SRINAGAR, June 4: The Central Administrative Tribunal has turned down a plea of employees working in the Health Department seeking regularization of their services retrospectively citing the departmental communications cannot confer any right beyond statutory framework.
The Division Bench of Ritu Tagor and Prasant Kumar of CAT Srinagar bench dismissed the plea of class IV employees of Health and Medical Education Department seeking their regularization from 2009 instead of 2012 when they completed seven years continuous service in terms of communication dated 25.7.2002.
The services of the applicants were regularized vide Government Order No.415-HME of 2012 dated 26.06.2012 on the posts of Class-IV/Sweepers with immediate effect.
The bench, however, said that the claim of the applicants is required to be examined in the light of the provisions of the Act of 2010. Therefore, Communication No. ME NG/313/2002 dated 25.07.2002 cannot be construed so as to confer any right inconsistent with or beyond the statutory framework governing the field.
The bench held that the executive instructions, administrative communications, or Government Orders cannot override or operate contrary to statutory provisions.
The bench said that once the field is occupied by a legislative enactment, the rights and obligations of the parties are required to be determined in accordance with the statutory scheme. Executive instructions may supplement the law where the statute is silent, but they cannot supplant, modify, or dilute the mandate of the statute.
The bench while resolving the issue said the material question that falls for adjudication is whether the applicants, under the Act of 2010, are entitled to retrospective regularization with effect from 2009, from the date on which they completed seven years of continuous and uninterrupted service, or in the alternate from the appointed day, i.e. 24.4.2010, on which day the Act came into force.
The bench after having through the Act said the proviso, therefore, leaves no doubt that under the statutory scheme, regularization is intended to operate prospectively and not retrospectively from the date of initial engagement or from the date of completion of seven years of ad hoc, contractual, or consolidated service.
Consequently, the claim of the applicants for retrospective regularization from the year 2009 solely on the basis of the aforesaid communication is legally unsustainable”, read the judgment. “No person can claim regularization in service until and unless the regularization is provided under any law, rule or government order.
Once the applicants accepted regularization under the provisions of Jammu and Kashmir Civil Service (Special Provisions) Act, 2010, they cannot selectively invoke the beneficial part of the enactment while shunning the statutory limitation accompanying the same” Court added
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