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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
N. KOTISWAR SINGH, MOKSHA KHAJURIA KAZMI, JJ.
University of Kashmir the Registrar and Others – Petitioners
Versus
Sabiya Rashid and Others – Respondents
L.P.A. No. 87 of 2023, W.P. (C) No. 1797 of 2020, C.M. No. 2939 of 2023
Decided On : 12-10-2023
financial autonomy - University of Kashmir - Kashmir and Jammu Universities Act, 1969, Section 9, 10, 11, 16, 21, 22 - The court discussed the financial autonomy of the University of Kashmir in relation to the authority of the State as the ultimate custodian of public funds. It examined the provisions of the Kashmir and Jammu Universities Act, 1969, and the roles of various hierarchical authorities of the University, concluding that decisions involving financial implications could not be taken without the approval of the University Council and the Syndicate, which have the statutory presence of the Financial Advisor and the Secretary to the Government. The court held that the University of Kashmir is not wholly autonomous in its functioning and that the State Administration has a legitimate authority not to support the University in implementing decisions that are contrary to the State policy or have huge additional financial implications beyond the approved budget allocated for the University. The court also emphasized that the Administration cannot act arbitrarily and in a discriminatory manner, and its decision to deny financial assistance would be subject to judicial review.
Fact of the Case:
The case involved a routine litigation relating to the claim for regularization by casual/contract employees serving in the University of Kashmir. The University had taken a policy decision for regularization of the services of these categories of employees, which was challenged by the authorities of the University primarily on the ground that such a decision cannot be carried out without the approval of the Administration, as the University is dependent upon the financial support from the State (UT).
Finding of the Court:
The court found that the University of Kashmir is not wholly autonomous in its functioning and that the State Administration has a legitimate authority not to support the University in implementing decisions that are contrary to the State policy or have huge additional financial implications beyond the approved budget allocated for the University. The court also emphasized that the Administration cannot act arbitrarily and in a discriminatory manner, and its decision to deny financial assistance would be subject to judicial review.
Issues: The primary issue involved the financial autonomy of the University of Kashmir in relation to the authority of the State as the ultimate custodian of public funds. The court also examined the roles of various hierarchical authorities of the University and the power and functions of the Chancellor, Pro Chancellor, Education Minister, the Vice-Chancellor, Financial Advisor, the Education Advisor, and other officers of the University.
Ratio Decidendi: The court held that decisions involving financial implications could not be taken without the approval of the University Council and the Syndicate, which have the statutory presence of the Financial Advisor and the Secretary to the Government. It also emphasized that the State Administration has a legitimate authority not to support the University in implementing decisions that are contrary to the State policy or have huge additional financial implications beyond the approved budget allocated for the University.
Final Decision: The appeal was allowed to the extent that the impugned judgment was set aside, with the modification that if the Chancellor and/or the Administration take any view not favorable to the employees/writ petitioners for regularization, the same may be notified to the writ petitioners by a reasoned order and such an act and decision will be subject to judicial review.
JUDGMENT :
N. KOTISWAR SINGH, J.
1. A significant question of law of seminal importance and relating to financial autonomy of the University of Kashmir qua the authority of the State as the ultimate custodian of public fund which renders financial assistance to the University of Kashmir, has arisen in this apparently a routine litigation relating to claim for regularization by casual/contract employees serving in the University of Kashmir.
2. The Ld. Single Judge on being satisfied with the claim of certain casual/contract appointees including the present private respondents (writ petitioners) for regularization, directed to proceed with the process of their regularization by creating supernumerary posts initiated by the University of Kashmir by the impugned judgment and order dated 26.08.2022 passed in WP (C) No. 1797 of 2020.
3. The authorities of the University of Kashmir (hereinafter referred to as the “University”) have challenged this direction of the learned Single Judge primarily on the ground such a direction cannot be carried out without the approval of the Administration, it being the ultimate custodian of the finance of the Union Territory because of which the matter was proposed to be referred again to the Chancellor, who is none other than the Lt. Governor of the UT of Jammu and Kashmir. It has been submitted that the University is depended upon the financial support from the State (UT) and hence, unless the University has the approval of the Administration, the proposed regularization of the casual/contract/consolidated pay employees cannot be implemented. Hence, the present Letters Patent Appeal.
4. The appellants have also raised certain issues relating to the right of such contractual employees for regularization as it would be against the principles laid down in case of Secretary, State of Karnataka and Others vs. Uma Devi and Others, (2006) 4 SCC 1, as such, the process for regularization without considering the case of other eligible candidates from the open source will be also violative of Articles 14 and 16 of the Constitution of India.
5. Considering that the primary issue involved is essentially legal in nature, and since the factual positions obtaining in the writ petition and the appeal are not seriously disputed, only a brief reference to the factual background may suffice for the purpose of consideration of this appeal.
6. Responding to the demands of the casual/contractual employees and also those appointed on consolidated basis in the University of Kashmir, the University took a policy decision for regularization of the services of these categories of employees, which policy decision was notified by the University under Notification No. F (Regular-Causal/Cosnt.-Gen.Adm) KU/14, dated 03.09.2014. The aforesaid scheme was prepared by the Financial Advisor (University) and was duly approved by the Syndicate of the University and thereafter, by the University Council, which is the highest authority of the University.
7. The guidelines laid down in the said Notification dated 03.09.2014 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 department/Directors/Coordinators/Librarian/Controller of examination.
(iii) That he/she possesses the requisite qualification and eligibility criteria required for the post on the date of his/he 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 c
: There can be no undue discrimination in matter of regularisation of service..
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.
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Point of Law : Selection process - Mandamus issued by the learned Writ Court directing the respondent University to proceed and conclude the selection process is not in accordance with law and, as su....
The main legal point established in the judgment is the need for proper consideration of regularization against specific posts based on the duties performed by the employees and the conditions specif....
Long-term service of daily-wage employees justifies regularization without state approval, and previous benefits under welfare legislation do not prevent such regularization.
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