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2023 DIGILAW 67 (JK)

Naresh Kumari v. State of J&K

2023-02-22

PUNEET GUPTA, RAJNESH OSWAL

body2023
JUDGEMENT Rajnesh Oswal, J. 1. These intra-court appeals arise out of the common judgment dated 04.05.2018 passed by the learned Single Judge, whereby the writ petitions filed by the appellants were disposed of. The three writ petitions, out of which two were filed subsequently after the decision of the learned Single Judge, have also been clubbed with these intra-court appeals. The issues involved in all these letters patent appeals as also the writ petitions are identical in nature and as such, they were heard together and therefore, are being disposed of by this common judgment. 2. The judgment passed by the learned Single Judge dated 04.05.2018 has been impugned by the appellants on the ground inter alia that the learned Single Judge has not properly appreciated the controversy, as though the appellants were appointed on academic arrangement basis in terms of SRO 384 of 2009 dated 14.12.2009, yet the nature of the appointment is not different from Consolidated or Contract workers, which makes them eligible to seek regularization against the posts held by them. The expression "academic engagement", is not applicable in the case of appellants as neither the appellants work on session to session basis nor the engagement can be circumscribed to a particular academic session, which in fact is a term pertaining to the employees, who are in the teaching faculty. It is also stated that the Full Bench of this court in LPA (SW) No. 158/96 in case titled "State of J&K versus Zareena Begum" has been pleased to hold that the nomenclature of the engagement would not make any material difference, if such employees are made to work regularly and in view of the finding arrived at by the learned Single Judge that there is little difference between the engagement of the appellants and the other employees working on adhoc, contractual or consolidated basis, the appellants cannot be discriminated viz-a-viz employees engaged on adhoc, contractual or consolidated basis, insofar as the right to continue and seek regularization is concerned. It is also stated that the comparative analysis of SRO 255 dated 05.08.2003 i.e. J&K Contractual Appointment Rules, 2003 and SRO 384 of 2009 dated 14.12.2009 i.e. Medical & Dental Education (Appointment on Academic Arrangements Basis Rules), 2009 & SRO 202 of 2015 dated 30.06.2015 i.e. J&K Special Recruitment Rules, 2015 would lead to a conclusion that the terms of engagement, mode of selection, appointment and nature of duties of all these employees including those of the appellants, are identical in nature and as the appellants had been working for the last so many years, they are required to be regularized under the Jammu and Kashmir Civil Services (Special Provisions) Act of 2010. Contentions of the Appellants/Petitioners: 3. Mr. Rahul Pant, learned senior counsel for some of the appellants argued that the distinction between employees working on contractual, adhoc or consolidated basis and those working on academic arrangement basis is artificial in nature and in fact, there is no real distinction between these employees except for the nomenclature. He further argued that the policy of regularization of contractual, consolidated or adhoc employees excluding the appellants is discriminatory in nature and in the alternative, he submitted that the applicants are in fact contractual employees notwithstanding the fact that they had been engaged on academic arrangement basis. 4. Mr. Sunil Sethi, learned senior counsel for some of the appellants too argued on similar lines as those of Mr. Rahul Pant, learned senior counsel. He further submitted that the appellants have been working for the last so many years and there appears to be no justification for not regularizing the services of the appellants, particularly when they are working on the posts those are not created for a temporary period or for a particular purpose. 5. Mr. Vikas Mangotra, learned counsel for some of the appellants reiterated the submissions made by Mr. Rahul Pant, learned senior counsel and further argued that the action of the respondents in not regularizing the services of the appellants is discriminatory as the official respondents have regularized the services of Rehbar-E-Taleem and Rehbar-E-Ziraaat. 6. Mr. Anuj Dewan Raina, learned counsel for some of the appellants echoed the submissions made by the counsels, who argued earlier and relied upon the judgment of the Full Bench of this court as mentioned above. Contentions of the Respondents: 7. Per contra, Mr. 6. Mr. Anuj Dewan Raina, learned counsel for some of the appellants echoed the submissions made by the counsels, who argued earlier and relied upon the judgment of the Full Bench of this court as mentioned above. Contentions of the Respondents: 7. Per contra, Mr. Rahul Sharma, learned Deputy AG for the official respondents vehemently argued that because of the urgency, Rules of 2009 were framed so as to make the appointments for the teaching posts and nurses/para-medical/para-dental/technical staff in the Government Medical Colleges and Government Dental Colleges, as the filling up of the posts under the normal recruitment process as per the relevant recruitment rules was likely to consume time. The engagement of the appellants was for the maximum period of 6 years and the rules itself provided that the appointee shall not be entitled to any preferential claim for regular appointment under the normal process of selection/appointment. Mr. Sharma also argued that after the Reorganization Act, the Jammu and Kashmir Civil Services (Special Provisions) Act of 2010 has been repealed and as such, the appeals as also the writ petitions, deserve to be dismissed on this ground only. 8. Mr. Abhinav Sharma, learned senior counsel for the private respondents argued that the appellants were engaged in terms of SRO 384 of 2009 and once they have sought the benefit of the said SRO, then subsequently they cannot turn around and say that the certain provisions of SRO in question are unconstitutional. He further argued that the Jammu and Kashmir Civil Services (Special Provisions) Act 2010 was enacted to regularize the services of those appointees, who were appointed on adhoc, contractual or consolidated basis up to 29.04.2010. Since admittedly the appellants were appointed after the stipulated date, the appellants cannot derive any benefit out of the Act of 2010. He also laid stress that under the rules, the appellants could continue at the most for six years and when the official respondents undertook an exercise to fill the vacancies as per the recruitment rules, the appellants filed the writ petitions even before the expiry of maximum period provided for the continuance of the engagement on academic basis. He also laid stress that under the rules, the appellants could continue at the most for six years and when the official respondents undertook an exercise to fill the vacancies as per the recruitment rules, the appellants filed the writ petitions even before the expiry of maximum period provided for the continuance of the engagement on academic basis. He also urged that the private respondents have been selected pursuant to the selection process undertaken by the recruitment agency and because of the litigation initiated by the appellants, the private respondents have not been able to join at the posts for which they have been selected. 9. Mr. Rajesh Bhushan, learned counsel for the private respondents reiterated the submissions made by Mr. Abhinav Sharma learned senior counsel. He further argued that the appellants were engaged in the year 2013 and in the year 2015, the posts were referred to the J&K Service Selection Board for conducting selection as per the recruitment rules and it cannot be said that the appellants have worked continuously for a long period. He also urged that number of appellants have applied pursuant to the advertisement issued in the year 2015 and some of the appellants have been selected as well. Mr. Rajesh Bhushan laid stress that the appellants by their conduct do not deserve any relief and also the appellants cannot seek regularization on the analogy of Rehbar-E-Taleem and Rehbar-E-Ziraaat as it was a policy decision and the said schemes were conceptualized with a particular motive whereas the appellants were engaged purely on academic basis arrangement for a limited period so that the health services may not suffer because of time consuming process of filling the vacancies under the relevant recruitment rules. 10. Heard and perused the record. 11. In all these intra-court appeals as well as the writ petitions, the appellants/petitioners were engaged on academic arrangement basis in the year 2011 and onwards under the SRO 384 of 2009 dated 14.12.2009 i.e. Medical & Dental Education (Appointment on Academic Arrangements Basis Rules), 2009. The official respondents initiated the process of filling up the posts under the relevant recruitment rules through the Service Selection Board. The appellants filed the writ petition thereby challenging the exercise of recruitment undertaken by the official respondents for filling up the posts and also prayed for regularization of their services under the Act of 2010. The official respondents initiated the process of filling up the posts under the relevant recruitment rules through the Service Selection Board. The appellants filed the writ petition thereby challenging the exercise of recruitment undertaken by the official respondents for filling up the posts and also prayed for regularization of their services under the Act of 2010. The respondents filed objections to the writ petition. The learned Single Judge rejected the prayer made in the writ petitions filed by the appellants on the ground that the Act of 2010 applied only to those appointees, who were appointed up to 29.04.2010. The view taken by the learned Single Judge is unexceptionable. Even otherwise, a perusal of the Rules of 2009 reveals that the appointments were to be made for filling up the teaching posts and posts of nurses/para medical/para dental/technical staff in the Government Medical Colleges and Government Dental Colleges, on academic arrangement basis for the limited period of one year extendable up to a maximum of 6 years. As per Rule 4 of the Rules of 2009, the maximum age of the applicant for appointment was fixed at 63 years and the appointment was to stand terminated upon the attainment of age of 63 years by the appointee. Under the recruitment rules, a person of 63 years of age cannot be appointed to the said posts. These rules were framed only to ensure that the functioning of Medical Colleges and Dental Colleges do not suffer due to delay in the recruitment process under the relevant recruitment rules. The appellants were aware about the rules and they had agreed to the terms and condition of their appointment that the appointment under the Rules shall not entitle the appointees to any preferential claim for regular appointment under the normal process of selection/appointment. Once the appellants have agreed to the condition that they would not lay any preferential claim for regular appointment under normal process of selection/appointment, then they cannot seek regularisation, particularly when they have not worked for a very long period. If such a prayer of the appellants is allowed then the same would result in denying the other eligible candidates of their right of consideration against these posts, who may not have applied for the posts taking into consideration that the appointments were being made for fixed period till the normal recruitment process is undertaken. If such a prayer of the appellants is allowed then the same would result in denying the other eligible candidates of their right of consideration against these posts, who may not have applied for the posts taking into consideration that the appointments were being made for fixed period till the normal recruitment process is undertaken. In State of Maharashtra v. Anita, (2016) 8 SCC 293 , the Apex Court has held as under: "15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the Government. The appointments of the respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. The conditions of the respondents' engagement are governed by the terms of agreement. After having accepted the contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, the respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria." (Emphasis Supplied) 12. The contention of the appellants is that since the appellants are being paid consolidated salary so they would fall within the definition of "consolidated appointee" under Act of 2010 is misconceived, as the purpose and period of appointment is also required to be considered. Even if, for the sake of arguments, it is accepted that the appellants are contractual employees still their engagement is for a limited period and it is not that the official respondents have utilized their services for pretty long time even beyond the maximum period prescribed under the Rules of 2009. The appellants were engaged in the year 2011 and onwards after due selection process and when the official respondents started the process for filling up the vacancies under the normal process of recruitment in the year 2015 i.e. much before the expiry of maximum permissible time limit under the Rules of 2009, the appellants filed the writ petition with a sole motive to delay the process and the appellants have succeeded to some extent. It is strange that number of the appellants challenged the said advertisement and simultaneously responded to the advertisement for filling up the posts and even participated in the selection process. Thus, there is nothing wrong with the finding of the writ court that the appellant has no right of regularization under the Act of 2010. 13. More so, the appellants cannot seek regularization on the analogy of Rehbar-e-Taleem and Rehbar-E-Zirat Schemes. The Rules of 2009 were clear, unambiguous and the appellants knowingly accepted the appointments, therefore, they have no right of regularization in absence of any rules/provisions/scheme for the same. Both the schemes were the outcome of the policy decision of the Government framed with some motive/purpose. 14. Viewed thus, there is no merit in the present appeals, the same are dismissed and the connected writ petitions too are dismissed. The interim directions stand vacated.