Sanchayita Lahkar

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has directed the regularization of services of several long-term contractual employees who have served over ten years in sanctioned posts without interruption. The Court unequivocally held that "denying such relief to the petitioners would be contrary to the principles of justice and fairness and it would also amount to hostile discrimination against the petitioners vis-à-vis similarly situated employees who have already been extended the benefit of regularization of services." It ordered the respondents to regularize the services of the petitioners from the date of completion of ten years of contractual employment with all consequential benefits, including arrears of salary, within three months from the date of service of the judgment.

The Court found the refusal to regularize the services of petitioners, despite their decade-long tenure, as unjustified in light of earlier regularizations granted to similarly situated employees. It rejected the defense that the repeal of the J&K Civil Services (Special Provisions) Act, 2010, precluded the regularization, noting the petitioners right had matured based on legitimate expectation and continued satisfactory service.

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The writ petitioners, six individuals appointed by the Jammu and Kashmir State Cable Car Corporation Ltd., filed a writ petition seeking directions for the regularization of their services. They also requested arrears in the regular pay scale along with allowances and the notification of their seniority from the date of their regularization.

Petitioner No.1 was appointed as Supervisor (E-governance), Petitioners No.2 and 3 were appointed as Technicians (E-governance), pursuant to Order No.78 of 2012 dated 17.12.2012, and Petitioners No.4 to 6 were appointed as Junior Ski Patrollers (Grade-II) under Order No.17 of 2013 dated 16.02.2013. All appointments were made on a contractual basis after proper selection procedures through publicly advertised recruitment notices.

The appointments were initially for a period of two years and were extended periodically by the respondent corporation. The petitioners contended that having completed the contractual period to the satisfaction of the respondents, they were entitled to regularization, especially since similarly situated employees, appointed under Order No.12 of 2011 dated 12.05.2011, were regularized via Order No.102 of 2013 dated 18.12.2013. This action had the approval of the Board of Directors as recorded in Agenda Item No.31.23 during its 31st meeting on 28.02.2014.

Despite multiple representations, including to the Governor of Jammu & Kashmir, the petitioners did not receive similar regularization. The respondents, in their reply, contested the claim, asserting there was no vested right for regularization absent a specific enabling policy or statutory provision. They acknowledged the previous regularization but termed it a closed past act.

It was also submitted that the Corporation had referred the matter to the Administrative Department but the petitioners did not qualify under the J&K Civil Services (Special Provisions) Act, 2010, which required a minimum of seven years of continuous service. Further, the repeal of this Act was cited as a legal barrier.

During the proceedings, the Court issued an interim order dated 03.02.2023 directing the respondents to prepare and submit an agenda regarding the petitioners' regularization, in accordance with the policy applied to others previously. The matter was placed before the Board of Directors in its 33rd meeting held on 19.06.2023, where it was resolved to contest the petition. Subsequently, vide Order No.24 of 2024 dated 19.12.2024, the Corporation rejected the petitioners' claim, citing the repeal of the enabling Act.

Despite these developments, key facts remained undisputed: petitioners were appointed after proper selection, they continued to serve uninterrupted for over ten years, and the Corporation had created the relevant posts prior to their appointment. The Corporation did not allege that their services were no longer required.

The petitioners pointed out that four contractual employees appointed under similar terms had already been regularized. These included Mudasir Nabi Mattoo, Idris Zahoor, Irfanul Haq Nazki, and Irfan Ahmad Bhat, appointed via Order No.12 of 2011 after due process. Their services were regularized after two years pursuant to the Board's approval.

The Corporation failed to differentiate the petitioners' cases from these previously regularized employees. Consequently, the petitioners asserted their entitlement based on the principle of legitimate expectation and Article 14 and 16 of the Constitution of India, arguing that denying them regularization was arbitrary and discriminatory.

The Court recorded: "Petitioners right from their engagement as contractual employees in the years 2012 and 2013 till date are continuing to perform their functions and duties to the entire satisfaction of the employer." It added, "It is not the case of the respondents that services of the petitioners are not required by them."

Referring to the prior regularization of similarly placed employees, the Court stated: "The respondent Corporation has been unable to carve out any distinction and difference between the cases of the petitioners and the cases of those contractual appointees whose services were regularized."

On the principle of legitimate expectation, the Court noted: "A legitimate expectation had arisen in favour of the petitioners that their cases would be treated in similar manner. The respondent Corporation by declining to extend the similar benefit to the petitioners without there being any distinction in the two cases have acted in an arbitrary and discriminatory manner."

Drawing from Supreme Court precedents, the Court cited Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71: "Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process."

Referring to the landmark judgment in Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1, the Court quoted: "Services of irregularly appointed persons who have worked for ten years or more in duly sanctioned posts but not under the cover of orders of the courts or tribunals are required to be regularized."

The Court further relied on Vinod Kumar and Others vs. Union of India (2024) 9 SCC 324: "Reliance on procedural formalities cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service."

It also drew strength from Jaggo v. Union of India 2024 SCC OnLine SC 3826, stating: "Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization."

Noting the exploitation of temporary employees, the Court recorded: "While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees."

The Court remarked: "Merely because there is no policy of regularization of services of the contractual employees framed by the respondent Corporation or because the provisions of the J&K Civil Services (Special Provisions) Act, 2010, stand repealed, the petitioners cannot be denied the benefit of regularization of their services after having served for more than ten years with the respondent Corporation."

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The Court ordered: "The writ petition is allowed and the respondents are directed to regularize services of the petitioners on the posts on which they are working, from the date of completion of ten years of contractual service with all consequential benefits including the arrears of salary."

The Court further directed: "The needful shall be done by the respondents within a period of three months from the date a copy of this judgment is served upon them."

With regard to the contempt petition filed alongside, the Court held: "In view of the decision in the main writ petition, the order out of which instant contempt petition has arisen, has merged with the final judgment. Therefore, nothing further survives for consideration in this contempt petition. The same is, accordingly, disposed of."

Advocates Representing the Parties:

For the Petitioners: Mr. Shakir Haqani, Advocate

For the Respondents: Mr. Furqan Yaqub Sofi, Government Advocate

Case Title: Syed Jameel Qaisar and Others vs. J&K State Cable Car Corporation Ltd. and Others

Case Number: SWP No. 2510/2017 c/w CPSW No. 333/2018

Bench: Justice Sanjay Dhar