Kailash Kumar vs State Of Jammu And Kashmir & Ors

Rajinder Singh Dogra, Member J

The SWP No.1934/2019 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.62/2023 by the Registry of this Tribunal.

The present matter was filed before the Hon’ble High Court seeking following relief: -

a) “Writ, order or direction in the nature of Writ of Mandamus commanding the respondents to regularize the petitioner as teacher in the School Education Department and fix the salary of the petitioner as a teacher retrospectively w.e.f. the date petitioner is entitled to regularization after having completed five years of service as a Rehbar-e-Taleem;

b) Writ, order or direction in the nature of Writ of Mandamus commanding the respondents to take into account the service rendered by the petitioner both as an Instructor w.e.f. 1979 as also Education Volunteer w.e.f. 2003 for the purpose of computing the pensionery benefits of the petitioner,

c) Writ, order or direction in the nature of Writ of Mandamus commanding the respondents to release the full salary of the petitioner retrospectively from the date of his regularization along with interest @ 10% per annum;

d) Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be issued in favour of the petitioner and against the respondents along with cost.

The present Transfer Application has its genesis in SWP No. 1934/2019, which stood transferred to this Tribunal and registered as TA No. 62/2023. The applicant sought regularization as a General Line Teacher under the Rehbar-e-Taleem (RET) Scheme, fixation of salary retrospectively, and counting of the service allegedly rendered by him as Instructor since 1979 and thereafter as Education Volunteer for pensionary benefits.

The applicant claims that he was initially engaged as an Instructor in a Part Time Centre in the year 1979 and continued under various educational schemes. It is pleaded that in the year 2003, upon replacement of the earlier scheme, he was engaged as an Education Volunteer and later, in the year 2009, upon acquisition of 10+2 qualification, he was converted as Rehbar-e-Taleem in an upgraded Primary School under SSA. The applicant asserts continuity of service since 1979 and contends that upon completion of five years as RET, he became entitled to regularization in the year 2014. Grievance is raised that despite long years of service, he was neither regularized nor granted pensionary benefits and was allowed to retire without any substantive service benefits.

The respondents have strongly contested the claim. A categorical stand has been taken that the applicant was over-age at the very inception of his engagement as an Education Volunteer. It is pleaded that the applicant’s date of birth is 07.05.1959 and that at the time of his engagement as Education Volunteer in the year 2008, he was already 49 years of age, far beyond the permissible upper age limit prescribed under the governing scheme. The respondents have further asserted that the subsequent conversion of the applicant as Rehbar-e-Taleem was itself in contravention of the applicable rules and norms, as eligibility at the entry level was absent. It is also pointed out that even the benefit of age relaxation under SRO-30 dated 31.01.2003 was not available to the applicant. On this premise, it is contended that no vested or enforceable right accrued to the applicant for regularization or pensionary benefits. It is further stated that the applicant attained the age of superannuation and stood retired on 31.05.2019.

The central issue that arises for consideration is whether an employee who was ineligible at the threshold due to over-age can claim regularization and consequential service benefits merely on the basis of long continuance.

From the admitted record, the applicant’s date of birth is 07.05.1959. His engagement as an Education Volunteer in the year 2008 was, therefore, at an age far beyond the maximum prescribed limit. Eligibility conditions, particularly age criteria, go to the root of appointment. Any engagement made in violation of such essential conditions does not confer a legal right capable of enforcement. Mere continuance, howsoever long, cannot cure an initial illegality nor can it ripen into a right for regularization.

The respondents have also demonstrated that the applicant was not even entitled to the limited age relaxation provided under SRO-30 of 2003. The conversion of the applicant from Education Volunteer to Rehbar-e-Taleem, having been made despite the applicant being over-age, cannot be treated as a lawful entry into service so as to form the basis for claiming regularization. Courts and Tribunals have consistently held that regularization is not a mode of recruitment, and an appointment which is void at inception cannot be validated by subsequent service or equity considerations.

The plea of counting earlier service rendered under different schemes also does not advance the applicant’s case. Such schemes were distinct, honorarium-based engagements, dehors the regular service rules, and cannot be equated with appointment to a civil post. In the absence of eligibility at the entry level, no mandamus can be issued either for regularization or for grant of pensionary benefits.

The Tribunal is conscious of the length of time the applicant may have spent in different capacities; however, sympathy cannot override statutory requirements. Granting relief in such circumstances would amount to perpetuating an illegality and would be contrary to settled principles of service jurisprudence.

For the foregoing reasons, this Tribunal finds no merit in the Transfer Application. The applicant having been over-age and ineligible at the time of initial engagement, no enforceable right for regularization or consequential benefits ever accrued in his favour.

Accordingly, TA No. 62/2023 is dismissed. No order as to costs.