The High Court of Jammu & Kashmir and Ladakh recently ruled that the completion of seven years of continuous service alone would not entitle a daily wager for regularization, unless other eligibility conditions were fulfilled. (State of J&K and Ors v. Mushtaq Ahmad Naik and Ors)
The Division Bench of Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani set aside a single-judge verdict directing the authorities to regularize the daily wagers from the date they had completed seven years continuously in service.
"A Daily Rated Worker would become eligible for regularization on fulfilment of all the conditions as contained in Rule 4 of the provisions of SRO 64. Completion of seven years of continuous period of daily wage service alone thus would not entitle a daily wager for regularization unless such daily wager fulfills other eligibility conditions," the judgment stated.
The Court was hearing an appeal against the judgment passed in favour of daily wagers who were engaged by the administration in 1994. They had pleaded for their service from 2001 to 2009 to be considered for all service benefits including promotion, seniority, pension and other monetary benefits.
The daily wagers claimed that they were entitled to regularization from April 1, 2001, on which date they completed seven years of service. However, the process was not finalized by the State for unknown reasons, owing to which they came to be regularized on December 30, 2009 with prospective effect.
The single-judge, in an order passed in 2017, directed the authorities to give effect to their regularization with effect from the date they had completed seven years of continuous service.
During the hearing of the appeal, counsel for the J&K government argued that the petitioners lacked eligibility for regularization after having completed seven years of daily wage service, as they did not possess the requisite qualifications and had not attained the prescribed age to be considered for regularization.
It was also argued that the petitioners had challenged the conditions belatedly, more than eight years after they were regularised in 2009. Further, the petitioners could not claim to have parity with another worker whose post was identified in 2001.
While deciding the case, the Court referred to a government rule called SRO 64 issued in 1994, which contained the conditions to be fulfilled by daily wagers to be considered for regularisation.
After listing out the eligibility criteria, the Court noted,
"A plain reading of the aforesaid provision would manifestly suggest that a Daily Rated Worker would become eligible for regularisation on fulfilment of all the conditions as contained therein. All the conditions are inter-dependent and have to be fulfilled by a daily wager whose case is to be considered for regularisation..."
It was also noted that since the daily wagers were lacking the qualification and age conditions, the administration had decided to relax the same. At the end of this exercise, the wagers were regularised in 2009, on the condition that they submit an affidavit undertaking that they shall not claim regularization from the back date. In this context, the Court said,
"The writ petitioner/respondents herein admittedly have consented to abide by the conditions imposed by the appellants qua the filing of affidavits in the year 2009 and then turned around and filed the petition in the year 2017."
On these grounds, the Division Bench set aside the 2017 judgment.
Government Advocate Usman Gani appeared for the J&K & Ladakh government, while Senior Advocate SA Makroo and Advocate Mohd Amin Bhat represented the daily wagers.
[Read judgment]