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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
MOKSHA KHAJURIA KAZMI, N. KOTISWAR SINGH, JJ.
Mushtaq Ahmad Rather and Others – Petitioners
Versus
State and Others – Respondents
L.P.A.S.W. No. 91 of 2015
Decided On : 13-06-2023
Exploitation - Employment - Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 - Section 3, Section 5
Fact of the Case:
The appellants, who were engaged as Lecturers/Demonstrators on academic arrangement basis, sought regularization under the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010. The Empowered Committee rejected their case, and the writ Court dismissed their petition on the ground that they were appointed on fixed terms and not covered by the Act of 2010.
Finding of the Court:
The Court found that the appellants had been exploited by the respondents, who continued their services for decades on meager salaries. The Court criticized the practice of filling temporary vacancies for extended periods and noted that the appellants were entitled to regularization under Section 5 of the Act of 2010. The Court also emphasized the legitimate expectation of the appellants for permanent absorption in the department.
Issues: The issues revolved around the nature of the appellants' engagement, their entitlement to regularization under the Act of 2010, and the exploitation of the appellants by the respondents.
Ratio Decidendi: The Court held that the appellants, despite being initially engaged on academic arrangements, were entitled to regularization under Section 5 of the Act of 2010 due to their decades-long service and the legitimate expectation created by the department's recommendation. The Court also criticized the exploitation of the appellants and emphasized the need for fair treatment and non-arbitrariness in State actions.
Final Decision: The Court allowed the appeal, set aside the impugned Judgment, quashed the rejection orders of the Empowered Committee, and commanded the respondents to reconsider the appellants' case for regularization within one month, notwithstanding the age factor of the appellants. The Court clarified that the judgment would not set a precedence.
JUDGMENT :
MOKSHA KHAJURIA KAZMI, J.
1. The sword of Damocles Hangs by a thread right over one’s head, ready to drop and rip one’s head right off. It means living one’s life under a constant fear or threat, which you always know about, but you only have a choice to live with it with the belief that the danger will never materialize.
2. This Intra Court Appeal is directed against the Judgment dated 06.05.2015, for short impugned Judgment, passed by the writ Court in a writ petition, SWP No. 1874/2012, seeking setting aside of the same on the grounds taken in the memo of appeal.
3. Before the grounds of challenge, put-forth by the appellants, are set out, the Court desires to record the events, that led to the filing of the instant Letters Patent Appeal, in the first instance.
Factual background
4. The appellants are stated to have been engaged as Lecturers/Demonstrators in various branches of the education department on academic arrangement basis commencing 1994. The details of the engagement of appellants are summarized in the tabulated form below:
| S. No. | Name of the appellants | Date/year of engagement | Service rendered as on date |
| 1. | Nidhi Sawhney/Appellant No. 2 | 07.11.1994 | 29 years |
| 2. | Mushtaq Ahmad Rather/ Appellant No. 1 | 14.12.2000 | 23 years |
| 3. | Urvashi Gupta/Appellant No. 3 | 2002 | 21 years |
| 4. | Shalini Goel/Appellant No. 4 | 2003 | 20 years |
| 5. | Ajay Pal Singh Chib/Appellant No. 5 | 2003 | 20 years |
5. Pursuant to their engagement, the appellants joined their services and continued to perform their duties on the basis of the extensions granted to their term of engagement from time to time. During their continuation as such, the respondents passed a legislation known as the Jammu and Kashmir Civil Services (Special Provisions), Act, 2010, for short Act of 2010, which inter-alia provided for the regularization of certain group of employees including ad hoc, contractual/consolidated and other employees.
6. It is pleaded that the case of the appellants came to be forwarded by the Technical Education Department for their regularization for placing the same before the Empowered Committee constituted by the Government in this behalf. The Empowered Committee in terms of the minutes of meetings dated 18.07.2012 and 25.07.2012, considered the case of the appellants and rejected the same on the ground that the academic arrangement-based candidates are not eligible for regularization in terms of Section 3(b) of the Act of 2010. It would be appropriate to reproduce relevant portion of the Minutes of the Meeting of the Empowered Committee dated 18.07.2012 and 25.07.2012 as under, wherein the appellants figure at Serial No. 50 to 52, 54 and 62.
“CONT
| S. No. | 26ECM [S. No.] | Name of the employee | Desg. | Decision of EC |
| 48 | 1 | Azra Iqram | Demonstrator in Computer Engg. | As per initial appointment orders, the incumbents from S. No. 48 to 64 are shown to have been engaged on academic arrangement. Under Section 3(b) of J&K Civil Services (special Provisions) Act, 2010, persons engaged on academic arrangements are not eligible for regularization by the Empowered Committee. |
| 49 | 2 | Anita Kumari | Teacher |
|
| 50 | 3 | Nidhi Sawhney | Demonstrator in electronics and communication Engg. |
|
| 51 | 4 | Urvashi Gupta | Demonstrator in Computer Engg. |
|
| 52. | 5. | Ajay Pal Singh Chib | Demonstrator in Computer Engg. |
|
Polytechnic boys Girls Sgr (PBW, Sgr)
| S. No. | 26ECM [S. No.] | Name of the employee | Desg. | Decision of EC |
| 53 | 1 | Shafqat Ah. Beigh | Lecturer in Physics |
|
| 54 | 3 | Mushtaq Ahmad Rather | Demonstrator Computer Engg. |
|
| 55 | 4 | Sumeena Sultan | Comp. Operator |
|
| 56 | 5 | Tufail Ahmad Mir | Demonstrator in Auto Mobile |
|
Technical Education Polytechnic Jammu (TEPJ)
| S. No. | 26ECM [S. No.] | Name of the employee | Desg. | |
Appointments under SRO 384 of 2009 were for a limited period and did not entitle the appointees to preferential claim for regular appointment, and the challenge to the recruitment process through wri....
The exclusion of employees appointed on an academic arrangement from regularization under the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 is unconstitutional, violating Article 14....
Regularization of services for employees who have served for over ten years is a right that must be considered by the state, provided there are no valid objections, and the state must adhere to its o....
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