Background Facts

The reference was made by a Division Bench of the High Court noticing a conflict of opinion between two judgments rendered by Coordinate Benches of equal strength. The conflict was regarding the interpretation and effect of Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (2010 Act). The conflict arose between the following two Coordinate Bench decisions:

In Rabia Shah v. State of J&K, it was held by a Division Bench 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. It was further held that regularization should take effect in 150 days after the right to regularization has accrued.

Whereas in the case of Abdul Majid Magray v. State of J&K, another Division Bench interpreted the first proviso to Section 5 literally and held that regularization of eligible ad hoc, contractual or consolidated appointees would take effect only from the date of actual regularization and not from any earlier date, even if such appointees have completed seven years of service earlier.

Section 5 of the 2010 Act provides that ad hoc, contractual, or consolidated appointees shall be regularized on fulfilment of five conditions like appointment against a clear vacancy, continuance on the appointed day, possession of requisite qualifications on the date of initial appointment, no pending disciplinary or criminal proceedings, and completion of seven years of service on the appointed day.

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.

Section 10 provides for an Empowered Committee and prescribes a timeline of 150 days for processing cases of eligible employees.

Findings and Observations of the Court

It was observed by the Full Bench that thousands of appointments to Government service in State of Jammu & Kashmir were made without issuing advertisement notifications and without conducting any selection process. The men in power picked up persons of their choice and appointed them against different posts by giving them different nomenclatures. Some were appointed as daily wagers, some as casual workers and some as contractual employees. The persons who were brought into Government service on temporary basis through backdoor means, were later conferred legitimacy by regularizing their services. Therefore, the Jammu and Kashmir State Legislature enacted the 2010 Act with a view to providing for regularization of employees appointed on ad hoc, contractual or consolidated basis.

It was noted by the Bench that Section 5 of the 2010 Act has an overriding effect over any law for the time being in force. It provides that an ad hoc, contractual or consolidated appointee shall be regularised on fulfilment of five prescribed conditions.

It was further observed that if a person is working in Government service on ad hoc, contractual or consolidated basis, he shall be regularised upon fulfilment of certain conditions, including the condition that he has completed seven years of service as such on the appointed day. It was noted that the Proviso to Section 5 provides that the regularization of an eligible ad hoc, contractual or consolidated appointee shall have effect only from the date of such regularization.

It was held by the Full Bench that the first proviso has been added to the Section 5 only to make it unambiguous that the eligible ad hoc, contractual or consolidated appointees shall be given effect of regularization only from the date of such regularization, irrespective of the fact that such appointee may have completed more than seven years of service on the appointed day.

It was further explained that all eligible ad hoc, contractual or consolidated appointees having seven years or more than seven years of service as such on the appointed day shall be treated on a par and shall be deemed to have fulfilled the requirement of completion of seven years of service on the appointed day.

It was further held that 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.

It was observed by the Bench that Section 10 is procedural in nature and lays down a detailed procedure for processing cases of regularization of employees before the Empowered Committee. It was noted that Section 10 prescribes a clear timeline to avoid unnecessary delay in conferring the benefit of regularization. It was held that the timeline prescribed is not mandatory in nature and may be overstepped in appropriate cases.

It was observed that 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.

It was further clarified that the persons who have completed 10 years, 15 years or 20 years of ad hoc service and some who have just completed seven years of ad hoc service on the appointed day, all of them shall be regularised with effect from the appointed day.

It was further noted that the findings in Abdul Majid Magray v. State of J&K would mean that the effective date of regularization of an eligible ad hoc, contractual or consolidated appointee shall not be definite but would depend upon the whims and caprice of the Government.

It was held by the Full Bench that above interpretation would render the provision ultra vires the Constitution, because it would be left to the choice of the Government to regularize persons from a date of its choosing, thereby creating discrimination between similarly situated employees. Such an interpretation would not only result in discrimination between similarly situated persons but would also be arbitrary.

It was concluded by the Full Bench that 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. It was held that the Government does not have an unfettered power to decide the date of regularization of an eligible ad hoc, contractual or consolidated appointee.

Further, it was held that the right to regularization arises as soon as an employee fulfils all the conditions prescribed under Section 5 and cannot be postponed till the expiry of 150 days.

The Judgment in Abdul Majid Magray's case was overruled to the extent it holds that regularization takes effect only from the date on which the formal order of regularization is issued. Whereas the Judgment in Rabia Shah was approved to the extent 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 was overruled to the extent it holds that regularization becomes effective only after the expiry of 150 days.

With the aforesaid observations, the reference was answered by the Full Bench.

Counsel for the Appellant : Meenakshi Salathia Adv.

Counsel for the Respondent : P.N. Bhat Sr. Advocate