Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Others vs Ulfat Ara And Others on 27 November, 2020
Bench: Sanjeev Kumar, Rajnesh Oswal
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on:12.112020
Pronounced on: 27.11.2020
LPASW No.39/2019
CM No.2576/2019
c/w
LPA No.148/2020
CM No.5223/2020
LPA No.149/2020
CM No.5224/2020
State of J&K and others ...Appellant(s)
Through: - Mr. M. A. Chashoo, AAG.
Vs.
Ulfat Ara and others ...Respondent(s)
Through: - Mr. Zahoor Ahmad Shah, Advocate.
CORAM:
Hon‟ble Mr. Justice Sanjeev Kumar, Judge.
Hon‟ble Mr. Justice Rajnesh Oswal, Judge
JUDGMENT
Sanjeev Kumar „J‟
1) These appeals by the erstwhile State of Jammu and Kashmir (now Union Territory of Jammu & Kashmir), in terms of Clause 12 of the Letters Patent, are directed against the judgment dated 11th of July, 2018, passed in SWP No.2147/2017, SWP No.1303/2016, SWP No.1314/2016 and SWP No.1333/2016 whereby the Writ MOHAMMAD ALTAF BHAT 2020.11.27 12:12 Court while allowing all the writ petitions has directed the appellants I attest to the accuracy and integrity of this document 2 LPASW No.39/2019 c/w LPA No.148/2020 LPA No.149/2020 to give the benefit of regularization to the services of petitioners (respondents herein) w.e.f. 26th of September, 2010 by applying the principle as detailed out in the Division Bench judgment of this Court in the case of Ms. Rabia Shah Vs. State and Ors (COD No.159/2016 c/w Review Petition No.25/2016 and Cont. No.13/2016).
2) Before we appreciate the grounds of challenge urged by Mr. M. A. Chashoo, learned AAG, appearing for the appellants, it would be advantageous to refer to few facts relevant to the disposal of these appeals.
3) The respondents (for convenience, hereinafter referred to as the writ petitioners) came to be engaged as Teachers/Physical Education Teachers on ad hoc/contractual basis from time to time. Admittedly, all the writ petitioners had rendered more than seven years‟ service as contractual/ad hoc employees when the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (hereinafter Act of 2010 for brevity) came to be promulgated.
4) There is no dispute that in terms of provisions of the Act of 2010, all the writ petitioners became entitled to regularization of their services. The cases of the writ petitioners along with many others were considered by the competent authority and orders of their regularization were passed. The writ petitioners accepted their regularization and joined their posts. The effect to the regularization MOHAMMAD ALTAF BHAT of the writ petitioners was neither given from the appointed date 2020.11.27 12:12 I attest to the accuracy and integrity of this document 3 LPASW No.39/2019 c/w LPA No.148/2020 LPA No.149/2020 mentioned in the Act of 2010 nor from the date of completion of seven years but was given from the date of order of their regularization. The writ petitioners feeling aggrieved assailed the action of the appellants (hereinafter referred to as respondents) and filed writ petitions seeking, inter alia, a direction to the respondents to treat them having been regularized from the day and date they were engaged as contractual for the first time. They also prayed in the alternative that the respondents be directed to give effect to their regularization not from the day they were regularized but from the day they completed seven years‟ service as contractual appointees and became entitled to regularization under the provisions of the Act of 2010. The petitions were resisted by the respondents who placed strong reliance on Section 5 of the Act of 2010 and contended that in the face of first Proviso appended to Section 5, the writ petitioners cannot claim regularization from a date other than the date on which they were actually regularized by issuance of a formal order by the competent authority.
5) The Writ Court considered the rival contentions and while placing reliance on the Division Bench judgment in the case of Rabia Shah (supra) concluded that the writ petitioners, who had completed seven years‟ service on the appointed dated i.e. the date of commencement of the Act of 2010, would be entitled to regularization w.e.f. 150 days posterior to the appointed day and that, in the case of the writ petitioners, would fall on 26th of September, 2010. The appellants are MOHAMMAD ALTAF BHAT 2020.11.27 12:12 I attest to the accuracy and integrity of this document 4 LPASW No.39/2019 c/w LPA No.148/2020 LPA No.149/2020 aggrieved of this judgment of the learned Single Judge and are before us in these appeals.
6) The sole ground on which the impugned judgment has been assailed by the appellants is that the provisions of Section 5, in particular Proviso appended thereto, of the Act of 2010 does not leave any scope for holding that the writ petitioners are entitled to regularization with effect from the date i.e. 150 days after the appointed date mentioned in the Act of 2010.
7) Mr. Chashoo, learned AAG, appearing for the appellants, argues that in the writ petitions filed by the writ petitioners there was no challenge laid to Section 5 nor this Court has in the instant case as also in the case of Rabia Shah (supra) held Section 5 ultra vires the Constitution. He, therefore, submits that plain reading of Section 5 makes it abundantly clear that regularization of eligible ad hoc/contractual/consolidated appointees under the Act of 2010 shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed seven years‟ service on the appointed date or thereafter but before such regularization. He further argues that the Writ Court has gone to the extent of granting to the writ petitioners the relief which the writ petitioners had not claimed in their writ petitions.
8) Per contra, Mr. Zahoor Ahmad Shah, learned counsel MOHAMMAD ALTAF BHAT 2020.11.27 12:12 representing the writ petitioners, submits that the issue raised by Mr. I attest to the accuracy and integrity of this document 5 LPASW No.39/2019 c/w LPA No.148/2020 LPA No.149/2020 Chashoo is no longer res integra as the same has been long back clinched by a Division Bench of this Court in case of Rabia Shah (supra). He submits that the judgment in Rabia Shah was assailed by the appellants before the Supreme Court but the SLP filed by them was dismissed in limini.
9) Having heard learned counsel for the parties and perused the record, the only question raised by the appellants for determination of this Court is with regard to the effect that is required to be given to the regularization of the eligible ad hoc/contractual/consolidated appointees who have to their credit seven years or more than seven years‟ service on the appointed date. As rightly pointed out by Mr. Zahoor Ahmad Shah, the issue has been threadbare discussed by a Division Bench of this Court in the case of Rabia Shah (supra). The observations of the Division Bench made in para 19 of the judgment are noteworthy and are reproduced here-under:
"19. From a bare perusal of Section 10 of the Act, it is thus seen that whereas the processes to be undertaken in terms of Sub-section (2) and (3) thereof are time bound, Sub-section (4) and (5) do not speak of any limitation for completion of the process of examination of the complaints, if any, received by the Empowered Committee; making of recommendations by it and the issue of orders of regularization of the concerned appointees by the Administrative Departments. However, as becomes axiomatic, the substantial part of the processes of making references by all departments in terms of sub-section (2), the scrutiny and verification of each individual case with regard to MOHAMMAD ALTAF BHAT their entitlement to regularization under the Act 2020.11.27 12:12 I attest to the accuracy and and notification of the list of such appointees by integrity of this document 6 LPASW No.39/2019 c/w LPA No.148/2020 LPA No.149/2020 the Empowered Committee in terms of sub-section (3) of Section 10 have to be completed within 60 days plus 15 days, respectively. This constitutes the substantial part of the whole process. If the substantial part of the processes is time bound and prescribed to be completed within 75 days from the appointed day, it by no stretch of imagination can be said that the intention of the Legislature would have been to leave an unbridled discretion with the authorities concerned to complete the remaining process of examination of the complaints, if any, received by the Empowered Committee, making of recommendations by it and the issue of orders of regularization by the Administrative Departments. The act of constitution of the "Empowered Committee" and its composition by the provision of the Act itself, clearly suggests that the Legislature intended to eliminate the possibility of lackadaisical attitude by the concerned functionaries of the State and to reduce the possibility of consumption of time in completing the processes to the minimum. The Legislature clearly seems to have empowered the prescribed Committee to complete all the process at its own level to find out the entitlement of such an appointee to regularization so that no further time is wasted in the issuance of the regularization orders. This is further fortified by the provisions of Section 11 of the Act which confers a right of appeal; on an aggrieved person against the recommendation of the Empowered Committee, meaning thereby that credence and importance has been attached to the decision and recommendations of the Empowered Committee, not the order of regularization. Cumulatively, therefore, from the scheme of things, as discussed above, it flows that the Legislative intent seems to have been not to leave open ended discretion with the prescribed authorities, i.e. the Empowered committee and the Administrative Department, in the matter of examining complaints, if any, received; making of recommendations and issuance of final orders of regulations. In any case, since the Sub-sections (2) and (3) of Section10 prescribe a limitation of 75 days for completing the substantial part of the process, it is unimaginable that the remaining part of making MOHAMMAD ALTAF BHAT 2020.11.27 12:12 I attest to the accuracy and recommendations and issuance of regularization integrity of this document 7 LPASW No.39/2019 c/w LPA No.148/2020 LPA No.149/2020 orders should take the prescribed authorities more than that time."
10) It is in the light of the observations made by the Division Bench in the aforesaid judgment and the interpretation put on the different provisions of the Act of 2010, the Writ Court allowed the writ petitions of the petitioners. It is true that the writ petitioners had sought a direction to give their regularization effect either from the date they were so engaged in the first instance or from the date of completion of seven years‟ service as contractual appointees but the Court did not agree with the writ petitioners and found them entitled to regularization with effect from 150 days after the appointed date in view of the law laid down by the Division Bench of this Court in the case of Rabia Shah.
11) We have carefully gone through the judgment of the Writ Court and do not find any illegality or infirmity therein. We also feel bound by the judgment rendered by the Division Bench of this Court in the case of Rabia Shah. Despite great persuasion of Mr. Chashoo, AAG, we could not persuade ourselves to give a re-look to the judgment rendered in the case of Rabia Shah nor could we find any distinctive features in the appeals in hand. It may be noteworthy that if the arguments of Mr. Chashoo based on his understanding of Section 5 were to be accepted, the first Proviso to Section 5 of the Act of 2010 would be rendered ultra vires the Constitution for it MOHAMMAD ALTAF BHAT would concede arbitrary and unbridled power to the competent 2020.11.27 12:12 I attest to the accuracy and integrity of this document 8 LPASW No.39/2019 c/w LPA No.148/2020 LPA No.149/2020 authority to order regularization of an eligible ad hoc/contractual/ consolidated appointee at its whims and on the date of its choosing. But as is well settled, there is a presumption in the Constitutionality of an Act of Legislature and the provisions thereof and the Courts are loath to declare them unconstitutional unless a cast iron case for such declaration is made out. In the case of Rabia Shah, the Division Bench acted on such presumption and interpreted Section 5 in a manner that would save it from being assailed as unconstitutional. Para 12 of the judgment in Rabia Shah‟s case deserves to be noticed at this stage and the same reads thus:
"12. A conjoint reading of the various provisions of the 2010 Act, especially the two above quoted provisos appended to Section 5 and Section 10 thereof, makes it unambiguously manifest that such appointees could be regularized only subject to the fulfillment of conditions stipulated in Section 5 and in accordance with the procedure prescribed in Section 10, and that such regularization could be made effective only from a date posterior to the appointed day. The 2010 Act did not have any retrospective application. It is specifically provided in the first proviso appended to Section 5, as quoted above, that the regularization of such appointees under the 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 day or thereafter, but before such regularization, meaning thereby the regularization could not be ordered from a date anterior to the appointed day. The requirement of possession and completion of seven years‟ service as such, as provided in Section 5(v) of the Act, is one of the conditions of eligibility, qualifying and entitling such an appointee for regularization on or after the appointed day, not anterior thereto."MOHAMMAD ALTAF BHAT 2020.11.27 12:12 I attest to the accuracy and integrity of this document 9 LPASW No.39/2019
c/w LPA No.148/2020 LPA No.149/2020
12) For the foregoing reasons, we concur with the view taken by the Writ Court and, therefore, find no merit in these appeals which are, accordingly, dismissed along with connected applications.
(Rajnesh Oswal) (Sanjeev Kumar)
Judge Judge
Srinagar
27.11.2020
"BhatAltaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2020.11.27 12:12
I attest to the accuracy and
integrity of this document