Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar held that engagements of petitioners appointed against clear vacancies prior to the commencement of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, and who continued thereafter, fall within the category of ad hoc, contractual, or consolidated appointments. The Court directed the constitution of a High-Level Committee headed by the Chief Secretary to identify eligible candidates for regularization and further ordered that no fresh academic arrangements shall be made against clear vacancies of Assistant Professors, Librarians, and Physical Training Instructors. The Court mandated that such posts be referred to the Jammu and Kashmir Public Service Commission for selection and also directed an exercise for creation of additional posts to meet future demand.

The petitions arose from challenges to a common judgment dated 13.10.2023 passed by the Central Administrative Tribunal, Srinagar Bench, in TA No. 297/2021 and connected matters. The petitioners, engaged as contractual lecturers in different disciplines in the Higher Education Department on academic arrangement basis, approached the Court seeking regularization of their services and challenging Section 3(b) of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010. This provision excluded persons appointed on academic arrangement from the applicability of the Act.

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The petitioners claimed engagements since 2003 and 2006 against clear vacancies. They sought a declaration that Section 3(b), Section 10(2), and Section 10(2A) of the Act of 2010 be declared ultra vires the Constitution. They also sought mandamus to regularize their services and to restrain the respondents from replacing them with other candidates on academic arrangement basis.

The respondents opposed, contending that Section 3(b) excluded academic arrangement appointees from regularization. They argued that the policy of the Higher Education Department permitted open admission of students, resulting in fluctuating faculty requirements each academic year. To meet these needs, academic arrangements were made for one academic session only, remunerated through college funds rather than Government funds. It was further contended that due to amendments to the Jammu and Kashmir Education (Gazetted) Colleges Service Recruitment Rules, 2008, some petitioners were rendered ineligible for regularization.

The Tribunal considered two questions: jurisdiction to decide constitutional validity of Section 3(b) and whether the exclusion of academic arrangement appointees was discriminatory under Articles 14 and 16. Referring to L. Chandra Kumar v. Union of India, the Tribunal held it had jurisdiction. On the second issue, it found academic arrangement appointees to be a separate class distinct from ad hoc, contractual, and consolidated appointees, and dismissed the petitions.

The High Court considered the challenge to the Tribunal’s findings. It noted successive Governments had adopted measures to regularize temporary engagements, including SRO 64 of 1994 and Government Order 1220-GAD of 1989. The Act of 2010 was enacted to provide regularization to ad hoc, contractual, and consolidated appointees. Section 3(b) explicitly excluded academic arrangement appointees. The petitioners argued that their appointments, though termed academic arrangements, were contractual or consolidated, having been made against sanctioned posts with continuous service.

The Court examined Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, explaining temporary appointments as ad hoc appointments. It considered the definitions of ad hoc, contractual, and consolidated appointees under Section 2 of the Act of 2010, requiring appointment against a Government post as sine qua non. The Court distinguished academic arrangements, which were made annually without dependence on sanctioned vacancies, from ad hoc or contractual appointments.

The Court recorded that academic arrangements were made annually to meet fluctuating demands due to open admissions, funded through a pool fund. It noted that while some petitioners were engaged without vacancies, others were appointed against sanctioned posts and continued year after year, sometimes under interim court orders. Such appointments, though called academic arrangements, were contractual and consolidated in nature.

The respondents argued that treating academic arrangement appointees on par with ad hoc or contractual appointees would violate Articles 14 and 16, as it would deprive meritorious candidates of opportunity. The Court acknowledged that the Act of 2010 itself was unconstitutional for violating equality principles but did not address it further due to absence of challenge and repeal of the Act after the J&K Reorganization Act, 2019.

The Court stated: “From a plain reading of the definitions of these three type of appointments, it is evident that, for an appointment to qualify as ad hoc, consolidated, or contractual, the appointment of a person against a civil post under the Government is a sine qua non.” It further recorded: “All other temporary arrangements, other than ad hoc, contractual, or consolidated appointments, have been kept outside the purview of the Act of 2010.”

The Court observed: “Appointments made on academic arrangement for a fixed term in any Government Department were kept outside the purview of the Act of 2010. The academic arrangements typically refer to temporary faculty positions or teaching roles in educational institutions, created to meet the specific requirements of a particular academic session.”

On the classification under Article 14, the Court recorded: “There is an intelligible differentia in the classification made between the aforesaid categories of appointments, and this classification made by the legislature has a nexus with the object sought to be achieved, i.e providing regular appointments only to those who are engaged against clear vacancies.”

The Court held: “It is not the nomenclature but the nature of the appointment and the terms and conditions subject to which it is made that determines whether the appointment qualifies to be an ad hoc, contractual, or consolidated.” It noted that petitioners appointed against sanctioned posts prior to the commencement of the Act of 2010 and continued thereafter fell within the purview of the Act.

It further recorded: “Such appointments as have been made by the respondents from time to time prior to the commencement of the Act of 2010, against clear vacancies, and continued either by repeating such appointments every year by a limited competitive process or in compliance with interim directions passed by a competent court of jurisdiction, shall be treated as contractual appointments on a consolidated basis and would, therefore, definitely fall within the purview of the Act of 2010, the nomenclature of the appointment i.e. ‘academic arrangement’ notwithstanding.”

The Court directed: “The respondents shall constitute a High-Level Committee headed by the Chief Secretary, with the Secretary to Government, Department of Higher Education; the Secretary to Government, General Administration Department; the Secretary to Government, Finance Department; and the Secretary to Government, Department of Law, as its members, within a period of one month.”

It ordered: “The Committee shall, within a period of two months, embark upon an exercise to identify those candidates who were appointed as Assistant Professors/Librarians/PTIs prior to the commencement of the Act of 2010, against clear vacant posts; who were in position on the said date; and who have rendered continuous service for a period of seven years or more.”

The Court further mandated: “Such candidates who are found by the Committee to have been appointed against vacant posts prior to the commencement of the Act of 2010, and who satisfy the eligibility criteria, shall be considered for regularization under the Act of 2010 within one month thereafter.”

It directed: “The regularization of those found entitled under the Act shall be given retrospective effect from the date they are found eligible for such regularization i.e. those who completed continuous service of seven years on or before the commencement of the Act of 2010 shall be regularized from the date of commencement of the Act, while those who completed seven years of service after the commencement of the Act shall be regularized from the date on which they actually completed seven years of continuous service.”

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The Court ordered: “No fresh academic arrangements shall be made by the Government against clear vacancies of Assistant Professors, Librarians, and PTIs borne on the Jammu and Kashmir Education Gazetted Colleges Service Recruitment Rules 2008 and efforts shall be made to immediately refer all such vacant posts to the Jammu and Kashmir Public Service Commission for selection.” It also directed an exercise to consider creation of additional posts of teaching faculty, Librarians, and PTIs.

It further ordered: “All academic arrangements made de hors the vacancies or outside the sanctioned strength of Assistant Professors, Librarians, and PTIs shall be dispensed with from the next academic session, unless such engagements are required to meet the exigency of the situation obtaining in the next academic year and thereafter.”

The Court clarified: “These directions shall not be applicable to Teaching Associates engaged on contractual basis and their engagements shall be governed by the terms and conditions of their appointments.”

Advocates Representing the Parties

For the Petitioners: Mr. N.A. Beigh Sr. Advocate with Mr. Mohd Murshid Advocate, Mr. Bhat Fayaz Advocate, Ms. Nighat Amin Advocate, Mr. Arif Sikander Mir Advocate, Ms. Syed Shabana Advocate, Mr. Mir Majid Bashir Advocate

For the Respondents: Mr. Ilyas Nazir Laway Government Advocate

Case Title: Syed Tariq Ahmad & ors v. UT of J&K and ors and connected matters

Neutral Citation: 2025:JKLHC-SGR:244-DB

Case Number: WP(C) No. 416/2024 and connected matters

Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar