J&K Civil Services (Special Provisions) Act | No Retrospective Regularisation On Completing Qualifying Service Period: High Court

Addressing a recurring claim in service matters, the High Court of Jammu & Kashmir and Ladakh has made it clear that mere continuity of service does not entitle an employee to retrospective regularisation. The Court held that under the J&K Civil Services (Special Provisions) Act, 2010, statutory regularisation can operate only prospectively, irrespective of the stage at which the qualifying period of service is completed.Justice Sanjay Dhar dismissed a writ petition filed by four engineers of the J&K Power Development Corporation (JKPDC), who sought retrospective regularisation of their services either from the completion of two years or, alternatively, from the date they completed seven years of continuous service.Dismissing the plea the court remarked, “… the petitioners are not entitled to claim regularisation of their services either after completion of two years of service or after completion of exactly seven years of service but they are entitled to regularisation from the date sanction has been accorded by the respondents for regularization of their services”Background:The petitioners were engaged in June 2005 as Shift Engineers on a consolidated basis at Pahalgam Micro Hydel Project through separate engagement orders. Their services were extended from time to time by the Corporation. According to the petitioners, the prevailing policy in the Corporation envisaged regularisation after two years of satisfactory service, but despite completing the required period, no such benefit was extended to them.The petitioners asserted that their representations remained unattended for years, while other employees engaged even after them were granted regularisation. The process for their own regularisation was initiated only in 2013, when their names appeared in a published list noting that they had completed seven years of service by in 2012. Eventually, the Corporation regularised their services vide order in 2017, but only with prospective effect. Aggrieved by denial of retrospective benefits, the petitioners approached the High Court alleging discrimination and violation of Article 14 of the Constitution, also invoking the provisions of the 2010 Act.Courts Observations:Justice Dhar first examined the contention that the petitioners were entitled to regularisation after completion of two years of service. The Court noted that the employees relied upon by the petitioners for parity were appointed under the J&K Contractual Appointment Rules, 2003, which provide for contractual appointments after due selection and permit regularisation after two years of satisfactory service.On a scrutiny of the record, the Court found that the petitioners were not appointed pursuant to any selection process, much less under the 2003 Rules, and therefore the policy applicable to those engineers could not be extended to them. In view of this the court stated, “The policy relating to regularization of services after completion of two years of satisfactory performance is not applicable to the case of the petitioners.”The Court then turned to the crucial issue concerning the effective date of regularisation under the 2010 Act. While acknowledging that the petitioners had been regularised under the Act vide order dated 24.11.2017, the Court framed the question whether they were entitled to regularisation immediately upon completion of seven years of service in 2012.Justice Dhar examined Section 5 of the Act in detail and observed that the first proviso explicitly states that regularisation shall have effect only from the date of such regularisation, even if the appointee has completed more than seven years of service. The second proviso, according to the Court, merely enabled an employee who had not completed seven years on the appointed date to continue till completion of seven years, after which the right to consideration for regularisation matures.“It is nowhere provided that an adhoc or contractual or consolidated appointee shall be regularized on the date when he completes seven years of service.”, the court remarked. Justice Dhar noted that the interpretation of Section 5 had been the subject of consideration by different Division Benches in Rabia Shah, Ulfat Ara and Abdul Majid Magray. While acknowledging the apparent conflict, the Court undertook an elaborate discussion on how a Single Bench should deal with divergent views of coordinate Benches.Relying upon authoritative precedents, the Court held that when two conflicting views exist, the Court must follow the one which lays down the law more logically and accurately, rather than merely following the earlier view in point of time. It end, “The High Court must respectfully follow that judgment which appears to it to state the law more elaborately and accurately.”Applying this principle, Justice Dhar preferred the ratio laid down in Abdul Majid Magray's case, which clearly held that regularisation under the Act cannot be ordered from a date earlier than the date of...

J&K Civil Services (Special Provisions) Act | No Retrospective Regularisation On Completing Qualifying Service Period: High Court

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