Jammu & Kashmir High Court
Rajani Kumari vs State Th.Edu.Deptt.And Ors. on 14 July, 2016
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Dated : 14-07-2016
1. SWP NO. 1525/2013, MP NO.2200/2013, MP NO.D-2272/2013), MP
NO.2478/ 2014, Contempt No.347/2014
2. SWP NO. 1516/2013 MP NO.2191/2013, MP NO.2265/2013) , Contempt
No.348/2014
3. SWP NO. 1432/2013 MP NO.2066/2013, MP NO.2266/2013), MP
NO.2267/2013), Contempt No.341/2014
4. SWP NO. 1452/2013 MP NO.2092/2013, MP NO.2264/2013), MP
NO.2475/2014) , Contempt No.343/2014
5. SWP NO. 1454/2010 MP NO.2038/2010
6. SWP NO. 1520/2013 MP NO.2195/2013, MP NO.2269/2013)
7. SWP NO. 1521/2013 MP NO.2196/2013, MP NO.2275/2013), MP
NO.2477/2014) , MP No.35/2015, Contempt No.362/2014
8. SWP NO. 1503/2013 MP NO.2166/2013, MP NO.D-2271/2013)
9. SWP NO. 1524/2013 MP NO.2476/2014, MP NO.2199/2013)
10. SWP NO. 1466/2013 MP NO.2109/2013, MP NO.2270/2013) , Contempt
No.357/2014
11. SWP NO. 1464/2013 MP NO.2107/2013, MP NO.2273/2013), MP
NO.2479/2014) , Contempt No.342/2014
12. SWP NO. 1810/2014 MP NO.2394/2014, Contempt No.381/2014
13. SWP NO. 2004/2014 MP NO.2688/2014
14. SWP NO. 799/2014 MP NO.1130/2014 Contempt No.355/2014
15. SWP NO. 258/2014 MP NO.344/2014, Contempt No.427/2014
16. SWP NO. 2896/2013 MP NO.4242/2013, Contempt No.379/2014
17. SWP NO. 1758/2014 MP NO.2319/2014, Contempt No.380/2014
18. SWP NO. 1792/2014 MP NO.2375/2014, MP No.37/2015, Contempt
No.356/2014
19. SWP NO. 106/2014 MP NO.125/2014, Contempt No.358/2014
20. SWP NO. 1666/2013 MP NO.2431/2013
21. SWP NO. 1610/2013 MP NO.2347/2013, Contempt No.415/2014
22. SWP NO. 1929/2014 MP NO.2586/2014
23. SWP NO. 1615/2014 MP NO.2128/2014
24. SWP NO. 1133/2014 MP NO.1489/2014 , Contempt No.354/2014
25. MP NO.2352/2014 , SWP NO. 1453/2013 MP NO.2262/2013, MP
NO.2093/2013, c/w MP No.34/2015, Contempt No.327/2014
26. SWP NO. 1319/2014 MP NO.1725/2014
27. SWP NO. 1542/2013 MP NO.2231/2013, MP NO.2297/2013, Contempt
No.442/2014
28. SWP NO. 1658/2013 MP NO.2418/2013, c/w MP No.29/2015 Contempt
No.383/2014
29. SWP NO. 1792/2013 MP NO.2606/2013
30. SWP NO. 1589/2013 MP NO.2312/2013
31. SWP NO. 1572/2013 MP NO.2286/2013
32. SWP NO. 1928/2014 MP NO.2585/2014; c/w MP No.33/2015, Contempt
No.390/2014
33. MP NO.2552/2014, SWP NO. 1548/2013 MP NO.2237/2013, MP
NO.2296/2013, c/w MP No.33/2015, Contempt No.390/2014
34. SWP NO. 1988/2014 MP NO.2664/2014
35. SWP NO. 1804/2013 MP NO.2616/2013, Contempt No.384/2014
36. SWP NO. 1573/2013 MP NO.2287/2013, Contempt No.468/2014
37. SWP NO. 1281/2014 MP NO.1677/2014, Contempt No.391/2014
38. SWP NO. 1574/2013 MP NO.2288/2013, Contempt No.469/2014
39. SWP NO. 1608/2013 MP NO.2345/2013, Contempt No.445/2014
40. SWP NO. 1793/2014 MP NO.2376/2014, c/w MP No.43/2015, Contempt
No.340/2014
41. SWP NO. 1747/2014 MP NO.2307/2014
42. SWP NO. 2005/2014 MP NO.2689/2014
2
43. SWP NO. 1349/2014 MP NO.1772/2014, c/w Contempt No.378/2014
44. SWP NO. 1433/2014 MP NO.1890/2014
45. SWP NO. 1806/2014 MP NO.2390/2014 c/w Contempt No.388/2014
46. SWP NO. 1934/2014 MP NO.2591/2014
47. SWP NO. 1129/2014 MP NO.1485/2014, c/w MP No.41/2015, Contempt
No.359/2014
48. SWP NO. 1132/2014 MP NO.1488/2014, c/w MP No.44/2015, Contempt
No.360/2014
49. SWP NO. 1849/2014 MP NO.2445/2014; c/w Contempt No.352/2014
50. SWP NO. 2797/2013, c/w Contempt No.413/2014
51. SWP NO. 1546/2013 MP NO.2235/2013, MP NO.2295/2013), MP
No.30/2015, Contempt No.328/2014
52. SWP NO. 2011/2014 MP NO.2695/2014
53. SWP NO. 2898/2013 MP NO.4244/2013, c/w MP No.31/2015, Contempt
No.446/2014
54. SWP NO. 1850/2014 MP NO.2446/2014, c/w Contempt No.395/2014
55. SWP NO. 107/2014 MP NO.126/2014, c/w Contempt No.526/2014
56. SWP NO. 1441/2014 MP NO.1897/2014
57. MP NO.2350/2014) , SWP NO. 945/204 MP NO.1236/2014, c/w MP
No.32/2015, Contempt No.386/2014
58. SWP NO. 1757/2014 MP NO.2318/2014
59. SWP NO. 1624/2013 MP NO.2370/2013
60. SWP NO. 1984/2014 MP NO.2660/2014, c/w Contempt No.385/2014
61. SWP NO. 1369/2014 MP NO.1801/2014
62. SWP NO. 1945/2014 MP NO.2602/2014, c/w Contempt No.389/2014
1. RAJANI KUMARI Vs. STATE TH.EDU.DEPTT. & ORS.
2. CHANDANI MAHAJAN Vs. STATE TH.EDU.DEPTT. & ORS.
3. KOMAL SHARMA Vs. STATE TH.HIGHER EDUCATION DEPTT.
& ORS.
4. BANDANA SODI Vs. STATE TH EDUCATION DEPTT. & ORS.
5. MUBEENA BANO Vs. STATE TH.SOCIAL WELFARE DEPTT. &
ORS.
6. DEVINDER DUBEY Vs. STATE TH.EDU.DEPTT. & ORS.
7. SUNIL KUMAR Vs. STATE TH.EDU.DEPTT. & ORS.
8. UPASANA KAPIL Vs. STATE TH.EDU.DEPTT. & ORS.
09. ANSHU SHARMA Vs. STATE TH.EDU.DEPTT. & ORS.
10. SHRIDHU CHANDEL Vs. STATE TH.EDUCATION DEPTT. & ORS.
11. ARTI SHARMA Vs. STATE TH.EDU.DEPTT. & ORS.
12. LATA SHARMA Vs. STATE TH.HIGHER EDUCATION & ORS.
13. SHASHI KAPOOR Vs. STATE TH.EDU DEPTT & ORS.
14. BINDU JAMWAL Vs. STATE TH.EDUCATION DEPTT. & ORS.
15. VIJETA KUMARI Vs. STATE TH.EDUCATION DEPTT. & ORS.
16. SAMIKSHA SURI Vs. STATE TH.HIGHER EDUCATION & ORS.
17. ASHWANI SHARMA Vs. STATE TH.EDUCATION DEPTT. & ORS.
18. PARVEEN KOUR Vs. STATE TH.HIGHER EDUCATION DEPTT.
& ORS.
19. A.RATHNA RAO Vs. STATE TH.EDUCATION DEPTT. & ORS.
20. PRIYANKA SHARMA Vs. STATE TH.HIGHER EDUCATION & ORS.
21. SHAVETA ZUTSHI Vs. STATE TH.EDUCATION DEPTT. & ORS.
22. KAMLA DEVI Vs. STATE TH.EDUCATION DEPTT. & ORS.
23. TRIPTI SHARMA Vs. STATE TH.EDUCATION DEPTT. & ORS.
24. RAKESH SHARMA Vs. STATE TH.EDUCATION DEPTT. & ORS.
25. KAMAL KISHORE VERMA Vs. STATE TH.EDUCATION DEPTT. & ORS.
26. SHALLU GUPTA Vs. STATE TH.EDUCATION DEPTT. & ORS.
27. BINDU JAMWAL Vs. STATE TH.EDUCATION DEPTT. & ORS.
28. DEEPIKA SHARMA Vs. STATE TH.HIGHER EUDCATION & ORS.
29. VISHU SHARMA Vs. STATE TH.HIGHER EDUCATION & ORS.
30. RAKESH KUMAR Vs. STATE TH.HIGHER EDUCATION & ORS.
31. POOJA DEVI Vs. STATE TH.HIGHER EDUCATION & ORS.
32. ROHIT KUMAR Vs. STATE TH.HIGHER EDUCATION & ORS.
33. DR.HARJIT KOUR Vs. STATE TH.HIGHER EDU DEPTT. & ORS.
3
34. SHRUTI ABROL Vs. STATE TH.HIGHER EDUCATION & ORS.
35. DALIP SINGH Vs. STATE TH.EDUCATION DEPTT. & ORS.
36. BARUN BHATTI Vs. STATE TH.HIGHER EDUCATION & ORS.
37. BHAVANA DUBEY Vs. STATE TH.EDUCATION DEPTT. & ORS.
38. JASVINDER SINGH Vs. STATE TH.HIGHER EDUCATION & ORS.
39. RITU SHARMA Vs. STATE TH.EDUCATION DEPTT. & ORS.
40. KANCHAN BALA Vs. STATE TH.EDUCATION DEPTT. & ORS.
41. SHAH NAWAZ SHAH Vs. STATE TH.HIGHER EDUCATION & ORS.
42. SHALINI SHARMA Vs. STATE TH.GAD DEPTT & ORS
43. JOGINDER SINGH Vs. STATE TH.HIGHER EDU. DEPTT. &ORS.
44. ESHA MAHAJAN Vs. STATE TH.HIGHER EDUCATION & ORS.
45. CHARU GUPTA Vs. STATE TH.EDUCATION DEPTT. & ORS.
46. DR. MAMTA SHARMA Vs. STATE TH.HIGHER EDUCATION & ORS.
47. AMIT SANOTRA Vs. STATE TH.EDUCATION DEPTT. & ORS.
48. SEEMA GUPTA Vs. STATE TH.HIGHER EDUCATION & ORS.
49. SHABNAM KOUSER Vs. STATE TH.HIGHER EDUCATION & ORS.
50. SHAIL KHANNA Vs. STATE TH.EDUCATION DEPTT. & ORS.
51. SURESH SHARMA Vs. STATE TH.HIGHER EDU. DEPTT. & ORS.
52. SANTOSH KUMARI Vs. STATE TH.EDU.DEPTT & ORS.
53. ANUPAM MANUHAAR Vs. STATE TH.EDUCATION DEEPTT. &
GUPTA ORS.
54. SAMRITI SINGH Vs. STATE TH.HIGHER EDUCATION & ORS.
55. VAISHALI JAMWAL Vs. STATE TH.HIGHER EDUCATION & ORS.
56. ASHOK KUMAR Vs. STATE TH.HIGHER EDU. DEPTT. & ORS.
57. BINDU SALARIA Vs. STATE TH.HIGHER EDUCATION & ORS.
58. RUBI SHARMA Vs. STATE TH.EDUCATION DEPTT. & ORS.
59. PRINCE DABGOTRA Vs. STATE TH.HIGHER EDUCATION & ORS.
60. ANOO RADHA Vs. STATE TH.HIGHER EDUCATION & ORS.
61. NEELAKSHI TULI Vs. STATE TH.EDUCATION DEPTT. & ORS.
62. SEEMA KUMARI Vs. STATE TH.EDUCATION DEPTT. & ORS.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Appearing Counsel:
For petitioner/Applicant (s) : M/s D.S. Chauhan, Rattan Lal
Gupta, Meharban Singh, Advocates
For Respondent(s) : Mr. Ajay Sharma, AAG.
Mr. D.C. Raina, Sr. Advocate, with Mr. F.A. Natnoo, Advocate, for J&K State Public Service Commission
i) Whether approved for reporting in Yes/No Journal/NET
ii) Whether approved for reporting in Yes/No Digest/Journal
1. Through the medium of all these writ petitions, petitioners seek following reliefs (wherever applicable in each respective writ petition) as per their respective disciplines and respective Government Degree Colleges where they are engaged on academic arrangement for 4 fixed term basis:
"(A) Issue WRIT OF CERTIORARI quashing Section 3(b) of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010 in so far as the said provision excludes the employees appointed initially on academic basis and subsequently on contractual basis being ultra virus the Constitution of India;
(B) Issue WRIT OF MANDAMUS directing and commanding the Respondents to treat the writ petitioners as 'contractual appointees' and consider their respective cases in the writ petitions for regularization of their services as Lecturers in their respective disciplines in Government Degree Colleges in different districts of Jammu Division, with effect from the dates the writ petitioners completed seven years of service as such and otherwise satisfy the conditions of eligibility as laid down in Section 5 of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010;
(C) WRIT OF CERTIORARI quashing the Advertisement Notification having appeared in local English daily namely 'Daily Excelsior' in its issue dated June 25, 2013 whereby, the applications from the eligible candidates belonging to Jammu and Kashmir State for engagement as Lecturers/Teaching 5 Assistants/Librarians & Physical Training Instructors (PTI) on academic arrangement basis in the Government Degree Colleges of Jammu Division for the academic session 2013-2014 in 42 Subjects/Disciplines including Computer Applications/Sciences:
(D) Issue WRIT OF PROHIBITION
restraining the Respondents from
replacing/substituting the writ petitioners by another set of contractual appointees or by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the posts of Lecturers are considered by the Empowered Committee constituted under Section 10 of Jammu & Kashmir Civil Services (Special Provisions) Act, 2010;
(E) Issue WRIT OF MANDAMUS directing and commanding Respondents to release the consolidated salary for vacation periods with effect from the dates the writ petitioners were engaged as Lecturers in different Government Degree Colleges.
2. This batch of writ petitions were admitted on different dates and clubbed together. Such of those writ petitions that are not admitted so far are admitted in view of the batch admitted earlier. 6
3. On the first relief prayed Sr. No.(A), it is the case of the petitioners that Section 3 of J&K Civil Services (Special Provisions) Act, 2010 (Act) provides for application of the Act, i.e., to such posts under Government as are held by persons having been appointed on ad hoc or contractual basis including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies. The grievance of the petitioners is that by virtue of Section 3(b), the provision is inapplicable to the persons appointed on tenure posts including those persons employed on academic arrangement for a fixed term in any Government Department, thereby they are denied the right to be regularized in terms of Section 5 of the Act. For better clarity, Sections 3 and 5 of the Act and the provisos are set out hereunder:
―3. Application of the Act. - The provisions of this Act shall apply to suh posts under the Government as are held by any person having been appointed on ad hoc or contractual basis including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies, but shall not apply to:--
(a) persons appointed in terms of
Government Order No.125-GAD of
2001 dated 01-02-2001, on
contract basis in the personal
sections of the Ministers or other authorities enjoying the status of a Minister;
(b) persons appointed on tenure posts 7 co-terminus with the life of the Project or Scheme of the State or Central Government, as the case may be, and those appointed on academic arrangement for a fixed term in any Government Department;
(c) non-governmental agencies or autonomous bodies or public sector undertakings or corporations or government companies or societies or other local authorities which have their own rules and regulations governing their functioning; and
(d) part-time or seasonal employees including those whose wages are paid from out of the local funds or contingent grants.‖ ―5. Regularization of ad hoc or contractual or consolidated appoint-tees.--
Notwithstanding anything to the contrary contained in any law for the time being in force or by judgment order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in section 3 shall be regularized on fulfillment of the following conditions, namely :--
(i) that he has been appointed
against a clear vacancy or post;
(ii) that he continues as such on the
appointed day;
(iii) that he possessed the requisite
8
qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post;
(iv) that no disciplinary or criminal proceedings are pending against him on the appointed day; and
(v) that he has completed seven years of service as such on the appointed day;
Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization, irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization;
Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act 9
4. The pith and substance of the argument of the learned counsel for the petitioners is that the appointments made earlier to coming into force of the Act whether on ad hoc basis or on contractual basis and subsequently on consolidated pay after coming into effect the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010, are denied regularization. The Government by design applying the Act is excluding petitioners on the ground that the petitioners' appointments are made on academic arrangement basis for a fixed term in a Government Department. This devious method deprives the petitioners of their right to be regularized. Whereas contract, ad-hoc and consolidated pay appointees are benefitted. The said provision is, therefore, arbitrary, illegal and constitutionally invalid. The petitioners' appointment is akin to that of appointment made on ad-hoc, consolidated pay or contract basis. Equals are treated unequally. The exclusion is discriminatory and malafide.
5. On this premise, the learned counsel pleaded that Section 3(b) of the Act, 2010 has to be held invalid and struck down. In support of this argument, it was 10 primarily contended that the provision particularly clause (b) of Section 3 is a design to deny the benefit to the petitioners, who have been appointed and working in a post which is also in the nature of on ad- hoc or contractual appointment. It is a colourable exercise of power and, therefore, it has to be struck down.
6. Per contra, Mr. Ajay Sharma, learned AAG appearing for the Government states that after coming into force the Act on 29th April, 2010, an Advertisement Notice was issued and pursuant thereto the petitioners were appointed on academic arrangement basis for the fixed term and they were working as such. They participated in the selection pursuant to the Advertisement and got appointment on academic arrangement basis only. Their appointment is not on contract, ad-hoc or consolidated basis to a specific post or a clear vacancy. There is marked difference in so far as appointment on academic arrangement for a fixed term. This is not relatable to specific post or a clear vacancy. It is a purely temporary arrangement for specific department and that is need based. In any event, he pleaded that since there is a distinction 11 between appointment made on ad-hoc basis, contractual basis or on consolidated pay basis with that of the appointments made on academic arrangement basis for fixed term in a department, the petitioners have no right to challenge on the plea of arbitrariness or discrimination. There is no constitutional violation.
7. It is a separate and an independent method or manner by which appointment is made in a Government Department. Government in its wisdom has excluded the category of appointment made on academic arrangement basis for fixed term. The petitioners have no locus to challenge the wisdom of the Government in enacting such a provision. The language of Section 3 clearly provides that regularization will apply in respect of posts in the Government for which appointments are made on ad- hoc of contractual or consolidated pay. Therefore, it is referable to a particular post of a clear vacancy, whereas in these cases, petitioners have been appointed in Higher Education Department on fixed term on an academic arrangement basis. So, both cannot be equated on same terms. There is no arbitrariness in that as alleged. In any event, he 12 implored upon the Court not to accept the interpretation as propounded by the petitioners. Mr. Sharma relied upon the judgment rendered by Hon'ble Supreme Court in case titled Union of India and Another Vs. Deoki Nandan Aggarwal reported in AIR 1992 SC 96, which was relied upon in a subsequent decision of the Hon'ble Supreme Court in case titled Satheedevi Vs Prasanna and Anr., reported in AIR 2010 SC 2777.
Their Lordships while dealing with the controversy in Deoki Nandan Aggarwal's case (supra), held in para Para 14 as under:
―We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as ―more than five years‖ and as ―more than four years‖ in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not 13 there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Vide P.K. Unni v. Nirmala Industries, (1990) 1 SCR 482 at p. 488 : (AIR 1990 SC 933 at p.936), Mangilal v. Sugamchand RAthi (1965) 5 SCR 239 : (AIR 1965 SC
101), Sri Ram Ram Narain Medhi v. The State of Bombay 1959 Supp. (1) SCR 489 :
(AIR 1959 SC 459). Smt Hira Devi v.
District Board, Shahjahanpur 1952 SCR 1122 at p.1131 : (AIR 1952 SC 362 at p.365), Nalinakhya Bysack v. Shyam Sunder Haldar (1953 SCR 533 at p.545) : (AIR 1953 SC 148 at p. 152), Gujarat Streel Tubes Ltd. V. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCR 146 : (AIR 1980 SC 1896), W. Narayanaswami v. G. Punnerselvam (1973) 1 SCR 172 at p. 182 : (AIR 1972 SC 2284 at p. 2289), N. S. Vardachari v. G. Vasantha Pai (1973) 1 SCR 886) : (AIR 1973 SC 38), Union of India v. Sankal Chand Himatlal Sheth (1978) 1 SCR 423 : (AIR 1977 SC 2328) and Commr. of Sales Tax, U.P. v. Auriaya Chamber of Commerce, Allahabad (1986) 2 SCR 430 at p. 438 : (AIR 1986 SC 1556 at pp. 1559-60). Modifying and 14 altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by courts sometimes in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power.‖ (Emphasis supplied) Further, in para 10 of Satheedevi's case (supra), their Lordships observed thus:
―Before proceeding further, we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intetntion of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimatgely arise - Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 SCR 30 360 : (AIR 1957 SC 907). The other important rule of interpretation is that the Court cannot rewrite, recast or reframe the legislation because it has no power to do 15 so. The Court cannot add words to a statute or read words which are not therein. Even if there is a defect or an omission in the statute, the Court cannot correct the defect or supply the omission.--Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323 : (AIR 1992 SC 96) : 1991 AIR SCW 2754), Shyam Kishori Devi v. Patna Municipal Corporation (1966) 3 SCR 466 :
(AIR 1966 SC 1678).‖ On this premise, it is pleaded that the prayer to declare Section 3(b) as ultra vires should be dismissed.
8. I have considered the scope of the provisions of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, in particular the provisions Section and Section 3(b). It is evident that the regularization of ad-hoc or contractual or consolidated pay appointees is provided under the above stated provision of the Act with exclusion under Section 3(b).
9. Section 5 provides that five conditions that have to be satisfied for the purpose of seeking regularization.
In these cases, as is evident from records, pursuant to Advertisement Notice, petitioners were appointed on academic arrangement for fixed terms.
10. Certificates issued by the authority reflect 16 that the appointments were made on academic arrangement for a fixed term with break. Therefore, the ingredients of Section 5 do not get attracted to the petitioners. The provisions of Section 3(b) exclude appointments on academic arrangement for fixed term. That appears to be the intention of the legislature. This Court is not inclined to read the language of Section 3(b) in any other way. The Hon'ble Supreme Court in the two decisions (Union of India and Another Vs. Deoki Nandan Aggarwal AND Satheedevi Vs Prasanna and Anr.), referred to above, has deprecated Courts from rewriting, recasting or reframing terms or the words in the legislation. Appointment by way of academic arrangement made is not covered under Section 3 the Act. The petitioners are, therefore, not entitled to seek regularization under the Act.
11. Legislature has clearly indicated that only three categories, namely, appointments on ad-hoc, contractual and consolidated pay basis, are eligible to be considered for regularization subject to their satisfying the requirement or prescription of Section 5 of the Act. It does not apply to the cases of appointment on academic arrangement. The Court finds 17 no illegality or arbitrariness in the distinction made by the legislature. The Plain meaning of the words in Section 3 does not lead to any doubt. No other interpretation is plausible and the petitioners' attempt and interpretation is not convincing. There is no arbitrariness or malice as alleged. Accordingly, the challenge to the provisions of Section 3(b) is rejected.
12. In so far as second relief Sr. No.(B) for regularization after completion of seven years of service is concerned, it is inapplicable in terms of the clear stipulation/express provisions of Section 3(b) of the Act. A conjoint reading of Section 3 and Section 5 makes it abundantly clear that this relief cannot be granted, as the petitioners herein are engaged on academic arrangement for fixed terms. Since the provision of Section 3(b) of the Act is upheld, the relief of regularization cannot be granted and is rejected.
13. As far as the third relief Sr. No.(C) to quash the Advertisement Notifications for the years 2012-13 and 2013-14, as the case may be, is concerned, the period of Advertisement which is challenged, is already over. In the case of some of the petitioners, their status, i.e., employment is by virtue of interim direction of this 18 Court, till the next date of hearing before the Bench. It has to be considered by the Department concerned after the expiry of the terms as the appointments were made on academic arrangement basis. This relief becomes infructuous by efflux of time.
14. The next relief Sr. No.(D) to prohibit the respondents from replacing/substituting the petitioners by another set of contractual appointee or by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the post of Lecturers are considered by the Empowered Committee constituted under Section 10 of the Act. This prayer has three aspects. One is the confirmation and second is the regularization. Ist two parts of the prayer are inapplicable in the case of these petitioners as their appointments were made on academic arrangement basis. The third aspect is replacing contract employees by another set of contract employees.
15. This Court has taken a view in case titled Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors. and batch of cases (SWP No.209/ 2003 and connected matters) decided on 04-07- 19 2016 on the basis of decisions considered and declined in Division Bench case titled State of J&K Vs. Afshan Majid, reported as 2008 (2) J.K.J. 550, which decision was again followed by the Single Judge, to be more specific in the case titled Suman Sharma Vs. State of J&K, reported as 2009 (2) J.K.J.
173. The same was followed in subsequent decisions. This Court also followed in its earlier decision in batch of writ petitions, lead case as SWP No.209/2003, Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors., decided on 14-07-2016
16. It is the case of respondents that they are not resorting to such a procedure of replacing contract teachers/lecturers by another set of contract teachers/lecturers. The engagement is need based. In any event, the lecturers on contract or engaged on academic arrangement cannot seek to restrain the government from engaging lecturers on contract engagement or academic arrangement as they themselves are beneficiary of such procedure. This issue becomes academic because petitioners are appointed on academic arrangement.
17. On this issue also, Courts have taken a view to 20 safeguard ousting of contract engagements only for the purpose of accommodating new incumbents on contract basis. In this regard, it will be useful to refer judgment of Hon'ble Supreme Court in case titled State of Haryana Vs. Piara Singh and Others reported as AIR 1991 SC 223 referring to the following observations:
―............. In State of Haryana Versus Piara Singh, 1992 (4) SC 118 of 152, this Court had held that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an adhoc or temporary appointments may be made in such situation, this Court held that efforts should always be made to replace such adhoc or temporary employee by regularly selected employees, as early as possible. Temporary employees also would get liberty to compete along with others for regular selection but if he does not get selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of such an adhoc or temporary employee. Adhoc or temporary employee should not be replaced by another adhoc or temporary employee. He must be replaced only by regularly selected employee.‖ 21
18. The said ratio will apply to the petitioners only if they are sought to be replaced by another set of teachers/lecturers on academic arrangement.
19. The relief of prohibiting the respondents from replacing/ substituting the petitioners by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the post of Lecturers are considered, has been dealt with by Hon'ble Supreme Court in case titled Dr. Kishore Vs. State of Maharashtra, reported as 1997(1) 107 : 1997 (3) SCC 209, wherein their Lordships observed as under:
―It is contended by the learned counsel for the petitioner that since vacancies are existing the appointment of Dr. Solanki by transfer could not be used as a means to terminate the service of the petitioner. We fail to appreciate the contention. It is fairly agreed by the learned counsel that the petitioner has no right to the post and as soon as a duly selected candidate is posted in his place, he has to give place to the duly selected candidate. But his contention is that since Dr. Solanki was selected earlier to the order passed by the Tribunal and had been appointed on his transfer, it cannot be used as a means to terminate the services of the petitioner. His contention absolutely has 22 no force. As soon as the duly selected candidate is posted, whether directly or by transfer, necessarily the petitioner has to give place to such a candidate. The petitions, therefore, do not merit interference.‖ Therefore, the said plea has no legal basis.
20. This Court hastens to hold that academic arrangement teachers/lecturers cannot seek to hold on to their post for ever. If they are found not to be up to the mark or efficient then their continuation will be a question mark. It is for the authorities to decide the best course of action in a non-arbitrary manner. If academic arrangement teachers/lecturers seek extension then they have to make a representation for considering the extension of service, which can be considered on its own merits.
21. In this regard, it will be useful to refer to the decision of this Court where a plea of retention when employed on contractual basis, Division Bench of this Court considered and declined the claim in case titled State of J&K Vs. Afshan Majid, reported as 2008 (2) J.K.J. 550, which decision was followed by the Single Judge, to be more specific in the case titled 23 Suman Sharma Vs. State of J&K, reported as 2009 (2) J.K.J. 173.
22. In that in paragraph 18, it has been held as follows:
―18. For the reasons mentioned above and in view of the afore-quote observations made by the Division of this Court in cases referred to above, these petitions are disposed of with the following directions:-
I/ That the petitioners are not entitled to regularization of their services against the posts they have been engaged on contract/temporary basis as the said engagement has been done without following any procedure as provided for filling up the post belong to State-Cadre;
II/ That the petitioners shall be allowed to continue till the posts are filled up by a regular selection process. The State respondent, however, shall be free to continue this engagement of the petitioners only if there is requirement to engage them keeping in view the interest of students who are studying in particular colleges;‖
23. In the light of the above, petitioners appointed on academic arrangement have no legal right to seek 24 regularization dehors the Act.
24. The last prayer Sr. No. (E) is with regard to release of consolidated salary for the vacation periods with effect from the dates the petitioners were engaged as Lecturers in Government Degree Colleges. For this relief, learned counsel for the petitioners submitted that the Hon'ble Supreme Court has strongly deprecated the process of appointment of teachers on ad-hoc basis on the commencement of the year and terminating their services at its end, thus denying them the salary for vacation period. Mr. Chauhan, learned counsel for the petitioners, relied upon two judgments rendered by Hon'ble Supreme Court in cases titled Rattan Lal and others Vs. State of Haryana and others, reported as (1985) 4 SCC 43 (Para 3) : AIR 1987 SC 478; and Sri Rabinarayan Mohapatra Vs. State of Orissa & Ors., reported as AIR 1991 SC 1286 (Paras 8 & 9).
25. In Rattan Lal's case (supra), their Lordships held in paragraph 3 as under:
―3. We strongly deprecate the policy of the State Government under which ‗ad hoc' teachers are denied the salary and allowances for the period of the summer 25 vacation by resorting to the fictional breaks of the type referred to above. These ‗ad hoc' teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules.‖ While dealing with this issue, their Lordships in Rabinarayan Mohapatra's case (supra) observed in paragraphs 8 & 9 as under:
―8. The appellant was appointed on July 12, 1982 and has been working with the approval of the authorities for almost 4 years with short breaks. The managing committee is still utilising his services though there is no approval by the educational authorities for the period subsequent to 1986. It is no body's case that his services were ever terminated on grounds of inefficiency or misconduct. The case of the appellant is, thus, fully covered by Section 3 of the Validation Act. We are of the view that the High Court erred in denying the benefit of the Validation Act to the appellant on the ground that his initial appointment for 89 days was conditioned by the stipulation that he would continue until replaced by a candidate from the select list. The High Court read into the Act what was not there. In response to the notice issued in the Special Leave Petition the 26 managing committee through its Secretary-cum-Head Master has stated that the appellant is still continuing to serve as Hindi teacher in the school under the orders of the managing committee.‖
9. We therefore, set aside the judgment of the High Court and direct the respondents to treat the appellant as the regularly appointed Hindi teacher in the school with effect from July 12, 1982.
The appellant shall be entitled to his salary, including the salary for summer vacations and other breaks which must be taken as non est, from the date of his regular appointment i.e. July 12, 1982. The respondents are directed to pay the arrears of salary and other emoluments due to the appellant as a result of his regularization within a period of 3 months from today.‖
26. The factual aspect of the petitioners' case differs by the terms of the appointment. The petitioners will have to approach authority and establish their claims. It is for the petitioners to approach the Authority concerned by way of a representation in this behalf. The same may be considered having regard to the facts and circumstances of the petitioners' case, within a reasonable period.
27. As a result pray (A), (B) & (C) are dismissed. 27 Prayer (D) ordered as indicated. Prayer (E) ordered as per above.
28. All the above writ petitions stand disposed in the aforesaid terms along with connected MPs. Interim directions, if any, passed in these writ petitions shall stand vacated.
29. At this juncture, Mr. Sharma, learned AAG, submits that in view of the final order passed in these writ petitions, the Contempt Petitions filed by the learned counsel for the petitioners in some of the cases have become infructuous. Petitioners' counsel concedes as above. Consequently, the connected Contempt Petitions filed in the respective cases are closed and stand disposed of along with connected MPs, if any.
(Ramalingam Sudhakar) Judge Jammu 14-07-2016 Secretary