Petitioners can’t claim to be engage as casual labour as a matter of right, when the respondents do not require their services: HC

13/05/2022

Srinagar, May 12: Justice Sanjeev Kumar held that petitioners cannot, as a matter of right, claim to be engaged as casual labourers, more particularly, when the respondents do not require their services.
This significant order has been passed in a petition filed by petitioners who are aggrieved of the Government Order No.22-JK(JSD) of 2021 dated 25th January, 2021 ['impugned order'], whereby the claim of the petitioners for being engaged as casual labourers, considered in terms of order dated 30.01.1999 passed by this Court in SWP No.123/2019, has been found to be bereft of any merit and accordingly, rejected.
Briefly put, facts, as projected in this petition by the petitioners, are that vide advertisement notification dated 27.07.2006, the Superintending Engineer, PHE Mechanical Circle South, Srinagar invited applications from ITI trained plumbers for engagement as casual/seasonal labourers purely on need basis. This advertisement notification, it is contended, was issued by the Superintending Engineer concerned having regard to the authorization given by the Government in terms of proviso to Rule 7 of SRO 64 of 1994. This authorization in favour of PHE/ Irrigation and Flood Control along with Agricultural Production Department, Public Works Department and Power Development Department was given by the Government vide Order No.239-F of 2005 dated 29.11.2005. The petitioners claiming to be the ITI trained plumbers submitted their application forms to the respondents. Before the respondents could consider and engage the petitioners, various complaints poured in with reference to authenticity of Plumber Trade Certificates produced by many candidates. So much so, even FIR bearing No.31/2007 under Section 420, 468, 471 RPC also came to be registered. It is submitted that the Investigating Officer could only find ITI certificates of nine candidates as fake and forged. Accordingly, charge-sheet against nine candidates was filed before the Judicial Magistrate (Sub Judge), Baramulla.
The contention of the petitioners is that their certificates were found to be genuine. Despite certificates of the petitioners having been found/declared genuine by the Crime Branch, services of the petitioners were not utilized by the respondents constraining the petitioners to file SWP No.1240/2007 titled PHE Plumber Trade Union District Baramulla v. State of J&K and others, which was disposed of by a Bench of this Court on 27th September, 2007 giving liberty to the petitioners to project their grievance before the competent authority by way of representation with a further direction to the competent authority to dispose of the same with due dispatch provided the petitioners were in position under a valid order of engagement as skilled labour. It is submitted that in the above writ petition, apart from the petitioners, there were 180 other candidates belonging to PHE Division Hydraulic Uri. The grievance of the petitioners was considered and disposed of by the respondents by passing a consideration order on 28th March, 2013, whereby the Executive Engineers of Hydraulic Division Baramulla and Uri were asked to take steps for implementation of directions of the Court and to initiate the process of verification as per the procedure in vogue for engagement of ITI trained plumbers as casual labourers on need basis subject to confirmation by the Chief Engineer, PHE Srinagar.
Feeling aggrieved, the petitioners and others challenged the consideration order dated 28th March, 2013 in SWP No.2179/ 2013. The writ petition was allowed and the consideration order was quashed. The candidates belonging to Sub Division numbering 180 filed a separate writ petition SWP No.1312/2014 in which a Bench of this Court vide order dated 26.06.2014 directed the respondents to consider the representation of the petitioners in terms of order dated 26.02.2013 passed in Contempt Petition No.81/2008. It is submitted that pursuant to the aforesaid order, 180 casual labourers of Hydraulic Division Uri were engaged. The grievance of the petitioner is that they were similarly situated with 180 candidates of Uri Division and, therefore, similar treatment ought to have been accorded to them. Having been denied the similar treatment claimed by the petitioners, the petitioners filed SWP No.266/2018 in which the Court once again directed the respondents to consider the case of the petitioners in accordance with law. Since there were several writ petitions filed from time to time and directions issued therein by this Court, as such, the Government considered the matter at length having regard to the directions passed by this Court in various petitions filed by the petitioners and others from time to time and rejected the claim of the petitioners vide Government Order No.351-PW(Hyd) of 2018 dated 17th October, 2018. This consideration order, it appears, became subject matter of challenge in SWP No.123/2019 in which this Court passed an interim order dated 30.01.2019 providing that pendency of the writ petition would not come in the way of the respondents to consider the petitioners for engagement as casual labourers, if they were similarly situated with those 180 incumbents, who had already been considered by the respondents. It is pursuance of the aforesaid interim direction, the impug-ned order was passed by the respondents.
Justice Sanjeev Kumar after hearing both the sides and after carefully examined Government Order dated 17.10.2018 and the impugned order dated 25.01.2021 passed by the Government, I am of the view that the respondents have correctly concluded that the petitioners cannot seek any parity or analogy with 166 candidates, who were engaged as casual labourers on need basis in the Uri Division. It may be true that both set of candidates i.e. the candidates, who were considered and engaged in Uri division and the petitioners, who were shortlisted for engagement in Baramulla Division, had responded to the same advertisement notification but the engagement of the petitioners= was dependent upon the need of the time in the Division. Whatever be the circumstances, the engagement of the petitioners was delayed and fresh developments intervened by the time the directions passed by this Court to consider them on the analogy of those engaged in Uri Division, came up for consideration. The authority of the respondents to make engagement of casual labour stood withdrawn with the issuance of Government Order No.43-F of 2015 dated 17.03.2015 and also with the change in Government policy, the Hydraulic Division Baramulla was not in need of engagement of casual labourers and was self sufficient to carry its existing duties and responsibilities with the help of casual workers already working in the Division. It is correctly contended by the respondents that no right of engagement vested in the petitioners merely on their being shortlisted for engagement. Their engagement was subject to need of the time and the competence/authority of the respondents to engage them.
Court further saiod that it is true that the circumstances, which delayed the engagement of the petitioner, were not their creation but the fact remains that the matter lingered on because of reasons which are also not attributable to the respondents. In the year 2019, when this Court passed interim order on 30.01.2019 in SWP No.123/2019, the position had undergone substantial change. Government Order No.43-F of 2015 dated 17.03.2015 snatched power and the authority of the respondent-department to engage any causal labourer and that due to change of government policy, there was no requirement left with the various divisions including Baramulla division to engage fresh casual labourers for running the water supply schemes, for, the demand in the Division was being well taken care of by the local casual labourers already working in the Division.
With these observations, Justicre Sanjeev Kumar found no no illegality or infirmity in the order impugned and observed that the petitioners cannot, as a matter of right, claim to be engaged as casual labourers, more particularly, when the respondents do not require their services. This apart, with the issuance of Government Order No.43-F of 2015, the respondents are, otherwise, bereft of any legal competence or authority to make such engagement w.e.f. 17.03.2015. The cumulative effect of the discussion made above is that the petition is without any merit and the same is, accordingly, dismissed. JNF

Photo Gallery

BSE Sensex

NSE Nifty