Central Administrative Tribunal - Jammu
Talib Hussain vs Education on 20 November, 2025
:: 1 :: T.A. No. 61/199/2023
CENTRAL ADMINISTRATIVE TRIBUNAL (RESERVED)
JAMMU BENCH, JAMMU
Hearing through video conferencing
Transfer Application No.61/199/2023
Order reserved on: 14th day of October, 2025
Pronounced on: - This the 20th day of November, 2025
HON'BLE MR. RAJINDER SINGH DOGRA, MEMBER (J)
HON'BLE MR. RAM MOHAN JOHRI, MEMBER (A)
Talib Hussain, Age 58 years,
S/o Sh Munna Sheikh
R/o Chakra Bhatti, Tehsil Bhaderwah
District Doda.
....Applicant
(Through Advocate: Mr. Abhinav Sharma, Ld. Sr. Adv.)
VERSUS
1. State of J & K
Commissioner / Secretary,
Health and Medical Education Department,
Govt. of J&K, Civil Secretariat, Jammu.
2. Director, Health Services,
Jammu.
3. Chief Medical Officer,
Doda.
4. Block Medical Officer Assar, Doda.
5. Fayaz Ahmad Sheikh
A/P Sweeper, Office of the Medical Superintendent,
L.D. Hospital Srinagar
6. Sh Ashwani Kumar,
A/P Sweeper,
Office of the Medical Superintendent,
District Hospital Kathua.
....Respondents
(Through Advocate: Mr. Sudesh Magotra, learned A.A.G.)
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ORDER
Per: - Rajinder Singh Dogra, Judicial Member
1. The SWP/WP(C) No. 02/2015 was transferred from the Hon'ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/199/2023 by the Registry of this Tribunal.
2. The present matter was filed before the Hon'ble High Court with following prayer:
"(a) MANDAMUS Declaring ultra-vires, the first & second proviso to Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, to the extent, first proviso provides that regularization of an adhoc/ contractual / consolidated appointee under this Act, who has completed seven years of service as such on appointed date (i.e. on 29-04-2010), shall have effect only date of such regularization, irrespective of the fact that such appointee has completed more than seven years of service on or before the appointed date or from the thereafter, and the second proviso, to the extent, it provides 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 the Act-both the provisos being at variance with the provisions of clause (v) of section 5 of the said Act, as well as, in violation of Articles 14 and 16 of the Constitution, inasmuch as, these provisos to the been used harshly and disadvantage of the petitioner by regularizing the services of the have petitioner w.e.f 20-01-2012, after the regularization of his juniors i.e respondent No. 5.
(b) Mandamus, commanding and directing the respondents to regularize the service of the petitioner as Safai Walla w.e.f 15-12-2006, the date, the petitioner has completed 07 years of service as consolidated employee, with further direction to release consequential benefits including promotion, pension, and other monetary benefits in favour of the petitioner.
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Or in the alternative writ of
(c) Mandamus
Commanding the respondents to regularize the service of the petitioner under the provisions of Government order No.1285-GAD of 2001 dated 06- 11-2001, w.e.f. the date, the petitioner has completed seven years of service as consolidated paid employee i.e. w.e.f 15-12-2006, with further direction to release consequential benefits including promotion, pension and monetary benefits in favour of the petitioner.
(d) Mandamus, commanding and directing the respondents to fix the service pension of the petitioner, taking the petitioner as if he were regularized on 15-12- 2006, with further direction, to release arrears of service pension in favour of the petitioner.
Or in the alternative writ of
(e) Mandamus, Commanding and directing the respondents to regularize the services of the petitioner w.e.f. the date, private respondents No. 5 was regularized.
(f) Mandamus, Commanding and directing the respondents to release the arrears of salary in favour of the petitioner, fixed on the basis of Sixth Pay Commission Report, with effect from the date, Performa respondent No. 5 and 6 have been granted such benefit
(f) ANY other writ, order or direction which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case. "
3. The facts of the case as averred by the petitioner in his pleadings are as follows:
a) That the petitioner was initially engaged in September 1984, as Part Time Safai Karamchari- P.T.S at Medical Aid Centre- MAC Chakra Bhatti, Tehsil Bhaderwah, District Doda and vide order No. Est 3/Consolidated/9180-81 dated 15-12-1999, was promoted as Consolidate paid :: 4 :: T.A. No. 61/199/2023 Safaiwala, against a clear vacancy at AD Shamthi, Block Assar, Tehsil and District Doda.
b) That private respondents Nos. 5 was also initially engaged as Sweeper on consolidated basis vide order No.Est-
111/333-34 dated 18-07-2001 i.e. much after the engagement as such of the petitioner.
c) That the petitioner had completed seven years of continuous service in September 1991 and was therefore entitled for regularization, w.e.f September 1991 as class IV employee in the Health Department under SRO 64 of 1994 dated 24-03-1994, being eligible as on 31-03-1994, under rule 4 of the Notification.
d) It is stated that though SRO 64 was made applicable to Daily rated employees, yet the petitioner as Consolidated employee cannot be considered worse than the Daily rated employee and is therefore fully covered under SRO 64 of 1994.
e) That apart from this, the petitioner had completed seven years of service on 15-12-2006 as consolidated paid Safai Wala against a clear vacancy and under the provisions of Government order No.1285-GAD of 2001 dated 06-11- 2001, also was entitled for regularization w.e.f. the date, the petitioner has completed seven years of service as such i.e. w.e.f. 15-12-2006.
f) It is stated this government order gives benefit to ad-hoc employees, but the petitioner who was employed on consolidated salary cannot be in less advantageous position than the ad-hoc employee, therefore what applies to the ad-hoc employees equally applies to the consolidated paid employee like the petitioner.
g) That the Adhoc, Contractual and Consolidated employees are of the same footing and to be treated alike is evident from the fact that in the year 2010, the Government came :: 5 :: T.A. No. 61/199/2023 out with the J&K Civil Services (Special Provisions) Act 2010 dated 29-04-2010, under which, Adhoc, Contractual and consolidated employees were equated, put at par and sought to be regularized subject to certain conditions.
h) That instead of regularizing the services of the petitioner under SRO 64 of 1994 or under Government order No. 1285-GAD of 2001 dated 06- 11-2001, the respondents regularized the services of the petitioner under J&K Civil Services (Special Provisions) Act 2010 dated 29-04-2010, after two year after coming into force of the J&K Civil Services(Special Provisions) Act 2010 dated 29-04-2010 i.e. in 2012 vide Government Order No. 49- HME of 2012 dated 20-01-2012, in the grade of 4440-7440 + 1300 G.P, on the post of Safaiwala, after rendering 13 years of service as Consolidated Safaiwala, and vide order No. 5211-12 dated 21-02-2012 petitioner was adjusted against an available vacancy in Sub- Centre Jatter Block Assar.
i) It is stated that the order No. 5211-12 dated 21-02-2012 provided that the appointment of the petitioner shall be governed by SRO 400 of 2009 dated 24-12-2009, under which, an employee is not entitled for pensionary benefits.
j) That whereas the petitioner an appointee of 1999 on consolidated basis was regularized as Sweeper only on 20- 01-2012 vide Government Order No. 49- HME of 2012, dated 20-01-2012, the proforma respondent No. 5, who was initially engaged as Sweeper on consolidated basis on 18-07-2001 was regularized as such, vide Government Order No. 487-HME OF 2011 dated 15-09-2011 i.e. much before the petitioner's regularization.
k) That not only the proforma respondent No. 5, who was initially engaged in 2001 as Sweeper (consolidated basis like the petitioner), much after the engagement of the petitioner (petitioner was initially engaged in 1999), was :: 6 :: T.A. No. 61/199/2023 regularized ahead of the petitioner in the year 2011, but apart from proforma respondent, four other consolidated employees namely (i) Zahoor Ahmad Sheikh S/o Sh Habibullah Sheikh A/P Nursing orderly Office of the Medical Superintendent, L.D Hospital Srinagar (initially engaged vide Order No. Est -111/2594-95 dated 20-12- 2001); (ii) Arshid Ahmad Malik S/o Sh Abdul Samad Malik A/P Office of the Medical Superintendent, L.D Hospital Srinagar (initially engaged vide Order No. Est -111 /385- 87 dated 14- 05-2001); (iii) Gh Nabi Lone, Nursing Orderly, Govt. Psychiatric Diseases Hospital Srinagar (Initially engaged on 27-06-2002) and (iv) Parveena Akhtar Class 4th employee, Govt. Psychiatric Diseases Hospital Srinagar (initially engaged on 27-06-2002), even when junior to the petitioner, were regularized vide Government order No. 487-HME OF 2011 dated 15- 09-2011.
l) That the petitioner superannuated on 31-01-2014 and order to that effect was passed by respondent BMO Assar, under endorsement No. 737-39 dated31-01-2014.
m) That a certificate in favour of the petitioner was issued by the respondent BMO Assar, to the effect that the petitioner, who was working as Consolidated Safaiwala w.e.f 16-12- 1999 to 22-02-2012 at A/D Shamthi Block Assar was later confirmed on that post vide G.O No. 49 HME of 2012 dated 20.01.2012 and was posted in Sub Center Jatter Block Assar.
n) That while petitioner was deprived to release the arrears of revised salary as per 6th CPC and pension, filed this writ petition.
4. The respondents have filed their reply statement wherein they have averred as follows:
:: 7 :: T.A. No. 61/199/2023 a. That the petitioner, in the case, has sought directions, inter-alia, to declare the first and second proviso to Section 5 of the J&K Civil Services (Special Provision) Act, 2010 as ultra-vires and further to regularize the service of the petitioner as Safaiwala w.e.f. 15-12-2006, the date, the petitioner has completed seven years of service as consolidated employee with further direction to release consequential benefits including promotion, pension and other monetary benefits and, furthermore to regularize the service of the petitioner under the provisions of Government Order No:-1285-GAD of 2001, dated 06-11- 2001 w.e.f. the date, the petitioner has completed seven years of service as consolidated paid employee i.e. w.e.f. 15- 12-2006 and to fix the service pension of the petitioner, taking the petitioner as if he was regularized on 15-12- 2006.
b. That, in this context, it is respectfully submitted that the petitioner was engaged/promoted as consolidated Safaiwala vide order dated 15-12-1999. The services of the petitioner has been regularized prospectively in terms of J&K Civil Services (Special Provision) Act, 2010 vide Govt. Order No:-49-HME of 2012, dated 20-01-2012 issued by the Administrative Department the recommendations of Empowered Committee constituted under the Act. c. That it is respectfully submitted that the government took a policy decision and framed a policy for regularization of Adhoc, contractual and consolidated employees in terms of J&K Civil Services (Special Provision) Act, 2010 for regularization of the employees appointed on adhoc, contractual and consolidated basis and accordingly the case of the petitioner was processed in light of provisions of the Act and his services have been regularized in terms of J&K Civil Services Special Provision) Act, 2010. The :: 8 :: T.A. No. 61/199/2023 provisos of section 5 of J&K Civil Services (Special Provision) Act 2010 provides that the regularization of the eligible adhoc 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. In view of this rule position the petitioner is not entitled for regularization of her services retrospectively from the date he has completed seven years of service as there is no such provision in the Act.
d. That, it is respectfully submitted that the services of the petitioner has been regularized vide Govt. Order No:-49- HME of 2012, dated 20-01-2012 as recommended/cleared by the Empowered Committee constituted in terms of J&K Civil Services (Special Provision) Act 2010 which is accepted by the petitioner in the year 2012 and drew his salary and increments since the year 2012 onwards in terms of said scheme.
e. That, it is respectfully submitted that vide Government Order No:-1285- GAD of 2001, dated 06-11-2001 which deals with regularization of Adhoc appointments against non-gazetted posts made by various departments was modified by virtue of Govt. Order No:-168-GAD of 2004, dated 09-02- 2004 which provides as under:-
"Now, therefore, in supersession of Govt. Order 1285-GAD of 2001, dated 06-11-2001, It is hereby ordered as under:-
i. All Adhoc appointments made after 28-07-1989 onwards and which continued in service till the date of issue of this order shall be converted into contractual appointments w.e.f. 1st Feb, 2004, and these contractual appointments shall subsists till 31st Dec 2004 or till selections against these posts are made by the concerned selection agencies whichever be earlier.
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ii. The contractual appointees, referred to in supra
para (i) above shall be required to execute in agreement in accordance with the format appended to the Jammu and Kashmir Contractual Appointment Rules (notified bide SRO-255, dated 5th of August, 2003) with the concerned drawing and disbursing officer upto 25th of Feb, 2004. Copies of the agreement shall be sent by the concerned drawing and disbursing officer to the General Administration Department by or before 5th March 2004.
f. That it is respectfully submitted that in view of the above stated factual position the petitioner cannot seek the benefit of said order which stood modified by virtue of Govt. Order No:-168-GAD of 2004, dated 09-02- 2004, therefore, the petitioner cannot be granted the benefit of retrospective regularization as the Govt. Order No:-1285-GAD of 2001, is not in force, having been superseded by virtue of Govt. Order No:-168- GAD of 2004, dated 09-02-2004. g. That the petitioner has no case at all and the claim of the petitioner is not legally sustainable. Therefore, the writ petition is legally as well as factually misconceived and misdirected. The petition is devoid of legal force and therefore, deserves to be dismissed.
h. That, it is respectfully submitted that this Hon'ble High Court in catena of authorities has held that regularization of Adhoc, contractual or consolidated appointees cannot claim regularization of services retrospectively and turned down the plea of an employee who was seeking regularization from the date he has completed seven years of adhoc services. Hence, on this count also, the writ petition is liable to be dismissed.
5. Heard learned counsel for the parties and perused the material on record.
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6. The case of the petitioner is that he was initially engaged as part-
time Safai Karamchari in September 1984 and further promoted as consolidated Safaiwala against a clear vacancy on 15.12.1999 in the Health Department. His services were regularized on 20.01.2012 under the J&K Civil Services (Special Provisions) Act 2010. The facts are not disputed by the respondents.
7. It is also pertinent to mention here that one private respondent no. 5, who was initially engaged in 2001 as Sweeper (consolidated basis like petitioner) was regularized in the year 2011 and some other similarly situated persons were also regularized in the year 2011.
Further, as per provisions of Government order No. 1285-GAD of 2001 dated 06.11.2001, wherein the adhoc / daily rated wager employees were entitled for regularization after completion of seven years' service, petitioner's services to be regularized on completion of seven years' service i.e. in 2006 not in the year 2012 mere technicality that petitioner is not adhoc / daily rated wager employee.
8. The legal position settled on the issue by the Hon'ble Division Bench of the Hon'ble High Court, Jammu and Kashmir in cases titled as State of J&K & Ors. Vs Mushtaq Ahmed Sohail , State & Ors. Vs Anuradha and Ghar Singh Vs University of Jammu & Ors.
9. The relevant extracts of the aforesaid judgments is reproduced as under:-
:: 11 :: T.A. No. 61/199/2023 Relevant extract of the Hon'ble Division Bench judgement in case titled State of J&K & Ors Vs Mushtaq Ahmed Sohail:-
"13. As against order No. 144-GAD of 2001 dated 02.02.2001, the daily wagers/work charged employees, who were aggrieved, filed number of writ petitions. Finally the judgment passed in those writ petitions were challenged by medium of bunch of LPAs with lead case Ashok Kumar v. State of J&K &Ors. which have been decided vide judgment dated 26.07.2002, reported in 2003(II) S.L.J 475, 2003 (4) JKJ [HC] 93. In the reported judgment, position vis-a-vis right of casual lab- our/daily wagers/adhoc employees, has been taken note of and as many as 15 directions were issued as contained in Para 45 of the judgment. It may not be out of place to mention here that the cut-off date has also been extended to 06.11.2001 in terms of Govt. order No. 1285-GAD of 2001 dated 06.11.2001 which has been issued in pursuance to Cabinet Decision No. 135/11(B) dated 10.09.2001.
The above referred judgment was challenged before the Hon'ble Apex Court by medium of Civil Appeal No. 9298 of 2003 and Civil Appeal No. 9299 of 2003. While disposing of Civil Appeal No. 9299 of 2003, the following order has been passed:-
"Our attention has been drawn to the judgment of the Constitution Bench of this Court in Secretary, State of Karnataka and others v. Umadevi and others (supra). In our view, this judgment has no application in view of the fact that the respondents are employed by the State Government and are claiming the benefit of a scheme formulated by the Notification dated 31st January, 1994, as modified by Notification dated 6th November, 2001. The High Court is perfectly justified in its judgment. We are satisfied that the impugned judgment of the High Court needs no interference at our hands. In the result, the Appeal is dismissed. No costs."
14. What would emerge from above is that the daily rated workers/work charged employees who were appointed after imposition of ban and continued beyond ban period were given benefit of notification dated 6th November, 2001, which, in-effect, would mean that the daily rated workers/work charged employees engaged even after 01.04.1994 till 6th November, 2001, were also entitled to be regularized in terms of the Jammu and Kashmir Daily Rated Workers/Work- Charged Employees (Regularization) Rules, 1994.
15. Again another aspect regarding writ petitioners is that they are stated to have been engaged as casual labours. The question for consideration is as to whether they, in-effect, were casual labours or under the style of casual labourers, in effect, they were working as daily rated workers. Casual labour/Worker and Daily Rated Worker are defined under Section 2(b) and (f) of the Rules of 1994 which reads as under:- "(b) "Casual Labour/Worker" means a person who is engaged through an appointment order or otherwise on daily rated basis for rendering casual services to a Department. (f) "Daily Rated Worker" means a person engaged on daily wage basis at the rates sanctioned by the Government from time to time."
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16. The marking difference in between two clauses is that the engagement of the casual labour has to be occasional otherwise daily wages payable to the daily rated workers or the casual labours is the same but casual labour will get daily wages only for such period for which he shall be occasionally engaged whereas engagement of daily rated workers is not on occasional basis.
17. In the instant case writ petitioners styled to have been engaged as casual labours, in-effect, were daily rated workers because they were not engaged occasionally. They have been working continuously. Division Bench of this Court in the reported judgment, as referred above, at para 40 have dealt with the position of casual labours, same is reproduced herein-below:
"CASUAL EMPLOYEES:
The cases of casual employees be also examined. In this regard, it would be apt to note the dictionary meaning of the work 'casual'. In Black's Law Dictionary, Sixth. Edition, the meaning of word 'casual' has been defined as "occurring without regularity", "occasional", "impermanent" and "as employment for irregular periods".
A perusal of above meaning would indicate that where an employee has continued to work for sufficiently long period, then, it would not be apt to call him having been appointed on casual basis.
As a matter of fact, this aspect of the matter was considered in Piara Singh's case (supra). The relevant observations made in para 51 of the judgment stand already noticed above for facility of reference, the relevant observations made in this paragraph are being quoted again:- "If a casual labourer is continued for a fairly long spell say two or three years- a presumption may arise that there is a regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation, while doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person."
18. In view of the observations of the Hon'ble Apex Court quoted above, the writ petitioners having been working for long period are also entitled to be considered for regularization.
19. For the reasons stated hereinabove, the appeal is dismissed, judgment impugned dated 05.02.2010 providing for according consideration to the cases of the writ petitioners for regularization of their services is maintained. The appellants are directed to consider the cases of the writ petitioners for regularization within three months from today."
Relevant extract of the Hon'ble Division Bench passed in case titled State & Ors Vs Anuradha :-
" 8.There is no scope for any disagreement with the writ court that mere nomenclature is not decisive for opining on status of a worker engaged in any of the Government Departments. **************.
In case, the worker is allowed to continue for sufficiently long time without his engagement being dependent upon chance or actual requirement of his service and is transferred from one position to another position, such worker, :: 13 :: T.A. No. 61/199/2023 notwithstanding nomenclature used by the authority engaged, is to be taken as daily wager and not a casual worker.**********".
Relevant extract of judgment passed in case of Ghar Singh Vs University of Jammu & ors:-
"For the forgoing reasons, I find no merits in the pleas taken by Mr. Abrol, Learned counsel appearing on behalf of the University, to justify denial of relief prayed for by the petitioner.
This Writ petitioner is, accordingly, allowed and the petitioner is held entitled to regularization as Security Guard w.e.f 1st April, 2005 with all consequential benefits including arrears of Salary w.e.f 1st April, 2005 till actual realization made in the year 2010.
The pensionary benefits, if any, received by the petitioner from University of Jammu shall also be suitably revised and arrears, if any, due to him paid to the petitioner.
Let the requisite exercise to comply with these directions be undertaken and completed by the University within a period of two months from the date copy of this judgment is served upon the respondents.
10. Admittedly, petitioner who stood appointed on consolidated basis against the clear vacancy, his status cannot be worse than that of an adhoc or daily rated wager. Hence, under SRO 64 of 1994 and as per provisions of Government order No. 1285-GAD of 2001 dated 06.11.2001 and as per law which are discussed above, petitioner shall be regularized on the date of competition of seven years' service i.e. 15.12.2006 and not as per Section of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 which is discriminative to those employees who were appointed on consolidated basis, contractual basis or ad hoc basis much before 2010 and completed seven years of service before 2010.
11. In view of the above discussions and facts and circumstances of the case, T.A. is allowed, the respondents are directed to regularize the :: 14 :: T.A. No. 61/199/2023 services of the petitioner from the date the petitioner has completed his seven years' service i.e. 15.12.2006 with all benefits including arrears from such dates.
The needful as above shall be done within a period of three months from the date of receipt of copy of the order. No costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)
Member (A) Member (J)
/JNS/
Jay Narayan Digitally
signed by Jay
Singh Narayan Singh