Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Khanday & Ors vs State Of J&K & Ors on 7 June, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
1
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
,
Case No: SWP 1280/2017
MP nos.01/2018 & 02/2018
,
Reserved on 24.05.2019
Pronounced on 07.06.2019
Shabir Ahmad Khanday & Ors.
.....Petitioner(s)
Through :- Mr. S.A Ratanpuri, adv.
V/s.
State of J&K & Ors.
,
....Respondent(s)
Through:- Mr. Irfan Andleeb, Dy AG
CORAM:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Whether approved for reporting : Yes
JUDGMENT
1. The petitioners, 106 in number, claiming to have been engaged as Casual Labourers in the Public Health Engineering (PHE) Department, Budgam, in the years 2005, 2006 and 2007 and to be continuing till date, have filed this writ petition for the following reliefs:
"a) Writ of Mandamus, commanding the respondents to regularize the services of the petitioners in view of the law laid down by this Hon‟ble Court in case titled State of J&K v Mushtaq Ahmad Sohail [2012 (4) JKJ 1051 (HC)] by treating the petitioners to have been engaged as daily rated workers.
(b) Writ of Mandamus, commanding the respondents to release the salary of the petitioners from the date same has not been paid to them i.e. w.e.f. 2011 till date and also to release their future salary without any let or hindrance.
c) Writ of Mandamus, commanding the respondents not to disturb the present status of the petitioners and allow them to continue on the posts held by them till their regularization.
d) Writ of Mandamus commanding the respondents to release all consequential benefits of the petitioners after their regularization against the post held by them in the respondent department.
This Hon‟ble Court may pass any other writ, order or direction which it deems just and proper under the facts and circumstances of the case in favour of the petitioners and against the respondents."
22. The facts pleaded in the petition are somewhat blurred. I think it would be appropriate to give a resume of the backdrop of the engagement of casual / seasonal labourers in the State, which, in fact, is precisely mentioned in the Division Bench judgment of the Court in State of J&K v Mushtaq Ahmad Sohail [2012 (4) JKJ 1051 (HC)] referred to by the petitioners in their writ petition and its prayer clause quoted hereinabove, and, in fact, heavily relied upon by them.
3. The practice of engagement of Casual / Seasonal Labourers in the Works Departments of the State has been in vogue since long. In 1994, pursuant to Administrative Council Decision no.14 dated 24.01.1994, the Government issued order no. 26-F of 1994 dated 31.01.1994 providing for regularisation of daily rated workers / work charged employees in terms of the conditions laid down therein, and withdrawing the practice of engaging daily wagers / daily rated workers in the Government in any form. The order, however, retained the concept of casual labourers / seasonal labourers for specified development works. Such casual labourers / seasonal labourers were provided to be engaged on muster rolls for payment of wages and no engagement / appointment orders were to be issued. Subsequently, the Finance Department issued SRO 64 dated 24.03.1994, notifying the Jammu and Kashmir Daily Rated Workers / Work Charged Employees (Regularisation) Rules, 1994, (hereinafter, the 1994 Rules) which came into force with effect from 01.04.1994. Rule 3 of the 1994 Rules provided for creation of posts for regularization of daily rated workers and work charged employees. Rule 4 prescribed the eligibility criteria for regularisation; whereas Rule 7 provided that with the commencement of the 1994 Rules, no field / subordinate officer shall have the power for engagement of a daily rated worker or work charged employee, and that the existing delegation, if any, in this regard was withdrawn. However, Proviso to Rule 7 provided that the competent authority may engage casual labourers or seasonal labourers in any of the departments to be specified by notification, from time to time, by the Government, and that such labourers shall be on the muster rolls for payment of wages and no engagement or appointment orders shall be issued.
4. Despite the ban so imposed by the 1994 Rules for engagement of daily rated workers and work charged employees, such engagements, however, continued to be made. Consequent thereto, the Government issued order no.144-GAD of 2001 dated 02.02.2001 based on Cabinet Decision no.131 dated 31.01.2001, providing that the appointments / engagements made unauthorisedly after imposition of ban viz. 31.03.1994, if they were performing duties, be paid salary upto 31.01.2001 3 after which date their services / engagements be terminated. This cut-off date was, however, subsequently extended to 06.11.2001 in terms of Government order no.1285-GAD of 2001 dated 06.11.2001 founded on Cabinet Decision no.135/11(B) dated 10.09.2001.
5. The aforesaid Government order dated 02.02.2001 was challenged in number of writ petitions which were allowed. A bunch of LPAs, with lead case being Ashok Kumar v State of J&K, 2003(II) SLJ 475, were filed before the Division Bench which were decided by judgment dated 26.07.2002. In that judgment the position concerning the right of casual labourers / daily wagers / ad hoc employees was taken note of in the judgment and as many as 15 directions were passed therein. Certain directions were made specifically regarding casual labourers. The Division Bench judgment was vainly challenged before the Supreme Court. So the net result was that the daily rated workers / work charged employees engaged even after 01.04.1994 till 06.11.2001 were declared entitled to be regularised in terms of the 1994 Rules.
6. It may be mentioned here that pursuant to the Proviso to Rule 7 of the 1994 Rules, the Government issued order no.239-F of 2005 dated 29.11.2005 notifying the departments authorised to engage casual / seasonal labourers. In all 4 departments were notified which included the Public Health Engineering, Irrigation and Flood Control Department (PHE, I&FC Department). Such engagements were authorised to be made on minimum need basis on muster rolls for payment of wages and subject to the conditions laid down therein which read as under:
"a) In case the need for engagement is felt, which is outside the purview of a scheme/project the same should be carefully assessed. The need based requirement shall be met out of the DRWs (Daily Rated Workers) regularised as Helpers available in the department by way of internal adjustment only without brining any additional burden on the scarce resources of the State.
b) No engagement or appointment order shall be issued in respect of Casual/Seasonal Labour.
c) The Administrative Departments shall have to determine in such case as to what minimum number of Casual / Seasonal Labour is required to be engaged, for what length of time, and against which project/scheme by debit to which the wages shall be paid.
d) The respective Administrative Departments controlling above notified departments will further determine the source of payment of their wages, whether debitable to original work or maintenance component and ensure availability of budgetary allocation.4
e) Skilled/trained labourers in identified trades shall be given preference in local areas for engagement of Casual / Seasonal Labourers.
The wages of the labourers so engaged would be paid @ Rs.70/- per day."
The concern of the Government, as is axiomatic from a plain reading of the terms and conditions laid in the aforesaid Government order dated 29.11.2005, however, seemingly were observed in breach as would transpire from what follows, especially the facts attendant to the State of J&K v Mushtaq Ahmad Sohail (supra).
7. In State of J&K v Mushtaq Ahmad Sohail (supra), filed by the casual labourers, the question for consideration which arose before the Court was whether they, in fact, were working as casual labourers or, under the nomenclature of casual labourers, were, in effect, working as daily rated workers within the meaning of the definition under Rule 2(b) and (f) of the 1994 Rules. The petitioners-respondents therein had been engaged as casual labourers in 1995 and then continued till mid of June, 2001 when they were sought to be disengaged. It may be observed here that in terms of the 1994 Rules, a casual labour / worker meant a person who was engaged through an appointment order or otherwise on daily rated basis for rendering casual services to a Department; whereas a daily rated worker meant a person engaged on daily wage basis at the rates sanctioned by the Government from time to time. Furthermore, in terms of the 1994 Rules, the daily rated workers and work charged employees who had completed seven years as on 31.03.1994 were to be regularised and those of such workers/employees who had not completed seven years‟ service but, having been appointed prior to the date from which ban was to operate on making such appointments, would complete the seven years‟ service subsequently, were also to be regularised in subsequent financial years. The Division Bench, quoting the definition clauses, observed that the marked difference in-between the two clauses was that the engagement of the casual labour was to be occasional otherwise the daily wages payable to the daily rated workers and casual labourers was the same, but casual labourers would get the daily wages only for such period as they would be occasionally engaged. In context of the petitioners in that case, it was found and held that they, in effect, were daily rated workers because they had not been engaged occasionally, but had been working continuously. Referring to the observations made by the earlier Division Bench in para 40 of the judgment in Ashok Kumar v State of J&K (supra) with reference to what had been said by the Supreme Court in Piara Singh [State of Haryana v. Piara Singh, (1992) 4 SCC 118], the Division Bench held 5 that the writ petitioners therein, having been working for long periods continuously, were also entitled to be considered for regularisation under the 1994 Rules. The appeals thus were dismissed and the judgment of the learned Writ Court dated 05.02.2010, providing for according consideration to the cases of the writ petitioners for regularisation of the services, was maintained.
8. So the law thus laid down is that where a casual labourer has continued to work for a sufficiently long period, it would not be apt to call him having been appointed on casual basis, and he would be entitled to regularisation under the 1994 Rules. However, the word used is "continued" and this has to be borne in mind, meaning thereby a person who is appointed for a month or two during a calendar or financial year on need basis and is, thereafter, again engaged in some subsequent year for a month or two would not fall in such category. The ratio of the law so laid down in State of J&K v Mushtaq Ahmad Sohail (supra) is, thus, clear and unambiguous.
9. Now, coming to the instant case, it is averred in the writ petition that the petitioners have been engaged as casual labourers in the years 2005, 2006 and 2007 and have been continuously working as such. Their case is that they have not been paid their wages since 2011, and that they are, in effect, daily rated employees, entitled to be regularised in terms of the 1994 Rules following the above Division Bench judgment. Precisely speaking, this is their short case.
10. It needs a mention here that since issuance of appointment/engagement orders is not a norm, the petitioners, in order to substantiate their above said case, have relied on certain correspondence that has exchanged between the officers of the Department at different levels and some other documents. Let this correspondence and the documents be examined to see whether the petitioners have been able to make out / establish their aforesaid case.
11. The first of the communications, referred to by the petitioners, is a letter addressed by the Superintending Engineer, Hydraulic Circle, Budgam, to the Chief Engineer, PHE Department, Srinagar, placed as annexure B with the petition. Its despatch no. and date is not clearly legible, but appears to have been written in 01/2008. Referring to an earlier communication no. SE / Hyd / Bud / 4542-43 dated 12.01.2008, it mentions that three lists comprising 1157 persons engaged on need basis in PHE Division, Budgam, stand submitted to the Chief Engineer in terms of Executive Engineer‟s communications, bearing no.4681-82 dated 11.08.2006; no.638-39 dated 23.04.2007 and no.PHED/Estt/766-72 dated 6 28.04.2007. The Superintending Engineer sought consent so that the concerned Executive Engineer was able to disburse payment to all these persons. This is all this communication gives out.
12. Then at page 15 of the writ petition is a communication written by the Executive Engineer, PHE Division, Budgam, to the Superintending Engineer. Though not clearly legible, it appears to bear no.7536-37 dated 27.10.2009 (27-X-
09). This communication gives some insight how the aforesaid three lists comprising 1157 persons stated to be engaged on need basis in PHE Division, Budgam, had come into existence. The communication classifies the aforesaid persons list-wise as Class 1st, Class 2nd, Class 3rd and Class 4th. As to Class 1st it states that there are 581 need based labourers mentioned in this list, which stood submitted to the higher authorities vide communication no.4718-20 dated 14.09.2005, and that their wages were being paid to them, from time to time, as and when funds were received by the Division as wages for these persons. It is stated that, except for 48 of these 581 need based labourers, there are no formal orders of engagement in their favour. Regarding the other list of 556 persons, classified as Class 2nd, it is stated in the letter that the list was submitted to the higher authorities vide communication no.2211-12 dated (not legible) as per the instruction of the then Minister for Transport, but so far neither any funds had been released for them, nor any instructions had been received regarding them. Nonetheless, it is mentioned therein that the first time wages had been drawn in their favour in the month of 2/2008 and 3/2008. So far as the third list, Classified as Class 3rd, comprising 20 persons, it is stated that the same was submitted to the higher authorities vide letter no.638-39 dated 23/4 for seeking instructions. It is mentioned that one time payment in their favour had been made in the month of 3/2008, though no formal orders had been received regarding their engagement from the higher authorities. As to the Class 4th list, consisting of 38 persons, it is stated that the applications of these persons had been endorsed to the office by the Chief Engineer, Kashmir, PHE Department, from time to time, as per recommendations of the Ministers / Politicians, but neither any kind of funds had been received for them, nor any wages had been released to them. After giving such details, it is stated in the said communication that the funds received as wages in favour of the 581 need based labourers mentioned in Class 1 st list were not being drawn and disbursed because the other persons mentioned in the 2 nd, 3rd and the 4th list were pressing hard for release of wages and were agitating in the sub-divisional offices, creating unnecessary problems in the smooth functioning of the office and 7 routine official work. It is also mentioned that these persons were using rude language against the concerned officials. A request is made in the communication to the Superintending Engineer to take up the matter with the Chief Engineer and higher authorities so that the issue was settled once for all.
13. This Court is not concerned to examine how these persons have come on the lists classified as Class 2nd, Class 3rd and Class 4th and as to whether they would really constitute need based casual labourers in terms of Government issued order no.239-F of 2005 dated 29.11.2005. What is relevant for the Court is to examine whether these communications establish the case of the petitioners as put forth by them as to their engagement, continuation and non-payment of wages. Obviously, nothing like that is disclosed or established by these facts and communications.
14. It appears that a need was felt to compile authenticated lists of the Casual Labourers working in the PHE Division Budgam. This is borne out from communication no.4877-78 dated 26.10.2010 written by the Executive Engineer, PHE, Budgam, to the Superintending Engineer placed on record as annexure C to the writ petition. The communication reveals that the information as sought and received by the Executive Engineer from the Assistant Executive Engineers concerned was re-submitted for further action.
15. It further appears that, thereafter, in the year 2011-12, a committee was constituted for conducting physical verification of the casual labourers working in the PHE Division, Budgam, which was headed by the Superintending Engineer, Hydraulic Circle, Budgam. A verified list of such casual labourers as were found working in the field was thus prepared. However, as is revealed by annexure D to the writ petition, some representations came to be filed by some persons, not disclosed or named therein, claiming that their names had been dropped during the physical verification. The Superintending Engineer sent such representations to the Executive Engineer, PHE Division, Budgam, for a factual report.
16. A similar representation appears to have been made by petitioner nos. 1, 21 and 40 herein addressed to the Advisor to the Governor which appears to have ultimately reached to the Assistant Executive Engineers, Sub-Divisions, Budgam and Beerwah of the PHE Division, Budgam, for report. The petitioners have placed on record as annexure F to the writ petition, a communication no.3173-74 dated 20.09.2016 written by the Executive Engineer to the Superintending Engineer, enclosing a list of 106 dropouts / further verification of NBCLs received in the Division Office from the Assistant Executive Engineers, Sub-Divisions, Budgam / 8 Beerwah, counter signed by the then Executive Engineer, Khazir Mohammad Khanday, for consideration and further action, said to have been prepared in consequence of the representations referred to above. The Superintending Engineer, in turn, forwarded it to the Chief Engineer vide communication bearing endorsement no.SEH/Bud/Plg/2016-17/4182-83 dated 22.11.2016, appended as annexure G with the petition. Then, the petitioners have placed on record as annexure H to the writ petition, a communication bearing no.554-55 dated 09.05.2017 written by the Executive Engineer to the Superintending Engineer intimating to him that the office had received a demand for wages from the Assistant Executive Engineers, Budgam and Beerwah, vide their communication nos. SDB/948 dated 24.03.2017 and SDB/988 dated 05.04.2017, respectively, for the aforesaid 106 NBCLs (Need Based Casual Labourers) who had been skipped during verification. When the aforesaid list reached the Chief Engineer, he, vide his communication no.PHE/Estt/5424-25 dated 30.05.2017 sought a report about these NBCLs from the Superintending Engineer. This communication forms annexure J to the writ petition. Then there is communication no.1443-44 dated 07.06.2017 written by the Ex. Engineer, PHE Division, Budgam, to the Superintending Engineer, stating that the list stands verified by the then Assistant Executive Engineers, PHE Sub-Divisions, Budgam and Beerwah, and counter signed by the then Executive Engineer. The Executive Engineer, PHE Division, Budgam, in the aforesaid letter also referred to the earlier communications received by him from the Sub-Division Officers raising demand for release of funds for wages of these persons. The Superintending Engineer, vide his communication dated 12.05.2017, in turn, forwarded the said information to the Chief Engineer enclosing the list of 106 NBCLs in original. It is these 106 persons who are petitioners in the present writ petition. As becomes axiomatic, these communications / documents, do not establish, even remotely, the case of the petitioners, as put forth by them, referred to above.
17. It may also be mentioned here that meanwhile, the Government in the Finance Department, through Director (Codes), issued OM No.A/106(94)-I-78 dated 05.09.2016 on the subject of Aadhar based biometric and skill profiling of casual, seasonal and other workers. It said that the Committee constituted vide Government order no.126-F of 2016 dated 28.04.2016 under the Chairmanship of Chief Secretary had approved the format for seeking information for carrying out Aadhar based identification and skill profiling of the categories of workers mentioned therein, which included casual labourers / seasonal labourers. The OM 9 required the Administrative Secretaries of all departments to furnish the relevant information as per the format in the shape of hard as well as soft copy within 30 days beyond which, it was provided that, no information would be acknowledged / entertained. The DDOs could upload the required data on the application hosted by NIC and the user IDs and passwords could be had by the DDOs from the NIC District Units located at the offices of the concerned Deputy Commissioners. The petitioners in proof of their claim have placed on record annexure M, which is a bundle of the downloaded copies of the formats containing the requisite information vis-à-vis them, uploaded, according to them, by the respondents on the relevant website.
18. So, relying on the aforesaid documents, the petitioners claim that they were engaged as Casual Labourers and have continued as such since long, though their wages have not been paid to them since 2011, and claim regularisation, as being, in effect, daily rated workers.
19. The respondents in their objections stated that some need based casual labourers were engaged in the year 2005 but, in view of the available records, the said casual labourers had not continued in the department and that, in order to verify the casual labourers working in the Division, a Committee was constituted in the year 2011-12 for physical verification of such labourers which was headed by the Superintending Engineer, Hydraulic Circle Budgam. It is averred that the casual labourers who were duly engaged and were working in the field were physically verified after due examination of the relevant documents and the verified list was signed by all the members of the Committee and forwarded to the concerned authorities for further course of action. It is averred that the petitioners failed to submit the required documents before the Committee and the Committee after full scrutiny of the candidates found the petitioners not eligible and as such were dropped. The respondents denied that the petitioners were working in the PHE Division, Budgam, in any capacity.
20. Responding to the objections so filed on behalf of the respondents, the petitioners filed a supplementary affidavit refuting that the petitioners had failed the physical verification. It is stated that they were deliberately dropped. Consequently, they had to make representations which are referred to in the various communications reiterated by the petitioners. The petitioners in the supplementary affidavit have reiterated their assertions, seeking to buttress them by the documents, already discussed hereinabove.
1021. The Court, however, feeling dissatisfied with the reply so filed on behalf of the respondents, vide order dated 20.03.2018 required the Superintending Engineer, Hydraulic Circle, Budgam, and the Executive Engineer, PHE Division, Budgam, to submit their personal affidavits. In response thereto, the Superintending Engineer in his affidavit stated that in his capacity as being the Circle Head, there are two PHE Divisions and two Irrigation and Flood Control Divisions working under his supervision. The Circle Office works as a bridge between the direction office and the various divisions falling under his area of jurisdiction. Each communication from the respective PHE Divisions is routed to the Direction Office through his office. In the present case, some communications have been addressed to his office, which have been accordingly forwarded to the direction office, i.e., the office of the Chief Engineer, PHE Department, Kashmir. He further stated that as reported to him by the Executive Engineer, PHE Division, Budgam, the basic communications bearing no.SDB/948 dated 24.03.2017 and no. SDB/988 dated 05.04.2017, which had been received in the office of the Executive Engineer, PHE Division, Budgam, have been found to be forged. It is stated that it was in these circumstances that the subsequent communications between the office of Executive Engineer, PHE Division, Budgam, his office and that of the Chief Engineer have come to be issued from time to time.
22. The Executive Engineer in his affidavit reiterated that the casual labourers who were duly engaged and were working in the field were physically verified after due examination of the relevant documents and a verified list signed by all the members of the committee was prepared and forwarded to the concerned authorities for further course of action. It was stated by him in the affidavit that the petitioners were not existing anywhere as they were not working in the department on the date when the physical verification of the need based casual labourers was done. It was further stated in the affidavit that the communications bearing nos. SDB/948 dated 24.03.2017 and SDB/988 dated 05.04.2017 were founded to be forged and so was the list of so called 106 casual labourers not genuine. In this connection it was further stated that the said list received by the Executive Engineer on 20.09.2016 was said to have been counter signed by the Executive Engineer, Mr. Khazir Muhammad Khanday. According to the Deponent, said Mr. Khazir Muhammad had retired way back in March, 2014 and there was no possibility of his signing the said list in 2016. Thus the claim of the petitioners was refuted.
1123. Thereafter, when it was brought to the notice of the Court that the names of the petitioners find uploaded on the website of the Finance Department among the persons who were working as daily rated employees, casual/seasonal labourers etc. and it was submitted that the two aforesaid officers had not properly considered the documents, the Court by order dated 08.05.2018, directed the Commissioner Secretary to Government, PHE / I&FC Department to constitute a committee, including the officers from his Department as also from the Finance Department to examine the records which had been brought on record and to submit a report to the Court. The Committee so constituted submitted its report to the Court vide an application filed on 01.02.2019 to the following effect:
"The information provided by the Chief Engineer, Kashmir vide letter dated 25.09.2018 was perused and it was found by the Committee that the information provided by the Executive Engineer, PHE Division, Budgam, infers that only 15 petitioners out of total 106 petitioners have been paid wages.
Further, the information received from the Chief Engineer confirms that more than 105 persons have been online registered in total contravention of instructions issued by the Finance Department on 02.09.2016 as against the actual fact that the said persons have worked for a limited period before 2009 and thereafter were not working in the Department in the year 2016.
The Committee observed that the linking of Aadhar based Biometric and skill profiling of the said persons engaged on need basis for a limited period before 2009 was against the norms. As such, lining with Aadhar based Bio-metric of the said persons was in total contravention of the circular instructions as issued by the Finance Department vide O.M. No.A/106(94)-I-78 dated 02.09.2016.
The Committee found the following officers / officials responsible for online registration of the said Division in the said year:
a. Sh. Habibullah Mir, the then AEE, PHE Division, Budgam
b. Sh. Manzoor Ahmad Yatoo, Establishment Clerk, PHE
Division, Budgam.
The Committee has decided to initiate disciplinary action against the said officers / officials by placing Sh. Habibullah Mir, the then AEE, PHE Division, Budgam, and Sh. Manzoor Ahmad Yatoo, Establishment Clerk, PHE Division Budgam under suspension followed by the charge sheet and to call an explanation from G. A. Ganie, the then Executive Engineer, PHE Division Budgam...."
24. I heard the learned counsel for the parties, perused the material on record and considered the matter.
25. It may be reiterated here that in order to be entitled to the relief prayed for in this petition, the petitioners have to establish that they have been engaged as such 12 casual labourers and that, after such engagement, they have continued for a sufficiently long period bringing them within the parameters and contours of the law laid down in State of J&K v Mushtaq Ahmad Sohail (supra), the judgment relied upon by them for the claimed relief. The respondents have categorically refuted the claim of the petitioners. The only way out for the petitioners was to substantiate their claim by documents. Most of the documents brought on record by the petitioners as annexures do not establish anything concerning the writ petitioners, and the other documents, which could have some relevance, have been termed to be forged by the concerned respondents. The Executive Engineer, PHE Division, Budgam, in his personal affidavit has even disputed the genuineness of the list of 106 NBCLs, heavily relied upon by the petitioners. There being no mechanism available to the Court to find out the veracity of the statements made in the personal affidavits of the two concerned officers, the Court, as mentioned above, ordered constitution of a Committee to examine the documents. The report of the Committee, quoted above, clearly contradicts the claim of the petitioners. So the very basic facts pleaded by the petitioners are disputed and / or denied by the respondents.
26. It is important to note here that the list of the 106 NBCLs who are the petitioners herein, is heavily relied upon by the petitioners to substantiate their claim. Furthermore, by MP no.02/2018, the petitioners brought on record certain documents with the prayer to require the Committee directed to be constituted by the Commissioner / Secretary to Government, PHE Department, to consider the same. Let these documents which have been brought on record by the said MP be examined to ascertain what do they establish.
27. Column 5th with the heading „brief payment details‟ contained in the so called list of 106 dropout NBCLs, relied upon by the petitioners, shows that payments have been made to the petitioners just for a month or two in the years 2005 to 2009, not beyond that. For instance, the name of petitioner no.1 herein figures at serial no.7 of the list. He is shown to have been paid for the months of 10/2006, 12/2007, 12/2008 and 01/2009. Petitioner no.2, Abdul Majid Shah, figuring at serial no.2 of the list, is shown to have been paid for the months of 01/2007, 03/2008, 01/2009 and 12/2009. Petitioner no.3, figuring at serial no.3 of the list, is shown to have been paid for the months of 10/2006, 01/2008, 12/2008 and 01/2009. Petitioner no.4, figuring at serial no.4 of the list is shown to have been paid for the months of 12/2006, 01/2008, 12/2008 and 01/2009. So is the case with other petitioners. So this document, heavily relied upon by the petitioners, 13 contradicts, rather, belies their claim of having been engaged as casual labours and continued as such labourers. The list also belies their claim of having been working in 2001 or that their wages have been stopped from year 2011. The document establishes that they had been engaged for a month or two during the relevant years and have duly been paid their wages. This document does not, in any way, support their claim. It is one thing to say, or establish, that the petitioners were engaged on need basis for a month or two and another thing that they were engaged as casual labourers and continued as such for sufficiently long periods.
28. Now coming to the documents brought on record by them in terms of MP 02/2018. The first set of documents forming annexure A1 to the MP are supposed to the certificates obtained by the petitioners from the relevant Bank certifying the amount of wages received by them and/or the Bank Account Statements to the same effect to demonstrate and establish that they were engaged and continued as casual labourers for long periods. In all, this annexure comprises of 36 leaves out of which 23 are in the shape of certificates issued by the concerned Bank and 13 are the accounts statements. Out of the 23 certificates, two certificates bearing page nos. 30 and 43, do not pertain to any of the petitioners, whileas two others, bearing page nos. 28 and 38, seemingly, pertaining to petitioner nos.60 and 84, do not fully tally with their particulars. The remaining nineteen certificates thus issued by the concerned Bank, going by the order these are appended to the application, pertain to petitioner nos. 15, 59, 88, 1, 42, 95, 51, 46, 86, 68, 14, 39, 38, 34, 32, 26, 75, 4 and 50. Out of the 13 statement of accounts, only one pertaining to petitioner no.3 is legible, rest are not legible. The said Bank certificates and the accounts statement depict that the respective petitioners have been paid wages during 2 to 4 years for two to four months only. For instance, the certificate pertaining to petitioner no.15 states that he has withdrawn salary for the months of May, 2008 and May, 2010 and the amounts are shown to be Rs.1150 and Rs.4270, respectively. To the same effect are the certificates pertaining to petitioner nos.95 and 51. The certificates pertaining to petitioner nos. 46, 86, 68, 14, 84, 38, 34 depict the details of salary as 19-05-2009 = Rs.1050 and 22/03/2010 = Rs.4270. The certificate pertaining to petitioner no.59 says that he has withdrawn salary for the months of February, 2008 = Rs.2100/-, March, 2009 = Rs.4200, May, 2009 = Rs.4200/- and March 2010 = Rs.4200. To the same effect are the certificates pertaining to petitioner nos. 88, 1, 42. None of these certificates depict that the account holders have been continuously paid even for few months in a year together. Meaning thereby that they have been appointed on need basis during the 14 relevant months for which they have been paid wages. This is one aspect established by these certificates.
29. The other important thing depicted is that the particulars and details of wages mentioned in these certificates are at variance with the entries as to payments made to the persons mentioned in the list of 106 NBCLs relied upon by the petitioners. So, the enigma is which one to rely upon, the one issued by a third party viz. the Bank at the request of the petitioners, or the one which the petitioners attribute to the respondents and claim to be prepared by them having been earlier dropped out, but is described not to be genuine by the respondents, particularly the Executive Engineer, PHE Division, Budgam, in his personal affidavit. In any case, even if such would not be the case with the list in question and the certificates / accounts statements produced by the petitioners, the fact yet remains that having been engaged and paid wages for a month of two in a year during 2 to 4 years, they have neither continued as such casual labourers, nor have, naturally, been paid. So it cannot be said that the petitioners satisfy, even in the least, the conditions laid down by the Division Bench of the Court in State of J&K v Mushtaq Ahmad Sohail (supra).
30. The next document appended to the MP, comprised of pages 49 to 158, is captioned „statement showing the list of total number of casual workers engaged in PHE Division Budgam‟. It contains names of 581 persons. It is shown to have been prepared by Assistant Executive Engineers of Sub-Divisions, Budgam, Beerwah and Khan Sahib, but does not contain their signatures. However, the list is shown to be countersigned by some Executive Engineer, PHE Division, Budgam. It is not the case of the petitioners that their names figure in this list, nor have they pointed out to the Court that their names figure at such and such serial number of the list. It is also not stated in the list that the persons named therein once engaged as casual labourers at any given point of time have continued as such, entitling them to be treated as daily rated workers and to the benefit of the 1994 Rules. So the voluminous document does not help the petitioners.
31. The next bunch of documents, comprising page nos. 159 to 239, are purported to be photocopies of nominal muster rolls of casual labourers engaged on need basis at different PHE installations during the months of August, 2006, November, 2006, December, 2006, January, 2007, February, 2007, March, 2007, December, 2008 and January, 2009. Perusal of these muster rolls reveals that half of these are the copies of the other half, and a person shown to have been engaged 15 during a particular hardly has been engaged again during the other months and even if an engagement is repeated, it is made, at best, for one more month after a considerable gap. For instance, two of these Muster Rolls bearing page nos. 168 and 208 pertain to the month of August, 2006 and mentions names of 9 persons. The two pages are same in all their particulars, i.e., the one bearing page no.208 is the copy of the Muster Roll bearing page no.168. The Muster Rolls bearing page nos. 181 and 221 pertain to the month of November, 2006. Again, page no. 221 is a copy of page no.181. In all names of 9 persons are mentioned in this Muster Roll. It is, however, seen that the persons who were engaged in August, 2006 have not been engaged in the month of November, 2006. The Muster Rolls bearing page nos. 197, 214 and 231 pertain to the month of December, 2006. Again, perusal of these Rolls reveals that the ones bearing page nos. 197 and 231 are copies of the same Roll. The persons figuring in these Rolls are different from those who had been engaged in August and November, 2006. The Muster Rolls bearing page nos. 163, 164, 166, 170, 173, 176, 183, 186, 190, 191, 193, 194, 198, 203, 204, 206, 210, 213, 216, 223, 226, 230, 232, 233, 235 and 236 pertain to the month of January, 2007. Out of these the Rolls bearing page nos. 203, 204, 206, 210, 213, 216, 223, 226, 230, 232, 233, 235 and 236 are copies of the ones bearing page nos. 163, 164, 166, 170, 173, 176, 183, 186, 190, 191, 193, 194, 198. This is one aspect of the matter. The other aspect is that persons engaged earlier during the months of August, 2006, November, 2006 and December, 2006 do not seem to be engaged in January, 2007. Even if some of them had been, that fact by itself would not tantamount to continuity of engagement of the persons. Similarly, the Muster Rolls for the month of March, 2007 bear page nos. 161, 162, 167, 171, 175, 177, 178, 179, 184, 185, 189, 192, 201, 202, 207, 211, 215, 217, 218, 219, 224, 225, 229 and
234. Out of these the Rolls bearing page nos. 202, 207, 211, 215, 217, 218, 219, 224, 225, 229 and 234 are copies of the ones bearing page nos. 161, 162, 167, 171, 175, 177, 178, 179, 184, 185, 189, 192, 201. The muster roll bearing page no.178 is repeated thrice at page nos. 179, 218 and 219. Then the Muster Rolls for the month of January, 2009 bear page nos.160, 169, 188, 195, 196, 200, 209, 228, 237, 238 and 239. Out of these the Rolls bearing page nos. 160, 169, 188, 195 & 196 have been repeated at page nos. 200, 209, 228, 237 and 238, respectively.
32. The above Muster Rolls, apart from being nothing more than adding weight and volume to the file, than adding anything like genuineness to the cause pleaded, do not support the claim that the petitioners once engaged have been continued to 16 entitle them to be treated like daily rated employees and, consequently, to regularization in terms of 1994 Rules.
33. The other bunch of documents, viz. photocopies of application formats purported to be of the petitioners bearing page nos. 240 to 309, even if taken to be genuine, do not disclose anything more than that the persons named therein have been engaged for a month or two in two different years. Apart from that, the relevant entries made therein vary in material particulars from the other documents which have been placed on the record. For instance, the format at page 240 mentions the name of petitioner no.22. He is shown to have been paid wages from 09/2006 to 08/2009. This statement is not supported by the list of 106 NBCLs heavily relied upon by the petitioners where in the column of payment details, he is shown to have been paid only for the month of 08/2006. There is no wage certificate of the Bank in respect of this petitioner on record. Again, the format at page 241 pertains to petitioner no.7. Against item no.20 of the format viz. „period of which wages paid‟ the entries made are „from 03/2006 to 08/2006. It is curious that against item 15 of the format i.e., date of joining, it is recorded as 2/2006. Be that as it may, in the list of 106 NBCLs, he is shown to have been paid wages for the month of 08/2006 only. His Wage certificate of the Bank is also not available on the record. Similar is the scenario depicted by other photocopies of these formats pertaining to other petitioners. I am of the opinion that disclosing similar particulars as are depicted by other formats would tantamount to revealing nothing more than removing the lid from the Pithos of Pandora, which, if done, may unleash evils of sorts. In any case, there is no document evidencing that any of the petitioners was continued month after month as a casual labourer for a sufficiently long period to entitle him to the benefit claimed for in terms of the judgment relied upon by the petitioners.
34. Having thus reached a definite finding as mentioned above, the petitioners have also failed to even remotely establish that they have worked any time during or after the year 2011. This is rather categorically belied by them themselves by producing and relying on the documents discussed in detail hereinabove. None of the Muster Rolls pertains to any month of the year 2011 or a month of any of the years thereafter. Similarly, none of the formats referred to have disclosed payments having been paid for any of the months of the year 2010 or thereafter.
35. Having minutely gone through the records and considered the matter, I am convinced that the petitioners have come to the Court with a false and frivolous 17 case, entailing distasteful consequences. Nonetheless, given the fact that the petitioners belong to the lower strata of the society, they deserve a lenient view to be excused.
36. For all what has been discussed above, the petitioners having miserably failed in establishing their claims, this petition deserves and is hereby dismissed together with all connected MPs. Interim direction, if any, subsisting shall stand vacated.
37. Taking a lenient view against the petitioners, no order as to costs.
38. Before parting with the file, I wish to observe here that at times the authorities tend to be revengeful against those who approach Courts claiming reliefs against them, because they feel like having been put to face awkward situations while defending such claims, as in the instant case. And by reason thereof do not engage such persons in future. I make it clear that filing of this case before the Court should not be an excuse for the respondents not to engage the petitioners or any one of them on need basis in the future.
(Ali Mohammad Magrey) Judge Srinagar, 07.06.2019 Syed Ayaz, Secretary.
SYED AYAZ HUSSAIN 2019.06.07 12:29 I attest to the accuracy and integrity of this document