JUDGMENT : ALI MOHD. MAGREY, J. COD No. 158 of 2016 1. Applicant-State has filed the instant Condonation of Delay application, seeking condonation of 172 days delay, in filing of Letters Patent Appeal against the Judgment final order passed by the learned Single Judge (Hon'ble Mr. Justice Muzaffar Hussain Attar) on 02.11.2015 in SWP No. 602/2014, titled Mehmooda Begum v. State & Ors., on the ground detailed out in the Condonation of Delay application with peculiar reference to the facts detailed out in paragraph 1 to 4 of the application. Paragraphs 1 to 4 being relevant are extracted as under:- "1. That the above titled LPA is being filed against Judgment and order dated November 02, 2015 passed in SWP No. 602/2014, titled Mehmooda Begum & Anr. v. State of J & K & Ors. As soon as the impugned Judgment was received, process to implement same was set in motion. The Directorate collected information from the office of Chief Education Officer, Bandipora and accordingly, referred the matter to the Education Department vide Communication No. DSEK/Legal/82/14/N.T./650, dated 19.12.2015. While bring the orders of the Hon'ble Court to the notice, necessary instructions/guidance was solicited. In response to letter issued by the Education Department bearing No. Edu/Legal/K/185/2015, dated 22.12.2015 vide Communication No. Edu/Legal/82/14/N.T./717, dated 08.02.2016. Copy of the writ petition was furnished to the Education Department with the request to issue necessary instructions/guidance. 3. That the Education Department on consideration of the matter having taken up the matter with the Department of Law, Justice and Parliamentary Affairs for opinion/advice was conveyed sanction to the filing of LPA vide No. LD (lit) 2014/576-Edu, dated 31.03.2016 in the name of AAG Shri Shabaz Sikander. However, the case stands now allotted to Mr. Mohd. Iqbal Dar, AAG vide No. LD (lit) 2014/576-S.Edu., dated 09.06.2016 (Annexure L-3 to the LPA). 4. That vide Letter No. Edu/Legal/K/185/2015, dated 04.04.2016, the Directorate of Education Kashmir was informed by the Education Department about the sanction granted to the filing of LPA. It is submitted that since then the department has been pursuing the matter with the Law Officer to ensure filing of LPA. Finally the case has been allotted to Mr. Mohd. Iqbal Dar, AAG. Applicant-State has shown sufficient cause forming ground for Condonation of Delay, therefore, the application deserves to be allowed. 2. It is submitted that since then the department has been pursuing the matter with the Law Officer to ensure filing of LPA. Finally the case has been allotted to Mr. Mohd. Iqbal Dar, AAG. Applicant-State has shown sufficient cause forming ground for Condonation of Delay, therefore, the application deserves to be allowed. 2. On the set of facts and grounds urged coupled with the submissions made at Bar, the instant Condonation of Delay application is allowed and delay of 172 days is condoned. COD disposed of. LPA No. 156/2016 3. This Letters Patent Appeal is filed against the Judgment and final order passed by the learned Single Judge (Hon'ble Mr. Justice Muzaffar Hussain Attar) on 02.11.2015 in SWP No. 602/2014, titled Mehmooda Begum v. State & Ors., with the prayer for setting aside the same. Brief Facts: 4. Husband of petitioner No. 1 (respondent No. 1 herein) and father of petitioner No. 2 (respondent No. 2 herein) namely, Mohammad Ramzan Baba was appointed on leave arrangement of his father against the post of Chowkidar in Government High School, Bandipora on 26.07.1991, initially for five months, and thereafter was continued for 89 days and subsequently continued for six months with further continuation till he died on 13.02.2014. 5. Husband of petitioner No. 1 (respondent No. 1 herein) and father of petitioner No. 2 (respondent No. 2 herein) namely Mohammad Ramzan Baba (deceased) apprehending disengagement, approached this Court and filed SWP No. 3023/1992 and this Court on consideration of the matter and in terms of final order dated 01.12.1992 disposed of the writ petition with direction to respondents to allow the petitioner (deceased) against the post of Chowkidar, who had proceeded on leave, till the original incumbent resumes his duties. It was further provided that in case the original incumbent does not resume his duties and the vacancy declared vacant, petitioner (deceased) be also considered for that post if otherwise eligible. 6. Mohammad Ramzan Baba (Deceased) alleged violation of orders passed by this Court in SWP No. 3023/1992, filed a contempt petition bearing No. 326/1994 and this Court in terms of order passed on 06.03.1995, while entertaining the contempt petition, directed the respondents to comply with the Court order and not to substitute ad hoc arrangement by the another ad hoc person. 7. 7. Mohammad Ramzan Baba (Deceased) was continued against the post of Chowkidar and while in service he (deceased) filed a writ petition bearing No. SWP No. 152/1998, seeking regularization. Writ Court in terms of Judgment/final order passed on 31.08.1998, disposed of the writ petition with the following directions:- "1, That at the time of filing up of the post, on which the petitioner is working, the petitioner along with other contestants may also be considered. 2. That till the selection is made, the petitioner shall continue on the post and be paid his salary also under rules. No order as to costs." 8. Mohammad Ramzan Baba (Deceased) continued in service against the post of Chowkidar till 13.02.2014 and while in service died on 13.02.2014. Mohammad Ramzan Baba (Deceased) while in service had requested for his regularization of services in terms of the applicable laws but due to inaction of respondents, case remained pending till he died. 9. Petitioners (respondents herein) besides seeking regularization of Mohammad Ramzan Baba (deceased) are seeking also release of post retiral benefits as also compassionate appointment in terms of SRO 43 of 1994. 10. Appellants having failed to consider their claim had left them with no option but to file writ petition SWP No. 602/2014, with the following prayer:- "Mandamus commanding the respondents to regularize the services of the deceased from the year 1999 as in 1999 the deceased had completed his seven (7) years continuous service in the respondent Department as Chowkidar of Govt. Secondary School, Bandipora. Further the respondents be directed to release all the service benefits in favour of the petitioners after regularizing his services. The service benefits shall include pension, gratuity and commutation etc. Further the petitioner No. 2 may be adjusted at place of his deceased father as per SRO 43 of 1994, as the father of the petitioner No. 2 has died in harness." 11. Appellants despite opportunity failed to file reply affidavit in opposition to the writ petition, therefore, the Writ Court considered the matter and finally decided in terms of impugned Judgment dated 02.11.2015, by allowing the writ petition with direction to respondents to consider and appoint petitioner No. 2 on compassionate grounds. Respondents were further directed to give all service benefits to which the petitioners are entitled to by treating Mohammad Ramzan Baba (Deceased) to have been regularized in service. 12. Respondents were further directed to give all service benefits to which the petitioners are entitled to by treating Mohammad Ramzan Baba (Deceased) to have been regularized in service. 12. Feeling aggrieved of the final order/Judgment dated 02.11.2015, appellants have filed the instant Letters Patent Appeal on the grounds detailed out in the memorandum of appeal. Grounds 1 to 3 being relevant are extracted as under:- "i. That the deceased Mohammad Ramzan Baba was actually and factually engaged against leave arrangement for a short term period of five months. However, he continued firstly on the basis of order passed in SWP No. 3023/1992, dated 01.12.2012 read with the order passed in contempt petition No. 326/1994, dated 06.03.1995, in which the Hon'ble Court had gone beyond the basic Judgment while observing that ad hoc cannot be substituted by the another ad hoc person, as there was no question of substituting deceased by any other person, because the post had fallen vacant, as such was required to be filled up through open selection. In any case, the deceased again continue on the basis of orders passed in SWP No. 152/1998, dated 31st August, 1998, whereunder the respondents were directed to consider petitioner along with other contestants against the post. However, the selection of a suitable/eligible candidate could not mature on one or the other pretexts, but did not give a illimitable and/or indefeasible right to the deceased Mohammad Ramzan Baba to get automatically appointed/regularized against the said public post notwithstanding the fact that the Hon'ble Court had in the very first order dated 01.12.1992 ordered that petitioner be considered against the post if otherwise eligible and according to the respondents, he was not eligible as being illiterate. This very important aspect has not been noticed while passing the impugned Judgment by the Hon'ble Writ Court. ii. That the respondents (appellants herein), it is most respectfully submitted, have not been given sufficient opportunity to file reply affidavit so that the actual position obtaining in the case would have been brought to the kind notice of the Hon'ble writ Court, as such the impugned Judgment is liable to be set aside and/or the case relegated back to the Hon'ble Writ Court for fresh disposal with the permission to the department to file its reply/response. iii. iii. That the Hon'ble Single Judge has passed the impugned Judgment in hot haste without giving adequate opportunity to the respondents to deal with the case and also to consult/examine, the Hon'ble Division Bench Judgments reported in 2003 (Supp.) JKJ 93 [HC] and the Judgment reported in JKJ Soft JKJ/11530 as well as the one reported in 2011 SLJ 369, cited in the impugned Judgment. It is mentioned in the said Judgments as the incumbent in the present case was not an eligible candidate for the post of Chowkidar and the leave arrangement was made by the incompetent authority having no power and/or without approval/confirmation of the competent authority, that, to, against the vacancy of deceased's father Mohammad Ramzan Baba, who had deliberately remained away from his duties so as to make room for appointment of his son in contravention to rules/law occupying the field. The appellants (respondents) having not been given ample opportunity to file their response have been unable to bring the said aspect as well to the kind notice of the Hon'ble Court. Had the respondents been given ample opportunity to file reply affidavit/response, the position would have indeed been different." 13. Heard learned counsel for the appellants, considered the matter and perused the records. 14. Contention raised by Mr. Mohammad Iqbal Dar, learned AAG that the respondents-petitioners are not entitled to relief granted by the Writ Court has no substance, as admittedly deceased Mohammad Ramzan Baba continued against the post of Chowkidar on ad hoc basis till 13.02.2014, therefore, a right has accrued to the said deceased Mohammad Ramzan Baba for regularization of his services in terms of provisions of Jammu and Kashmir, Civil Services (Special Provisions) Act, 2010 paving way for regularization of ad hoc, contractual and consolidated appointees. Deceased Mohammad Ramzan Baba was fulfilling the conditions of eligibility required in terms of Section 5 of the 2010 Act, therefore, had earned a right for regularization of his services on completion of seven years of service as on the "appointed day". The "appointed day" in terms of Section 2(c) of the 2010 Act means 'the date of commencement of this Act'. In terms of Clause (2) of Section 1 of the Act, it would come into force from the date of its publication in the Government Gazette. The Act was published in the Government Gazette on 28.04.2010 and thus commenced with effect from that date. In terms of Clause (2) of Section 1 of the Act, it would come into force from the date of its publication in the Government Gazette. The Act was published in the Government Gazette on 28.04.2010 and thus commenced with effect from that date. Then the provision of Section 5 is hedged in two provisos appended thereto which have a vital bearing on the right to regularization of such appointees so created by the Statute and, in fact, founds the grievance raised in the instant review petition. The two provisos are quoted hereunder: "Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter, but before such regularization; Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act." 15. Then Section 10 of the 2010 Act provides for an Empowered Committee consisting of the Administrative Secretary, Finance Department as its Convener with two Administrative Secretaries of the General Administration Department and the concerned Department; and the Director General, Accounts and Treasuries, and Director Codes, Finance Department, as its Members, to whom all the cases of such appointees would be referred for scrutiny and verification and on whose recommendations the administrative departments concerned would issue orders of regularization in accordance with the procedure mentioned therein. 16. A conjoint reading of the various provisions of the 2010 Act, especially the two above quoted provisos appended to Section 5 and Section 10 thereof, makes it unambiguously manifest that such appointees could be regularized only subject to the fulfillment of conditions stipulated in Section 5 and in accordance with the procedure prescribed in Section 10, and that such regularization could be made effective only from a date posterior to the appointed day. The 2010 Act did not have any retrospective application. The 2010 Act did not have any retrospective application. It is specifically provided in the first proviso appended to Section 5, as quoted above, that the regularization of such appointees under the Act shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed day or thereafter, but before such regularization, meaning thereby the regularization could not be ordered from a date anterior to the appointed day. The requirement of possession and completion of seven years' service as such, as provided in Section 5(v) of the Act, is one of the conditions of eligibility, qualifying and entitling such an appointee for regularization on or after the appointed day, not anterior thereto. 17. In terms of the Scheme of the Act, deceased Mohammad Ramzan Baba was required to be regularized from the appointed day of the Act, i.e., 28.04.2010 as he had completed seven years service before that date. 18. Now, since the deceased Mohammad Ramzan Baba had completed the prescribed seven years of service on ad hoc basis much prior to the appointed day, his case for regularization would have to be considered immediately after the appointed day in terms of Section 10 of the 2010 Act. As held above, the period of accord of such consideration could not be unreasonably stretched beyond 75 days to complete the processes under Sub-Sections (2) and (3) of Section 10 of the 2010 Act and then a maximum of further equal period would be required for completion of the remaining part of the processes under Sub-Sections (4) and (5) of the said Section. In that view, the deceased Mohammad Ramzan Baba would be entitled to regularization from a date, say, at best, 150 days posterior to the appointed day, which would fall somewhere towards the end of September, 2010, therefore, the relief granted by the Writ Court asking the appellants to give all service benefits to which the petitioners-respondents are entitled to by treating deceased Mohammad Ramzan Baba to have been regularized in service has no legal infirmity and is consistent with law, therefore, upheld. 19. Contention of Mr. 19. Contention of Mr. Mohammad Iqbal Dar, learned AAG that respondent No. 2 is not entitled to seek appointment on compassionate basis in terms of SRO 43 of 1994, has also no substance, as the father of the respondent No. 2 was in service at the time when he died, therefore, of course the respondent No. 2 can by no stretch of imagination be deprived of such benefits. 20. Learned Writ Court has rendered support to the claim of the respondent No. 2-petitioner No. 2 by reference of Division Bench Judgments of this Court in case titled Ashok Kumar & Ors. v. State & Ors., reported in 2003 (Supp.) JKJ 93 [HC], Sureksha Rani v. State of J & K, reported in JKJ Soft JKJ/11530 and State of J & K & Ors. v. Safia Begum, reported in 2011 (I) SLJ 369. 21. Case of the respondents-petitioners is squarely covered under the Judgments referred above as the identical issue has been considered at great length even in the case titled Safia Begum by the Division Bench of this Court. In the light of above discussion, we are not inclined to interfere with the impugned Judgment/final order passed by the Writ Court and while upholding the same are further issuing directions to the appellants in the following manner:- (i) Appellants shall treat the deceased Mohammad Ramzan Baba as having been regularized against the post of Chowkidar from 28.09.2010. Consequently pay all service benefits to the respondents which have accrued to them on account of regularization of service of deceased Mohammad Ramzan Baba. (ii) Appellants shall consider the case of respondent No. 2 namely Mohammad Rafiq Baba for appointment on compassionate basis in terms of SRO 43 of 1994. (iii) Consideration shall be effected and decision taken within a period of three months from today. Dismissed along with connected CMPs. Appeal Dismissed.