Dr. Sartaj Ahmad Ganie and Ors vs State And Ors

In the instant petition, petitioners pray for the following reliefs:-

" a) Issue a writ, order or direction in the nature of mandamus, commanding the respondents to consider the case of petitioners for regularization in terms of J&K Special Services (Provisions) Act, 2010, as has been done in cases of similarly placed persons.

b) That, the impugned section 3 (b) of the J&K Special Provisions Act, 2010, second part persons appointed on academic arrangement for fixed terms has been excluded from the applicability of act, be struck down being ultra-vires to the Constitution of India, as same shall be in the interests of justice.

c) Issue a writ, order or direction in the nature of mandamus, commanding the respondents to continue the services of the petitioners till their services are regularized by the respondents.

d) Issue a writ, order or direction in the nature of mandamus commanding the respondents to give petitioners pay, grade, increment attached to the post in the same way as is given to the permanent Lecturers in terms of law laid down by the Hon'ble Apex Court.

e) issue a writ, order or direction in the nature of Certiorari, quashing the impugned periodical breaks in the petitioners' service and the petitioners be declared to be in continuous service of the respondents, as same shall be in the interests of justice and equity.

f) To direct that your Lordships may be awarded the costs of this petition.

Brief facts of the case are summarized as under:-

Petitioners claim to be engaged as Teaching Assistant on contractual basis for academic arrangement (now called as Assistant Lecturers) about nine years back. It is stated that most of the petitioners are continuously working and rendering their services qua performing their duties against clear vacancies in the respondent college, where they stand engaged and appointed from time to time.

Petitioners state that the J&K, Civil Services (Special) Act, 2010, came into force on 28th of April, 2010, and the Act to provide for regularization of the employees appointed on adhoc, contractual or consolidated basis and it has been made applicable to whole of J&K State. It is stated that in terms of Section 3 (b) second part, persons appointed on academic arrangement for fixed terms has been excluded from the applicability of Act. This part of the Act to exclusive of persons appointed on academic arrangement and the service gap which is being given to the petitioners after very academic years. The relief prayed for at serial (b) is the case of the petitioners that Section 3 of J&K Civil Services (Special Provisions) Act, 2010 (Act) provides for application of the Act, i.e., to such posts under Government as are held by persons having been appointed on ad- hoc or contractual basis including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies. The grievance of the petitioners is that by virtue of Section 3(b), the provision is inapplicable to the persons appointed on tenure posts including those persons employed on academic arrangement for a fixed term in any Government Department, thereby they are denied the right to be regularized in terms of Section 5 of the Act. For better clarity, Sections 3 and 5 of the Act and the provisos are set out hereunder:

"3. Application of the Act. - The provisions of this Act shall apply to such posts under the Government as are held by any person having been appointed on ad hoc or contractual basis including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies, but shall not apply to:--

(a) persons appointed in terms of Government Order No.125-GAD of 2001 dated 01-02-2001, on contract basis in the personal sections of the Ministers or other authorities enjoying the status of a Minister;

(b) persons appointed on tenure posts co-terminus with the life of the Project or Scheme of the State or Central Government, as the case may be, and those appointed on academic arrangement for a fixed term in any Government Department;

(c) non-governmental agencies or autonomous bodies or public sector undertakings or corporations or government companies or societies or other local authorities which have their own rules and regulations governing their functioning; and

(d) part-time or seasonal employees including those whose wages are paid from out of the local funds or contingent grants.‖

―5. Regularization of ad hoc or contractual or consolidated appoint-tees.--

Notwithstanding anything to the contrary contained in any law for the time being in force or by judgment order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in section 3 shall be regularized on fulfillment of the following conditions, namely :-

(i) that he has been appointed against a clear vacancy or post;

(ii) that he continues as such on the appointed day;

(iii) that he possessed the requisite qualification and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post;

(iv) that no disciplinary or criminal proceedings are pending against him on the appointed day; and

(v) that he has completed seven years of service as such on the appointed day;

Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization, irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization;

Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years' service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act

It is stated that before 1994 temporary appointments was being called Adhoc appointment and thereafter it was called contractual appointment now it has been converted into Academic arrangement. The word adhoc/contractual is wide enough that it covers all appointments made on temporary basis, therefore, the distinction made in the Act that appointed on academic arrangement are not entitled to regularization is ultra-vires to the Constitution being discriminatory and violative of Article 14 and 16 of the Constitution of India.

The petitioners are serving in the respondent department continuously from so many years, as evident from experience certificates and are the verge of upper

age limit. The petitioners' case deserves to be considered by continuing and regularizing them on the said post as the petitioners have spent the best part of their life in the respondent colleges and are still working against the said post.

Learned counsel appearing for the petitioners, when asked submits that the petitioners have every right to seek continuation on the strength of having continued for considerable time, as also with the strength of the Judgments.

Heard learned counsel for the petitioners, considered the matter and perused the documents.

Petitioners have not placed on record their order of engagement with reference to the claim that they are engaged as contractual Lecturers. Petitioners have placed on record some experience certificates, showing them working as Teaching Assistants/Lecturers on academic arrangement/contractual basis. The order dated 07.04.2018, issued by Nodal Officer (Principal Amar Singh College), Srinagar, has reference to engagement of candidates as Lecturer for the academic session 2018-19. The arrangement is for the academic session 2018-19, which period has expired in January, 2019, therefore, on the strength of the documents on record, the position which emerges is that the petitioners status is contractual on academic arrangement, therefore, the submission of learned appearing counsel for the petitioners that on the strength of the continuation of the petitioners as contractual Lecturers, they are entitled to be paid minimum pay scale as also continued till a policy for regularization is framed is without any substance. The reference of the Judgment made by learned appearing counsel for the petitioners for the relief claimed is not available to them, as the petitioners are admittedly engaged for academic arrangement on the terms and conditions of monthly remuneration.

The issued with reference to relief claimed by the petitioners is already settled in a similar case of academic arrangement reported in 2017 (1) JKJ 310 (HC) titled Rajani Kumari and Ors. Vs. State and Ors. Paragraph 7 being relevant is taken note of:-

"7. It is a separate and an independent method or manner by which appointment is made in a Government Department. Government in its wisdom has excluded the category of appointment made on academic arrangement basis for fixed term. The petitioners have no locus to challenge the wisdom of the Government in enacting such a provision. The language of Section 3 clearly provides that regularization will apply in respect of posts in the Government for which appointments are made on adhoc of contractual or consolidated pay. Therefore, it is referable to a particular post of a clear vacancy, whereas in these cases, petitioners have been appointed in Higher Education Department on fixed term on an academic arrangement basis. So, both cannot be equated on same terms. There is no arbitrariness in that as alleged. In any event, he implored upon the Court not to accept the interpretation as propounded by the petitioners. Mr. Sharma relied upon the judgment rendered by Hon'ble Supreme Court in case titled Union of India and Another Vs. Deoki Nandan Aggarwal reported in AIR 1992 SC 96, which was relied upon in a subsequent decision of the Hon'ble Supreme Court in case titled Satheedevi Vs Prasanna and Anr., reported in AIR 2010 SC 2777.

Their Lordships while dealing with the controversy in Deoki Nandan Aggarwal's case (supra), held in para Para 14 as under:

"We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as ―more than five years" and as ―more than four years‖ in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Vide P.K. Unni v. Nirmala Industries, (1990) 1 SCR 482 at p. 488 : (AIR 1990 SC 933 at p.936), Mangilal v. Sugamchand RAthi (1965) 5 SCR 239 : (AIR 1965 SC 101), Sri Ram Ram Narain Medhi v. The State of Bombay 1959 Supp. (1) SCR 489 : (AIR 1959 SC 459). Smt Hira Devi v. District Board, Shahjahanpur 1952 SCR 1122 at p.1131 : (AIR 1952 SC 362 at p.365), Nalinakhya Bysack v. Shyam Sunder Haldar (1953 SCR 533 at p.545) : (AIR 1953 SC 148 at p. 152), Gujarat Streel Tubes Ltd. V. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCR 146

: (AIR 1980 SC 1896), W. Narayanaswami v. G. Punnerselvam (1973) 1 SCR 172 at p. 182 : (AIR 1972 SC 2284 at p. 2289), N. S. Vardachari v. G. Vasantha Pai (1973) 1 SCR 886) : (AIR 1973 SC 38), Union of India v. Sankal Chand Himatlal Sheth (1978) 1 SCR 423 : (AIR 1977 SC 2328) and Commr. of Sales Tax, U.P. v. Auriaya Chamber of Commerce, Allahabad (1986) 2 SCR 430 at p. 438 : (AIR 1986 SC 1556 at pp. 1559-60). Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by courts sometimes in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power."(Emphasis supplied)

Further, in para 10 of Satheedevi's case (supra), their Lordships observed thus:

"Before proceeding further, we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise - Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 SCR 30 360 : (AIR 1957 SC 907). The other important rule of interpretation is that the Court cannot rewrite, recast or reframe the legislation because it has no power to do so. The Court cannot add words to a statute or read words which are not therein. Even if there is a defect or an omission in the statute, the Court cannot correct the defect or supply the omission.-Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323 : (AIR 1992 SC 96) : 1991 AIR SCW 2754), Shyam Kishori Devi v. Patna Municipal Corporation (1966) 3 SCR 466 : (AIR 1966 SC 1678)."

On this premise, it is pleaded that the prayer to declare Section 3(b) as ultra vires should be dismissed.

The contention of the petitioners with reference to continuation of no more substitution is also dealt with in Judgment at paragraph 14 to 23. Same paragraphs being relevant are extracted as under:-

The next relief Sr. No.(D) to prohibit the respondents from replacing/substituting the petitioners by another set of contractual appointee or by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the post of Lecturers are considered by the Empowered Committee constituted under Section 10 of the Act. This prayer has three aspects. One is the confirmation and second is the regularization. Ist two parts of the prayer are inapplicable in the case of these petitioners as their appointments were made on academic arrangement basis. The third aspect is replacing contract employees by another set of contract employees.

This Court has taken a view in case titled Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors. and batch of cases (SWP No.209/ 2003 and connected matters) decided on 04-072016 on the basis of decisions considered and declined in Division Bench case titled State of J&K Vs. Afshan Majid, reported as 2008 (2) J.K.J. 550, which decision was again followed by the Single Judge, to be more specific in the case titled Suman Sharma Vs. State of J&K, reported as 2009 (2) J.K.J. 173. The same was followed in subsequent decisions. This Court also followed in its earlier decision in batch of writ petitions, lead case as SWP No.209/2003, Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors., decided on 14-07-2016.

It is the case of respondents that they are not resorting to such a procedure of replacing contract teachers/lecturers by another set of contract teachers/lecturers. The engagement is need based. In any event, the lecturers on contract or engaged on academic arrangement cannot seek to restrain the government from engaging lecturers on contract engagement or academic arrangement as they themselves are beneficiary of such procedure. This issue becomes academic because petitioners are appointed on academic arrangement.

On this issue also, Courts have taken a view to safeguard ousting of contract engagements only for the purpose of accommodating new incumbents on contract basis. In this regard, it will be useful to refer judgment of Hon'ble Supreme Court in case titled State of Haryana Vs. Piara Singh and Others reported as AIR 1991 SC 223 referring to the following observations:

"............. In State of Haryana Versus Piara Singh, 1992 (4)SC 118 of 152, this Court had held that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an adhoc or temporary appointments may be made in such situation, this Court held that efforts should always be made to replace such adhoc or temporary employee by regularly selected employees, as early as possible. Temporary employees also would get liberty to compete along with others for regular selection but if he does not get selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of such an adhoc or temporary employee. Adhoc or temporary employee should not be replaced by another adhoc or temporary employee. He must be replaced only by regularly selected employee."

The said ratio will apply to the petitioners only if they are sought to be replaced by another set of teachers/lecturers on academic arrangement.

The relief of prohibiting the respondents from replacing/ substituting the petitioners by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the post of Lecturers are considered, has been dealt with by Hon'ble Supreme Court in case titled Dr. Kishore Vs. State of Maharashtra, reported as 1997(1) 107 : 1997 (3) SCC 209, wherein their Lordships observed as under:

"It is contended by the learned counsel for the petitioner that since vacancies are existing the appointment of Dr. Solanki by transfer could not be used as a means to terminate the service of the petitioner. We fail to appreciate the contention. It is fairly agreed by the learned counsel that the petitioner has no right to the post and as soon as a duly selected candidate is posted in his place, he has to give place to the duly selected candidate. But his contention is that since Dr. Solanki was selected earlier to the order passed by the Tribunal and had been appointed on his transfer, it cannot be used as a means to terminate the services of the petitioner. His contention absolutely has no force. As soon as the duly selected candidate is posted, whether directly or by transfer, necessarily the petitioner has to give place to such a candidate. The petitions, therefore, do not merit interference.‖

Therefore, the said plea has no legal basis.

This Court hastens to hold that academic arrangement teachers/lecturers cannot seek to hold on to their post for ever. If they are found not to be up to the mark or efficient then their continuation will be a question mark. It is for the authorities to decide the best course of action in a non-arbitrary manner. If academic arrangement teachers/lecturers seek extension then they have to make a representation for considering the extension of service, which can be considered on its own merits.

In this regard, it will be useful to refer to the decision of this Court where a plea of retention when employed on contractual basis, Division Bench of this Court considered and declined the claim in case titled State of J&K Vs. Afshan Majid, reported as 2008 (2) J.K.J. 550, which decision was followed by the Single Judge, to be more specific in the case titled Suman Sharma Vs. State of J&K, reported as 2009 (2) J.K.J. 173.

In that in paragraph 18, it has been held as follows:

"18. For the reasons mentioned above and in view of the afore-quote observations made by the Division of this Court in cases referred to above, these petitions are disposed of with the following directions:-I/ That the petitioners are not entitled to regularization of their services against the posts they have been engaged on contract/temporary basis as the said engagement has been done without following any procedure as provided for filling up the post belong to State-Cadre;

II/ That the petitioners shall be allowed to continue till the posts are filled up by a regular selection process. The State respondent, however, shall be free to continue this engagement of the petitioners only if there is requirement to engage them keeping in view the interest of students who are studying in particular colleges;

In the light of the above, petitioners appointed on academic arrangement have no legal right to seek regularization dehors the Act.

The contention of learned counsel for the petitioners with reference to the claim in the writ petition, if accepted and relief granted, will of course be violative of Article 14 and 16 of the Constitution of India. Needless to mention that the post of Lecturer in the Government Degree Colleges is borne on the services of the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008 and is a gazetted post to be filled up by direct recruitment of advertisement by the Public Service Commission.

Merely because the petitioners have rendered services on contract for academic session with reference to limited purpose, does not vest them with any indefeasible right of claiming continuation/seeking policy for regularization. The claim for regularization in such cases of arrangement is deprecated by the Hon'ble Supreme Court in case titled Secretary, State of Karnataka and Others Vs. Umadevi (3) and Ors. Paragraphs 45 and 48 of the Judgment being relevant are taken note of:

"45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.

It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.

The relief with reference to declaring Section 3 (b) of J&K Civil Services (Special Provisions) Act, 2010 is ultra-vires to the Constitution of India is already declined by this Court while deciding the case of similarly situated academic arrangement incumbents titled Rajani Kumari and Ors. Vs. State and Ors., reported in 2017 (1) JKJ 310 [HC]. Paragraph 4 and 5 being relevant are extracted as under:-

" 4. The pith and substance of the argument of the learned counsel for the petitioners is that the appointments made earlier to coming into force of the Act whether on ad hoc basis or on contractual basis and subsequently on consolidated pay after coming into effect the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010, are denied regularization. The Government by design applying the Act is excluding petitioners on the ground that the petitioners' appointments are made on academic arrangement basis for a fixed term in a Government Department. This devious method deprives the petitioners of their right to be regularized. Whereas contract, ad-hoc and consolidated pay appointees are benefitted. The said provision is, therefore, arbitrary, illegal and constitutionally invalid. The petitioners' appointment is akin to that of appointment made on ad-hoc, consolidated pay or contract basis. Equals are treated unequally. The exclusion is discriminatory and malafide.

On this premise, the learned counsel pleaded that Section 3(b) of the Act, 2010 has to be held invalid and struck down. In support of this argument, it was primarily contended that the provision particularly clause (b) of Section 3 is a design to deny the benefit to the petitioners, who have been appointed and working in a post which is also in the nature of on adhoc or contractual appointment. It is a colourable exercise of power and, therefore, it has to be struck down.

The relief with reference to continuation of petitioners having worked for academic arrangement is already settled by the Division Bench of this Court in case titled State of J&K and Ors. vs. Afshan Majid and Ors., reported in 2008 (2) JKJ 550 [HC]. The Division Bench while disposing of the Letters Patent Appeal, filed by the State has held that contractual Lecturers engaged for a period not exceeding ten months on academic arrangement and at the end of the term the engagement comes to an end and for the next year/session every candidate is obliged to make fresh applications for selection and such arrangement evolved by the State Government cannot be held to be arbitrary, unreasonable or unjustified.

Viewed thus, writ petition is dismissed at its threshold stage in limini along-with connected MP.