Srinagar, Sept. 5, KDC: In an unsparing critique of historical recruitment practices, a Full Bench of the High Court of Jammu & Kashmir and Ladakh has observed that successive governments in the erstwhile State consistently indulged in backdoor appointments, bypassing constitutional mandates to place chosen individuals into public service without advertisement notifications or open competition.
The Larger Bench, comprising Acting Chief Justice Sanjeev Kumar, Justice Sanjay Dhar, and Justice Mohd. Yousuf Wani, made the observations while settling an eight-year-old judicial conflict regarding the effective date of regularization for temporary employees under the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010.
Delivering the judgment in a Letters Patent Appeal (LPA 70/2022) filed by the Forest Ecology Department against employee Neeru Pandita, Justice Sanjeev Kumar detailed the administrative history that prompted the enactment of the 2010 legislation:
“It is an undeniable fact that successive Governments in the erstwhile State of Jammu and Kashmir had been consistently indulging in backdoor appointments. Thousands of appointments to Government service were made without issuing advertisement notifications and without conducting any selection process. The men in power picked up persons of their choice and appointed them against different posts by giving them different nomenclatures. Some were appointed as daily wagers, some as casual workers and some as contractual employees. There were persons engaged against substantive vacant posts on ad hoc and consolidated basis as well.”
The Bench observed that individuals brought into the administration on a temporary footing through backdoor channels were subsequently conferred legitimacy through successive executive policies, starting with SRO 64 of March 24, 1994, for daily-rated workers, followed by Government Order No. 1220-GAD of September 11, 1989, and Government Order No. 1285-GAD of November 6, 2001, for ad hoc workers. To formalize this framework, the State Legislature enacted the Act of 2010, which came into force on the appointed day of April 28, 2010.
The reference before the Full Bench arose on September 11, 2024, after a Division Bench noted irreconcilable conflicts between two coordinate Benches. In LPASW No. 29/2019 (Abdul Majid Magray v. State of J&K), a Division Bench held in 2022 that regularization takes effect strictly from the date a formal order is passed, regardless of when seven years of service were completed. In contrast, an earlier Division Bench in Rabia Shah v. State of J&K (2017) held that eligible employees acquire an accrued right to regularization, but imported the 150-day procedural timeframe from Section 10 into Section 5, ruling that regularization takes effect 150 days after eligibility is acquired.
Resolving the statutory dispute, the Full Bench held that the right to regularization is statutory and cannot be left to the arbitrary discretion or delays of the executive.
“If we interpret the provision literally, as has been done by the Division Bench in Abdul Majid Magray’s case, it would mean that the effective date of regularization of an eligible ad hoc, contractual or consolidated appointee shall not be definite but shall depend upon the whims and caprice of the Government. And that would render the provision ultra vires the Constitution, inasmuch as it would be left to the choice of the Government to regularize persons from a date of its choosing, thereby creating discrimination between similarly situated employees.”
The Court clarified that under Section 5, any ad hoc, contractual, or consolidated employee who completed seven years of service on or before April 28, 2010, and met the five statutory criteria, acquired an immediate right to be regularized with effect from April 28, 2010, itself. Whether an employee completed seven, ten, or twenty years before that date, all stand on equal footing and cannot be regularized from any date anterior to April 28, 2010.
Regarding appointees covered under the second proviso to Section 5, who had not completed seven years by April 28, 2010, the Bench ruled that they become entitled to regularization immediately upon completing seven years of service. Applying the doctrine of surplusage and reading down the first proviso, the Court declared the phrase “or thereafter” in the first proviso as unnecessary surplusage that cannot be used to postpone statutory rights.
Addressing Section 10, the Bench ruled that the 150-day schedule prescribed for the Empowered Committee is directory and purely procedural, holding that bureaucratic delays cannot defer the date of regularization.
Formally answering the reference, the Full Bench held that Proviso 1 to Section 5 does not confer unlimited discretion on the government to determine the date of regularization and must be interpreted along with the main provision.
The Bench further held that Section 10 is procedural in nature, and its 150-day period cannot be applied to Section 5 to postpone the effective date of regularization.
The Full Bench also clarified the legal position laid down in the earlier judgments of Abdul Majid Magray and Rabia Shah. It overruled Abdul Majid Magray to the extent that it held regularization would take effect only from the date of the formal regularization order.
At the same time, the Bench approved the view in Rabia Shah regarding the accrual of statutory rights, but overruled it insofar as it treated the 150-day period as a basis for postponing the date of regularization.
The Full Bench clarified that the judgment will apply prospectively to pending and future matters, and past cases already settled or finally disposed of shall not be reopened. The registry was directed to place the appeal before the appropriate Division Bench for final disposal.
Advocate Meenakshi Salathia appeared for the appellant department, while Senior Advocate P.N. Bhat represented the respondent. (KDC)
