IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
SWP No. 2983/2018
RESERVED ON: 31.03.2022
PRONOUNCED ON: 03.04.2022
SHAHEENA BANO ...Petitioner(s)
Through: Mr. Hakim Suhail Ishtiyaq, Advocate
Vs
UNIVERSITY OF KASHMIR AND ORS. ...Respondent(s)
Through: Mr. Tasaduq H. Khawja, Advocate
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. The instant petition has been filed by the petitioner herein, challenging the order No. F (Regularization/Cont)GA/KU/2017 dated 16.06.2017 issued by the Assistant Registrar, General Administration to the extent it regularizes the petitioner as "Helper" instead of "Junior Professional Assistant".
2. The petitioner has further sought direction against the respondents to release all her emoluments as a "Junior Professional Assistant" from the date order of regularization as "Helper", pay all benefits available to the said post and also to regularize the services of the petitioner with effect from the date she has completed her seven years of service against the post on which she has been working.
3. The Kashmir University pursuant to the resolution passed by the University Council of University of Kashmir and a Roadmap approved and communicated by Financial Advisor (Universities) viz University of Jammu and University of Kashmir vide No. FA-KU/JU/202-
204.com13 dated 20.08.2013 also worked out the roadmap alongwith time lines, for operationalizing the framework. The relevant paras of the aforesaid communication are quoted herein below:-
".........IV. There will be complete ban on engagement of casual/contractual workers. V. All the cases of casual workers presently engaged in the two universities will be processed and put up to an empowered committee (one each for the two universities) comprising of the concerned Vice-Chancellor, Registrar, Director General Accounts and Treasuries, Director Budget (both from the Finance Department) and an officer to the General Administration Department (not below the rank of Additional Secretary) strictly as per the provisions of statutes and regulations for regularizing all "engagees who have completed seven years of uninterrupted service after the date of first engagement and who have been paid regularly by the University from available non plan resources. Upon regularization such of the engagees as cannot "Helpers" and be given the pay scales applicable to the lowest Class-IV or Class-III level of employees in the Universities, as the case may be. For such a process of regularization, supernumerary and temporary posts of the "Helpers" shall be created outside the normal/existing hierarchy of the University. VI. Helpers could subsequently move to the clear posts/vacancies in the formal organizational hierarch as and when these become available and the supernumerary/temporary posts of helpers vacated by the incumbents will automatically abolished.
VII. In case of contractual employees also, a similar dispensation could be followed with the difference that the designation could be SWP No. 2983/2018 "Assistants" in place of "Helpers" in case of class III posts.
4. The University of Jammu vide notification No. Estab/13/477-576 11.04.2014 framed the roadmap in terms of notification No. FA- KU/JU/202-204.com/13 dated 20.08.2013, the persons engaged on casual/contractual basis were to be regularized on the basis of following guidelines:-
I. That he/she has been engaged in the Main Campus/Offsite Campuses of the University of Jammu by the establishment Section on the approval of the Competent Authority. II. That he/she is continuously working on casual basis/consolidated/ contractual/ adhoc basis without any break (other than the usual breaks/leave sanctioned by the Authority i.e., Director/Head of the Department/Branch Officer).
III. That he/she possessed the requisite qualifications and eligibility criteria required or the past (as given at Annexure) on the date of his/her initial engagement on casual or adhoc or contractual or consolidated basis. IV. That no disciplinary or criminal proceedings are pending against him/her on the appointed day i.e., the date on which he/she is considered for regularization.
V. That he/she has completed seven years or more service as such on the appointed day i.e., the day of regularization.
4. (a). The Committee shall consider the cases of all the casual/contractual engages who have completed seven years of uninterrupted service after the date of first engagement and who have been paid regularly by the University from SWP No. 2983/2018 available resources. Upon regularization, such of the engages as cannot be regularized suitably against available posts, could be designated as "Helpers" and be given the pay scales applicable to the lowest Class-Iv or Class-III level of employees in the University and temporary posts of "Helpers" shall be created outside the normal/existing hierarchy of the University.
b. Helpers could subsequently move to clear posts/vacancies in the formal organizational hierarchy as and when these become available and the supernumerary/temporary posts of Helpers vacated by the incumbents shall automatically get abolished.
c. In case of contractual employees also, a similar dispensation could be followed with the different that the designations could be "Trainee Engineers" in place of "Helpers" in case of Class III posts."
5. The University of Kashmir vide notification No. F(Casual/Contra-Gen-
Adm) KU/14 dated 03.09, 2014 issued guidelines on the basis of which persons engaged on casual/contractual basis shall be regularized on the following lines:-
"........3. Procedure for Regularization a. The committee shall consider the cases of all the casual/contractual engages who have completed seven years of uninterrupted service after the date of first engagement and who have been paid regularly by the University from available resources. Upon regularization such of the engagees as cannot be regularized suitably against available posts, could be designated as "Helpers" and be given the pay scales applicable to the lowest class-IV of employees in the University as the case may be.
For such a process of regularization, supernumerary and temporary posts of the SWP No. 2983/2018 "Helpers" shall be created outside the normal/existing hierarchy of the University.
b. Helpers could subsequently move to
clear posts/vacancies in the formal
organization of hierarchy as and when these become available and the supernumerary/temporary posts of Helpers vacated by the incumbents shall also automatically get abolished.
6. The contention of the petitioner is that the roadmap of the University of Kashmir which has been issued vide notification dated 03.09.2014 pursuant to which the petitioner herein has been regularized as "Helper" is in violation of the aforesaid roadmap. The petitioner was regularized as "Helper" instead of "Junior Professional Assistant". The petitioner was regularized in terms of Order No. F (Regularization)/Cont/GA/KU/17 dated 16.06.2017. It is further stated that she was working on contractual basis for more than seven years that too against the clear vacancy, had to be regularized on the basis of roadmap approved and issued by the respondent No. 2 for both the Universities i.e., Jammu and Kashmir. The employees of both the Universities within the State are working under one employer i.e., State of Jammu and Kashmir and therefore, casual/contractual employees of both the Universities are supposed to be treated at par and forms a single class. It is also further stated that the petitioner deserves to be regularized against the post of "Junior Professional Assistant" from the date she completed her seven years of service.
7. On being put to notice, respondents have filed their reply. It is stated by the respondents that petitioner has been regularized against supernumerary post of Helper pursuant to policy of regularization adopted by the University. It is also stated that petitioner is working as Junior Professional Assistant for last so many years and, therefore, she SWP No. 2983/2018 is entitled to be regularized in terms of the policy framed by the University. It is further contended that the petitioner has engaged on contractual basis on consolidated salary. Petitioner herein has not been engaged as Junior Professional Assistant nor has been working against the post of Junior Professional Assistant.
8. It is also contended that petitioner has not right to be regularized against the post of Junior Professional Assistant as she is not working against the post of Junior Professional Assistant. The petitioner has been considered for regularization against supernumerary post of Helper and has already taken benefit.
9. Heard learned counsel for the parties and perused the material on record.
10. The counsel for the petitioner has placed on record the Judgment dated 26.08.2021 passed by the Division Bench in batch of appeals, the lead case being LPASW No. 90/2016 titled as "Sabha Ali Vs. Zahoor Hussain & Ors. Paragraphs 29,30 & 33 being relevant are taken note of herein:-
........."29. Thus the finding of the writ court that regularization of casual/contractual engages has to be considered against the posts in respect of which they have been performing their duties is further strengthened by the road map formulated by the Financial Advisor as approved by the University Council vide its resolution dated 11.10.2012. We are, therefore, of the considered opinion that the notification dated 03.09.2014 envisages regularization of engages not only against Class-IV posts but against Class-III posts provided the engagees fulfill the requisite conditions postulated in the aforesaid notification.
SWP No. 2983/2018
30. It is not the case of respondent-University that aforementioned four writ petitioners do not fulfill the requirements postulated in notification dated 03.09.2014 for their regularization. Therefore, the authorities of the University of Kashmir cannot deny accord of consideration of above named four writ petitioners for their regularization against the post of Junior Professional Assistant as they have been regularly performing the duties as such against these posts. We, therefore, do not find any infirmity or illegality in the finding recorded by the learned writ court in this regard.
33. In view of the directions passed in the preceding para, we are not going into the issue with regard to legality of the policy of regularization issued by the University vide its notification dated 03.09.2014."
The petitioner has also relied upon the judgment rendered by this Court in case titled SWP No. 1295/2018 titled "Qurat-ul-Ain Vs. University of Kashmir and Ors." to buttress his contentions.
11. Counsel for the respondents has also conceded to the fact that the judgment of the Division Bench has attained finality and has not been challenged by respondent-University so far.
12. Having considered the submissions made by the learned counsel for the parties and taking into consideration the ratio laid down by the Division Bench of this Court in the case supra, it would be appropriate if the respondents are asked to consider the matter based on such consideration and take a decision in the matter, so that the grievance projected by the petitioner is addressed properly. SWP No. 2983/2018
13. Petitioner herein stands already regularized in terms of the policy against the post of "Helper" w.e.f. 16.06.2017.
14. In view of above, the writ petition is allowed and the respondent-
University is directed to accord consideration to the case of the petitioner seeking her regularization against the post of "Junior Professional Assistant" subject to the condition that the said post exists on the establishment of the University; is available to be filled up and falls within the contours of the Division Bench Judgment supra. The consideration order shall be made and decision taken thereon within a period of two months from the date copy of the Judgment is served upon respondents.
15. Disposed of along with connected CMs.
(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR 03.04.2022 ARIF Whether the order is speaking Yes/No Whether the order is reportable Yes/No SWP No. 2983/2018