Srinagar: The High Court of Jammu & Kashmir and Ladakh has said that a person engaged temporarily but continuously working for more than seven years cannot be deprived the benefit of regularization under relevant SRO.
These observations were made by Justice Sanjeev Kumar while hearing a petition of a university employee seeking regularization retrospectively.
The petitioner Ghar Singh had approached the court with the plea that though his services were regularized vide order dated 25th March, 2010 with immediate effect, yet in terms of the provisions of SRO 64 of 1994 adopted by the University of Jammu, he was entitled to be regularized immediately after the completion of seven years of service in the year 2004.
Justice Kumar while allowing his petition held him entitled to regularization as Security Guard w.e.f. from 1st April, 2005 with all consequential benefits including arrears of salary w.e.f. 1st April, 2005 till his actual regularization made in the year 2010.
Justice Kumar said that a person who is engaged temporarily and is paid wages at the rates sanctioned by the government from time to time and continued to perform his/her duties for a continuous period of more than seven years cannot, by any stretch of reasoning, be termed as ‘casual labour’ to deny him/her the benefit of regularization under SRO 64 of 1994.
“…suffice it to say that the petitioner, who had been rendering services as Security Guard since 7th July, 1997 continuously and without any break, cannot be termed ‘casual labour’. Casual Labour refers to labour whose employment is intermittent, sporadic or extends over a short period or continued from one work to another, whereas a daily-rated worker or daily-wager is a person, who is engaged for rendering continuous nature of service and is paid wages on daily basis,” read the judgment.
The court said that it is not the case of the respondent university that the petitioner Singh came to the court to challenge the denial of regularization from retrospective effect after his retirement. It is true that it took some time for him to gather courage and lodge his claim for retrospective regularization and there was considerable delay in doing so.
“Ordinarily, a writ petition seeking service benefits after so many years of the accrual of cause of action is not entertained by the Writ Court. However, having regard to the peculiar facts and circumstances of this case, I am of the considered opinion that the delay would not come in the way of this court to grant the relief prayed for by the petitioner in this petition,” Justice Kumar said.
The retrospective regularization, court added, given to the petitioner at this stage when he has retired from service, would not adversely affect the service rights of any of the employees of the university. “It is not a case where, upon petitioner’s retrospective regularization, seniority is to be re-fixed. In such a situation, it would have been justified for this court not to entertain the plea as that would have been tantamount to unsettling the rights of other employees,” read the judgment.
The court observed that a petty employee like daily-wager or Security Guard shall be left with no option but to accept the terms and conditions of employment dictated by his employer.
“Where the employer is in a dominating position and pitted against it is a petty employee like the petitioner, it is very difficult for such employee to muster courage and challenge the terms and conditions of the employment offered to him at the time of appointment.
“In a case where a petty daily labourer, who after rendering long services has been regularized as a Security Guard, is pitted against a university, a mighty statutory body, it is the university with all bargaining power that will be in a dominating position,” court held.
