SC sets aside HC order on en-mass regularization of daily wagers

Fayaz Bukhari
Srinagar, Dec 10: Supreme Court has set aside the Jammu and Kashmir High Court order of en-mass regularization of daily wagers in State judiciary and castigated the State Government for creating a situation where large numbers of people have been recruited on daily wage basis.
A  Constitutional bench headed by Chief Justice of Supreme Court T S Thakur and comprising Justice Dr D Y Chandrachud and Justice L Nageswara Rao while setting aside Jammu and Kashmir High Court order on en-mass regularization of 209 daily wage employees in State Judiciary said: “Since the issue of regularization is a matter with which the State Government is seized, as stated in the proceedings before this Court, we are of the view that at this stage it would be appropriate and proper to set aside the impugned order of the High Court. While doing so, we restore the proceedings back to the file of the High Court for reconsideration. ”
The Apex Court said the High Court has proceeded without considering the prevailing rules and regulation on the subject. “We have adverted to the grievances in order to emphasize that there is substantial merit in the submission that the High Court proceeded to issue directions for regularization without considering either the legal position enunciated in the judgments of this Court and without considering the prevailing rules and regulations on the subject”, read the SC order.
The Court said that essentially a scheme for regularization, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies.
The Apex Court said that working on daily wage basis for certain period is not a ground for regularization. “It is true that they had been working for a long time and had not been paid wages on a regular scale of pay. But they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Uma Devi’s case”, court said.
The SC said that the direction for regularization was issued by the High Court without considering the relevant Constitutional and legal principles. “While some of the daily rated workers have been engaged over long periods of time, others have been engaged as recently as in 2015. The issue of whether such appointments were irregular or whether they were illegal should have been determined but has not been considered”, the Apex Court said.
Supreme Court while referring to various judgments on the principles of regularization said the principles will have to be formulated bearing in mind the position as set out in these judgments. “Regularization is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution”, the court held.
The Apex Court has left it open to the courts to lift the veil to enquire whether the scheme is aimed at achieving the objective and is a genuine attempt at validating irregular appointments. “The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments”, the court order read.
“Otherwise, this would simply reinvigorate a class of claims which has been shut out permanently by Uma Devi (Supreme Court judgment). Ultimately, it would have to be left to the State and its instrumentalities to consider whether the circumstances warrant such a scheme being formulated and further the formulation of such a scheme cannot be accorded the status of an enforceable right”, Supreme Court said.
The Apex Court castigated the State Government for employing people on a daily wage basis. “State Government is to be blamed for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis”, court said.
The SC said this after State Government informed it that an empowered committee has been constituted on August 19, 2015 to inquire into the issue of creating posts for the regularization of around 61000 daily rated and casual workers working in various departments. These include workers on the establishment of the High Court and the district courts.
The Apex Court passed these orders while hearing a petition in which State Government had challenged the High Court order on regularization of 209 daily wagers in the judiciary.
The High Court had passed the regularization order on October 7 last year. It had directed the State Government to consider the claim for regularization of the daily rated workers as a one-time exception which required the State Government necessarily to decide on the issue of regularization.
State Government in the Special Leave Petition had set out before the Apex Court that the directions about regularization of daily wagers passed by the DB are totally unconnected to the reliefs which were sought in the PIL (District Bar Association Bandipora) and there is a lack of clarity in the actual number of daily rated workers engaged in the High Court and the district judiciary, as well as in the nature of work performed.
The Supreme Court recorded the observation of the High Court in its another order passed in December last year in which Division Bench of High Court had observed that over a considerable period of time the State Government has not created the required number of posts for the State Judiciary as a result of which work has been hampered and appointment of daily rated workers was necessitated to ensure that judicial work does not suffer and opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts.
“The need to facilitate the proper functioning of the High Court and the district judiciary is a Constitutional necessity which imposes a non-negotiable obligation on the State Government to create an adequate number of posts and to provide sufficient infrastructure,”  said the SC.
Apex Court, however, left it open to the High Court to reconsider the entire matter afresh having due regard to the Constitutional and legal principles enunciated and having regard to all relevant factual aspects.

LEAVE A REPLY

Please enter your comment!
Please enter your name here