(2001) 1 J & K LAW REPORTER
High Court of Jammu and Kashmir
Hon’ble Mr. Justice R.C. Gandhi, Judge
ZOONA BIBI Petitioner
STATE OF J&K AND OTHERS Respondents
SWP No. 814/ 1999, decided on 28.9.2000.
Constitution of India, Art. 14 - Petitioner appointed as a sweeper on consolidated wages of Rs. 260/- paid out of contingent funds - Seeking regularisation in the light of SRO 64 of 1994 - Respondents submitting that petitioner has not been appointed against any post and not working for full working hours - Held : Petitioner not entitled to the relief.
The case of the petitioner is not covered under SRO 64 of 1994 which contains rules for regularisation of the services of daily wagers who have completed 7 years uninterruptedly. The petitioner is not a daily wager and is being paid out of the contingent fund. She is not similarly situated vis-à-vis daily wager. Therefore, the petitioner is not entitled to get the benefit of aforesaid Division Bench judgment. [Para 6]
Another aspect of the case is that the petitioner’s services cannot be regularised unless there is a post. The petitioner is doing the work of cleaning the School for an hour or so and not working for full working hours. It is settled law that no direction for regularisation of the services can be issued unless there is existing post against which the petitioner has been working. [Para 7]
Advocates who appeared in this case :
Mr. Syed Manzoor, Advocate for the petitioner
Sr. Additional Advocate General Mr. M.I. Qadiri for the respondents
Cases referred : Chronological
1. (1996) State of J&K v. Khatiji Begum
2. H.P. v. Ashwani Kumar AIR 1997 SC 352
JUDGMENT AND ORDER
Petitioner seeks a direction to the respondents to regularise the service against the post of Sweeper (Safaiwalla) in relaxation of her age and to pay her wages w.e.f. 1977.
According to the learned counsel the petitioner was appointed as Sweeper 20 years back on consolidated wages of Rs. 260/- to be paid out of the contingent fund in Government Girls Higher Secondary School, Nawakadal. Petitioner has been continuing in the same arrangement and has not been regularised.
Petition is admitted to hearing.
The learned counsel for the respondents has submitted that the petitioner has not been appointed against any post and being contingent employee is not working for full working hours. Unless there is a post her services cannot be regularised.
Learned counsel for the petitioner has relied upon the Division Bench Judgement dt: 29.11.1996 of this court in State of J&K v. Khatiji Begum to impress upon that similarly situated persons services were directed to be regularised. The facts of that case as recorded in the course of the order are as under :
"The petitioner is working since 1972. Period of 24 years has lapsed. She is without regularisation. The State Government has policy for regularisation of employees on completion of seven years period under SRO 64/94 why this benefit is not being extended to her after such a long time. The department may have large number of posts which may have fallen vacant against which the petitioner could be regularised. It is not understandable why case of the petitioner was not considered for regularisation against anyof these posts. In the circumstances discussed by the learned Single Judge the order is patently correct and is up-held."
The case of petitioner is not covered under SRO 64 / 94 which containes rules for regularisation of the services of Daily Wagers who have completed seven years un-interrruptedly. The petitioner is not a Daily Wager and is being paid out the contigent fund. She is not similarly situated vis-a-vis Daily Wager. Therefore, the petitioner is not entitled to get the benefit of the aforesaid Division Bench Judgement.
Another aspect of the case is that the petitioners services cannot be regularised unless there is a post. The petitioner is doing the work of cleaning the school for an hour or so and not working for full working hours. It is settled law that no direction for regularisation of the services can be issued unless there is existing post against which the petitioner has been working, as held by the Supreme Court in H.P. v. Ashwani Kumar AIR 1997 SC 352 that :
"No vested right is created in a temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor directions be given to create posts by the State to non-existing establishment. The court would accept progamatic approach in giving direction. The directions would amount to creating of posts and continuing them in spite of non-availabilty of the work.
We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside."
For the aforesaid reasons, the petitioner is not found entitled to the relief prayed for. Petition is accordingly dismissed.
Source : Judgment Text
Hope this judgement will help you in come to some decision. 27th November 2014 From India, Kumbakonam