No right to regularisation outside constitutional employment framework: HC

Srinagar, May 12: The High Court of J&K and Ladakh Tuesday held that regularization or permanent absorption cannot be claimed as a matter of right outside the constitutional scheme governing public employment.

Underscoring that parity could not be claimed in abstraction, a Bench of Justice Sanjay Parihar dismissed a group of seasonal labourers’ plea seeking parity with some workers who had been granted the status of permanent casual labourers in the Irrigation and Flood Control Department earlier.

The court observed that equality under Article 14 of the Constitution postulates “positive equality” and not “negative equality”. Merely because some benefit may have been extended in favour of another set of employees, the same by itself does not confer an enforceable right upon the petitioners to claim identical relief contrary to the governing statutory framework, the court said.

The aggrieved petitioners’ contention was that they had been working as seasonal labourers since 1998 and were similarly situated to four persons, who were brought within the cadre of permanent casual labourers through an order issued in 2014. Seeking similar treatment, they argued that denial of the same violated Articles 14 and 16 of the Constitution.

Opposing their plea, the government took a stand that the petitioners were engaged only during irrigation seasons on need basis and did not fulfil the eligibility conditions under SRO 520 of 2017. Moreover, the government’s contention was that four persons had been adjusted against watch and ward duties due to administrative exigencies and seniority considerations.

The observed that regularization or permanent absorption cannot be claimed as a matter of right de hors the constitutional scheme governing public employment. This, the court said, in keeping with the judgment of the supreme court wherein the apex court has observed that “courts must refrain from issuing directions for absorption, regularization, or permanent continuance unless the appointment itself is made in accordance with law.”

The court observed that once the respondents themselves chose to regularize or continuously engage a section of seasonal labourers similarly situated to the petitioners, they could not deny identical consideration to the petitioners without demonstrating any intelligible differentia having a rational nexus with the object sought to be achieved.

The petitioners ranked lower in seniority and continued to work only as seasonal labourers during irrigation periods, which constituted a reasonable basis for differential treatment, the court noted.

Moreover, it observed that as per the government, more than 3,000 seasonal labourers across Kashmir were working under similar conditions and that there was a blanket government ban on fresh engagements.

The court held that in such circumstances its direction for extending permanent casual labour status to the petitioners would amount to transgressing into the domain of executive policy.

 “Judicial review under Article 226 is confined to examining the decision-making process and not the decision itself unless the same is shown to be patently arbitrary, mala fide, or violative of statutory provisions. No such case has been established by the petitioners in the instant matter,” the court said and dismissed the plea being “devoid of merit”.