Jammu, Aug 01: In Transferred Application No. 61/79/2025 titled Neena Devi VERSUS 1. State of Jammu & Kashmir Through its Chief Secretary, J&K Government, Civil Secrett. Jammu/Srinagar. 2. Commissioner/Secretary to Govt. Technical Education Department, J&K Government, Civil Sectt. Jammu/Srinagar & ors after hearing Advocate F A Natnoo on behalf of petitioner, CAT ordered as under:-
The instant petition was initially filed before the Hon’ble High Court of Jammu and Kashmir, and later on it was transferred to this Tribunal, and the petitioner had sought the following reliefs: - “i. Writ of certiorari quashing advertisement notice issued under endorsement no DDJ/Aca/12/1506-26 dated 28-06-2012 and published in daily newspaper namely Kashmir times in its issue dated 30-6-2012 to the extent it directs notification of the post of Instructor in cutting and sewing trade at Industrial training Institute, Basholi at serial no.11 of the said advertisement notice;
ii. Writ the of mandamus commanding respondents to process her case for her regularization in terms of the provision of the Jammu and Kashmir Civil Service (Special Provision) Act 2010 and till completion of her requisite period of seven year allow the petitioner to continue to discharge her duties as Instructor sewing and cutting at Industrial training Institute (ITI) Basholi held by the petitioner since 2006 on consolidated basis;
iii. Writ of prohibition restraining the respondents from making any appointment/engagement against the post of Instructor sewing and cutting in Industrial Training Institute Basohli held by the petitioner since 2006 by any mode i.e. by regular selection or by adjustment of any other person i.e. adhoc or regular basis; :: 3 :: T.A. No. 61/79/2025 Any other interim or final relief which this Hon'ble Court may deem just and proper in the circumstances of the case.”
Being aggrieved the applicant had initially invoked the writ jurisdiction of the Hon’ble High Court by way of filling SWP 1576/2012 seeking quashment of advertisement notice issued under endorsement no DDJ/ACA/12/1506-26 dated 28-06- 2012 to the extent the same directs notification of the post Instructor in cutting and sewing trade at Industrial training Institute, Basholi at serial no. 11, with further prayer for commanding the respondents to process her case for the regularization in terms of the provision of the Jammu and Kashmir Civil Service (Special Provision) Act 2010 and till completion of her requisite period of seven year allow the applicant had also sought her continuation for discharge her duties as instructor sewing and cutting at Industrial training institute ITI Basholi held by the petitioner since 2006. The applicant had also sought restraint against the respondents from making any arrangement/engagement against the posts of instructor sewing and cutting in Industrial Training Institute Basohli, held by her since 2006 by any mode i.e. by regular selection or by adjustment of any other person i.e. adhoc or regular basis.
Regularization of ad hoc or contractual or consolidated appointees- Notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or any 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 the clear vacancy or post; (ii) that he continues as such on the appointed day: (iii) that he possessed the requisite 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 proceeding 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 day or thereafter but before such regularization. Provided further that any ad hoc or contractual or consolidated appointee who has completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled for regularization under this act." Section 5 indicates that irrespective of any contrary position contained in any law or any judgment or order of any court or Tribunal , the adhoc or contractual or consolidated employees shall be regularized , if he/she has been appointed against a clear vacancy or post subject to fulfillment of other conditions mentioned in the said section. This Act was repealed by J&K Reorganization Act, 2019 and J&K Reorganization ( Adaptation of State Laws) Order, 2020 which provided for following two things:- (i). The General Clauses Act, 1987 applies for the interpretation of this order as it applies for the interpretation of laws in force in the territory of India. (ii). The Repeal or amendment of any law specified in the schedule to this order, which includes J&K Civil Services ( Special Provisions) Act, 2010 shall not affect any right, privilege , obligation or liability acquired, accrued, incurred under law so repealed. Section-6 of the General Clauses Act, 1987 , interalia, provides that where any Central Act or Regulation made after the commencement of General Clauses Act, repeals any enactment made thereafter, the repeal shall not affect any right, privilege, obligation or liability acquired , accrued or incurred under any enactment so repealed, meaning thereby the repeal of the aforesaid Act shall not come in way of the case of the applicant for her regularization.
In view of the aforesaid provisions the applicant appear to have been near to the period of completing the seven years continuous service which is required for regularization in terms of the provisions of the Act (Supra) seems to have been attempted to be disengaged by the respondents by way of the advertisement notice impugned in dehorse of the provision of the section 4 of the Act (Supra) which excludes the post held by the member on adhoc/contractual/consolidated basis from the purview of the recruitment agencies.
The case projected by the respondents in their objections that the applicant was engaged in the year 2012 only, seems to be contrary to the pleading available on record more particularly initial selection process and consequential order of engagement dated 25-09-2006 , order dated 28-06-2012 issued by the respondent no.5 itself clearly specifying that the applicant was engaged vide order dated 25-06-2006 and working as such since then and is also receiving the wages against the vacant post, which fact gets even evident from the recent experience certificate bearing no. ITI/BAS/2024/416 dated 26-12-2024 placed on record by the applicant by way of rejoinder affidavit, which has been issued from the office of respondent no.5 itself with remarks that the applicant “is working in the institute as Vocational Instructor in Cutting & Sewing Trade on Consolidated Basis w.e.f 25-09-2006 to till date and during the said period her work and conduct remained satisfactory”.
The Hon’ble Apex Court in SLP No. 11086 of 2024 titled Jaggo Vs Union of India & Ors has held that it is imperative for government departments to lead by example in providing fair and stable employment and engaging workers on temporary basis for extended periods, especially when their roles are integral to the organization’s functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale, the operative part of the aforesaid judgment is as under:-
While the judgment in Uma Devi ( Supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long serving employees. This judgment aimed to distinguish between “illegal and irregular “ appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one- time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi ( supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment’s explicit acknowledgement of cases where regularization is appropriate. This selective application distorts the judgment’s spirit and purpose , effectively weaponizing it against employees who have rendered indispensable services over decades.
In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on temporary basis for extended periods, especially when their roles are integral to the organization’s functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.
28. In view of the above discussion and findings, the appeals are allowed. The impugned orders passed by the High Court and the Tribunal are set aside and the Original Application is allowed ******** 14. The stand taken and the plea raised by the respondents is also not tenable in view of the fact that the Act of 2010 (Supra) has been enacted after the 2006 judgment of Uma Devi and the constitutional validity of the Act of 2010 has not been challenged by anybody.
The aggrieved persons have even approached the doors of Hon'ble High Court and Supreme Court for seeking their regularization in terms of J&K Civil Services(Special Provision) Act, 2010 and they have been allowed the relief and the position of law has been cleared by the Division Bench of Hon'ble High Court vide its Judgment dated 17.11.2021 passed in LPA No.22/2019 titled State of J&K &Ors Vs. Abdul Majid &Ors, wherein in para-8 of the said Judgment it has been held that the Act of 2010 came to be enacted and enforced pursuant to the directions of the Supreme Court in the case of Uma Devi (supra) which directed for framing a proper one time scheme for regularization of temporary workers and in para-16 the Hon'ble Division Bench justified the regularization in terms of the Act of 2010 and held that there seems to be no violation of the Constitutional mandate or even the decision of the Apex Court in Uma Devi's case which itself provides for framing of a scheme for one time regularization.
The aforesaid Judgment of Hon'ble Division Bench of the J&K High Court was further assailed by the Government of Jammu and Kashmir before the Hon'ble Supreme Court of India in SLP bearing No.6161/2022 titled State of J&K Vs. Abdul Majid Bhat & Ors and the said SLP has been dismissed by the Hon'ble Supreme Court which resulted in the issuance of Govt. Order No.24-JK (TR) of 2023 dated 09.03.2023 by virtue of which the Transport Department regularized the services of 07 consolidated employees in terms of the Act of 2010. 16. The Hon’ble Supreme Court in Uma Devi’s judgement while differentiating the “illegal appointment and “irregular appointment” under para- 44 of the judgement has further been pleased to direct the State/UT Governments for regularisation of services of those employees having worked for ten years or more as one time measure.
The applicant as evident from the copy of the experience certificate placed on record by way of rejoinder affidavit, has by now rendered almost 19 years of service, as such in our opinion and in view of the settled legal position detailed above cannot be deprived of regularization of her services more so in view of the fact that respondents have been regularizing the services of the similarly situated persons as that of the applicant one such example brought to the notice of this Tribunal by the applicant is of one Sh. Daljeet Singh S/o Makhan Singh who on recommendation of the empowered committee came to be regularized in year 2017 more particularly more particularly on in Technical Education Department in relaxation of the upper age bar , in terms of the provisions of J&K Civil Services ( Special Provisions ) act , 2010 and subsequently vide order dated 10-10-2023 has further been cleared by the respondents for grant of upgraded pre-revised grade in view of his completion of 5 years of service, the aforesaid action and inaction on part of the respondents in regularizing some employees and not others like the applicant, on the face of it is illegal, unconstitutional and arbitrary thus cannot stand the test of law laid down under Article 14 and 16 of the Constitution of India, more particularly in view of the judgment dated 03-07- 2023’passed by the Hon’ble Apex Court in case of Raman Kumar & Ors. Vs. Union of India &Ors, SLP No. 7898/2020, which has been relied upon by the applicant in support of her submissions made in rejoinder affidavit and wherein it has been held as under:- “Indisputably, the appellants herein have completed service of more than ten years. Even this Court in the case of Ravi Verma And Others v. Union of India and Others (Civil Appeal No(s).2795-2796 of 2018) decided on 13.03.2018 found that the act of Regularizing the services of some employees And not regularizing the services of the Others is discriminatory and violative of Article 14 of the Constitution of India. Mrs. Aishwarya Bhati, learned Additional Solicitor General of India appearing on behalf of the respondents, has vehemently opposed the petition. She submits that since Posts were not available, and, thereafter, Group ‘D’ posts have been abolished, the appellants could not have been regularized.
The services of the appellants are directed to be regularized from the date on which the Services of other 35 employees were regularized and the backwages and other consequential benefits etc., to which the appellants would be entitled to, shall be paid to them within a period of six months from today.
Having given careful consideration to the submissions advanced by the parties through their respective counsels and the material on record, we find that the applicant’s long and un- interrupted service, for period extending well beyond nineteen years cannot be brushed aside merely on the ground that the respondents by virtue of advertisement impugned sought to replace the applicant by similar set of employees. The abrupt attempt seems to be nothing but arbitrary action on part of the respondents and devoid of any justification, and thus violative of fundamental principles of natural justice. It is evident from the record that the role of the applicant is not only essential but also indistinguishable from those of regular employees as well.
The sustained contribution over extended period coupled with absence of any adverse remarks , warrants equitable treatment and regularization of her services and denial of this benefit in our view would amount to manifest injustice to the applicant.
In view of the above discussions and facts and circumstances of the case, the instant TA/Petition is allowed, impugned advertisement notice to the extent the same directs notification of the post Instructor in cutting and sewing trade at Industrial Training Institute, Basholi at serial no. 11 is set aside and the respondents are directed to regularize the services of the applicant from the date of completion of her seven years of service with all consequential benefits including arrears from such date.
The needful as above shall be done within a period of two months from the date of receipt of copy of this order is made available to the respondents. No order as to costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member Judicial Member
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