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2015 DIGILAW 228 (JK)

Shafqat Ahmad Beigh v. State of J&K

2015-05-06

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. Petitioners have filed this petition seeking writ of certiorari to quash Government Order No. 101-Edu(Tech) of 2012 dated 25.05.2012 issued by respondent No. 2, and the decisions dated 18.07.2012 and 25.07.2012 taken by respondent No. 4 in its 29th meeting as are contained in letter dated 07.08.2012. They have also prayed for issue of writ of mandamus to command the respondents to regularise their services in terms of the provisions of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010. Petitioners had, admittedly, been engaged on academic arrangements for fixed terms either as Lecturers or Demonstrators. They seem to have been continued on such arrangements on court orders. The writ petition, SWP No. 1242/1996, filed by Altaf Hussain & others, was disposed of by the Court on 23.07.2007. Therein the Court observed and ordered as under: "Admittedly the petitioners have not entered through any selection process, muchless legally valid one and according to the pleadings their engagement was for an academic session but continued thereafter. Essentially their claim is based on their long continuation. In this behalf it is contended that their continuation has persuaded the Court to allow SWP Nos. 1929/1993 and 1160/1995 titled Munir Ahmad Mir v. State and others in a similar set of facts. Considering the matter in totality of circumstances it would be appropriate to direct the respondent to accord consideration to the petitioners on merit of their case for regularization of their services and while doing so they shall take the judgment supra into consideration. Needless to say that the benefit of this order shall be available only to those who are on the establishment of the respondents as on date." 2. Meanwhile, the State Legislature enacted the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (for short, the Special Provisions Act), to provide for regularization of ad hoc, contractual or consolidated appointees. 3. Pursuant to the above, the Under Secretary to Government, Technical Education Department recommended the cases of the petitioners for their regularization vide communications dated 19.04.2012. Meanwhile, the State Legislature enacted the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (for short, the Special Provisions Act), to provide for regularization of ad hoc, contractual or consolidated appointees. 3. Pursuant to the above, the Under Secretary to Government, Technical Education Department recommended the cases of the petitioners for their regularization vide communications dated 19.04.2012. While the aforesaid communications remained pending decision before the Empowered Committee, the case of the petitioners in SWP No. 1242/1996 was considered by respondent No. 2 pursuant to the Court order dated 23.07.2007, and rejected vide order No. 101-Edu(Tech) of 2012 dated 25.05.2012, holding that the Special Provisions Act provided regularization only of ad hoc or contractual or consolidated appointee and that Shri Shafqat Ahmad Beigh did not fall under any of these categories as he had been engaged on academic arrangement. Immediately, thereafter, the Empowered Committee in its 29th meeting held on 19.07.2012 and 25.07.2012 also held the petitioners as being not eligible for regularization by it in terms of Section 3(b) of J&K Civil Services (Special Provisions Act) 2010. 4. This is how the petitioners are again before this Court in the present writ petition. 5. Respondents have filed their reply wherein they have taken a specific ground that Section 3 of the Special Provisions Act excludes its application to persons appointed on academic arrangements for a fixed term in any Government Department. 6. I have heard learned counsel for the parties and considered the matter. 7. Section 5 of the Special Provisions Act provides for regularization of ad hoc or contractual or consolidated appointees referred to in Section 3 thereof, notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal, on fulfilment of the conditions mentioned thereunder. However, as is axiomatic from a bare perusal of Section 5, the benefit contemplated therein is limited to the appointees referred to in Section 3 of the Act, Section 3 reads as under: "3. Application of the Act. The provisions of this Act shall apply to such posts under the Government as are held by any person having been appointed on ad hoc or contractual basis, including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies, but shall not apply to:-- (a)... Application of the Act. The provisions of this Act shall apply to such posts under the Government as are held by any person having been appointed on ad hoc or contractual basis, including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies, but shall not apply to:-- (a)... (b) persons appointed on tenure posts co-terminus with the life of the project or scheme of the State or Central Government, as the case may be, and those appointed on academic arrangement for a fixed term in any Government Department. (c)... (d)...." (Underlining supplied) Clause (b) of Section 3 of the Special Provisions Act, thus, emphatically excludes the application of the provisions of the Act to the persons appointed on academic arrangement for a fixed term in any Government Department. 8. The orders of appointment of petitioners herein, placed by them on record of this petition, make it manifest that they had been appointed on academic arrangements for fixed terms. They might have been appointed on vacant posts and continued pursuant to Court orders, but their appointment on vacant posts or continuation pursuant to Court orders would not change the nature of their appointments. They would continue to remain appointees on academic arrangement for fixed terms. 9. In light of the above, I do not see any merit in this petition. It is, accordingly, dismissed alongwith the connected CMP. Interim direction, if any, subsisting, shall stand vacated. 10. No order as to costs. Records produced by learned counsel for the respondents are returned to him in the open Court.