SWP No.1451/2013 Page 1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … SWP no.1451/2013 Reserved on: 24.07.2025 Pronounced on: 14.10.2025 Uploaded on: 14.10.2025 Whether operative part of full judgement is pronounced Yes Ghulam Rasool Parray and another …….Petitioner(s) Through: Mr M. Ayoub Bhat, Advocate Versus State of J&K and others ……Respondent(s) Through: Mr Furqan Yaqub Sofi, GA CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGMENT 1. Petitioners pray to absorb them as daily labourers permanently and thereafter regularize their services. They seek respondents to follow directions issued by the Supreme Court in Hassan Anzullah and others v. State and others, 1999 SLJ 256 and allow them to continue till they are permanently absorbed in respondent – J&K Board of School Education. Release of wages and other benefits are also prayed for. 2. I have heard learned counsel for parties and considered the matter. 3. There is no denial to the fact that petitioners had been engaged in 2008 and 2010 respectively. Petitioners admit break of five days after sixty days in their engagement, which when they represented against was decreased to one day after sixty days by virtue of Order no.567-B of SWP No.1451/2013 Page 2 2012 dated 24th September 2012. Enhancement of wages was also made by respondents vide Order no.510-B of 2011 dated 27th August 2011. Petitioners claim that they approached respondents for regularization of their services but of no avail. 4. On the other hand, when stand of respondent-board is looked into, they state that petitioners were purely engaged on need basis as temporary coolies. When there was no requirement, they were disengaged vide Order no.02-B of 2013 dated 2nd January 2013 and, therefore, petitioners are not working in respondent-board. According to respondents, change of break from five days to one day would not confer any right in petitioners to continue in respondent-board muchless regularizing their services. It is maintained by respondents that although petitioners had been paid wages up to March 2013 by Information Section and Estates Section of respondent-board that too without any approval of competent authority, yet same does not create any right in their favour. 5. While considering the case, a Bench of this Court vide order dated 22nd July 2015, directed respondent-board to file an affidavit in light of documents submitted by petitioners. Respondents were also directed to explain about policy of engagement of casual labourers in respondent- board and indicate in presence of persons who stood already engaged for what reason and on what basis new persons were engaged without considering persons whose services were hired earlier. 6. Joint Secretary, J&K State Board of School Education, Srinagar, submitted affidavit in compliance to the order dated 22nd July 2015. He states that respondent-board has no set policy for engaging casual SWP No.1451/2013 Page 3 labourers. The board required services of labourers for doing menial jobs as per requirement particularly in the Textbook Section for uploading and unloading of textbooks during sale seasoni and in Secrecy Section for lifting of sealed answer scripts packets during Examination and evaluation period. For this purpose, concerned section hire services of labourers on contingency basis only for a particular period after seeking prior approval from authorities. It is also stated in affidavit that Government has imposed ban on engagement casual/ seasonal labourers as is reflected by its order no.43-F of 2015 dated 17th March 2015, issued by Principal Secretary to Government, Finance Department. Respondent-Board has already vide order no.02-B of 2013 dated 2nd January 2013 disengaged with immediate effect all coolies/ contingency paid workers/labourers who were working in various sections/ sub/branch offices of Board. No order for their engagement has been issued by respondent-board since then. However, respondent- board requires services of labourers on contingency basis for discharging menial job involving labour work for which services of all such persons who are in que are being hired on seasonal basis. It is also stated in affidavit that petitioners are at liberty to work as labourers as and when needed on the same analogy as others do without any claim for issuance of any formal orders for their engagement or continuation on regular basis and that documents produced by petitioners clearly indicate that payments have been made against labour and freight charges and no way depicts that any order of engagement of casual labourers/coolies has been issued by the board. SWP No.1451/2013 Page 4 7. There is no denial to the fact that petitioners had been working as coolies. There is also no dispute to the fact that there are no sanctioned posts of Coolies in respondent-Board, in which petitioners were working. Petitioners services have been discontinued in the year 2013 by virtue of Order no.02-B of 2013 dated 2nd January 2013. It is not the case of petitioners that their engagement was made after following due procedure of selection and, as such, in absence of any sanctioned posts in respondent-Board, in which petitioners were working, there was no question of engaging/appointing them after following due procedure and were contingent paid coolies. As said above, there are no sanctioned posts of coolies in respondent-board in which petitioners were working, therefore, judicial review under Article 226 of the Constitution of India is not permissible. The High Court cannot, in exercise of powers under Article 226, issue a mandamus to direct a department to sanction and create posts and adjust/absorb particular persons. The High Court, in exercise of powers under Article 226, also cannot direct Government and/or Department to formulate a particular regularization policy. Framing of scheme is no function of the Court and is the sole prerogative of Government. Even creation and/or sanction of the posts is also the sole prerogative of the Government ad the High Court in exercise of power under Article 226, cannot issue mandamus and/or direct to create and sanction the posts. Even regularization policy to regularize services of employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue mandamus and/or issue mandatory direction to do so. Reference in this regard is made to Union SWP No.1451/2013 Page 5 of India vs. Ilmo Devi and another, 2021 SCC Online SC 899. It has been held by the Supreme Court: “The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and 17 create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.” 8. In the case of State of Maharashtra and another vs. R. S. Bhonde, (2006) 6 SCC 751, it has been observed by the Supreme Court that status of permanency cannot be granted when there is no post and that mere continuance every year of seasonal work during the period when the work was available does not constitute a permanent status unless there exists a post and regularization is done. 9. Instant writ petition came to be filed on 3rd August 2013. Reply/ objections were filed by respondent-board on 8th November 2013, mentioning therein that services of all coolies, labourers, contingency paid workers were disengaged vide Order no.02-B of 2013 dated 2nd January 2013 and, as such, no one, including petitioners herein, on the rolls of respondent-board. Thereafter, on 3rd November 2014, an Affidavit was filed by Joint Secretary, J&K Board of School Education, in which he has reiterated disengagement of all coolies/labourers, including petitioners, way back in January 2013. However, petitioners did not throw challenge to their disengagement so far. In such circumstances and in view of the aforesaid well settled legal position, SWP No.1451/2013 Page 6 judicial intervention sought for by petitioners is not called for and as a result whereof, instant writ petition is liable to be dismissed. 10. For the reasons discussed above, the instant writ petition is dismissed with CM(s). Interim direction, if any, shall stand vacated. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 14.10.2025 Manzoor Whether approved for reporting? No.