.
Heard Learned counsel for both the parties and perused the material available on record.
The applicant was initially engaged in the year 1988 in the Department of Geology and Mining. Due to militancy, he migrated from the Valley and subsequently returned in 1994, after which he was re-engaged in the same department of Geology and Mining on 08-08-1994.
The Finance Department, in pursuance of Cabinet Decision on 30.12.1996, issued a Government Order dated 14.01.1997, which reads as follows:
GOVERNMENT OF JAMMU AND KASHMIR
FINANCE DEPARTMENT
Subject: Regularisation of Migrant Daily Rated Workers/Work Charged Employees.
Reference: Cabinet Decision No. 29/8 Dated: 30-12-1996
Government Order No.: 27-F of 1997
Dated: 14-01-1997
In relaxation of Rule 2(e) of the Jammu and Kashmir Daily Rated Workers/Work Charged Employees (Regularisation) Rules, 1994, it is hereby ordered that:
The daily rated workers/work charged employees (Migrants) who had completed seven years or more of continuous working prior to their migration from the Valley and have been re-engaged/re-deployed in the same department outside the Valley, even after a break beyond the admissible limit, and are continuously working as such in the same department, may be regularised w.e.f. 01-04-1994, provided they were re-engaged/re-deployed on or before 01-04-1994 in the department and are continuously working and being paid from the date of their re-engagement/re-deployment.
Daily rated workers/work charged employees (Migrants) who had not completed seven years of continuous service on the date of their migration from the Valley but have been re-engaged/re-deployed in the same department after breaks beyond the admissible limit and are continuously working as such in the same department, may be regularised from 1st April of the subsequent year(s), provided that they have completed the prescribed continuous working of seven years or more on or before 31st March of the preceding year, without taking into account the break from the date of migration till the date of re-engagement/re-deployment in the same department for computation of seven years of continuous working.
By order of the Government of Jammu and Kashmir.
Dated: 14-01-1997
(Sd.) (M. J. NAJAR)
Director
Finance Department
As per para 2 of the circular above a daily rated worker or work charged employee who had not completed seven years of continuous service on the date of migration, but were re-engaged in the same department after migration and continued thereafter without further break, shall be entitled to regularization. It was clarified that the period of migration shall be excluded for the purpose of computing the requisite seven years of service.
In view of the above circular dated 14-01-1997, the applicant’s case squarely falls within the purview of said Government Order dated 14.01.1997. It operates as an exception to the general rule under SRO 64 of 1994. Moreover, vide Government Order No. 1285-GAD of 2001 dated 06.11.2001, issued pursuant to Cabinet Decision No. 135/11(B) dated 10.09.2001, the cut-off date for completion of seven years of service was further extended. Hence, even on that count, the applicant is eligible for consideration and regularization.
The respondents, however, have failed to appreciate the law laid down by the Hon’ble High Court in SWP No. 871/2000 and SWP No. 2349/2011, and have mechanically rejected the applicant’s claim without proper application of mind.
In view of the above discussion, this Tribunal is of the considered opinion that the applicant is entitled to the benefit of regularization under SRO 64 of 1994 read with Government Order dated 14.01.1997 and Government Order No. 1285-GAD of 2001 dated 06.11.2001.
Accordingly, the impugned order dated 16.04.2019 is hereby set aside. The respondents are directed to regularize the services of the applicant within a period of two months from the date of receipt of copy of this order.
Accordingly, TA No. 1738/2021 is allowed. No order as to costs.