Practice Of Engaging Persons Of Choice As Casual Workers And Later Regularising Them Is Fraud On Constitution: J&K&L High Court

The Court held that such a practice followed by the Government is nothing but a fraud on the Constitution of India. The Court disposed of a writ petition challenging an order of the Central Administrative Tribunal, directing regularisation, and modified the Tribunal's judgment to the extent that the respondents were entitled to regular engagement as envisaged under the applicable Rules.

The Court was hearing a writ petition filed by the Union Territory of Jammu and Kashmir and others under Article 226 of the Constitution of India, challenging the order passed by the Central Administrative Tribunal, Jammu Bench, whereby the Tribunal had allowed the petition of the respondents and directed their regularisation against available posts on the ground that they had completed 10 years of continuous casual service.

The matter was heard by a Bench of Justice Sanjeev Kumar and Justice M A Chowdhary, who observed,

“The Government or its officers are not empowered to pick up the people of its own choice from the open market, engage them by giving the nomenclature of 'daily wagers', 'casual workers', 'ad hoc' appointees or consolidated workers and then come up with the policy of regularisation to confer the benefit of permanent employment on them. Such practice followed by the Government is nothing but a fraud on Constitution of India.”

Background

The respondents came to be engaged as casual labour in the year 2014 in the Department of Irrigation and Flood Control in lieu of the land donated by them for construction of tube wells in different villages. The respondents claimed that they had executed gift deeds in favour of the petitioners, which contained a stipulation that in lieu of the land donated, the respondents shall be provided a Government job. However, the respondents were engaged in the department as casual workers.

After rendering almost five years of service, the respondents approached the High Court by way of a petition which was later transferred to the Tribunal. The petitioners contested the petition, stating that the engagement of the respondents was governed by the Jammu and Kashmir Casual and Other Workers - Regular Engagement Rules, 2017 issued vide SRO 520. The factum of the respondents having donated their land and their continuation as casual workers since 2014 was not disputed. The Tribunal, having considered the rival contentions, allowed the petition and directed regularisation on the ground that the respondents had completed 10 years of continuous casual service.

The petitioners contended before the High Court that the stipulation with regard to providing a Government job was not for a permanent nature, and therefore, the respondents were engaged on a casual basis. It was submitted that regularisation, if any, could only be on the basis of statutory rules or executive orders.

The respondents, per contra, argued that the stipulation with regard to providing a Government job was with respect to providing a permanent Government job and not the job of casual labour.

Court's Observation

The Court observed that the facts were not in dispute. The respondents had donated their land to the petitioners for construction of tube wells and had executed gift deeds containing a stipulation that they would be provided a Government job. The respondents had been given the job as casual labour only in lieu of the land donated by them for the public purpose of construction of tube wells by the Department of Public Health Engineering.

The Court held,

“The Government does not have any authority to promise or to give permanent Government job to any person in lieu of the land donated by such person for public purpose.”

The Court further observed that a permanent job in the Government department would be in accordance with the recruitment rules in vogue and pursuant to a selection process, which is in consonance with Articles 14 and 16 of the Constitution of India.

The Court held,

“Making such promises would be tantamount to putting the Government jobs on sale, which is not in conformity with the rule of law, which is essence of our political democracy governed by the Constitution of India.”

The Court further observed that the Government is not competent to engage daily wagers, casual workers, ad hoc or consolidated workers without advertisement notification and without having a selection process which is just, fair and transparent and in conformity with Articles 14 and 16 of the Constitution. The Court noted that the practice of engaging persons of choice from the open market and then coming up with a policy of regularisation is a fraud on the Constitution.

The Court, however, noted that the respondents had been engaged as casual workers and had continued in service for more than 10 years. Therefore, they had become entitled to the benefit of regular engagement as envisaged under Rule 4 of the Rules of 2017, provided they fulfilled the requirements prescribed under the Rules. The Court observed that the Tribunal had adverted to the Rules of 2017 but had erred in directing the petitioners to give regular appointment to the respondents.

Accordingly, the writ petition was disposed of and the judgment of the Tribunal was modified. The respondents were held entitled to regular engagement as envisaged under the Rules of 2017, and their cases were directed to be taken up for consideration forthwith, providing them the benefit of regular engagement with effect from the date they completed 10 years continuous service.