After Allowing Employee To Serve for 25 Years, State Cannot Cry 'Illegal Appointment: J&K&L High Court Upholds Retiral Benefits
Holding that the State cannot wake up after decades to question the legality of an employee's appointment, the High Court of Jammu & Kashmir and Ladakh has ruled that having allowed an employee to serve for nearly 25 years, it is far too late for the authorities to contend that his appointment was illegal.
The Division Bench of Chief Justice Arun Palli and Justice Rajnesh Oswal underscored that if the appointment was indeed illegal, appropriate proceedings for termination ought to have been initiated at an earlier point of time, not after the employee's superannuation.
The Court was deciding an intra-court appeal filed by the Union Territory of J&K and its functionaries challenging a judgment of the Writ Court directing release of retiral benefits in favour of Gulzar Ahmad Khan, a former employee of the Municipal Council, Baramulla.
Khan was initially appointed as a Driver on consolidated pay by the Municipal Council, Baramulla in May 1999. His services were subsequently regularised in December 2007. During his service tenure, Khan alleged that his service book was never properly maintained or updated, resulting in denial of increments, promotional benefits, and higher pay-scale benefits to which he was otherwise entitled under the applicable rules.
Aggrieved, Khan approached the High Court by way of a writ petition seeking directions for reconstruction of his service book under Article 268(A) of the J&K Civil Service Regulations and for release of all consequential benefits, including arrears till his retirement. The Writ Court allowed the petition directing the authorities to reconstruct the service book, release all retiral benefits and arrears within two months, and awarded interest @ 7% per annum in case of non-compliance. Aggrieved, the state filed an appeal.
Appearing for the appellants, Mr. Illyas N. Laway, Government Advocate, contended that the respondent's initial appointment in 1999 and subsequent regularisation in 2007 were illegal, rendering him disentitled to any relief. It was argued that the Writ Court had failed to appreciate the stand of the government that several such appointments were under investigation, including in FIR No. 19/2011 registered by the Crime Branch, Kashmir. The appellants also assailed the rate of interest awarded as excessive.
Court's Analysis and Observations:
After examining the record, the Division Bench noted that the respondent had served continuously for nearly 25 years, and it was an admitted position that he attained superannuation during the pendency of the writ petition. Crucially, the Court found no material on record to show that any departmental or judicial proceedings were pending or even initiated against him during his tenure.
“Having allowed the respondent to serve for nearly 25 years, it is now too late for the appellants to contend that his appointment was illegal. Had that been the case, appropriate proceedings for termination of his services ought to have been initiated at an earlier point of time”, the court remarked.
The Bench observed that instead of acting in time, the authorities continued to extract work from the respondent for over two decades, only to question his appointment after his retirement. It added,
“The benefits, he claims are earned through long service and not granted as charity. Having failed to act in time and allowing him to retire honorably, the appellants cannot now challenge his initial appointment or subsequent regularization.”
The Court was particularly critical of the State's reliance on a long-pending investigation, noting that although the Crime Branch investigation had been cited, no charge-sheet had been produced even after 14 years.
Reinforcing the settled legal position, the Bench relied upon recent and authoritative Supreme Court precedents to hold that pension and gratuity are valuable statutory and constitutional rights, not discretionary bounties.
Referring to Vijay Kumar v. Central Bank of India (2025), the Court reiterated that,
“Pension is not a discretion of the employer but a valuable right to property and can be denied only through authority of law.”
While upholding the substance of the Writ Court's directions, the Division Bench partly modified the judgment on the limited issue of interest. The Court reduced the rate of interest from 7% to 6% per annum, directing that the interest shall be payable if the appellants fail to comply with the directions within three months.
Accordingly, the appeal was disposed of, affirming the respondent's entitlement to full retiral benefits and arrears, along with interest in case of delayed compliance.
Case Title: UT Of J&K Vs Gulzar Ahmad Khan
Citation: 2026 LiveLaw (JKL)