AB MAJID Vs. STATE OF J&K

JUDGEMENT

(1.) THIS petition proceeds on a sad note. Can a human being kept in a pathetic condition and made to survive on a meager amount of Rs. 40 per year which comes to Rs. 3.25 per month in present days. Story of the poor petitioner is mind boggling. He was engaged as a Waterman -Cum -Sweeper in Govt. Primary School Jakhar, Ramnagar in the year 1980 by the then Tehsil Education Officer, Ramnagar. On the recommendations of headmaster of the school by a written Order of his engagement. It is alleged that petitioner was being paid Rs. 40 per year which was enhanced to Rs. 80 and then to Rs. 500 per year in the year 1992. Till date he is being paid this amount of Rs. 500/ - per year for rendering the services in the School. After being exploited for more than two decades, he appears to have acquired some courage and little wisdom and approached this court by filing present petition claiming his regularization as a Class -IV from the date he was appointed and also for payment of arrears. It is also alleged that another person namely Dev Raj S/o Bal Krishan R/o Dhoona Latli who was also working as Safai Karamchari on consolidated pay was regularized as Class -IV on 2nd July 1992. The petitioner has been denied even the minimum wages payable to a worker. Besides placing on record the appointment Order dt. 12th June 1980, petitioner has also filed a certificate from the Sarpanch Halqa Panchayat Dudu Certifying payment of Rs. 500 per year as wages to the petitioner and another certificate dt.3rd September 2004 issued by the Head Master Govt. High School Jakhar Ramnagar certifying petitioners continuous engagement w.e.f. 1st May 1980. This certificate also demonstrates continuous engagement of the petitioner except winter and summer vacations and other gazetted holidays. In the reply filed to this petition, the respondents have admitted the engagement of the petitioner since the year 1980 and payment of Wages at the rate of Rs. 4/ - per month increased to Rs. 10 per month and then Rs. 250 per month; meaning thereby that the petitioner was being paid Rs. 40, Rs. 50 and Rs. 500 per year from time to time. Regarding the claim of the petitioner for regularization as Class -IV, it is stated that petitioner is only a part time worker and is used for fetching water from a distance of 200 meters for the School. It is also stated that after the year 1993 a regular sweeper has also been engaged. Respondents have resisted the claim of the petitioner for regularization against Class -IV on the ground that petitioner is paid from the contingency fund and cannot be regularized on a regular establishment.

(2.) IT is unimaginable that a person can survive with a sum of Rs. 4 per month even in the year 1980 and with Rs. 500/ - per year i.e. Rs. 48 per month in present days when the prices even for food/clothing have gone so high. Petitioner has been kept in miserable condition for a period of more than two decades by the respondents and still they have reservation to the grant of relief to the petitioner by this court. One fails to understand how the petitioner has been maintaining himself and may be the family with a paltry amount of Rs. 500 per year. The claim of the respondents that the petitioner is only a part time worker and is engaged only for fetching water stands belied from the certificate issued by the Headmaster of the School, Jakhar, on 3rd September 2004 wherein the engagement of the petitioner said to be on regular basis. It is note worthy that the same Headmaster has issued above noted certificate who is signatory to the reply filed in this court. How can an Officer of the rank of Head -master behave like this. That too, in the highest court of law in the State. The certificate do no in any manner mention the temporary nature of engagement, though the reply speaks of part time engagement. There is allied reason not to accept the contention of the respondents as raised in the reply is the Appointment Order itself. The Appointment Order of the petitioner clearly shows the engagement of the petitioner as Waterman -cum -sweeper as a whole timer and not for part time. Even the certificate issued by the Sarpanch show the engagement of the petitioner as a whole timer.

(3.) PETITIONER is seeking his regularization as a Class -IV. He has been performing his duties for over a period of 25 years. It is true that there is no rule or law where under petitioner can claim a right of regularization. Petitioner submits that he is at the verge of retirement. His age as mentioned in the writ petition is 58 years. He is performing duty as a member of inferior service. Throwing out the petitioner at this stage would be travesty of justice. I am conscious of the fact that there is no rule which may confer any right upon the petitioner for regularization as Class -IV. He is not governed by SRO 64 of 1994 being not a daily wager. But, this court is not only a court of law, but a court of equity particularly where the right and protection of a member of the society like the petitioner who comes from the lowest strata is involved. Such a right emanates from even Article 21 of the Constitution of India which grants protection of life which interalia include the provision for food and clothing. Notwithstanding the legal position, I am of the considered opinion that this court has to come to the rescue of the petitioner. This petition is accordingly disposed of with the following directions: (1) pay to the petitioner minimum wages as payable under the Minimum Wages Act w.e.f. January 1992 at such rates as were prevalent from time to time. (2) petitioner be considered for regularization as class IV. (3) Petitioner be brought on regular establishment as helper/class -IV which ever be the lowest post available on the regular establishment of the department within a period of two months. (4) Non -observance of this direction within the stipulated period will amount to commission of contempt of court.