Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 500 (JK)

Ulfat Ara v. State of J&K

2018-07-11

ALI MOHD.MAGREY

body2018
JUDGMENT : ALI MOHD. MAGREY, J. By this common Judgment I propose to decide and dispose of the above four writ petitions, which stand clubbed by virtue of Court order dated 25.10.2017, filed by the petitioners, seeking regularization of their services from the appointed day, in tune with the mandate of Section 10 of Jammu and Kashmir Civil Services (Special Provision) Act, 2010. Facts in all the cases being similar to one another are summarized as under:- 1. That by virtue of SRO 255 Jammu and Kashmir Contractual Appointment Rules, 2003 were formulated by the State of Jammu and Kashmir. Some of the provisions of SRO 255 were amended from time to time. It is submitted that in pursuance of Section 2 (e) a Selection Committee was constituted under Rule 6 of the J&K Contractual Appointment Rules, 2003. 2. That the applications were invited by the Selection Committee of various Districts constituted under Rule 6 of the J&K Contractual Appointment Rules, 2003, the petitioners responded to these advertisement notices. After facing the process of selection, petitioners (in SWP No. 2147/2017, SWP No. 1303/2016 and SWP No. 1333/2016) were appointed as Teacher/Physical Education Teachers and petitioners (in SWP No. 1314/2016) were appointed as Junior Engineers. The petitioners are filing a schedule along with the writ petition, showing the names of the petitioners, the district they belong, the committee so constituted and their order of appointment. 3. It is submitted that in view of order of appointment, the petitioners were appointed initially for a period of one year or till regular selection is made in accordance with the prescribed rules of appointment whichever is earlier. It is averred that the Government did not make any regular selection instead the appointment of the petitioners to which they were appointed in pursuance of their respective appointment orders were continued by the State. 4. It is submitted that the Cabinet constituted a Sub-Committee to make recommendations for regularization of the employees, who were appointed and working on ad hoc/contractual and consolidated basis for their regularization. It is averred that on the recommendations of the Cabinet Sub-Committee for regularization of the appointments of officers/officials working on ad hoc basis between 22.07.1989 till 31.07.2004 and on contractual basis appointed in pursuance of SRO 255 of 2003 and who are continuing in service till date viz. till 20.05.2008. It is averred that on the recommendations of the Cabinet Sub-Committee for regularization of the appointments of officers/officials working on ad hoc basis between 22.07.1989 till 31.07.2004 and on contractual basis appointed in pursuance of SRO 255 of 2003 and who are continuing in service till date viz. till 20.05.2008. It is averred that the Cabinet approved the recommendations of the Sub-Committee. After the approval was made, the Cabinet directed to bring out legislation through an ordinance it was directed that the Law Department would prepare an ordinance and submit for orders. Because of the fall of the Government, ordinance could not be prepared nor could be submitted to Cabinet for its approval. It is averred that after the Government has taken over in 2009, the Cabinet again met and one of the agenda before the Government was for regularization of ad hoc/contractual appointments. On approval of Cabinet, the bill for regularization of contractual/ad-hoc employees was submitted to legislature under caption of Jammu and Kashmir Civil Services (Special Provision) Bill, 2010, which on approval became the Jammu and Kashmir Civil Services (Special Provision) Act, 2010. It is averred that Section 6 gives powers to the Government to relax the upper age limit of the ad hoc or contractual or consolidated appointees. 5. It is submitted that the most important provision of law which is relevant for the reliefs prayed for in these writ petitions is Section 10. Section 10 refers to empowered committee and Section 10(2) gives time limit within which time the case of each appointee had to be considered and approval given. Under Section 10(2) every department, from the date of commencement of the Act of 2010 viz. from 28.04.2010 had to refer all cases of ad hoc or contractual or consolidated appointees eligible for regularization under Section 5 to the Member Secretary for being placed before the empowered committee for scrutiny, verification with regard to the entitlement of the regularization of such appointees. This had to be done within a period of sixty days to be reckoned from 28.04.2010. 6. It is submitted that in this case, without adhering to the limit provided under Section 10(2) the empowered committee approved the cases of the petitioners for regularization on different dates. It is submitted that the date of regularization is given against the name of each petitioner. 6. It is submitted that in this case, without adhering to the limit provided under Section 10(2) the empowered committee approved the cases of the petitioners for regularization on different dates. It is submitted that the date of regularization is given against the name of each petitioner. These facts are projected to show that there was no fault of the petitioners for passing of the orders in pursuance of Jammu and Kashmir Civil Services (Special Provision) Act, 2010. It is averred that vide SRO 400 notified on 24.12.2009, amendments were made in Jammu and Kashmir Civil Service Rules. By these amendments Article 167 of exception (6) was added. It is further averred that because of this amendment made in Article 167, the petitioners are deprived to have the benefit which are pension Rules existing prior to these amendments to which they are entitled to. 7. It is submitted that in view of the orders of regularization of the petitioners, effect to the regularization is given prospectively depriving the benefit of the service to the petitioners after being appointed by District Selection Committee, who selected them, after the petitioners were made to face the process of selection. 8. It is submitted that the word used under the Article of 2010 is regularization of services of the petitioners, which in other words would mean that the petitioners are serving under the state of J&K as public servants and by the orders of their regularization their services have been regularized, as such under law their service is presumed to have been regularized from the day they came into the service of State of Jammu and Kashmir, that is from the day they were appointed by their respective administrative departments after they were selected by the selection committee. It is further averred that the petitioners were not appointed on or after 01.01.2010. They were appointed as Government employees by virtue of the appointment made after they were selected, recommended/selected and appointed by the Government, as such, Article 167 exception (6) will have no application nor J&K Defined Contributory Pension Scheme 2010 will apply to the cases of the petitioners. It is further averred that the word in exception (6) of Article 167, which reads "brought on regular establishment on or after 01.01.2010" will not include in its ambit the petitioners. 9. It is further averred that the word in exception (6) of Article 167, which reads "brought on regular establishment on or after 01.01.2010" will not include in its ambit the petitioners. 9. It is submitted that because under the Jammu and Kashmir Service (Special Provision), Act of 2010 only those persons would be entitled for regularization who fulfill the condition laid down under Section 5 of the Act and once of the condition is that ad hoc/contractual/consolidated appointees have been appointed against a clear vacancy or post. Once the petitioners have been appointed against a clear vacancy or post, it means that the petitioners were already on regular establishment but were holding the post on ad hoc/contractual/consolidated basis. In order words the petitioners were on regular establishment but their position and status has been regularized which status and position they were holding from the date of their appointment as such. It is averred that the services of the petitioners are governed by the Jammu and Kashmir Education (Subordinate) Service Recruitment Rules, 2008. Section 5 of the said rules provides qualification and method of recruitment. 10. It is submitted that the second aspect of the matter is that a Sub-Committee was constituted to go into this aspect of regularization of the ad hoc/contractual/consolidated employees who were State Government employees since 1989. The Cabinet Sub-Committee submitted their report which was considered by the Cabinet and the Cabinet vide its decision No. 88/7 approved the recommendations of the Sub-Committee. The Sub-Committee has recommended the regularization of the employees on certain conditions. It is averred that the Cabinet considered the report and took a decision on 20.05.2008 which reads as under:- "Cabinet considered the issue and approved to bring out a legislation through an ordinance to regularize the services of all officers/officials appointed on ad hoc basis appointed in pursuance of SRO 255 of 2003, which are continuing in service till date. Law Department would prepare an ordinance and submit to the Cabinet for further consideration and orders." 11. It is submitted that legally speaking the decision to regularize the services has been made on 20.05.2008, but for the reason that ordinance could not be brought out and the matter was again referred for the approval of the cabinet, which took the decision on 29.08.2009 for regularization of ad hoc/contractual/consolidated employees. The only formality was published or ordinance or the Act. The only formality was published or ordinance or the Act. The cabinet approved the regularization of the services of the petitioners. Once the Cabinet approves the decision, the regularizations made thereafter should have been given the effect from the date the Cabinet approved the decision, which was dated 20.05.2008 or 24.08.2009. On this count also the services of the petitioners should be construed to have been regularized from the date of their appointments made in pursuance of the J&K Contractual Rules, 2003. 12. It is submitted that the Government by its order dated 16.10.2014 passed an order bearing no. 1061-GAD of 2014 . By this order, the past services rendered by the migrant substitutes prior to their regularization were counted for pensionary benefits also. It is submitted that all the migrants who have been working as substitutes on various posts were not holding the post substantively nor had held the post by facing the process of selection, were regularized after 2010 and accordingly in pursuance of this order dated 16.10.2014 once their previous service has been counted for pensionary would mean that they have been governed and given the benefit of Pension Rules which were in existence prior to the amendment of Article 167. The petitioners are bitterly placed than the person who have been given the benefit of the order dated 16.10.2014 on two counts: i. That petitioners faced the process of selection and were appointed. ii. Their regularization was approved by the Cabinet in 2008/2009. Migrants without facing the process of selection were appointed as substitutes and thereafter were regularized and then benefit was given to them of the past services. Once the benefit was given, in consequence thereto they got the benefit of pension in accordance with the Pension Rules subsisting/existing prior to 01.01.2010. 13. It is submitted that the petitioners are entitled for same benefit, which has been given to the migrants in pursuance of Government order, dated 16.10.2014 and by depriving benefit of this order to the petitioners, discrimination has been meted to the petitioners. 14. It is submitted that in view of passing of SRO 400, dated 24.12.2009, the persons who are appointed on or after 01.01.2010 shall not have the benefit of previous pensionary rules but will be governed by New Pension Scheme. 14. It is submitted that in view of passing of SRO 400, dated 24.12.2009, the persons who are appointed on or after 01.01.2010 shall not have the benefit of previous pensionary rules but will be governed by New Pension Scheme. The regularization is not an appointment as defined under the said scheme, therefore, the petitioners are entitled for regularization from the day they entered the service after facing the process of selection and also are governed by pensionary Rules existing prior to SRO 400. The Hon'ble Supreme Court in case titled M.K. Shamaugen and Anr. v. Union of India and Anr., held as under: "that in case the promotion had been made ad hoc and they are subsequently regularized in the service in all the cases ad hoc service should be reckoned for the purposes of their seniority. It is only in those cases where initially they had been recruited even though they have been appointed ad hoc, the recruitment was subject to the same process as it has been done in case of regular appointment and that the same was not stop gap appointment". 15. On notice respondents were granted ample opportunities to file reply, which they failed to avail. 16. Heard learned counsel for the parties, perused the records and considered the matter. 17. There is no dispute with reference to working of the petitioners initially on contractual basis and subsequently regularized in terms of various orders. 18. It is submitted that it is not also in dispute that the writ petitioners having been found to have completed the prescribed seven years' service much before the appointed day and fulfilling all the conditions stipulated in Section 5 of the 2010 Act, its provisions cannot be read in a manner as to confer an unbridled discretion on the concerned functionaries to order regularization of such employees as and when they wish at their whims and caprice. Petitioners further submit that there are and can be instances where such appointees completed the seven years' service much after the appointed day and have been immediately regularized and there may be instances where the appointees had completed such period of service prior to the appointed day but were regularized, like petitioners, after considerable delays, or not at all. Petitioners further submit that there are and can be instances where such appointees completed the seven years' service much after the appointed day and have been immediately regularized and there may be instances where the appointees had completed such period of service prior to the appointed day but were regularized, like petitioners, after considerable delays, or not at all. Petitioners submitted that the Government has failed to maintain any such standard with the result that a yawning gap has been left for commission of discrimination amongst similarly placed appointees. 19. In fact, one would not need to delve deep into the provisions to dig out an answer thereto. Section 10 of the 2010 Act is relevant in this regard. Sub-Section (1) of Section 10 prescribes the constitution of the Empowered Committee. Sub-Section (2) thereof mandates that the departments shall within sixty days from the commencement of the Act refer all the cases of ad hoc or contractual or consolidated appointees eligible for regularization under Section 5 to the Member-Secretary for being placed before the Empowered Committee for scrutiny and verification with regard to their entitlement to regularization under the Act. Sub-Section (3) of Section 10 then mandates that the Empowered committee shall examine such cases and notify the names of such ad hoc/contractual/consolidated employees who have been found eligible for regularization under Section 5 of the Act in respect of each Department within fifteen days period for filing of objections before the Committee. Sub-Section (4) of Section 10 prescribes that the Empowered Committee shall thereafter examine the complaints, if any, received and make appropriate recommendation(s) to the concerned Administrative Department with regard to regularization in respect of each case on fulfillment of the conditions specified under Section 5 or rejection of the case. Then Sub-Section (5) of Section 10 says that the concerned Administrative Department shall issue orders of regularization after seeking the approval of the Chief Minister through the Chief Secretary, in coordination. 20. Then Sub-Section (5) of Section 10 says that the concerned Administrative Department shall issue orders of regularization after seeking the approval of the Chief Minister through the Chief Secretary, in coordination. 20. From a bare perusal of Section 10 of the Act, it is thus seen that whereas the processes to be undertaken in terms of Sub-Sections (2) and (3) thereof are time bound, Sub-Sections (4) and (5) do not speak of any limitation for completion of the process of examination of the complaints, if any, received by the Empowered Committee; making of recommendations by it and the issue of orders of regularization of the concerned appointees by the Administrative Departments. However, as becomes axiomatic, the substantial part of the processes of making references by all departments in terms of Sub-Sections (2), the scrutiny and verification of each individual case with regard to their entitlement to regularization under the Act and notification of the list of such appointees by the Empowered Committee in terms of Sub-Section (3) of Section 10 have to be completed within 60 days plus 15 days, respectively. This constitutes the substantial part of the whole process. If the substantial part of the processes is time bound and prescribed to be completed within 75 days from the appointed day, it by no stretch of imagination can be said that the intention of the Legislature would have been to leave an unbridled discretion with the authorities concerned to complete the remaining process of examination of the complaints, if any, received by the Empowered Committee, making of recommendations by it and the issue of orders of regularization by the Administrative Departments. The act of constitution of the "Empowered Committee" and its composition by the provision of the Act itself, clearly suggest that the Legislature intended to eliminate the possibility of lackadaisical attitude by the concerned functionaries of the State and to reduce the possibility of consumption of time in completing the processes to the minimum. The Legislature clearly seems to have empowered the prescribed Committee to complete all the process at its own level to find out the entitlement of such an appointee to regularization so that no further time is wasted in the issuance of the regularization orders. The Legislature clearly seems to have empowered the prescribed Committee to complete all the process at its own level to find out the entitlement of such an appointee to regularization so that no further time is wasted in the issuance of the regularization orders. This is further fortified by the provision of section 11 of the act which confers a right of appeal on an aggrieved person against the recommendation of the empowered committee, meaning thereby that credence and importance has been attached to the decision and recommendations of the empowered committee, not the order of regularization. Cumulatively, therefore, from the scheme of things, as discussed above, it flows that the legislative intent seems to have been not to leave open ended discretion with the prescribed authorities, i.e., the empowered committee and the administrative department, in the matter of examining complaints, if any, received; making of recommendations and issuance of final orders of regulations. In any case, since the sub-sections (2) & (3) of section 10 prescribe a limitation of 75 days for completing the substantial part of the process, it is unimaginable that the remaining part of making recommendation and issuance of regularization orders should take the prescribed authorities more than that time. 21. Now, since the petitioners have completed the prescribed seven years' service on ad hoc/contractual basis much prior to the appointed day, their services 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 writ-petitioners 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, to be precise 26/27.09.2010. 22. In that view, the writ-petitioners 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, to be precise 26/27.09.2010. 22. In light of the above, all these petitions are allowed and the respondents are directed to give the benefit of regularization to the services of petitioners by applying the principle as detailed out in the Division Bench Judgment of this Court passed on 07.09.2016 in COD No. 159/2016 C/w Review petition No. 25/2016 and Cont. No. 13/2016 titled 2017 (I) JKJ 490 [HC] Ms. Rabia Shah v. State and Ors., and Ms. Rabia Shah v. Mr. B.R. Sharma and Ors., from the appointed day, i.e., around 26/27.09.2010. Respondents are further directed to modify the orders of regularization made in favour of the petitioners and give them benefit from 26.09.2010. The consequential benefits shall be released in favour of the petitioners within a period of four months from the date certified copy of the order is served upon them. Disposed of.