The Court clarified that a temporary or fortuitous appointment cannot be equated with an illegal appointment merely because it was made against a vacancy that was not separately advertised, where the employee was subsequently substantively appointed in accordance with law.

The Court was hearing a Letters Patent Appeal challenging the dismissal of a writ petition filed by an Assistant Professor questioning the University of Kashmir's decision to grant a fellow faculty member placement in the Senior Scale under the Career Advancement Scheme from an earlier date, thereby placing her above the appellant in seniority and affecting her claim for promotion as Professor.

A Division Bench of Justice Sanjay Dhar and Justice Mohd. Yousuf Wani held,

"...it is not a case where initial appointment of respondent No.6 as Lecturer can be termed as illegal against a non-existent post but it is a case where her initial appointment was temporary or fortuitous in nature and she was allowed to function on stopgap basis after she, along with others, had participated in the selection process."

Background:

The appellant had challenged an order whereby the University of Kashmir granted the private respondent placement in the Senior Scale of Assistant Professors with effect from 17 May 2007, whereas the appellant was granted the same benefit only from 17 May 2008. She also questioned subsequent communications affirming the respondent's seniority and rejecting her representation.

The dispute arose from appointments made in the Media Education and Research Centre (MERC). In 2002, applications were invited for one post of Lecturer. Both the appellant and the private respondent participated in the selection process. While the appellant was appointed against the advertised vacancy, the private respondent was appointed on a regular temporary basis. She continued to serve in that capacity until she was selected through a fresh recruitment process in 2007 against a migrant vacancy, after which her services were confirmed with effect from 8 December 2008.

While extending benefits under the UGC Career Advancement Scheme, the University counted the private respondent's temporary service rendered between 2002 and 2007. Since she possessed an M.Phil qualification, she became entitled to placement in the Senior Scale after completing five years of qualifying service, whereas the appellant, who possessed only a postgraduate degree, became eligible after six years of service.

The appellant contended that the private respondent's initial appointment was against an unadvertised post and was therefore illegal, making her temporary service ineligible for reckoning under Regulation 10.1 of the UGC Regulations. She further argued that CAS benefits could not be granted from a date when the respondent had not yet been substantively appointed.

The Single Judge dismissed the writ petition on merits as well as on the ground of delay and laches, observing that the appellant had approached the Court nearly eleven years after issuance of the order despite being fully aware of it. The present appeal challenged that decision.

Court's Observation:

The Division Bench observed that although an appointment made to a post that has not been advertised would ordinarily be illegal, the facts of the present case were materially different. It noted that the private respondent had participated in the same selection process as the appellant and was merely permitted to continue on a temporary basis until she secured substantive appointment through a subsequent recruitment process.

The Court emphasised that her services had never been confirmed on the temporary appointment itself; rather, confirmation followed her regular appointment in 2007.

Rejecting the appellant's principal contention, the Court observed,

"Had it been a case where services of respondent No.6 would have been confirmed with effect from the date she was appointed on temporary/stopgap basis, then certainly her initial appointment would have qualified to be fraudulent in nature... However, it is a case where services of respondent No.6 have been confirmed after her substantive appointment and only the benefit of services put in by her on temporary basis has been given to her in terms of CAS."

The Bench further held that the requirements contained in Regulation 10.1 of the UGC Regulations stood fully satisfied and that the University had rightly counted the respondent's temporary service while granting Career Advancement Scheme benefits. It found no infirmity in granting her the Senior Scale after completion of five years of qualifying service, having regard to her M.Phil qualification.

Addressing the contention that CAS benefits could not accrue prior to substantive appointment, the Court drew a distinction between the concepts of "counting service for promotion" and "eligibility for promotion". It observed,

"The expression used is 'counted for promotion', and not 'for eligibility to promotion'. There is a fine distinction between the two expressions."

Explaining the distinction, the Court held that while promotions ordinarily depend upon availability of vacancies, financial upgradations under the Career Advancement Scheme accrue automatically upon completion of the prescribed qualifying service. Consequently, previous temporary service, where recognised by the Regulations, could legitimately be counted even though the employee had not yet been substantively appointed on the relevant date, it underscored.

The Court also agreed with the Single Judge that the appellant's challenge was independently liable to fail on account of delay and laches. Since the private respondent's initial appointment was not illegal, the appellant could not seek to reopen settled seniority after allowing the matter to remain unchallenged for over eleven years.

Dismissing the Letters Patent Appeal, the Division Bench upheld the judgment of the Single Judge and affirmed the University's decision to count the private respondent's temporary service for grant of benefits under the UGC Career Advancement Scheme.

Case Title: Syeda Afshana Bhat v. University of Kashmir & Ors.

Citation: 2026 LiveLaw (JKL) 331

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