Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Dar vs State Of Jk & Ors. on 22 November, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 657/2018
IA No. 01/2018
Date of Order: 22nd of November, 2018.
Bashir Ahmad Dar
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner(s): Mr Syed Manzoor Ahmad, Advocate.
For the Respondent(s): Mr B. A. Dar, Sr. AAG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. By medium of this petition, filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioner beseechs the grant of following relief(s) in his favour:
"a) Certiorari quashing order No: 157/DS/JK/2018 dated 12.02.2018 under Annexure-J;
b) Mandamus commanding respondents to regularize the services of the petitioner under SRO 64 of 1994 and accord him the same treatment as has been accorded to Ali Mohd Bhat vide Order No. 286-DS/JK/2012 dated 10.08.2012, Annexure-K;SWP No. 657/2018 Page 1 of 7
c) That the respondents particularly respondent No.2 are guilty of contempt of Court and are liable for punishment under contempt of Courts Act."
02. To put them straight, the facts, as these emerge from the study of the petition of the petitioner, is that the petitioner claims to have been engaged as a Daily Wager in the respondent Department in the year 1986. Upon completion of seven years of continuous service in the respondent Department, in terms of SRO 64 of 1994, the case of the petitioner was not considered for regularization of his services, compelling the petitioner to approach this Court through the medium of a writ petition, being SWP No. 624/1995. The said writ petition, vide order dated 12th of February, 1996, came to be disposed by this Court with a direction to the respondents to consider the case of the petitioner for his regularization in the respondent Department. In pursuance of the aforesaid order of this Court, the respondents issued a consideration order dated 24th of August, 1998, whereby the claim of the petitioner was rejected. Aggrieved thereby, the petitioner filed another writ petition before this Court, being SWP No. 297/2002, which, on consideration and in terms of order dated 7th of April, 2008, too, came to be disposed of with a direction to the respondents to consider the case of the petitioner afresh. Since the respondents did not consider the case of the petitioner within the time period as fixed by this Court, the petitioner filed a contempt petition bearing Contempt No. 311/2008 against them, wherein the respondents produced a copy of consideration order dated 25th of October, 2008, as a result thereof, this Court closed the contempt petition of the petitioner vide order dated 12th of March, 2009, giving SWP No. 657/2018 Page 2 of 7 liberty to the petitioner to challenge the said consideration order, if aggrieved. Thereafter, the petitioner filed another writ petition, being SWP No. 1883/2009, challenged the consideration order dated 25th of October, 2008, whereby the claim of the petitioner was, again, rejected. On 4th of April, 2016, this petition, upon consideration, also, came to be disposed of by this Court with a direction to the respondents to extend the benefit of judgment dated 17th of March, 2016, passed in SWP No. 519/2016 to the petitioner, provided he is similarly circumstanced with the petitioner in the aforesaid writ petition. Despite the said order of this Court having been duly served upon the respondents, the respondents did not implement the same, constraining the petitioner to file yet another contempt petition, registered as Contempt petition No. 491/2016, against the respondents. In the said contempt petition, the respondents placed on record consideration order dated 8th of October, 2016, rejecting the claim of the petitioner. Aggrieved by the said order, the petitioner filed SWP No. 1711/2016 before this Court, which, on consideration and vide order of this Court dated 10th of August, 2018, came to be disposed of with a direction to the respondents to consider the case of the petitioner afresh and after examining the entire records, more particularly the statement showing the list of Daily Rates Workers who have completed seven years of continuous service and certified by the concerned officers/ officials. In pursuance of the judgment aforesaid of this Court, the respondents have, now, proceeded to issue fresh consideration order dated 12th of February, 2018, whereby the claim of the petitioner for regularization of his services, SWP No. 657/2018 Page 3 of 7 in terms of SRO 64 of 1994, has been rejected. It is against this order that the petitioner has filed the instant writ petition for the above stated relief(s).
03. On notice, the respondents have filed their objections in opposition to the writ petition, wherein they have pleaded that the petitioner was engaged as a Casual Labourer on need basis, as and when required, and that at no point of time, the petitioner was engaged as a Daily rated Worker/ Work charged employee by the respondent Department, which would have entitled him to equitable benefits under SRO 64 of 1994. The respondents have averred that the case of the petitioner does not fall within the circumference of SRO 64 of 1994. It is contended that the consideration order has been passed on the basis of the material/ record available with the Department and in consonance with the law applicable to the field. In the end, the respondents have urged that the petition of the petitioner deserves to be dismissed.
04. Heard the learned counsel for the parties, perused the record and considered the matter.
05. In order to appreciate the controversy involved in the matter, it shall be appropriate to take note of the relevant portion of the impugned consideration dated 12th of February, 2018, which reads thus:
SWP No. 657/2018 Page 4 of 7"Whereas, it is pertinent to mention here that the petitioner being casual labourer having no continuous service, as required under SRO-64 of 1994, at his back does not substantiate his claim for regularization under SRO-64 of 1994 as the petitioner fails to fulfill the minimum eligibility criteria. Thus, the pre-requisite condition(s) for claiming relief under the said SRO stand unfulfilled by the petitioner.
Now, therefore, after thorough re-examination and re- consideration of the case of the petitioner under the relevant Rules, i.e. SRO-64 of 1994 with due application of mind and in spirit of the Hon'ble High court's direction dated 10.08.2017, the claim of the petitioner sans merit and hence is rejected."
06. A bare perusal of the order aforesaid brings it to the fruition that the respondents have, after proper re-examination of the relevant material and re-consideration of the case of the petitioner in accordance with the rules governing the field, passed the said order, whereby the claim of the petitioner has been found to be devoid of any merit and, as such, rejected.
07. It is the case of the respondents that the case of the petitioner does not fall within the ambit and scope of SRO 64 of 1994 for seeking regularization of his services in the respondent Department. The respondents have, categorically, stated that the petitioner was engaged as a Casual Labourer in the respondent Department, way back in January, 1987 and has not been working as such continuously with the respondents, as there are huge breaks in his work period, therefore, the petitioner cannot be said to have a continuous service of seven years at his back, which is a mandatory requirement for seeking benefit of regularization under SRO 64 of 1994.
SWP No. 657/2018 Page 5 of 708. Looking at the petition of the petitioner on the touchstone of the applicability of SRO 64 of 1994 coupled with the stand taken by the respondents, what can be said is that the case of the petitioner does not fall within the contours of SRO 64 of 1994 as the respondents, in no uncertain terms, have denied the averment made by the petitioner that he has continuously been performing his duties with the respondent Department. It being so, the petitioner does not have seven years continuous service to his credit in the respondent Department so as to entitle him to the benefit of SRO 64 of 1994. The respondents have re-considered the case of the petitioner, as directed by this Court in SWP No. 1711/2016, in light of the material available on record and have passed the consideration order dated 12th of February, 2018, rejecting the claim of the petitioner as being without any merit. However, it needs must be said that the petitioner, in his petition, has, specifically, averred that he has been continuously discharging his duties with the respondents from the last more than thirty years, which fact has been vehemently disputed by the respondents. It is well settled that this Court, in writ jurisdiction, cannot go into a fact-finding mission so as to ascertain the veracity/ genuineness/ correctness of such disputed claims. The petitioner has to approach the civil Court so as to substantiate his claim as regards the contention that he has been continuously discharging his duties in the respondent Department for a long number of years (more than 30 years to be precise).
09. Viewed in the context of all that has been said and done above, the petition of the petitioner is found to be devoid of any merit, as a SWP No. 657/2018 Page 6 of 7 sequel thereto, the same fails and is dismissed, alongwith all connected IA(s). Interim directions, if any, subsisting as on date, shall stand vacated. However, the petitioner shall be at liberty to work out appropriate remedy as may be available to him under law before the Civil Court as regards the disputed claims raised by the parties.
[ (Ali Mohammad Magrey) Judge SRINAGAR November 22nd, 2018 "TAHIR"
SWP No. 657/2018 Page 7 of 7