A Bench of Justice Pamidighantam Sri Narasimha & Justice Manoj Misra had while interpreting first and second proviso of Section 5 of J&K Civil Servants (Special Provisions Act) 2010 ( herein after referred to as “the Act”) held that where the seven years period is completed by the employee beyond the appointed day, they would be
governed by the Second Proviso to Section 5. Thus an Employee Who has Completed Seven Years of Continuous Service As on Appointed Day in Terms of the Act is Entitled to be Regularisation From The Appointed Day And Not Thereafter.
The court was dealing with the petition wherein a challenge was thrown by the Union Territory of J&K to the judgment passed by the division bench of High Court of Jammu & Kashmir and Ladakh in “State of J&K and Ors vs Ulfat Ara and others LPASW No. 39/2019 along with connected matters” which directed the state government to give the benefit of regularisation to the services of employees by applying the principle as detailed out in the case of “Rabia Shah Vs State and Ors”.
it was submitted before the Court by the Union Territory of Jammu and Kashmir that the employees cannot claim regularisation from a date other than the date on which they were actually regularised by way of a formal order by a competent authority in terms of first proviso appended to section 5 of the Act.
The Court while relying on the law laid down in “Rabia Shah Vs State and Ors” which inter alia has held : “12. A conjoint reading of the various provisions of the 2010 Act, especially the two above quoted provisos appended to Section 5 and Section 10 thereof, makes it unambiguously manifest that such appointees could be regularized only subject to the fulfillment of conditions stipulated in Section 5 and in accordance with the procedure prescribed in Section 10, and that such regularization could be made effective only from a date posterior to the appointed day. The 2010 Act did not have any retrospective application. It is specifically provided in the first proviso appended to Section 5, as quoted above, that the regularization of such appointees under the Act shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed day or thereafter, but before such regularization, meaning thereby the regularization could not be ordered from a date anterior to the appointed day. The requirement of possession and completion of seven years” service as such, as provided in Section 5(v) of the Act, is one of the conditions of eligibility, qualifying and entitling such an appointee for regularization on or after the appointed day, not anterior thereto.
The court while dismissing the appeals preferred by the UT of J&K held that “If there are instances, where the seven years period is completed by the employee beyond the appointed date, they would be governed by the Second Proviso to Section 5. Apart from this clarification, there is nothing which requires to be considered in the appeal filed by the State.”
Thus, an employee who has completed seven years of continuous service on the appointed date shall be regularised from the appointed day in terms of the Act, but those employees who complete seven years of continuous service after the appointed day shall continue to be governed by second proviso appended to section 5 of the Act, as a result thereof their regularisation will take effect only from the date of Actual appointment and not anterior there to.
