Employees Engaged On Daily Wage Or Casual Basis Not Entitled To Regularization Without Following Due Process Of Recruitment: Jammu & Kashmir and Ladakh HC

The Jammu & Kashmir and Ladakh High Court has re-iterated that the employees engaged on daily wage or casual basis, without following due process of recruitment, are not entitled to regularization.

The Court was considering a Writ- Petition seeking quashing of an passed by the Central Administrative Tribunal.

The division-bench of Justice Sanjeev Kumar and Justice Puneet Gupta observed, "True it is that keeping in view the need for the services being rendered by the Petitioner, he was continued in the Respondent Department for almost two decades. However, in view of the legal position laid down by the Hon’ble Supreme Court in Constitutional Bench Judgment rendered in Umadevi’s case (supra), followed by A. Umarani’s case (supra), the engagement of the Petitioner cannot be held to be merely an irregular appointment. That being the position and also having regard to the fact that there is no policy of regularization brought to our notice, it is little difficult for us to accede to the prayer of the Petitioner for regularization of his services. The Tribunal has, thus, rightly rejected such a prayer made before it by the Petitioner."

The Petitioner was represented by Advocate Gulzar Ahmad Bhat while the Respondent was represented by Advocate Nazir Ahmad Bhat.

Facts of the Case

The Petitioner came to be appointed as Safai Karamchari in the Department of Posts, Government of India in 1999. In 2000, via a letter issued by the Senior Post Master, under the orders of the Post Master General, all Safai Karamcharies, including the Petitioner herein, was posted in RMS office, SRO and Speed Post Office. In 2005, by another Order, the Petitioner was ordered to work as Farash in addition to his duties. He continued to work in the said capacity for almost two decades. He approached the Central Administrative Tribunal, seeking, inter-alia, the disposal of his representations made by him for pay parity with the regular employees holding the post of Safai Karamcharies as also for regularization of his services. The said Application was contested by the Respondents by filing their Counter Affidavit. It was the stand taken by the Respondents that the Petitioner was engaged only as a Daily Wager at intervals and has not worked continuously. It was further submitted that the Petitioner, being a Daily Wager, cannot compare his services with the regular Group “D”/ MTS employees, as the two are differently situate and form different class.

The Tribunal came to the conclusion that there was no evidence available on record to demonstrate that the Petitioner was ever appointed on regular basis to perform the duties of Group “D”/ MTS and, therefore, was not entitled to pay parity with such regular employees. The contention of the Petitioner that he was entitled to pay parity on the principle of “equal pay for equal work” was also rejected, on the ground that equality can be claimed between two equals and not between unequals. Insofar as the prayer of the Petitioner for regularization of his services was concerned, the Tribunal held that in the representations made from time to time, the Petitioner had never sought regularization of his services.

Reasoning By Court

The Court was of the view that the Tribunal had rightly held that the Petitioner has failed to demonstrate his case for regularization of his services.

"From the material on record, it is nowhere discernible that the Petitioner was ever engaged after following any due process of recruitment. He came to be picked up and appointed as a Safai Karamchari on daily wage basis. It is, however, a fact that he was allowed to continue in service for more than two decades. There is also no dispute with regard to the fact that the Petitioner has, all along, performed the duties which a regularly recruited Safai Karamchari performs in the Respondent-Department........In the backdrop of this admitted factual position, there is no merit in the submissions made by the learned Counsel for the Petitioner that, by rendering more than 20 years continuous service on daily wage basis in the Respondent-Department, the Petitioner has acquired a right of regularization of his services. The engagement of the Petitioner as Safai Karamchari on daily wage basis made initially in the year 1999 and continued thereafter was without any due process of recruitment undertaken by the Respondents," the Court observed.

It was concluded that though it is true that keeping in view the need for the services being rendered by the Petitioner, he was continued in the Respondent Department for almost two decades, however, in view of the legal position laid down by the Supreme Court in Constitutional Bench Judgment rendered in Umadevi’s case (supra), followed by A. Umarani’s case (supra), the engagement of the Petitioner cannot be held to be merely an irregular appointment.

".......in view of the legal position laid down by the Hon’ble Supreme Court in Constitutional Bench Judgment rendered in Umadevi’s case (supra), followed by A. Umarani’s case (supra), the engagement of the Petitioner cannot be held to be merely an irregular appointment," the Court observed.

Cause Title: Farooq Ahmad Janda vs. Union of India through Secretary

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