Dr. Muneer Ahmad Bhat vs State Of Jammu And Kashmir & Ors.

O R D E R M.S.LATIF, M (J) oral

01/ Through the medium of the instant T.A 2283/3032, which had initially been filed before the Hon'ble High Court of J&K, Srinagar, in the year 2019 and numbered as SWP 807/2019, the Hon'ble Court, while issuing notice in the matter on 15-04-2019, passed an interim direction, thereby directing the respondents to maintain status quo. Ultimately this case was transferred to this court vide order dated 07-09-2020 and came to be numbered as T.A 2283/2021. The petitioner, through the medium of this T.A has sought a writ of certiorari for quashing the impugned order No. 95-HME of 2019 dated 24-01-2019 with further direction to the respondents to regularize his services as Assistant Surgeon in terms of J&K Civil Services (Special Provisions) Act, 2010.

02/ What emerges as per the pleadings made in this T.A and as averred in the written submissions filed by the petitioner, is that the petitioner, after having been found eligible, was appointed on ad hoc basis as Assistant Surgeon against a clear vacancy in the respondent department vide order dated 15-09-2000. Learned counsel for the petitioner submits that since then the petitioner has been continuously working as such, however, his services have not been regularized so far, giving rise to the litigation.

03/ It is further submitted that after having put in more than eight years of service on ad hoc basis, he was permitted to undergo post graduation (PG) course in Sher-i-Kashmir Institute of Medical Sciences (SKIMS), Soura. Accordingly, he was relieved in terms of order No. BMO/N/S/38/40 dated 30-05-2009 by his superior officer to report to Registrar Academics, SKIMS, Soura, Srinagar, for undergoing the said PG course. It is submitted that the petitioner, while in active service of the respondents, applied in terms of a notification issued by BOPEE vide No. 35-BOPEE of 2009 dated 29-05-2009 and after completion of his PG and Senior Residency, he was allowed to rejoin on 07-06-2016 and ever since, he has been working on his basic engagement as Assistant Surgeon in the respondent department.

04/ It is further submitted that failure on the part of the respondents to regularize the services of the petitioner in terms of J&K Civil Services (Special Provisions) Act 2010 and in the light of law laid down by the apex court, constrained the petitioner to approach the Hon'ble High Court of J&K, Srinagar, through the medium SWP 1055/2011, seeking regularization of his services as Assistant Surgeon. The said writ petition was allowed by the court in terms of its order dated 10-08-2011 directing the respondent department to accord consideration to the services of the petitioner for regularization in terms of the aforesaid Act. Accordingly, the respondents, after considering the petitioner for regularization of his services, rejected his claim, which resulted in filing of another petition, SWP No. 1119/2014 and the same was also allowed by the Hon'ble High Court and the order of rejection of regularization passed by the respondents, was quashed with a further direction to the respondents to accord consideration to the claim of the petitioner for regularization of his services in terms of the aforesaid Special Provisions Act 2010.

05/ It is submitted that the respondents, on the same grounds taken by them earlier, rejected the claim of the petitioner again, which, as submitted, they could not do as their earlier stand had already been rejected by the Hon'ble High Court. The consideration order, rejecting the claim of the petitioner for regularization of his services, was issued by the respondents vide impugned order No. 95-HME of 2019 dated 24-01-2019. The petitioner challenged the said order dated 24-01-2019 through the medium of another writ petition SWP No. 805/2019 and it is this petition, which came to be transferred by the Hon'ble High Court to this Hon'ble Tribunal and was registered as T.A No. 2283/2021 and the same has been pending adjudication ever since. It is submitted that the grounds taken by the respondents, while rejecting the claim of the petitioner for regularization of his services, are the same which formed the basis of the rejection of the claim of the petitioner for his regularization earlier.

06/ Learned counsel for the petitioner submits that it would not be out of place to mention here that the aforesaid orders of consideration, rejecting the claim of the petitioner for regularization, were quashed by the Hon'ble High Court and, therefore, same grounds cannot be repeated by the respondents while again rejecting the claim of the petitioner. The main ground as taken by the respondents for rejecting the claim of the petitioner for regularization is that there is a break in the service of the petitioner from May 2009 to June 2016, during which the petitioner underwent the PG course and also did his Senior Residency, though, as a matter of fact, there is no break in his services as he was allowed by the department to undergo the said PG course and do the Senior Residency as well, so much so, after completion of the PG course and the senior residency, the petitioner was allowed to rejoin his services even. Learned counsel submits that the petitioner was instructed by the respondents to furnish an undertaking that after completion of his PG course and senior residency, he would join the department which he did and, accordingly, he rejoined his services. As such, as submitted, there is no question of any break in the services of the petitioner. Besides, the respondents never passed any order reflecting the break in the services of the petitioner and it is only through the statement of facts, the compliance report and the consideration orders that the respondents have made a passing reference to the alleged break in service.

07/ It is further stated that the petitioner not only qualifies for his regularization in terms of the J&K Civil Services (Special Provisions) Act 2010 but also in terms of the judgments of the Hon'ble Supreme Court, Hon'ble High Courts and the Hon'ble Tribunals as he has been continuously working since the year 2000 against a clear vacancy. It is submitted that the apex court has deprecated the practice of ousting the employees working on Ad hoc or temporary basis for a long period as the ouster goes against the public policy which is to eradicate the colossal problem of unemployment and, as submitted, it is the public policy that forms the essence of each and every law and throwing out of such employees would not only affect them but also would affect their families because of the fact that such employees adjust the day to day needs of their families to the wages/remuneration they receive monthly from the departments and, therefore, it is not only the right of an employee to regularization but it is also the right to life, that gets affected, for, in absence of means of livelihood, one cannot dream of survival. To strengthen the argument, learned counsel has placed reliance upon a catenae of judgements, e.g. Dr. Mohammad Abrar Bhat and others versus State of Jammu & Kashmir & another, Farooq Ahmad Shah & others versus State of Jammu & Kashmir & others, Dr. Muneeb Iqbal versus Union Territory of J&K & others, and the judgement of the apex court titled as Jagoo versus Union of India & others. Accordingly, it is submitted that the this Hon'ble court may be pleased to allow this petition by directing the regularization of the services of the petitioner with all consequential benefits.

08/ Reply stands filed by the respondents and after its indepth analysis, what comes to the fore is the averment made by the respondents that none of the constitutional, fundamental, statutory or legal rights of the petitioner have been infringed by them and the petitioner, if he was aggrieved, he should have challenged the rule position governing the subject which he has not. Respondents have further stated that the claim of the petitioner has already been considered and rejected vide Government Order No. 95-HME of 2019 dated 24.01.2019. It is stated that even otherwise also, post Re-Organization of J&K vide Jammu and Kashmir Re-organization (Adaptation of State Laws) Order, 2020 notified vide S.O. 1229 (E) dated 31.03.2020, J&K Civil Services (Special Provisions) Act, 2010 has been repealed as a whole.

09/ It is further averred in the reply that as per recommendations of the Director Health Services, Kashmir, the matter was taken up with the Empowered Committee (Finance Department) for consideration. The Empowered Committee in Finance Department, vide O.M No. PS/DC/Misc-272/14 dated 23.10.2015 and Notification No. 49 dated 15.09.2015 notified the names of Ad-hoc/Contractual/consolidated employees of Health Department and, among others, the notification also included the name of the petitioner and the Health & Medical Education Department was asked to take necessary action for issuance of regularization order in favour of the applicants and the department vide letter dated 27.10.2015 requested Director Health Services, Kashmir to furnish the clarification/information with regard to the observations raised by the Empowered Committee, which was furnished stating that the applicant has not been selected by any Recruiting agency/or appointed in any other Government department and he is still working in the department and the allowances, other than what were admissible, have not been drawn in favour of applicant.

10/ Reply further unveils that the applicant is working against clear vacancy and has not been recommended earlier by the Empowered Committee and the status of his appointment is Ad hoc. It is further stated that the case of the petitioner was submitted to the competent authority in coordination for condonation of breaks/relaxations of upper age bar on the ground that he has completed seven years of aggregate service required for regularization and is practically serving in the department against the clear vacancy and proposal has been submitted for approval of the competent authority for regularization of the petitioner in terms of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 in relaxation of upper age limit. However, the competent authority, after deliberating on the issue, in broader perspective, vis-a-vis rule position, found that the applicant does not qualify for the regularization as there is no provision for condonation of break of service for regularization of Ad-hoc/contractual/consolidated employees in terms of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 and it was decided that the Health & Medical Education Department shall pass a consideration order, capturing all the facts of the case vis-a-vis rule position in respect of the applicant. It is further stated that Section (05) of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 envisages that notwithstanding anything to the Contrary contained in any law for the time being in force or judgement or order of any court or tribunal, the ad hoc or contractual or consolidated appointees shall be regularized on fulfillment of the conditions that he has been appointed against a clear vacancy and he continues as such on the appointed day and possesses 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 and no disciplinary or criminal proceedings are pending against him on the appointed day he has completed seven years of services as such. It is further provided 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. It is stated that the Health & Medical Education Department considered the case in terms of the observations of the General Administration Department and Jammu and Kashmir Civil Services (Special Provisions), Act, 2010 and therefore rejected the claim of the applicant by way of a speaking order.

11/ Respondents have further stated that even otherwise also, after the repeal of Special Provisions Act, the petitioner cannot claim regularization as a matter of right particularly when there is no such policy in force. Reference is made to the law laid down by the apex court in its judgement delivered in the case of Uma Rani Versus Registrar, Cooperative Societies (2004) 7 SCC 112 stated that when appointments were made in contravention of mandatory provisions of the Act and statutory Rules framed thereunder and by ignoring essential qualifications, the appointment would be illegal and cannot be regularized by the State and the State could not invoke its power under Article-162 of the Constitution to regularize such appointment. Reliance is further placed on the principle laid down by the Hon'ble Supreme Court of India in the case titled as State of Karnataka Versus Uma Devi (3), (2006) 4 SCC 1, whereunder the Hon'ble Bench has held that: "...when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure and he is aware of the consequences of the appointment being temporary, casual or contractual in nature, such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that, in fact, due consideration was given to this and in spite of a favorable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on contractual basis." In addition to the judgements referred to above, the respondents, in order to further augment their stance, have also relied upon a multitude of other judgements, delivered by the Hon'ble Supreme Court and the Hon'ble High Court of J&K, e.g. Ganesh Digamber Jambhrunkar & others versus State of Maharashtra & others, Special Leave to Appeal (C) No. 2543/2023 dated 12-09-2023, Yogesh Mahajan versus Professor R.C. Deka, reported as (2018) 3 SCC 218, Tariq Ahmad Mir and others versus Sate of J&K and others, 2007 JKJ (HC) (2) 584 and Tasleem Arif versus UT of J&K and others WP(c) NO. 1324/2022.

12/ Learned counsel for the petitioner submitted that the petitioner has been continuing in the respondent department for a very long period, spanning over more than two decades and the responsibilities as a doctor, have been undertaken by him, through out his tenure, with dedication and commitment and he has never ever been summoned or warned of any dereliction of duty nor has any adverse remark ever been made against him, for, his work has consistently been satisfactory. Learned counsel further submitted that similarly situated persons have already been regularized and denying the same benefit to the petitioner, despite his long service, constitutes to an arbitrary and discriminatory treatment being meted out to him. He further submits that in order to maintain fairness, equity and established judicial principles, case of the petitioner deserves to be considered for his regularization.

13/ Per contra, Mr. Musaib – DAG, appearing for the respondents, submitted that the petitioner cannot claim regularization or absorption as a matter of right, for, he does not fulfill the required criteria. However, learned counsel for the petitioner argues that the work performed by the petitioner was perennial and fundamental as per nature of his job. His long tenure further solidifies his claim for seeking regularization coupled with the fact that no issue was ever raised as regards his competence or performance of his job. Learned counsel further submits that procedural formalities cannot be used to deny regularization of services when the petitioner has performed the same duties as have been performed by those, who have already been regularized. To this effect, reference has been made to the case titled as Vinod Kumar and others versus Union of India and others, 2014 vol. 1 SCR 123. Learned counsel submits that the pervasive misuse of the employment by not considering regularization of the petitioner reflects a broader systemic issue that adversely affects the rights of the petitioner. He submits further that the International Labour Organization (ILO), of which India is a member, consistently advocates for employment stability and fair treatment of its employees. Learned counsel submits that vide order dated 24-01-2019, the Administrative Department directed the Director, Health Services, to allow the petitioner to rejoin the department on completion of his P.G Degree/Senior Residency acquired from SKIMS, Soura, in pursuance to order dated 04-02-2015 passed by the Hon’ble High Court, Srinagar. He submits further that since the petitioner was allowed to rejoin, the only inference available is that petitioner’s service was in continuity, as such, he cannot be deprived the benefit of Special Provisions Act, 2010.

14/ Learned counsel for the petitioner, lastly, submitted that this is the 3rd round of litigation and the petitioner is continuing past more than twenty years, as he was appointed on 15th September, 2000 and equity would also warrant the respondents to lean in favour of the petitioner. He submits that long tenure of twenty five years, adjusting on a meager remuneration, that too, when, at this stage, the petitioner is in his advanced age, perhaps at the end of his career, besides there being no break in his service, as such, depriving him of regularization, would be inhuman. To substantiate his argument, learned counsel has strongly relied upon a latest and celebrated judgement of the apex court delivered in case titled as Jaggu versus Union of India and others, arising out of SLP C.No. 5380 of 2024. He has also relied upon the law laid down by the Hon’ble Supreme Court in its judgement, delivered in case titled as Dharam Singh versus State of U.P and others, 2025 SCC Online SC 1735, whereunder the apex court has strongly deprecated the culture of ad hocism. Learned counsel submits that the mandate of our Constitution equally requires such kind of services to be reciprocated in a manner which is free from arbitrariness ensuring that the decisions of the State, affecting the career and livelihood of such employees, are guided by fairness and reason. Reliance is also placed on the judgement of the apex court delivered in case titled as Bola Nath versus State of Jharkhand and others decided on 30-01-2026

15/ While parting, learned counsel for the petitioner submitted that there is already an order passed by the Hon’ble High court, Srinagar dated 15-04-2019, whereby status quo, as it existed on that date, has already been ordered to be maintained and the said order has never been sought to be reversed or modified by the respondents before any higher forum, thus, it holds the field as on date. He submits further that even otherwise, under the court directions, the petitioner is, as of now, continuing in the respondent department from the year 2019.

16/ It will not be out of place to mention that the petitioner is, at present, around 48 years of age as is manifest from Cause Title of this petition. He must also be having family to feed, who must have adjusted on the meager earnings of the petitioner in absence of his regularization, when, as stated by the learned counsel, some similarly situated others stand regularized, to his exclusion. Under these circumstances, it is expected that the respondent, competent authority, will act as a good employer, while upholding the constitutional ethos and guarantees in the given situation.

17/ Heard learned counsel for the parties at length, perused the contents urged in the petition as also the reply filed by the respondents threadbare besides the law cited at the bar. Accordingly, while relying upon the import of judgements cited hereinabove, we are of the considered opinion that the impugned order deserves a relook.

18/ For the foregoing reasons, the impugned order, bearing No. 95-HME of 2019 dated 24-01-2019, is set aside and quashed with direction to the respondents to pass appropriate orders, more particularly, in the light of observations made by Hon’ble Supreme Court in case titled as Jaggu versus Union of India and others, arising out of SLP C.No. 5380 of 2024 supra. It is expected that, in view of the fact that the petitioner, who has been continuing in the respondent department, in whatever capacity, and earning his livelihood for his family for the past so many years, needful will be done by the respondents within a period of eight weeks from the date a copy of this judgement is served upon them, having due regard to humanitarian aspect of the matter given the peculiar facts and circumstances of the case.

19/ In view of what has been discussed above, this petition is disposed of along with connected M.As. However, no order as to costs.