J&K&L High Court Upholds Posthumous Regularisation Of Employee Who Served 21 Years, Says Accrued Rights Cannot Be Defeated By Repeal Of Law

The Jammu & Kashmir and Ladakh High Court has held that a right accrued to a deceased employee cannot be taken away retrospectively, and the repeal of an Act or Rule cannot be applied to defeat a right that had crystallized under the repealed Act, more so when such action amounts to violation of Articles 14 and 16 of the Constitution of India.The Court was hearing a writ petition filed by the Union Territory of Jammu & Kashmir challenging the order and judgment passed by the Central Administrative Tribunal, Jammu Bench, whereby the Tribunal directed the regularization of the services of late Mohd. Rafi Khan, a Junior Assistant who had served on stop-gap/ad-hoc basis for over 21 years before his death in harness, and directed release of all consequential benefits including family pension and arrears.The Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem observed, “... A right accrued to the deceased cannot be taken away retrospectively. The repeal of the Act or Rule cannot be applied to defeat a right that had crystalized under repealed Act, more so, when it amounts to violation of Article 14 and 16 of the Constitution of India.”Late Mohd. Rafi Khan was engaged as Junior Assistant on stop-gap/ad-hoc basis on November 26, 1993. He continued in service without any break until his death in December 2014, rendering almost 21 years of uninterrupted service. His case was specifically considered and recommended for regularization by the Empowered Committee constituted under the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010. However, when final regularization order was issued, his name was left out despite the fact that his juniors were regularized. He died in harness on December 14, 2014.Aggrieved, his widow filed a writ which was later transferred to the Central Administrative Tribunal. The Tribunal directed regularization of the deceased's services with effect from January 11, 2013 (the date when his juniors were regularized) and ordered grant of all consequential benefits including arrears of pay, allowances, Sixth Pay Commission benefits, family pension, retiral benefits and other statutory dues. The State challenged this order before the High Court.Court's Observation:The Court noted that it was not disputed that the deceased had rendered almost 21 years of uninterrupted service, and that his case was duly recommended for regularization by the Statutory Empowered Committee under the Act of 2010. Yet, while his juniors were regularized, he was arbitrarily left out. The petitioners could not show any justification for this discriminatory treatment.The Court held that after extracting work from the deceased employee for more than two decades, the State cannot now claim that he was merely an ad-hoc worker or engaged on a stop-gap arrangement. His continuity in the department, in whatever capacity, demonstrated the permanency of the work he was made to perform. The Court observed that the State, being a model employer, is expected to act fairly and cannot follow a “hire and fire” policy. “.. State being a model employer is expected to act fairly and cannot follow a, “hire and fire” policy. The fact a junior's case was recommended by the Empowered Committee along with the deceased and was regularized further establishes hostile discrimination”,the court remarked. On the contention that the Act of 2010 stands repealed, the Court held that the repeal of an Act or Rule cannot be applied to defeat a right that had crystallized under the repealed Act. A right accrued to the deceased cannot be taken away retrospectively, especially when such action violates Articles 14 and 16 of the Constitution, the bench underscored. The Court further observed that the deceased had performed continuous and uninterrupted duties for more than 21 years, and such work of long duration cannot be deemed ad-hoc or temporary; it had acquired the character of permanency with the passage of time. The Court also noted that the respondent is a widow seeking posthumous regularization so that she and her children can live with dignity and receive family and other benefits. In such cases, the State is expected to act with compassion and not prolong litigation on technicalities.In line with these observations the Court dismissed the writ petition, finding no error of fact or law committed by the Tribunal, and upheld the order directing regularization of the deceased's services with all consequential benefits.Case Title: UT of J&K & Ors. Vs Sara Begum Citation: 2026 LiveLaw (JKL) 170Click here to read/download Judgment

J&K&L High Court Upholds Posthumous Regularisation Of Employee Who Served 21 Years, Says Accrued Rights Cannot Be Defeated By Repeal Of Law

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J&K&L High Court Upholds Posthumous Regularisation Of Employee Who Served 21 Years, Says Accrued Rights Cannot Be Defeated By Repeal Of Law

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