SRINAGAR: The Full Bench of the Jammu and Kashmir and Ladakh High Court has held that the government cannot, at its discretion, decide when an eligible ad hoc, contractual or consolidated employee should be regularised, ruling that the right to regularisation accrues once the statutory conditions are fulfilled.
The judgment, delivered by Chief Justice (Acting) Sanjeev Kumar and Justices Sanjay Dhar and Mohd Yousuf Wani, settles a long-standing conflict between two Division Bench judgments on the interpretation of Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010.
The reference arose after conflicting views were expressed in Rabia Shah v State of Jammu and Kashmir and Abdul Majid Magray v State of Jammu and Kashmir over the date from which regularisation of eligible employees should take effect.
Under Section 5 of the 2010 Act, an ad hoc, contractual or consolidated appointee is eligible for regularisation on meeting five conditions, including appointment against a clear vacancy, possession of the requisite qualification, continuation in service on the appointed day, absence of pending disciplinary or criminal proceedings and completion of seven years of service.
The Full Bench held that an employee who has completed seven years of service and fulfils the other statutory requirements acquires the right to regularisation immediately. The subsequent formal order by the competent authority does not determine when that right came into existence.
The court rejected an interpretation under which the effective date of regularisation would depend upon when the government chose to pass the formal order. Such an approach, it said, could result in similarly placed employees being treated differently merely because their cases were processed at different times.
The Bench also clarified that the 150-day period prescribed under Section 10 of the Act is procedural and cannot be imported into Section 5 to postpone the effective date of regularisation.
It held that employees who had completed seven years of service on the appointed day were entitled to regularisation from that date, while those completing seven years subsequently would acquire the right upon completion of the required period.
The Full Bench overruled Abdul Majid Magray to the extent that it held regularisation would take effect only from the date of the formal order. It approved Rabia Shah insofar as it held that the government could not postpone regularisation at its will, but rejected its view that the benefit would take effect only after 150 days.
The court directed that its ruling would have prospective effect and apply to pending and future cases. Matters already settled or finally disposed of will not be reopened.
