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Court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations: The High Court of Jammu & Kashmir and Ladakh

A plain reading of Section 3 and Section 5 of the Act provides for the regularization of services of ad hoc or contractual employees including those appointed on consolidated pay if they have been appointed against a clear vacancy or post and have completed 7 years of service, provided further that such benefit would not be extended to part-time or seasonal employees including those who are being paid out of the local funds or the contingent grants. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of State of Jammu and Kashmir and others v. Abdul Majid and others [LPA No. 22 of 2019] which was decided upon by a two-judge bench comprising Hon’ble Chief Justice and Justice Mohan Lal on 17th November 2021.

The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners/respondents were appointed on temporary basis as orderlies in the Transport Department in the year 1999, some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with intermittent break of a day or so. After the enforcement of the above Act, as the petitioners/ respondents have completed more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein, they claimed regularization but their claim was rejected on the ground that they were drawing salary from the contingent fund. The petitioners/respondents challenged the aforesaid rejection order and sought direction for regularization by filing SWP No. 250/2013, Abdul Majid and others v. State of J&K and others. The court allowed the aforesaid writ petition on 12.09.2014 and quashed the order refusing regularization of services of the petitioners/respondents with the direction to the official respondents to consider their cases for the purposes of regularization strictly in accordance with the aforesaid Act and that the ground that the petitioners/respondents were being paid out of the contingent fund would not be a ground for refusing regularization to them. Admittedly, the aforesaid order is final and conclusive as it was never questioned by any party in any higher forum.

The court perused the facts and arguments presented. It was of the opinion that “The recent decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association, Bandipora, AIR 2017 Supreme Court 11 that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject, is of no help to the appellants in the present case inasmuch as no illegality has been pointed out at any stage in the appointment of the petitioners /respondents. They may have been irregularly appointed and it is for this reason their cases fell for consideration of regularization in accordance with the statutory provisions of the above Act. The writ court has considered their cases for regularization in the light of the provisions of the Act without impinging upon the mandate of the Apex Court. The petitioners/respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations. In view of all that has been said above, we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs.”

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Judgment reviewed by Aryan Bajaj

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