IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Nirmal Singh, J.
Suman Sharma & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
SWP No. 1019/2007, 594/2007, 1047/2007, 1094/2007 And 1035/2007
Decided On : 31 December, 2007
Regularization - State Cadre Post - Government Order No. 351 H.E of 1991 - Article 14 and 16 of the Constitution of India
Fact of the Case:
The State engaged temporary lecturers against migrant vacancies due to militancy. Full Bench of the Court directed consideration for regularization. Petitioners sought similar treatment or quashing of private respondents' services. State argued that the engagement was contractual due to turmoil in the valley.
Finding of the Court:
The court found that the engagement was temporary and contractual, not entitling the petitioners to regularization against State Cadre posts. The court also noted the discriminatory approach in the regularization process and directed an increase in the monthly remuneration of the contract lecturers.
Issues: I) Regularization of temporary engagement. II) Filling of State Cadre post without proper procedure. III) Discriminatory approach in filling State posts.
Ratio Decidendi: The engagement was temporary and contractual, not entitling regularization. The State's discriminatory approach in regularization was against Article 14 and 16 of the Constitution. The court directed an increase in the monthly remuneration of the contract lecturers.
Final Decision: The petitioners were not entitled to regularization. They were allowed to continue until the posts were filled by a regular selection process. The court directed an increase in the monthly remuneration of the contract lecturers and withdrawal of regularization of private respondents' services.
2. The facts in brief are as under:
The State of Jammu and Kashmir vide Government Order No. 351 H.E of 1991 dated 30th of Aug91, framed a policy regarding engagement of Lecturers in Higher Education as a temporary arrangement for smooth conduct of academic activity of various colleges in the State. This arrangement of temporary lecturers was made against the migrant vacancies which fell vacant in the valley due to militancy. The initial period of engagement as per the said Government order was for a period of sixty days and order for the second spell of academic year could be issued on the expiry of first spell till 30th of Dec91, subject to the satisfactory work performance/conduct of the temporary appointee. A candidate engaged against such an arrangement was not having any claim for permanent adjustment in the Department on account of the said temporary arrangement. The temporary arrangement of candidates, as per the said order, was to terminate automatically on the stipulated date and it was mentioned in the order that no relieving order shall be issued to such a candidate.
3. The candidates who came to be engaged as such in pursuance to the aforementioned Government Order, however, continued to serve as Lecturers in Higher Education as their term was extended from time to time. As the said candidates were not being regularized against the posts they were working/allowed to continue, a number of writ petitions came to be filed in Srinagar wing of this court which came to be disposed of by a Full Bench of this Court vide judgment dated 28th of June01 passed in SWP No. 1309/98 and connected petitions. When the aforesaid writ petitions were taken up for disposal by the Full bench, the then learned Advocate General gave a concession that the writ petitioners would be considered for regularization of their services against migrant and other vacancies as and when they become available. It was on the basis of the said concession that the Full Bench passed following directions: -
(i) The State Government shall allow all the petitioners appointed against migrant vacancies to continue till an appropriate scheme for their regularization is formulated, or till the concerned migrant employees return to their duties in Kashmir valley, whichever happens earlier:
(ii) In the event of any of the migrant vacancy post becoming a clear vacancy post on any count, or any of such post having already become a clear vacancy post, those petitioners, who are already working on those migrant vacancy posts, shall be considered for regularization on such posts in accordance with law.
(iii) In the event any of the petitioners is required to give up the job due to the return of the migrant to the valley or for any other reason (except in disciplinary proceedings), the order of his ouster shall not he given effect to for a period of one month to enable the petitioner concerned to avail of such remedy as may he available to him under the law including approaching this Court.....
4. In pursuance to the aforesaid directions passed by the Full Bench of this Court on the basis of the concession given by the learned Advocate General that the writ petitioners before the Full Bench, some of whom are respondents in the writ petitions in hand, came to be regularized against the migrant vacancies after their cases were scrutinized by a Committee constituted for the purposes consisting of Financial Commissioner, Finance Department, Concerned Administrative Secretary, a representative from the General Administration Department and Director Codes, Finance Department.
5. Keeping in view the policy of the Government aforementioned and in order to see that the students studying in various colleges do not suffer, various temporary engagements of Lecturers in Higher Education came to be made in this part of the State also though not against the migrant vacanci
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