ORDER
Mansoor Ahmad Mir, J.
1. The petitioners have invoked the jurisdiction of this Court in terms of Article 226 of the Constitution of India read with Section 106 of the Jammu and Kashmir State Constitution, for issuance of direction, commanding the respondents to regularise the services of the petitioners against the post of Raft Guides/Aquatic Sports Instructors in the pay scale attached to the said post retrospectively w.e.f. June 18, 1988, on the grounds taken in the writ petition.
2. It is averred in the writ petition that petitioners came to be engaged as daily-rated workers in terms of order contained in Annexure P-2 and were allowed to continue as daily-rated River Guides from time to time and their services came to be regularised against the post of Class-IV in the pay scale of Rs. 750-940 vide order No. Est/10 of 1996 dated April 20, 1996, contained in Annexure-P5.
3. Grievance or the petitioners is that they were entitled to regulansation against the post of Raft Guides/Aquatic Sports Instructors but came to be regularised against Class-IV posts. Petitioners made representations contained in Annexures P6 and P7. Respondent No. 3 made communication to respondent No. 2 for creating posts and adjusting the petitioners as Raft Guides/Aquatic Sports Instructors, contained in Annexure P-8. Petitioners are highly skilled and have undergone special courses in River Raft Training. Petitioners have organized raft courses in Jammu Division and also organized, departmental rafting programme, other courses and also Interstate Championship at Mansar, Jammu in the year 1996.
4. Respondents have filed reply. It is profitable to reproduce para-2 of preliminary objections and paras 4(g) and 5 of parawise reply herein, which reads as under:
2. That the petitioners came to be appointed as Daily Rated Workers and later on seasonal River Guides/Helpers for a period of 5 months in the year 1988 and later on after completion of 7 years were regularised by virtue of order No. EST/10 of May 1996 dated April 20, 1996 against available Class IVth posts in the pay scale of 750-940 w.e.f. April 1, 1996. The copy of appointment order as seasonals are annexed as Annexure-A and regularisation order as Annexure B with the reply petitioners are therefore working in the Watcher-cum-Mali grade from 1996. Besides No posts of Raft Guides, instructors are available in the office of answering Respondents in the grade of 5000-8000. Nor such posts were ever created in the Department in the said grade. The seniority of the petitioners is also fixed in the W.C.M. cadre. It is submitted that the matter regarding creation of posts of Raft guides in a separate grade was taken up with the Administrative Department which is evident from the letters/recommendations placed as Annexures with writ petition. But the proposal was turned down and no such creation was made. It is also submitted that the post of Raft Guide instructor is equivalent to W.C.M. post. Besides the petitioners are not discharging any sport activities and were deputed to conduct various courses at their request and for their own benefit so that as and when any post of Raft Guide or instructor is created, petitioners are benefited. Petition being based on concocted and projected facts hence merits dismissal.
4. (g) Para (g) is denied. It is submitted that the petitioners being Daily Rated Workers, then seasonals were entitled to be regularised against class 4th posts, who were rightly confirmed and posted as Watcher-cum-Malies, it is submitted that the plaintiffs are not discharging any special type of duties, or functions more than a Watcher-cum-Mali. The sports activities virtually came to stand-still due to prevailing circumstances in the State.
5. Para (5) of the petition is denied. It is submitted that petitioners being Daily Wagers were deserving to be appointed as Helpers after completion of 7 years of service who were rightly placed in the class 4th grade of 750-940 in absence of posts of Raft Guides. Para 5(a) is denied. It is submitted that the post of Raft guide is not higher in Rank or in status. The post carries the same pay scale given to petitioners Watcher-cum-Malies. Rest of para is denied.
5. Heard. Considered.
6. Admit. With the consensus of learned Counsel for parties, this petition is taken up for final disposal.
7. It is admitted case of the petitioners that they came to be appointed as Daily – Rated workers and were regularised in terms of order No. EST/10 of May 1996 dated April 20, 1996. The grievance of the petitioners is that they were to be regularised against the post of Raft Guides/Aquatic Sports Instructor in the pay and grade attached to the said post.
8. In terms of Order No. Rec/287/532-46, dated July 20, 1988, petitioners came to be engaged as Seasonal River Guides/Helpers etc. purely on temporary basis for a period of five months and later on came to be allowed to work till their services came to be regularised in terms of order No. EST/10 of 1996 dated April 20, 1996, contained in Annexure-P5.
9. The question is whether a person who is appointed temporarily against a post, can claim that he be regularised against the said post without competing in the selection process? The answer is in negative. My this view is fortified by judgment delivered in case titled as M.P. Housing Board and Anr. v. Manoj Shrivastava reported in Judgment Today 2006 (3) SC 73 : 2006 AIR SCW 1235: It is profitable to reproduce para-8 of the said judgment herein, which read as under:
8. A person with a view to obtain the status of a ‘permanent employee’ must be appointed in terms of the statutory rules. It is not the case of the respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating in the field.
10. It is admitted case of the parties that the services of the daily-rated workers came to be regularised against Class-IV posts in the pay scale of Rs. 750-940.
11. SRO 64 of 1994 provides how to regularise the services of a daily-rated worker. It is profitable to reproduce Rules 4 and 5 of SRO 64 as under:
Rule 4. Eligibility for Regularization: A daily rated worker/work charged employee shall be eligible for regularization on fulfilment of the following conditions, namely:
a) that he is a permanent resident of the State;
b) that on the date of initial appointment his age was within the minimum and maximum, age limit as prescribed for appointment in Government service;
c) that he possesses the prescribed academic and/or technical Qualification for the post against which he is required to be regularised: provided that in case of eligible daily rated workers to be regularised against class IV posts, relaxation of qualification and/or age shall be considered on merits by the concerned administrative department;
d) That he is not retiree from any State or Central Government service or any local body, Public sector undertakings or autonomous body in or outside the State;
e) That his work and conduct has remained satisfactory during the period he worked as daily rated worker or work charged employee and no disciplinary proceedings are pending against him; and
f) That he has completed seven years continuous period of working as daily rated worker or work charged employee or partly as daily rated worker and partly as work charged employee.
Rule 5. Regularisation of daily rated workers: All the daily rated workers who on March 31, 1994, are eligible under rule 4 for regularization shall with effect from April 1, 1994, be appointed on the regular pay scale of class IV category of posts in the scale of Rs. 750-940;
Provided that if any of the categories have higher pay scale of Rs. 775-1025, such employee (s) shall be placed 2 years? of service in the scale of Rs. 750-940.
12. Rule 5 of SRO 64 mandates that if a daily-rated worker is working against a higher post and drawing pay accordingly but is to be regularised against the post of Helper in the grade of Rs. 750-940 and thereafter said daily-rated worker/Helper can claim higher pay scale. A daily-rated worker can be regularised if post is available. If post is not available, he cannot seek regularization. SRO 64 nowhere provides that the regularization can be granted retrospectively. Thus, it cannot lie in the mouth of petitioners that their services were to be regularised against the post of Raft Guides/Aquatic Sports Instructors. It appears that posts of Raft Guides are yet to be created in the department. However, the matter was taken up with the Administrative Department and a proposal was made which was turned down.
13. Keeping in view the mandate of SRO 64 and the stand taken by respondents, I am of the considered view that petitioners have not been able to carve out a case for regularization of their services, retrospectively either in the grade of Class-IV/Helper or against higher post. However, if the petitioners were working against the higher posts as daily-rated workers and then in terms of Rule 5 of SRO 64 they have to move application and respondents have to accord consideration.
14. At this stage, Mr. Shaheen, learned Counsel for petitioners argued that petitioners are also entitled to in-situ promotion in terms of SRO 14 of 1996 because they are working in the cadre of Helper right from 1988 in terms of the regularization order contained in Annexure-P2.
15. In the given circumstances, petitioners have not carved out a case for commanding the respondents to regularise the services of the petitioners retrospectively that too against the post of Raft Guides/Aquatic Sports Instructor. However, it is provided that respondents shall accord consideration for placing petitioners in the higher grade provided are eligible in terms of the rules governing the field. Respondents may also consider as to whether the petitioners are entitled to in-situ promotion in terms of SRO 14 of 1996, if eligible, with all other eligible candidates, within three months from the date the copy of this order is served upon the respondents.
16. Writ petition is disposed of accordingly, along with all connected CMP (s).