Anjana Kumari v. Union Territory of J & K

Hon'ble Chief Justice of the High Court of Jammu and Kashmir for her absorption in the Authority on the ground that since there is no sanctioned post of Junior Scale Stenographer available in the Authority and as the petitioner has been working from more than 9 years in the Authority, she be adjusted against the post of Junior Assistant on permanent basis.

5. The Patron-in-Chief of the Authority while considering the said representation of the petitioner, recommended the same respondent 4 herein with an endorsement “to process the case in relaxation of rules”. WP(C) 801/2024

6. In the meantime, in the SWP No.2272/2010 supra pending before P a g e | 3 this Court, upon a consideration order passed therein and coupled with the aforesaid endorsement of the Patron-in-Chief of the Authority a proposal came to be mooted by the respondent 4 herein for regularization of the services of the petitioner against the post of Junior Assistant in the Authority, which proposal came to be approved by the then Hon'ble Executive Chairman as well as the Patron-in-Chief of the Authority on 4th July 2016

7. The petitioner had in the meantime crossed the upper age limit for appointment against the post in the Government, as such, the case of the petitioner came to be forwarded by the Authority to respondent 3 herein for relaxation of the upper age limit, which remained pending, however, after a period of two years, the respondent 3 herein asked the Authority to pass the regularization order in the first instance and thereafter seek relaxation of upper age limit, whereupon, the Authority after approval from the competent authority issued regularization order qua the post of Junior Assistant in favour of the petitioner on 21st February 2019, subject to relaxation of upper age by the Government.

8. After the regularization of the services of the petitioner by the Authority, the case of the petitioner was submitted to the Govt. for relaxation of upper age limit, where after, on 21st February 2024 respondent 3 herein instead required the Authority to disclose as to under which provision, the order of regularization of services of the petitioner was issued, aggrieved whereof, the petitioner approached this Court and maintained the instant petition. WP(C) 801/2024 P a g e | 4

9. On 3rd April 2024, the Authority communicated to the respondent 3 herein that the services of the petitioner stand regularized in terms of J&K Civil Service (Special Provision Act, 2010) (for short Act of 2010) read with rule 31(1) of Business Rules on the same analogy as was adopted in the case of adhoc employees of the Jammu and Kashmir.

10. The petitioner in the instant petition has prayed inter alia that respondent 1 to 3 herein be directed to pass formal order of grant of upper age relaxation in her favour while seeking further direction upon respondent 4 herein to pay to the petitioner the minimum basic scale of the pay along with the allowances attached to the post of Junior Assistant held by the petitioner.

11. Objections to the petition have been filed by the respondent/Authority, wherein, the appointment of the petitioner initially in the Commission in the year 2005 and subsequently in the year 2014 in the Authority is admitted. It has been further stated in the reply that since the power of relaxation of age is not vested in the Authority, as such, the relaxation of upper age of the petitioner came to be sought from the answering respondent 1 to 3, and, while processing the case of the petitioner for according such relaxation, various observations and queries came to be made by the respondent 3 and responses thereof though furnished by the Authority were not considered, thus, delaying the consideration of the case of the petitioner for relaxation in question. Heard learned counsel for the parties and perused the record. WP(C) 801/2024 P a g e | 5

12. It is not in dispute that the petitioner came to be adjusted against the post of Junior Assistant in the Authority in terms of Order dated 24th April 2014 upon the approval of the competent authority of the Authority while the petitioner was well within the prescribed age for appointment.

13. It is significant to mention here that Jammu and Kashmir State Legal Services Authority Regulations of 1998 (for short „the Regulations‟) have been framed and published vide notification No 03-SLSA 1998 dated 17th April 1998 in exercise of powers conferred by Section 27 of the Jammu and Kashmir Legal Services Authority Act of 1997, and, in terms of the Regulation 26 of the Regulations, it has been provided that the cadre shall mean the cadre of the Legal Services Authorities/committees and shall consist of such permanent and temporary posts as stand sanctioned on the day the Act came into force, and such number of them as may be sanctioned by the Government in consultation with Hon‟ble Chief Justice of High Court after the commencement of the Act.

14. Under Regulation 27, the services had been defined to mean Jammu and Kashmir legal Services Authorities/committees Services and Regulation 28 dealing with the method of recruitment provide that appointment to the services shall be made (i) by direct recruitment, or (ii) by promotion from cadre or class, or (iii) partly by direct recruitment and partly by promotion, or (iv) by deputation, or (v) by transfer from other service.

15. It is significant to mention here that the services of the petitioner herein admittedly came to be regularized by the Authority in terms WP(C) 801/2024 of the provisions of the Act of 2010 in terms of Order dated

21.02.2019, however, subject to relaxation of upper Age limit by the P a g e | 6 Government. Here a reference to the provisions of sections 3,5 & 6 of the Act becomes imperative hereunder:

3. Application of the Act. The provisions of this Act shall apply to such posts under the Government as are held by any person having been appointed on ad hoc or contractual basis including those appointed on consolidated pay provided that such appointments have been made against the clear vacancies, but shall not apply to: (a) persons appointed in terms of Government Order No. 125- GAD of 2001, dated 1.2.2001, on contract basis in the personal sections of Ministers or other authorities enjoying the status of a Minister; (b) persons appointed on tenure posts co-terminus with the life of the project or Scheme of the State or Central Government, as the case may be, and those appointed on academic arrangement for a fixed term in any Government Department; (c) non-governmental agencies or autonomous bodies or public sector undertakings or corporations or government companies or societies or other local authorities which have their own rules and regulations governing their functioning; (d) part-time or seasonal employees including those whose wages are paid from out of the local funds or contingent grants.

5. Regularization of ad hoc or contractual or consolidated appointees.- Notwithstanding anything the contrary contained in any law for the time being in force or any judgment or order of any Court or tribunal, the ad hoc or contractual or consolidated appointees referred to in Section 3 shall be regularized on fulfillment of the following conditions, namely :- (i) that he has been appointed against a clear vacancy or post; (ii) that he continues as such on the appointed day; (iii) that he possessed 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; WP(C) 801/2024 P a g e | 7 (iv) that no disciplinary or criminal proceedings are pending against him on the appointed day; and (v) that he has completed seven years of service as such on the appointed day: Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this 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 date or thereafter but before such regularization: Provided further 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 under this Act.

6. Relaxation in upper age limit. (1) The upper age limit as prescribed under rules, for entry into Government service shall be relaxed, in case the ad hoc or contractual or consolidated appointee is otherwise eligible for regularization under this Act; provided such appointee has crossed the age limit at the time of his regularization but was within the prescribed age for appointment as such or his age was relaxed by the competent authority at the time of his initial appointment. (2) The ad hoc or contractual or consolidated appointee shall be treated as in service candidate so far as the upper age limit is concerned for direct recruitment to Government service; provided his ad hoc or contractual or consolidated service is subsisting on the date of issue of the advertisement notification by the recruiting agency.

16. It is relevant to mention here that the Act of 2010 is applicable to the Authority and to the case of the petitioner under in terms of Section 3 of the Act supra notwithstanding that a non-governmental agency, autonomous body, public sector undertaking, corporation, government company , society and other local authority though have been kept outside the application of the Act, yet with a caveat that if they have their own rules and regulations governing regularization of employees appointed on adhoc, or contractual or WP(C) 801/2024 P a g e | 8 consolidated basis. Since the Regulations of 1998 supra as also the Act of 1997 do not provide for such regularization of the employees of the Authority, as such, the Authority has rightly taken recourse to the Act of 2010 for the purposes of regularization of the services of the petitioner. A reference in this regard to the Judgment of this Court in case titled as “Kousar Kallo vs Sheri Kashmir University of Agricultural Science and Technology & Ors” decided on

31.05.2023, would be relevant herein.

17. Having regard to the provisions of section 6 of the Act supra the relaxation of an upper age limit has been incorporated in the said Section in order to extent the benefit of relaxation to an adhoc or contractual or consolidated appointee provided the appointee is eligible otherwise for regularization under this Act and had crossed the age limit at the time of regularization, but was within the prescribed age for appointment, as such, at the time of the initial appointment and such adhoc, or contractual or consolidated appointee has been provided to be treated as in service candidate so far as the upper age limit is concerned for direct recruitment to Government service.

18. It is an admitted fact that the petitioner initially came to be appointed in the Commission in the year 2005, and thereafter came to be adjusted in the Authority on 24th of April 2014, and subsequently her services in the Authority came to be regularized in terms or Order dated 21.02.2019 against the post of Junior Assistant, though subject to the relaxation of upper age limit by the Government. Since the WP(C) 801/2024 P a g e | 9 provisions of the Act of 2010 have been invoked for the purposes of regularization of services of the petitioner by the Authority, and, in this regard, relaxation of her upper age limit has been sought by the Authority from respondent 1 to 3 herein, the said respondents 1 to 3 cannot shun their statutory duty cast upon them under Section 6 supra of the Act qua such relaxation, more so, in view of the admitted fact that the petitioner herein is eligible and entitled for accord and extension of such relaxation under the Act of 2010. Non- consideration of the case of the petitioner inasmuch as delay causaed by the respondents 1 to 3 in this regard, thus, cannot, but said to be unfair, unreasonable inasmuch as violative of legal, statutory and fundamental rights of petitioner.

19. Having regard to the aforesaid facts and circumstances obtaining in the matter inasmuch as for what has been observed, considered and analyzed hereinabove. instant petition succeeds, as a consequence whereof, the instant petition is disposed of as follows. I. The respondents 1 to 3 herein are commanded to process and settle the case of relaxation of upper age limit of the petitioner Junior Assistant in tune with Order No. 46-SLSA (Estt) of 2019 dated 21.02.2019, without any further delay, preferably within a period of three months from today and respondents thereof shall extend all benefits thereof to the petitioner to which the petitioner is entitled thereto. In the event of failure of respondents 1 to 3, in this regard, the upper age limit of the petitioner against the post in question shall be deemed to have WP(C) 801/2024 been relaxed by the respondents under the Act of 2010, and the petitioner shall be deemed to have become entitled to all P a g e | 10 consequential benefits thereof.

20. Disposed of. (JAVED IQBAL WANI) JUDGE JAMMU 13.02.2025 Hilal Ahmad Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No WP(C) 801/2024