Right To Regularization Under J&K Civil Services Act Accrues On Fulfillment Of Conditions, Not Date Of Formal Order: High Court

The Court held that ad hoc, contractual or consolidated appointees who completed seven years of service on the appointed day are entitled to regularization from the appointed day itself, and the process under Section 10 is merely procedural, not determinative of the effective date.

The Full Bench was constituted pursuant to an order of reference noticing a conflict of opinion between two Division Bench judgments Abdul Majid Magray v. State of J&K and Rabia Shah v. State of J&K regarding the interpretation and effect of Section 5 of the Act of 2010, particularly the first proviso thereto.

A Full Bench of Acting Chief Justice Sanjeev Kumar, Justice Sanjay Dhar and Justice Mohd Yousuf Wani, while answering the reference, observed,

"The main provision of Section 5 confers upon an ad hoc, contractual or consolidated appointee the right of regularization immediately upon fulfillment of the five conditions laid down therein. The first proviso has been added to the main Section only to make it unambiguous and unequivocal that the eligible ad hoc, contractual or consolidated appointees shall be given effect of regularization only from the date of such regularization, i.e., regularization envisaged under the main Section, irrespective of the fact that such appointee may have completed more than seven years of service on the appointed day."

The Court further observed,

"If we interpret the provision literally, as has been done by the Division Bench in Abdul Majid Magray's case, it would mean that the effective date of regularization of an eligible ad hoc, contractual or consolidated appointee shall not be definite but shall depend upon the whims and caprice of the Government. And that would render the provision ultra vires the Constitution."

Background:

The dispute arose from conflicting interpretations of Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, which provides for regularization of ad hoc, contractual or consolidated appointees upon fulfillment of certain conditions, including completion of seven years of service on the appointed day (28.04.2010).

In Rabia Shah v. State of J&K (2017), a Division Bench held that once an employee fulfills the statutory conditions for regularization, he/she becomes entitled to regularization from the date on which eligibility is acquired, and the authorities are required to complete the process within the prescribed time. The Court read Section 10 with Section 5 to hold that regularization shall take effect 150 days after the right has accrued.

However, in Abdul Majid Magray v. State of J&K (2022), another Division Bench held that regularization would take effect only from the date of actual regularization and not from any earlier date, even if the appointee had completed seven years of service earlier. The Bench interpreted the first proviso to Section 5 literally, holding that regularization has to be from the date of regularization irrespective of the person having completed 7 years of service earlier.

Noticing the cleavage of judicial opinion, a Division Bench referred the matter to a Full Bench for authoritative determination.

Court's Observation

The Full Bench examined the provisions of Sections 5 and 10 of the Act of 2010. It noted that Section 5 contains a non obstante clause and provides that an ad hoc, contractual or consolidated appointee shall be regularized upon fulfillment of five prescribed conditions, including completion of seven years of service on the appointed day.

It further noted that the first proviso states that regularization 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.

The Court held that the main provision of Section 5 confers the right of regularization immediately upon fulfillment of the conditions. The Court observed,

"An ad hoc, contractual or consolidated appointee acquires the right of regularization on the appointed day itself, provided he has by that time completed seven years of service and meets the other prescribed eligibility requirements. It does not matter whether a formal order of his regularization is passed on the appointed day or subsequently after undertaking the procedure laid down in Section 10 of the Act of 2010."

The Court clarified that Section 10 is procedural in nature and lays down a detailed procedure for processing cases of regularization before the Empowered Committee. The Court opined,

"The timeline prescribed in Section 10, i.e., 150 days prescribed for completing the process of regularization, has nothing to do with the effective date from which a candidate is entitled to be regularized."

The Court applied the doctrine of surplusage to interpret the expression "or thereafter" in the first proviso. The Court explained,

"The expression 'or thereafter' is not referable to the cases of regularization of those employees who complete seven years of service after the appointed date. The first proviso... is more explanatory than an exception to the main provision of Section 5 of the Act of 2010. The regularization of employees completing seven years after the appointed date is dealt with by the second proviso. It is, therefore, totally inappropriate to read the expression 'or thereafter' used in the first proviso with reference to cases governed by the second proviso."

The Court held that a literal interpretation would render the provision arbitrary and discriminatory. The Court explained,

"A person whose case is cleared within 150 days would be regularized earlier than a person whose case takes years to be cleared by the Empowered Committee, and such delay could occur for various reasons not attributable to the employee. Such an interpretation would not only result in discrimination between similarly situated persons but would also suffer from the vice of arbitrariness."

Rejecting both the earlier judgments to the extent they deviated from the correct position the Court observed,

"Accordingly, neither Abdul Majid Magray nor Rabia Shah states the correct legal position in its entirety. Judgment in Abdul Majid Magray's case is overruled to the extent it holds that regularization takes effect only from the date on which the formal order of regularization is issued. Judgment in Rabia Shah is approved insofar as it holds that the Government cannot postpone regularization at its own will and that the right to regularization accrues on fulfillment of the statutory conditions. However, it is overruled to the extent it holds that regularization becomes effective only after the expiry of 150 days by reading Section 10 into Section 5."

The Court held that the right to regularization arises as soon as an employee fulfills all the conditions prescribed under Section 5 and cannot be postponed till the expiry of 150 days.

Declaring that the first proviso to Section 5 does not give the Government unfettered power to decide the date of regularization, and Section 10 is only procedural in nature the court emphasised that the right to regularization accrues immediately upon fulfillment of the statutory conditions, and the formal date of the regularization order is irrelevant.

The Court directed that the judgment shall have prospective effect and shall apply to pending and future cases, and cases already settled or finally disposed of shall not be reopened.

Case Title: UT of Jammu and Kashmir v. Neeru Pandita

Citation: 2026 LiveLaw (JKL) 326

Appearances

Appellant: Ms. Meenakshi Salathia, Advocate

Respondent: Mr. P.N. Bhat, Senior Advocate

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