ABHISHEK SHARMA & ORS vs STATE & ORS

The petitioners came to be engaged on academic arrangement basis in the year 2011 onwards as FMPHW, X-rays Technicians, Junior ECG

Technicians, Lab Technicians, Junior Theatre Assistant, Junior Sterilization Technician etc in the Health and Medical Education Department. Â

According to the Medical and Dental Education Appointment on Academic Arrangement Basis) Rules, 2009 (for short, rules of 2009), the

academic arrangement could be carried on initially for a period of one year extendable upto maximum four years (one year at a time and subject to

good performance and conduct) or till regular selection/appointment is made in accordance with the rules of recruitment governing the respective

posts, whichever is earlier. Subsequently, it appears that the period of four years was extended to six years. Â

Rule 4 (2) of the Rules of 2009 envisaged that services of an appointee under these rules would be terminable before the expiry of the tenure of

appointment with one month’s notice, from other side, or on payment of one month’s salary in lieu of notice by the appointing authority.

Proviso appended to Rule 4 of the Rules of 2009 also envisaged that an appointee under these rules would not have any preferential claim for

regular appointment under normal process of selection/appointment.

It appears that the petitioners continued working for the maximum period prescribed and thereafter are continuing under court orders. They claim

that they also be considered for regularization in terms of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (For short, Act of

2010). A reference to Section 3 of the Act of 2010 would show that the same envisages regularization of adhoc or contractual or consolidated

appointees subject to certain conditions as have been reflected in Section 5 of the Act of 2010. Clause (v) of Section 5 of the Act of 2010 envisages

that the candidate should have completed seven years of service on the appointed day which means the date of commencement of the Act i.e.,

29.4.2010.

What is important to notice here is that Section 3 of the Act of 2010 excludes from the purview of regularization those appointed on academic

arrangement basis with a fixed term in the government departments.

Experiencing the difficulty that they have no right to be regularized in terms of the Act of 2010, the petitioners have challenged Section 3(b) of the

Act of 2010 by way of filing writ petitions to the extent that as the said section excludes from consideration for regularization, candidates appointed on

academic arrangement basis as being ultra vires of the constitution being arbitrary and violative of Article 14 of the Constitution of India. A

mandamus is sought to the respondents to continue the petitioners with a view to enable them to complete seven years of their service and submit their

cases to Empowered Committee constituted under the Act of 2010 for regularization. A prohibition is also sought prohibiting the respondents from

filling up the posts, which are otherwise held by the petitioners.Â

It appears that in the meantime, the official respondents initiated steps for filling up the posts of FMPHW and others in the equivalent grades on

substantive basis and in that regard issued advertisement notice No. 5 of 2015 dated 1.9.2015 which was issued by the SSRB for selection. The

private respondents, who were impleaded as party respondents during the pendency of the writ petitions, are the candidates selected for the said posts

according to the select list issued in the year 2016. Â

Objections have been filed to the writ petitions. The main objection raised is that the petitioners have no locus to challenge Section 3(b) of the Act

of 2010 inasmuch as the said Act applies only to those, who are appointed on adhoc, contractual or consolidated basis by the appointed day in terms of

Section 3 of the Act of 2010 read with Section 2(c) of the said Act.

Heard learned counsel for the parties.Â

A lot of emphasis has been laid by Mr. Anuj Dewan Raina, Advocate as also learned Sr. counsel Mr. D.C. Raina on how the exclusionary clause

prescribed under Section 3(b) of the Act of 2010, which excludes the petitioners, who are working on academic arrangement basis for being

considered for regularization is discriminatory and arbitrary despite the fact that the petitioners, who were working on academic arrangement basis,

were similarly considered as contractual employees and were otherwise governed by the Jammu and Kashmir Contractual Appointment Rules, 2003

(for short, Rules of 2003).

It was urged that except for categorizing the petitioners as working on academic arrangement basis, they were in fact for all intent and purposes

discharging their duties on contract basis as there was little difference between the rules, which governed appointments on academic arrangement

basis and the rules governing engagement of candidates on contract basis. Although the argument on the face of it, appears to be attractive, yet one

cannot be lose sight of the fact that the petitioners were all engaged after the Act of 2010 came into force i.e., on 29.4.2010.Â

Assuming that the petitioners did succeed ultimately in establishing parity with those appointed on contract basis or those appointed on adhoc,

contractual or consolidated basis, yet they would not succeed in bringing themselves within the operation of the Act of 2010 inasmuch as it applies only

to those, who have been appointed upto 29.4.2010. Even otherwise, a coordinate bench of this court in SWP No. 1594/2012 after having considered

the vires of Section 3(b) of the Act of 2010, dismissed the aforesaid petition vide judgment and order dated 14.7.2016. Â

Be that as it may, the case of the petitioners either on account of locus or on account of challenge to the vires of Section 3(b) of the Act of 2010 is

bound to fail.

The petitions are accordingly held to be without any merit and are accordingly dismissed along with connected MPs. The petitioners, however,

shall be paid for the period they have worked against the posts held by them. The official respondents shall be free to make appointments in terms

of the recommendations made by the SSRB.

While it is true that the petitioners may not have a right of regularization in terms of the Act of 2010 or for that matter, SRO 520 of 2017 dated

21.12.2017, yet they have rendered valuable services in the Medical Education department and have gained experience against those posts. Some

of them might have become over-aged also as was urged by learned senior counsel. The petitioners who were engaged and appointed on academic

arrangement basis have in the meantime acquired a certain status and have committed themselves accordingly. The official respondents would be

free to appoint the candidates selected pursuant to advertisement notice dated 1.9.2015 pursuant to the select list under reference. In case there are

any other vacancies which have not been filled up and not subjected to the process of selection through SSRB, the petitioners would be permitted to

continue against the same till such time those posts are filled up in accordance with rules. The Govt. would also be free to devise a policy as they

deem it appropriate for purposes of regularizing the petitioners inasmuch as there appears to be little distinction between those, who were appointed on

contract basis and those appointed on adhoc, contractual or consolidated basis.The Govt. will be free to decide the issue with regard to the grant of

notional seniority to the selected candidates/private respondents herein.