J&K Civil Services (Special Provisions) Act Bars Retrospective Regularisation Where Qualifying Service period Is Completed: J&K And Ladakh High Court
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has dismissed a service writ by consolidated appointee shift engineers of a state power corporation who sought retrospective regularisation and consequential benefits from the dates they completed the claimed qualifying service. Addressing a recurring claim in service matters, the Court said continuity of engagement alone cannot justify granting regularisation with past effect. It said that under the J&K Civil Services (Special Provisions) Act, 2010, regularisation, once sanctioned, takes effect only prospectively from the date the competent authority issues the order, regardless of when the seven-year requirement is met. The petitioners were therefore held entitled, at best, to regularisation only from 24 November 2017, when sanction was accorded, and their plea for an earlier effective date was rejected.
The writ petition was filed by employees engaged as Shift Engineers on a consolidated basis in a government-owned power corporation. They sought directions for giving retrospective effect to their regularisation order dated 24 November 2017, claiming entitlement to regularisation either after completion of two years of service or, alternatively, after completion of seven years of service. The petitioners contended that the policy in force entitled them to regularisation after two years and alleged discrimination on the ground that similarly placed employees had been granted such benefit.
The petitioners asserted that although they completed two years of service in 2007 and seven years of service in 2012, their services were regularised only in 2017 with prospective effect. They relied upon internal recommendations, representations forwarded by senior officers, and earlier regularisation orders granted to other employees.
The respondents opposed the petition, stating that the petitioners were engaged without any formal selection process and therefore could not claim parity with employees appointed under statutory contractual appointment rules. The respondents further relied on the J&K Civil Services (Special Provisions) Act, 2010, contending that the statute expressly bars retrospective regularisation and permits regularisation only from the date of sanction.
The Court examined the claim for regularisation after two years of service and recorded that employees who were granted such benefit had been appointed through a proper selection process under statutory rules. It observed: “The employees whose services were regularized after completion of two years satisfactory performance on contractual basis were appointed after holding a proper selection process.”
With respect to the petitioners, the Court noted: “The initial appointment of the petitioners has not been made pursuant to any selection process, much less in accordance with the aforesaid Rules of 2003.” While addressing the claim under the J&K Civil Services (Special Provisions) Act, 2010, the Court reproduced Section 5 and its provisos and observed: “A plain reading of first proviso to Section 5… gives an impression that regularization of eligible adhoc or contractual appointees shall have effect only from the date of such regularization.”
The Court analysed earlier Division Bench judgments and acknowledged the apparent conflict in interpretation of Section 5. After referring to multiple precedents, it stated: “This Court… has to follow the view which appears to it more correct.” Preferring the later judgment, the Court recorded: “It appears to this Court that the view taken by the Division Bench in Abdul Majid Magray’s case is more logical.”
The Court further observed that the petitioners had completed seven years of service after the appointed date and held: “There is no provision for retrospective regularization in a case where an appointee has completed seven years of service after the appointed date.”
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The Court concluded the proceedings by issuing the following directions “For what has been discussed hereinabove, the petitioners are not entitled to claim regularisation of their services either after completion of two years of service or after completion of exactly seven years of service. They are entitled to regularisation from the date sanction has been accorded by the respondents for regularization of their services. The writ petition is, therefore, dismissed being devoid of merit. Interim direction, if any shall stand vacated.”
Advocates Representing the Parties
For the Petitioners: Mr. Nissar Ahmad Bhat, Advocate
For the Respondents: Mr. Faheem Nisar Shah, Government Advocate
Case Title: Ghulam Rasool Bhat & Ors. v. Government of J&K & Ors.
Case Number: WP(C) No.175/2020
Bench: Justice Sanjay Dhar
