The scheme for regularization by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments: The Hon’ble High Court of Jammu & Kashmir and Ladakh

The decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association, Bandipora 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. In the Hon’ble High Court of Jammu & Kashmir and Ladakh led through the single bench by Justice Pankaj Mithal in the matters of State of Jammu and Kashmir & Ors. v. Abdul Majid & Ors.[LPA/22/2019].

The facts of the case are the State of Jammu and Kashmir, the Transport Commissioner and the Regional Transport Officer, Kathua has together preferred this letters patent appeal, holding the petitioners therein entitled to regularization of services in terms of Jammu & Kashmir Civil Services (Special Provisions) Act, 2010 (for short ‘the Act’).

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 a 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 an 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 a salary from the contingent fund.

The counsel for the state appellants submits that the court is justified in holding the petitioners to be entitled to regularization as the aforesaid Act was not applicable to them. They were being paid salary out of the ‘Contingent Fund’ and employees drawing a salary from the contingent fund are not entitled to regularization under the Act. Moreover, the petitioners/ respondents were not engaged against any clear vacancy which is a prerequisite for seeking regularization in services. It is also submitted that in view of the Secretary, State of Karnataka and Others v. Umadevi and others, AIR 2006 Supreme Court 1806, no appointment is permissible in law dehors the rules or the process of selection envisaged by the constitutional scheme and as such appointment so made are not required to be regularized.

Learned counsel appearing for the petitioners/respondents submits that the petitioners/ respondents fulfil all the necessary conditions for the regularization of services under the aforesaid Act. The appointment of the petitioners/respondents was against the clear vacancies and as such, they could not have been denied regularization on the aforesaid count. Accordingly, the writ court has rightly quashed the consideration order rejecting the claim of the petitioners/respondents. The aforesaid Act is the outcome of the decision of the Supreme Court in the case of Umadevi (supra) and as such, any regularization within the framework of the aforesaid Act is not illegal or against the constitutional mandate.

The court concluded “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.

The court directed “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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Judgement reviewed by Pranav Vyas.

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