Umesh Kumar vs Union Territory Of Jammu And Kashmir & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking quashing of Government Order No. 21 (Flori) of 2023 dated 22.08.2023, whereby his claim for regularization has been rejected, with a further direction to the respondents to regularize his services in accordance with the recommendations of the Empowered Committee.

The applicant was initially selected for undergoing Mali training in the Department of Floriculture during the year 2003-04. Thereafter, vide Order No. FD-137 of 2004 dated 30.12.2004, he was engaged as Gardener (Mali) on contractual basis on consolidated remuneration. His engagement was stated to be on the pattern adopted by the Education Department for engagement of teachers under the Rehbar-e-Taleem Scheme.

Central Administrative Tribunal^{4. The Jammu and Kashmir Civil Services (Special Provisions) Act,} 2010 was subsequently enacted providing for regularization of certain categories of ad hoc, contractual and consolidated employees subject to fulfillment of the conditions prescribed therein. In the year 2015, services of 37 contractual employees working as Gardeners were regularized pursuant to the recommendations of the Empowered Committee. The applicant, however, was not included in the said list. According to him, his case was withheld on account of an alleged break in service.

The record further reveals that the applicant’s case remained under consideration. The Empowered Committee, in its 61^st meeting held on 25.04.2018, considered the cases of employees who had not been regularized earlier and, vide communication dated 14.06.2018, the names of 51 employees, including the applicant, were recommended for regularization, subject to verification by the concerned Departments. Despite the same, no final regularization order came to be issued in favour of the applicant. Even in the departmental communication dated 14.07.2022, the applicant’s case was reflected as pending with the Administrative Department for regularization.

Aggrieved by the continued pendency of his claim, the applicant earlier approached this Tribunal by filing O.A. No. 180/2023. The said O.A. was disposed of on 21.02.2023 with a direction to the Secretary to Government, Department of Floriculture, Gardens and Parks to consider the applicant’s case for regularization, keeping in view the recommendations made by the Empowered Committee, and to pass an appropriate order in accordance with law.

Pursuant thereto, the respondents passed Government Order No. 21 (Flori) of 2023 dated 22.08.2023, rejecting the claim of the applicant principally on the ground that the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 stood repealed and, therefore, no further action for regularization could be taken under the repealed enactment. Aggrieved thereof, the applicant has approached this Tribunal by way of the present O.A.

The respondents have opposed the O.A. It is admitted that the applicant was engaged as Gardener on contractual basis vide Order dated 30.12.2004 and that he had undergone Mali training. It is, however, contended that when his case was considered by the Empowered Committee in its 38^th meeting held on 29.01.2014, the case was found deficient with the observation that the break in service was required to be condoned by the competent authority and thereafter the case was to be resubmitted to the Empowered Committee.

The respondents further contend that the applicant’s case continued to be processed at various levels. The requisite information was forwarded to the General Administration Department, but the matter was subsequently returned along with the advice of the Department of Law, Justice and Parliamentary Affairs. The stand of the respondents is that after repeal of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, no action towards regularization could legally be taken thereunder. Reliance has also been placed upon the principles governing regularization laid down by the Hon’ble Supreme Court in Secretary, State of Karnataka and others v. Uma Devi (3) and others, (2006) 4 SCC 1.

We have heard learned counsel for the parties and carefully perused the pleadings and material available on record.

The short question which arises for consideration is whether the respondents were justified in rejecting the applicant’s claim solely on the ground that the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 had subsequently been repealed, despite the fact that his case had been taken up and processed under the said enactment while it was in force.

It is not in dispute that the applicant was engaged as a contractual Gardener in the year 2004. It is equally evident from the record that his case for regularization was not raised for the first time after repeal of the Act. Rather, the case had travelled through the statutory/administrative process much earlier. The Empowered Committee had considered his case in its 38^th meeting held on 29.01.2014 and had noticed a deficiency relating to break in service, requiring its condonation by the competent authority and resubmission of the matter.

More importantly, the applicant has specifically relied upon the subsequent proceedings of the Empowered Committee held on 25.04.2018, pursuant to which his name was amongst the 51 employees recommended for regularization subject to verification by the concerned Department. The respondents have not disputed the said proceedings in their para-wise reply and have treated the same as a matter of record.

Thus, the case of the applicant cannot be equated with a case where an employee approaches the Court for the first time after repeal of the statutory scheme merely on the strength of long contractual service. The applicant’s claim had already entered the process contemplated under the 2010 Act and had been considered by the Empowered Committee while the enactment was operative. The matter thereafter remained pending at different levels of the administration.

At the same time, we are conscious that recommendation or consideration of the applicant’s case cannot dispense with the requirement of establishing his eligibility under the applicable statutory provisions. The record placed before us shows that at an earlier stage the Empowered Committee had specifically noticed the issue of break in service and had required its condonation by the competent authority. Whether that deficiency was subsequently removed or condoned and whether the applicant satisfied all the requirements prescribed for regularization are matters which require verification from the official record by the competent authority.

Therefore, we are not inclined, on the basis of the material presently before us, to issue an unconditional direction for regularization of the applicant. Such a direction would amount to this Tribunal itself recording satisfaction regarding statutory eligibility without the necessary factual verification.

Nevertheless, the impugned order cannot be sustained in its present form. The respondents were required, particularly in view of the earlier order of this Tribunal dated 21.02.2023, to meaningfully examine the applicant’s case keeping in view the recommendations of the Empowered Committee. Instead, the claim has essentially been rejected on the ground of subsequent repeal of the 2010 Act. Such consideration fails to address the material circumstance that the applicant’s claim had already been processed under the statutory mechanism while the Act was in force and had reached the stage of recommendation subject to verification.

Administrative delay in finalizing a case which had already been taken up for consideration under the then prevailing statutory scheme cannot, by itself, furnish a sufficient ground to deny consideration of the claim. At the same time, the applicant can derive benefit from such consideration only if he is otherwise found to have fulfilled the statutory requirements at the relevant point of time.

In view of the foregoing discussion, the O.A. deserves to be partly allowed. Accordingly, the Original Application is partly allowed in the following terms:

It is clarified that this Tribunal has not expressed any final opinion regarding the applicant’s factual eligibility for regularization, which shall be determined by the competent authority on the basis of the relevant service record and the proceedings of the Empowered Committee.

The O.A. stands disposed of in the aforesaid terms. No order as to costs.