NAZIR AHMAD HAJAM Vs. STATE OF J&K

JUDGEMENT

(1.) THE facts material for disposal of this writ petition may be stated in brief. The petitioners 1&2 claim to have come on the establishment of the respondents in the capacity of casual labourers in May, 1995, petitiones 3,4&5 October 1995, September 1998 and May 1997 .respectively. The petitioners have registered an apprehension of likelihood of their ouster in consequence to Govt. Order No. 144 -GAD of 2001 dated 02/02/2001. On the basis of averments made the writ petition a question has arisen: Whether Govt. Order No. 144 -GAD of 2001 dated: 02 -02 -2001 (for short impugned order) countenances termination of a casual labour as well.

(2.) THE respondents were put on notice. In response thereto, objections have been filed. Refuting the stand of the petitioners it is contended that in absence of availability of work the petitioners could not be allowed to continue and their discontinuation has resulted independent of the impugned order. In view of the stand taken, the answer to the question formulated hereinabove pales into insignificance yet I would to answer the question because several petitions have been filed in which controversy centers around the impugned order, obviously the answer to the question is likely to set at rest the controversy in all other pending writ petitions. To appreciate the scope and sphere of the impugned order in its right perspective, it is reproduced here under: Government of Jammu and Kashmir General Administration Department. Subject: Disengagement of Daily Wagers appointed after imposition of ban. Reference: Cabinet Decision No. 151 dated: 31 -01 -2001. Government Order No. 144 -GAD of 2001. Dated: 02 -02 -2001 Whereas under Government Order No. 26 -Fof 1994 dated: 31 -01 -1994, the practice of engagement of employees on daily wage basis daily rated workers in the Government in any form was withdrawn retaining only the category of casual labour, seasonal labour for specified Development Departments. The existing delegation of powers for engagement of daily rated workers, work charged employees available to the field officers (if any) was also withdrawn; Whereas, the decision for withdrawal of powers for engagement of daily rated workers, work charged employees w.e.f. 01 -02 -1994 with any of the subordinate officers/offices was reiterated in SRO 64 of 1994 dated: 24 -03 -1994 also; and Whereas, it has come to the notice of the Government that a number of daily rated workers have been appointed even after the imposition of ban in the Departments in total disregard of the above orders and Rules by some of the officers who had no jurisdiction or authority to do so and, therefore, such orders have been issued without jurisdiction are not legally valid; and Whereas, the Cabinet vide their decision No. 151 dated: 31 -01 -2001, referred to above noted with concern that these appointments were unauthorised and ordered that all such daily rated workers appointed after the ban if they have been performing duties shall be paid their salary up to 31 -01 -2001 after which their services shall be terminated as these appointments have been unauthorised. Now, therefore, it is hereby ordered that all the daily rated workers who have been appointed after imposition of ban i.e. after 31 -01 -1994 and are still performing their duties shall be paid their wages up to 31st of January, 2001 and thereafter their services shall be disengaged/discharged. By order of the Government of Jammu and Kashmir. Sd/ -(Naved Masood) Commissioner Secretary to Government General Administration Department.

(3.) IT transpires from the aforementioned order that the power conferred on the officers of the Government for appointment of daily rated workers was withdrawn yet appointments were made in breach by officers of the Departments and to undo such infraction, impugned order was brought into being. A plain reading of the impugned order makes it clear that the power of engaging casual labourers and seasonal labourers was not disturbed by the Government. As a corollary, the power of engaging casual labourers remains with the authorities to whom it has been delegated. In addition to that, stand of the respondents from the very inception of the Government Order No. 26 -Fof 1994 dated: 31 -01 -1994 and SRO 64 of 1994 dated: 24 -03 -1994 is that the said Govt. order and SRO do not have any applicability to the casual labourers. The same stance was taken by the State in writ petition titled Ghulam Ahmad Bhat vs. State of J&K and others which resulted in dismissal of the writ petition upheld by the Division Bench in LPA 249/1998 in Ghulam AhmadBhat Vs. State of J&K reported in JKLR 2001 Part II page 37 at 365. Relevant excerpts may be noticed: .... We are, therefore, of clear opinion that SRO 64 applies only to daily rated workers and work charged employees and not to casual labourers/workers or seasonal labourers/workers.... 