Statutory Right Accrues Once Employee Fulfils Conditions; 150-Day Timeline Cannot Delay Regularisation
JAMMU, August 12: In a significant judgment settling conflicting judicial views on the regularisation of ad hoc, contractual and consolidated employees, a Full Bench of the High Court of Jammu & Kashmir and Ladakh has ruled that the Government cannot exercise unfettered or unbridled discretion in deciding the effective date of regularisation once an employee acquires the statutory right under the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010.
The Full Bench comprising Acting Chief Justice Sanjeev Kumar, Justice Sanjay Dhar and Justice Mohd Yousuf Wani delivered the judgment in LPA No. 70/2022, UT of Jammu and Kashmir through Commissioner Secretary, Forest Ecology Department versus Neeru Pandita.
The Larger Bench was constituted after a Division Bench, through a reference dated September 11, 2024, noticed conflicting judicial opinions regarding the interpretation of Section 5 of the 2010 Act, particularly its first proviso.
Right to Regularisation Begins Once Conditions Are Fulfilled
The Full Bench categorically held that the first proviso to Section 5 does not confer power upon the Government to arbitrarily select the date from which an eligible employee is to be regularised.
The Court ruled that an eligible ad hoc, contractual or consolidated employee acquires a statutory right to regularisation immediately upon fulfilling the conditions prescribed under Section 5.
The Bench made it clear that the date on which the statutory right accrues is distinct from the date on which the competent authority formally issues the regularisation order.
“The date of acquisition of the right of regularization is statutory in character and does not depend upon the choice or discretion of the authority,” the Court observed.
Government Cannot Delay Benefits at Its Discretion
In a strong observation, the High Court held that interpreting the law in a manner that makes regularisation effective only from the date of issuance of the Government order would leave employees dependent upon the “whims and caprice” of the Government.
The Court observed that such an interpretation could result in similarly situated employees receiving different benefits merely because their cases were processed at different points of time.
While one employee could be regularised promptly, another similarly placed employee could face years of delay because of administrative reasons beyond his or her control.
According to the Bench, such a situation would lead to discrimination, arbitrariness and unequal treatment among employees who are otherwise similarly situated.
150-Day Period Cannot Postpone Statutory Right
The Full Bench also rejected the contention that the 150-day period prescribed under Section 10 of the Act determines the effective date of regularisation.
The Court held that Section 10 is procedural in nature, providing the mechanism and timeline for processing cases before the Empowered Committee.
Therefore, the 150-day period cannot be imported into Section 5 to postpone the substantive statutory right of an eligible employee.
The Bench held that the statutory right arises once an employee fulfils the prescribed conditions and cannot be postponed merely because the administrative process has not been completed within the stipulated period.
Employees With Seven Years’ Service on April 28, 2010
The Court further clarified that employees who had completed seven years or more of eligible service as on April 28, 2010, the appointed day under the legislation, are to be treated alike and regularised with effect from that date, subject to fulfilment of the other statutory requirements.
The Bench said it would make no difference whether an eligible employee had completed seven, 10, 15 or even 20 years of service by the appointed day, as all such employees would stand on the same footing for determining the effective date of regularisation.
For employees who had not completed seven years of service on April 28, 2010, the second proviso to Section 5 permits them to continue until completion of seven years. Their right to regularisation would thereafter accrue, subject to fulfilment of all other statutory conditions.
Court Takes Note of Backdoor Appointments
While examining the legislative background, the Full Bench also made significant observations regarding employment practices followed by successive Governments in the erstwhile State of Jammu and Kashmir.
The Court recorded that successive Governments had been “consistently indulging in backdoor appointments”, with thousands of appointments allegedly made without proper advertisement notifications or prescribed selection processes.
It observed that individuals were appointed under various categories, including daily wagers, casual workers, contractual employees, ad hoc employees and consolidated employees, with several subsequently brought into the regular establishment under different Government policies.
The 2010 legislation was eventually enacted to provide a statutory framework for the regularisation of employees appointed through such arrangements.
Conflicting Judgments Settled
The Full Bench also settled the conflicting judicial precedents concerning Abdul Majid Magray and Rabia Shah.
The Court held that neither judgment represented the correct legal position in its entirety.
The ruling in Abdul Majid Magray was overruled to the extent that it held that regularisation would take effect only from the date of the formal regularisation order.
At the same time, the judgment in Rabia Shah was approved insofar as it held that the Government cannot postpone regularisation at its own discretion and that the right accrues once the statutory conditions are fulfilled.
However, the Full Bench overruled that part of the Rabia Shah judgment which treated the 150-day period under Section 10 as determining the effective date of regularisation.
Ruling to Apply to Pending and Future Cases
Importantly, the Full Bench directed that its judgment shall have prospective effect and will apply to pending as well as future cases.
The Court specifically clarified that matters which have already been finally settled or disposed of will not be reopened merely on the basis of the new interpretation laid down by the Full Bench.
After answering the reference, the Full Bench directed that the matter be placed before the appropriate Division Bench for disposal in accordance with the law laid down in the judgment.
Advocate Meenakshi Salathia appeared for the UT Government, while Senior Advocate P.N. Bhat represented respondent Neeru Pandita.(KNC)
