Rayees Ahmad Mir & Ors. v. Managing Director, J&K Tourist Development Corporation & Ors.

3. I have heard learned counsel for parties and considered the matter.

4. Perusal of the file would reveal that petitioners had been engaged on casual basis and their tenure was extended from time to time, which was lastly extended from November 2017 to ending October 2019.

5. According to petitioners, Circular no.30-GAD of 2019 dated 24th May 2019 is not applicable to them and they are required to be allowed to WP(C) no.2551/2019 continue inasmuch as they have been engaged in respondent- corporation much before issuance of Circular. It would be appropriate to reproduce Circular dated 24th May 2019 hereunder: “Subject: Ban on engagement of Casual/Seasonal/Ad hoc/ Consolidated / Contractual/Need based/Daily rated workers etc. Circular No.30-GAD of 2019 Dated: 24 . 05 . 2019 Section 14 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 lays down as under: “Restriction on further ad hoc or contractual or consolidated appointments:- (1) With effect from the commencement this Act, no appointment shall be made by any department against any post on ad hoc or contractual or consolidated or temporary basis and all vacant posts shall be filled up strictly in accordance with the rules governing the recruitment to the respective services or posts. (2) Where any appointment is made by any officer in contravention to the provisions of sub-section (1), he shall be liable to disciplinary action under rules and the salary drawn by such appointee shall be recoverable from the defaulting officer as arrears of land revenue.”

2. Rule 10 of the Jammu and Kashmir Casual and Other Workers – Regular Engagement Rules, 2017, notified vide SRO 520 dated 21.12.2017, provides as under: - “Ban on future engagements: - (1) The orders issued vide Government Order No.43-F of 2015 dated 17.03.2015 read with corrigendum issued vide No.A/Misc/2015/391 dated 20.03.2015 regarding the withdrawal of powers from Administrative labourers, shall Departments continue to remain in force. to engage casual (2) Notwithstanding anything contained in sub-rule (1), any new engagement of a CSLW is any department can only be made with the prior approval of the Chief Minister through the Finance Department.

3. It is accordingly impressed upon all the officers of the State Government to strictly adhere/observe the statutory rules and codal provisions mentioned hereinabove in letter and spirit and also ensure that:- (i) any person appointed on adhoc/contract/consolidated/ temporary basis after the imposition of ban on such engagements contravention of the provisions of the Act shall forthwith cease to continue; (i.e. on or after 29.04.2010) (ii) any person engaged as casual/seasonal/need bases worker after imposition of ban on such engagements WP(C) no.2551/2019 (i.e. on or after 17.03.2015) without specific approval of Competent Authority or without following due procedure shall also cease to continue forthwith; and (iii) in the event of failure to comply with these instructions, the concerned officer(s) will be held personally responsible and the amount due or paid to such irregular appointee / engage(s) shall be recovered from the personal emoluments of the officer(s) concerned who engagement(s) in violation of the rules, orders or codal procedures, besides the termination of all such irregular appointment(s)/ engagement(s).” had made/continued

6. It is evident from perusal of Circular dated 24th May 2019 that it is only reiteration of restrictions imposed under and in terms of J&K Civil Services (Special Provisions) Act, 2010 (for short “Act of 2010”).

7. The Act of 2010 has been enacted on 29th April 2010 to provide for regularization of the employees appointed on ad hoc, contractual or consolidated basis. Section 2(b) provides that “ad hoc appointee” means a person who has been appointed on ad hoc basis against any post under the Government. Section 2 (c) provides that “appointed day” means the date of the commencement of this Act. Section 2(d) says that competent authority means the authority having power to make appointment on ad hoc or contractual or consolidated basis under rules governing the service or post.

8. Section 3 of the Act is relevant to be reproduced hereunder: “3. Application of the Act. –––The provisions of this Act shall apply to such posts under the Government as are held by any person having been appointed on ad hoc or contractual basis including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies, but shall not apply to: ––– (a) persons appointed in terms of Government Order No. 125-GAD of 2001 dated 01-02-2001, on contract basis in the personal sections of Ministers or other authorities enjoying the status of a Minister; WP(C) no.2551/2019 (b) persons appointed on tenure posts co-terminus with the life of the project or Scheme of the State or Central Government, as the case may be, and those appointed on academic arrangement for a fixed term in any Government Department; (c) non-governmental agencies or autonomous bodies or public sector undertakings or corporations or government companies or societies or other local authorities which have their own rules and regulations governing their functioning; and (d) part-time or seasonal employees including those whose wages are paid from out of the local funds or contingent grants.”

9. Section 3 of the Act of 2010 provides that provisions thereof shall apply to such pots which were held by any person having been appointed on ad hoc or contractual basis including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies. However, the benefit and provisions of the Act of 2010 shall not apply to persons appointed in terms of Government Order no.125-GAD of 2001 dated 1st February 2001 on contract basis in the personal section of Ministers or other authorities enjoying the status of Minister. The provisions of the Act of 2010 shall also not apply to the persons who have been appointed on tenure posts co-terminus with the life of the project or scheme of the State or Central Government and those appointed on academic arrangement for a fixed term in any government department. The provisions of Act of 2010 shall also not apply to non-governmental agencies or autonomous bodies or public sector undertakings or corporations or government companies or societies or other local authorities which have their own rules and regulations governing their functioning. The provisions of the Act of 2010 shall also not apply to the part-time or WP(C) no.2551/2019 seasonal employees including those whose wages are paid from out of the local funds or contingent grants.

10. Who can claim regularisation or be regularised is envisaged in Section 5 of the Act of 2010, which for facility of reference is reproduced hereunder: “5. Regularization of ad hoc or contractual or consolidated appointees.- Notwithstanding anything the contrary contained in any law for the time being in force or by judgment order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in section 3 shall be regularized on fulfillment of the following conditions, namely :-- (i) that he has been appointed against a clear vacancy or post; (ii) that he continues as such on the appointed day; (iii) that he possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post; (iv) that no disciplinary or criminal proceedings are pending against him on the appointed day; and (v) that he has completed seven years of service as such on the appointed day; Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization, that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization; irrespective of the fact Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act.”

11. As is evident from bare reading of Section 5 of the Act of 2010, a person, claiming regularization, is required to fulfil various conditions, which includes that he has been appointed against a clear vacancy or post can be regularized; and he continues on the appointed WP(C) no.2551/2019 day; and he possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the services post; and no disciplinary or criminal proceedings are pending against him on the appointed day; and he has completed seven years of service as such on the appointed day, i.e., on the date the Act came into force.

12. The Act of 2010 in clear cut and categoric manner restricts further appointments on ad hoc or contractual or consolidated basis. Thus, it would be advantageous to reproduce as under: “14. Restriction on further ad hoc or contractual or consolidated appointments. — (1) With effect from the commencement of this Act, no appointment shall be made by any department against any post on ad hoc or contractual or consolidated or temporary basis and all the vacant posts shall be filled up strictly in accordance with the rules governing the recruitment to the respective services or posts. (2) Where any appointment is made by any officer in contravention to the provisions of sub-section (1), he shall be liable to disciplinary action under and the salary drawn by such appointee shall be recoverable from the defaulting officer as arrears of land revenue.”

13. Section 14, on its bare perusal, would provide that from commencement of the Act of 2010, i.e., 29th April 2010, no appointment shall be made by any department against any post on ad hoc or contractual or consolidated or temporary basis and all vacant posts shall be filled up strictly in accordance with the rules governing the recruitment to the respective services or posts. Thus, there is complete restriction on appointments from 29th April 2010 to be made on ad hoc or contractual or consolidated or temporary basis. WP(C) no.2551/2019 In such circumstances, petitioners or their case is no exception and they cannot claim any benefit under and in terms of the Act of

2010. It is evident from pleadings of both the parties that petitioners had been appointed beyond the year 2010 and, therefore, are not entitled to any benefit as is available under the Act of 2010.

14. Now advert to J&K Casual and Other Workers – Regular Engagement Rules, 2017 (for short “Rules of 2017”) notified vide SRO 520 dated 21st December 2017. In terms of the said Rules, Aadhar Based Biometric Identification & Skill Profiling of CSLWs was conducted by online registration/uploading of information. Rule 3(1)(a) of the Rules of 2017 provides that these rules shall apply to all CSLWs and other workers who have been engaged up to 17th March 2015 when powers to make such engagements were withdrawn. Rule 3(1)(b), however, provides that these rules shall apply to all CSLWs and other workers who have been engaged after 17th March 2015 up to coming into force of the Rules of 2017, i.e., 21st December 2017. Rule 3 (2) provides that the Rules of 2017 shall not apply to a person engaged in any department as part time, contingent paid worker or any other worker, drawing wages at the rates lesser than the daily wage rates notified/sanctioned by the government from time to time and shall also not apply to persons who have been engaged in the non-governmental agency or autonomous body or public sector undertaking or corporation or government company or society or other local authority which have their own rules and regulations governing their functioning. Rule 10 of the Rules of 2017 imposes ban on future WP(C) no.2551/2019 engagements and it provides that any new engagement of a CSLW in any department can only be made with the prior approval of the Chief Minister through the Finance Department.

15. Petitioners also claim that they have worked in respondent- corporation prior to ban on engagement in terms of Rules of 2017 and in this regard, they rely on a note, which has been annexed by them with writ petition as Annexure II. This aspect of the matter is to be considered by respondents in the context of Reply as also Compliance Report filed by respondent-corporation, in which they maintain that petitioners were hired on need basis for a fixed tenure and their tenure of engagement was extended from time to time based upon the requirement of manpower required in different units of respondent- corporation. It is also stated by respondents that petitioners’ engagement was lastly extended with effect from November 2018 to 31st October 2019 and that immediately after issuance of Order no.25/JKTD of 2019 dated 27th May 2019, petitioners were discontinued and were never allowed to continue in the corporation either on need basis or any other capacity, but in order to meet the deficiency of manpower in different units of respondent-corporation, the management decided to hire the manpower through outsourcing agency. Thus, it is for respondents to see as to whether petitioners come and fall within the realm of any beneficial Rule, or say Rule of

16. In the backdrop of above discussion, insofar as the reliefs prayed for by petitioners in the instant writ petition are concerned, impugned WP(C) no.2551/2019 order no.25/JKTDC of 2019 dated 27th May 2019 does not call for any interference. And insofar as regularisation of services are concerned, no case is made out by petitioners for their regularisation under and in terms of Act of 2010.

17. For the reasons discussed above, the instant writ petition is dismissed. Interim direction, if any, shall stand vacated.

18. Resultantly, contempt petition (CCP(S) no.472/2019 is also closed. Srinagar 09 .06.2023 Ajaz Ahmad, PS Whether approved for reporting? Yes/No. (Vinod Chatterji Koul) Judge WP(C) no.2551/2019