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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Sanjeev Kumar, J.
Sabiya Rashid and Others – Appellant
Versus
University of Kashmir and Others – Respondent
WP(C) No.1797/2020 c/w CCP(S) No.98/2021
Decided on : 26-8-2022
REGULARIZATION - CASUAL/CONTRACTUAL ENGAGEES - UNIVERSITY OF KASHMIR - GUIDELINES - EMPOWERED COMMITTEE - FINANCE COMMITTEE - UNIVERSITY COUNCIL - FINANCIAL ADVISOR - CHANCELLOR - HIERARCHY OF AUTHORITIES - FINANCIAL AUTONOMY - INSTITUTIONAL AUTONOMY - ARTICLE 14 - ARTICLE 16 - ARTICLE 227 - JURISDICTION - CONTEMPT PROCEEDINGS - INTERIM ORDER - MAIN ORDER - MERGER - INFRUCTUOUS - ORDER 43 RULE 1(R) CPC - SCOPE OF APPELLATE JURISDICTION - DISCRETIONARY RELIEF - TEMPORARY INJUNCTION - APPEAL ON PRINCIPLE - JUDICIAL HIERARCHY - JUDICIAL DISCIPLINE - BOUNDS OF JURISDICTION - SUPERVISORY JURISDICTION - HIGH COURT - ARTICLE 227 COI - JUDICIAL REVIEW - NULL AND VOID AB INITIO - RECALL OF APPEAL - REMIT OF FEE - CERTIFIED COPY OF JUDGMENT - NOTICE AND ACTION.
Fact of the Case:
The University of Kashmir formulated a roadmap for regularization of casual/contractual engagees, which was approved by the University Council. The University issued guidelines for regularization in accordance with the roadmap. Three batches of casual/contractual engagees were regularized in 2015, 2017, and 2018. In 2018, 84 more casual/contractual engagees completed the mandatory period of seven years of uninterrupted service and became eligible for regularization. The Empowered Committee and the Finance Committee cleared their cases, and the matter was placed before the University Council. The University Council agreed to the proposal in principle but referred the matter to the Chancellor through the Financial Advisor. The petitioners, who were among the 84 eligible casual/contractual engagees, filed a writ petition challenging the University's decision. The High Court allowed the petition and directed the University to regularize the services of the petitioners with retrospective effect from the date they attained eligibility for regularization.
Finding of the Court:
The High Court held that the University of Kashmir and the University of Jammu are fully autonomous in character, both in institutional as well as financial matters. The University Council is the supreme body of the University concerned and its decisions cannot be varied, modified, or overturned by any authority, howsoever high it may be in its own affairs. The Financial Advisor is none other than the Secretary to the Government, Finance Department, and is an ex-officio member of the University Council and the Syndicate of both the Universities. The Secretary to Government, Department of Education (Higher and Technical) is also an officer of the Government and associated in the decision-making. The High Court further held that the decision of the University Council to refer the matter to the Chancellor through the Financial Advisor after having accepted the proposal in principle was totally arbitrary and de hors the Act of 1969 and the Statues and Regulations framed thereunder. There was no point in referring the matter to the Chancellor through the Financial Advisor, when both the authorities were present in the University Council. The High Court also held that the petitioners were entitled to regularization of their services with retrospective effect from the date they attained eligibility for such regularization and were also entitled to arrears of their salary.
Issues: 1. Whether the University of Kashmir and the University of Jammu are fully autonomous in character, both in institutional as well as financial matters? 2. Whether the University Council is the supreme body of the University concerned and its decisions cannot be varied, modified, or overturned by any authority? 3. Whether the Financial Advisor is none other than the Secretary to the Government, Finance Department, and is an ex-officio member of the University Council and the Syndicate of both the Universities? 4. Whether the Secretary to Government, Department of Education (Higher and Technical) is also an officer of the Government and associated in the decision-making? 5. Whether the decision of the University Council to refer the matter to the Chancellor through the Financial Advisor after having accepted the proposal in principle was totally arbitrary and de hors the Act of 1969 and the Statues and Regulations framed thereunder? 6. Whether the petitioners were entitled to regularization of their services with retrospective effect from the date they attained eligibility for such regularization and were also entitled to arrears of their salary?
Ratio Decidendi: 1. The University of Kashmir and the University of Jammu are fully autonomous in character, both in institutional as well as financial matters. 2. The University Council is the supreme body of the University concerned and its decisions cannot be varied, modified, or overturned by any authority. 3. The Financial Advisor is none other than the Secretary to the Government, Finance Department, and is an ex-officio member of the University Council and the Syndicate of both the Universities. 4. The Secretary to Government, Department of Education (Higher and Technical) is also an officer of the Government and associated in the decision-making. 5. The decision of the University Council to refer the matter to the Chancellor through the Financial Advisor after having accepted the proposal in principle was totally arbitrary and de hors the Act of 1969 and the Statues and Regulations framed thereunder. 6. The petitioners were entitled to regularization of their services with retrospective effect from the date they attained eligibility for such regularization and were also entitled to arrears of their salary.
Final Decision: The High Court allowed the writ petition and directed the University to regularize the services of the petitioners with retrospective effect from the date they attained eligibility for regularization.
JUDGMENT :
With a view to providing for regularization of various persons working in the University of Kashmir on casual, contractual or consolidated basis, a roadmap was prepared by the Financial Advisor (Universities) vide his No.FA-KU/JU/202-204.com/13 dated 20.08.2013. The roadmap prepared by the Financial Advisor (Universities) was approved by the University Council and process for regularization of persons engaged on casual/contractual basis was set in motion on the basis of guidelines promulgated by the University of Kashmir vide Notification No. F(Regular-Casual/Const-Gen.Adm) KU/14 dated 03.09.2014. The guidelines laid down in the said Notification are as under:-
(i) That he/she has been engaged in the Main Campus/Satellite Campuses of the University of Kashmir by the General Administration on the approval of the Competent Authority;
(ii) That he/she is continuously working on casual/consolidated/contractual basis without any break (other than the usual breaks/leave sanctioned by the authority i.e. Head of the Department/Directors/Coordinators/Librarian/Controller of Examinations);
(iii) That he/she possesses the requisite qualification and eligibility criteria required for the post on the date of his/her initial engagement on casual or ad hoc or contractual or consolidated basis;
(iv) That no disciplinary or criminal proceedings are pending against him/her on the appointed day i.e. date on which he/she is considered for regularization;
(v) That he/she has completed seven years or more service (uninterrupted) as such on the appointed day i.e. the date of regularization.
2. The Committee consisting of all the following shall examine/recommend the cases of casual/contractual workers presently engaged in the University for regularization under rules:-
(i) Vice-Chancellor;
(ii) Registrar;
(iii) Director General Accounts and Treasuries (from Finance Deptt.)
(iv) Director Budget (from Finance Deptt.)
(v) An officer of the Administration Deptt.
3. Procedure for regularization:-
(a) The Committee shall consider the cases of all the casual/contractual engagees who have completed seven years of uninterrupted service after the first engagement and who have been paid regularly by the University from available resources. Upon regularization, such of the engagees as cannot be regularized suitably against available posts, could be designated as “Helpers” and be given the pay scales applicable to the lowest class-IV of employees in the University as the case may be. For such a process of regularization, supernumerary and temporary posts of “Helpers” shall be created outside the normal/existing hierarchy of the University.
(b) Helpers could subsequently move to clear posts/vacancies in the formal organization hierarchy as and when these become available and the supernumerary/temporary posts of Helpers vacated by the incumbents shall automatically get abolished.
4. The following shall not be considered for regularization:-
(a) Persons engaged on casual/contractual/consolidated basis in whose favour engagement order has not been issued by the General Administration of the University i.e without the approval of the Competent Authority.
(b) Persons engaged in the Research Projects/Schemes sponsored by various Govt./Private Agencies.
5. The regularization of the eligible casual or contractual or consolidated engagees shall have effect only from the date of such regularization irrespective of the fact that such engagees have completed more than seven years of service on the date of regularization.
6. The persons engaged on casual or contractual or consolidated basis who have not completed seven years shall continue as such till completion of seven years and shall thereafter be considered for regularization.
7. There will be complete ban on engagement of casual/contractual workers.
2. The Empowered Committee headed by Vice-Chanc
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