DB directs respondents to reconsider case of appellants for their regularization

STATE TIMES NEWS

JAMMU: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Chief Justice N Kotishwar Singh and Justice Moksha Khajuria Kazmi came to the rescue of petitioners who were engaged as Lecturers/Demonstrators in various branches of the education department on academic arrangement basis commencing 1994. While setting-aside the judgment of writ court dated 06.05.2015 passed in SWP No. 1874/2012, by the writ Court, directed respondents to reconsider the case of the appellants for their regularization in terms of the provisions of Act of 2010. Taking into account the fact that the appellants have given their youth in the service of respondents and have spent good amount of time in litigation pursuing the cause of their regularization, the respondents are commanded to re-consider regularizing their services in terms of Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, within a period of one month from the date copy of this judgment is served upon them, notwithstanding the age factor of the appellants.
While allowing the LPA, DB quotes “The sword of Damocles Hangs by a thread right over one’s head, ready to drop and rip one’s head right off. It means living one’s life under a constant fear or threat, which you always know about, but you only have a choice to live with it with the belief that the danger will never materialize”.
DB observed that the cumulative analysis of the above discussion is that the appellants are the consolidated/temporary employees and deserve to be treated as such in terms of the provisions of the Act of 2010, notwithstanding the nature of their initial order of engagement.
DB further observed that the respondents are also not justified, rather are absolutely on wrong footing, to say that the appellants have been and are continuing on the posts on the basis of court orders. The fact of the matter is that respondents have allowed them to continue as per their sweet wish without there being any compulsion from any quarter to do so, they appear to have been in need of their services and are now contemplating to show them the door or deny them the usufruct of their services in complete disregard to the decades long services rendered by the appellants for the department by taking recourse to Section 3(b) of the Act of 2010. The law cannot be made applicable selectively to extend benefit to few and deny it to others. We, therefore, do not subscribe to the view that the appellants fall within the exception as prescribed under clause (b) of Section 3 of the Act of 2010. On the contrary, we find the case of the appellants tilting more towards Section 5 of the Act of 2010, as they satisfy its requirement in its entirety. In the instant case as detailed out hereinbefore, the appellants have not only been continued for an indefinite period in contravention of the scope and concept of the academic arrangement, but have even been ordered to continue till further orders, which, to our view, connotes that the exception to Section 3 in the shape of clause (b) of the Act of 2010, has completely lost its significance vis-a-vis the appellants. The question so formulated in the preceding paragraphs is, accordingly, answered on the above lines. It is made clear that the repealment of the Act of 2010, by enactment of J&K Re-Organization Act, 2019, shall not wipe out the accrued rights of the appellants. In view of above, the writ Court does not appear to have appreciated the controversy in its right perspective.
Accordingly, in acceptance of the present LPA, we set aside the impugned Judgment dated 06.05.2015 passed in SWP No. 1874/2012, by the writ Court. The writ petition of the appellants as a sequel to above is also allowed. The impugned rejection orders of the Empowered Committee dated 18.07.2012 and 25.07.2012 are also quashed by a writ of certiorari. The respondents by a writ of mandamus are commanded to reconsider the case of the appellants for their regularization in terms of the provisions of Act of 2010. Given the fact that the appellants have given their youth in the service of respondents and have spent good amount of time in litigation pursuing the cause of their regularization, the respondents are commanded to re-consider regularizing their services in terms of Section 5 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, within a period of one month from the date copy of this judgment is served upon them notwithstanding the age factor of the appellants.
DB further said that the instant case has been decided on the basis of its chequered history and in the peculiar circumstances, therefore, it shall not set precedence in any manner whatsoever.