SUBASH CHANDER vs Technical Education Department on 31 December 2025

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.686/2014 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.658/2022 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: - “It is, therefore most respectfully prayed that your lordship may be pleased to issue a writ in the nature of Certiorari so as to set aside and quash the order No.626 of 2007 dated 25.05.2007 and order No. 372 of 2007 dated 27.04.2007 issued by the respondent No. 2 and direct the respondents to fill up the post by proper selection by providing an opportunity to the petitioners, to seek consideration against these posts. OR In the alternative, Your Lordship may further be pleased to issue a writ in the nature of Mandamus so as to direct and command the respondents No. 1 to 3 to regularize the services of petitioners against the vacant posts as already directed by this Hon'ble Court in different orders. Or direct the respondents No. 1 to 3 to frame such polices and schemes to regularizes the services of the petitioners who are in active service from the last over more than 16, 12 and 8 years respectively with all consequential benefits including seniority, salary and arrears from the date petitioners have joined the department.

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Any other appropriate relief as the Hon'ble Court deemed just fit and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioners.

3. The facts of the case as pleaded by the petitioners in their pleadings are as follows: - a) The present Transfer Application arises out of SWP No. 686/2014, which stood transferred to this Tribunal and was registered as T.A. No. 658/2022. The applicants, eleven in number, claim to be permanent residents of the erstwhile State of Jammu and Kashmir and citizens of India, asserting that they are entitled to the protection of fundamental and constitutional rights guaranteed under Articles 14, 15 and 16 of the Constitution of India. b) The applicants state that they were engaged by the Technical Education Department at different points of time between the years 1997 and 2005, in various capacities such as Daily Wagers, Casual Labourers, Mali/Gardener, Safaiwala, Gatekeeper and Game Coolie, in Government Polytechnic Colleges at Jammu and Udhampur. According to the applicants, by HARSHIT YADAV HARSHIT YADAV

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their initial engagements were made through departmental orders issued by the competent authorities and they continued to discharge their duties uninterruptedly for long periods, extending from about 8 years to more than 17 years, depending upon the individual applicant. c) It is the specific case of the applicants that applicant Nos. 1 to 4 were engaged between the years 1997 and 1999 and have rendered more than 16 to 17 years of continuous service, while applicant Nos. 5 to 11 were engaged between the years 2001 and 2005 and have rendered about 8 to 12 years of service. The applicants assert that the nature of duties performed by them is permanent in character and they have been continuously utilized by the department without any break, thereby creating a legitimate expectation of regularization. d) The applicants further plead that earlier writ petitions filed by them, namely SWP No. 1547/2009 and SWP No. 1337/2013, resulted in interim protection and directions by the Hon’ble High Court. In SWP No. 1547/2009, status quo with regard to the services of applicant Nos. 1 to 4 was ordered, while in SWP

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No. 1337/2013, the respondents were directed to consider the cases of applicant Nos. 5 to 11 for regularization under the J&K Civil Services (Special Provisions) Act, 2010. e) It is also pleaded that recommendations were made by the Principals of the concerned Polytechnic Colleges to the Director, Technical Education, Jammu, for regularization of several applicants, but despite such recommendations, no final decision was taken. The applicants allege discriminatory treatment by the department, asserting that respondent Nos. 5 and 6 (private respondents) were regularized after rendering comparatively shorter periods of service, whereas the applicants, despite longer service, were denied similar benefit. f) The applicants place reliance upon Government Orders dated 25.05.2007 and 27.04.2007, whereby respondent Nos. 5 and 6 were regularized, and contend that denial of similar benefit to them amounts to hostile discrimination. They also rely upon judgments of the Hon’ble High Court, including the decision in Sanjay Kumar Bhagat & Ors., wherein directions were issued by HARSHIT YADAV HARSHIT YADAV

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to formulate a policy for regularization of daily rated workers having completed more than seven years of service. g) The grievance of the applicants is further aggravated by the issuance of Advertisement Notice No. 01 of 2013 dated 11.10.2013, whereby the department initiated fresh recruitment to Class-IV posts, including the posts on which the applicants were working. The applicants allege that issuance of the said advertisement, without first considering their cases for regularization despite court directions, is arbitrary, illegal, and violative of their fundamental rights. They also point out that in a similar matter, the Hon’ble High Court at Srinagar had stayed the same advertisement insofar as the Kashmir Province was concerned. h) On these premises, the applicants seek quashing of the regularization orders issued in favour of private respondents, a direction to consider and regularize their services against available posts, or in the alternative, a direction to frame an appropriate policy for regularization with all consequential benefits.

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4. The respondents have filed their reply statement wherein they have averred as follows: - a) The respondents have filed a detailed reply contesting the claim of the applicants and have taken preliminary objections regarding maintainability of the Transfer Application. It is contended that the applicants, being daily rated and casual workers, have no vested or enforceable right to seek regularization, particularly when their initial engagements were not made in accordance with the statutory recruitment rules. b) The respondents submit that the applicants have challenged Government Orders dated 25.05.2007 and 27.04.2007, whereby respondent Nos. 5 and 6 were regularized. It is stated that the said private respondents were eligible for regularization in terms of Government Order No. 794-GAD of 2004 dated 22.06.2004, their cases were duly placed before the Departmental Promotion Committee, and upon being found eligible, they were regularized strictly in accordance with law. The applicants, it is asserted, have no locus standi to challenge these regularization orders.

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c) It is further pleaded that SRO-64 dated 24.03.1994 imposed a ban on engagement of daily rated workers, and most of the applicants were engaged after the cut-off date in violation of the said statutory provision. Consequently, their very engagement being dehors the rules, no right can accrue in their favour for regularization. The respondents emphasize that engagement on daily wage or casual basis, particularly for fixed terms of 59 days, does not confer any right to seek regular appointment or regularization. d) While admitting the factum of engagement of the applicants, the respondents reiterate that such engagement was purely temporary, need-based and contractual in nature. It is specifically denied that any policy exists for regularization of daily rated or casual workers who were engaged in violation of the ban imposed under SRO-64 of 1994. The respondents further contend that the provisions of the J&K Civil Services (Special Provisions) Act, 2010 are not applicable to the case of the applicants.

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e) The respondents also submit that once earlier writ petitions were filed and directions were issued therein, the applicants cannot maintain successive writ petitions or proceedings seeking the same relief. It is further pleaded that mere pendency of representations does not confer any enforceable right upon the applicants, nor does it render the present proceedings maintainable. f) With regard to Advertisement Notice No. 01 of 2013, the respondents assert that the department is legally bound to fill up vacant Class-IV posts through a regular recruitment process in accordance with law, and the applicants cannot stall such recruitment merely on the basis of long continuance on daily wage basis. It is pointed out that no stay order was operating in respect of the Jammu Province and that the fact that none of the applicants were shortlisted for interview clearly demonstrates that they did not fulfill the eligibility criteria prescribed for regular recruitment. g) The respondents conclude by submitting that the Transfer Application is devoid of merit, barred by law, and liable to be by HARSHIT YADAV HARSHIT YADAV

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dismissed, as the applicants have failed to establish any statutory, constitutional or legal right entitling them to the reliefs claimed.

5. Heard learned counsel for the parties and perused the material available on record.

6. The present Transfer Application has its genesis in SWP No. 686/2014, which stood transferred from the Hon’ble High Court of Jammu & Kashmir and registered as T.A. No. 658/2022 before this Tribunal. The applicants, eleven in number, are working as daily rated workers, casual labourers and consolidated appointees in different Government Polytechnic Institutions under the Technical Education Department and seek quashment of the regularization orders issued in favour of private respondents, coupled with a direction to consider and regularize their own services or, in the alternative, to frame an appropriate policy for regularization.

7. The factual background, which is largely undisputed, reveals that the applicants were engaged between the years 1997 and 2005 in various Class-IV capacities and have continued in service for periods ranging from about 8 years to more than 17 years. Their engagement was by HARSHIT YADAV HARSHIT YADAV

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admittedly not made through any regular selection process, but through departmental orders on daily wage, casual or consolidated basis. It is also not in dispute that the applicants have continuously discharged duties of perennial nature and their services have been repeatedly utilized by the department over long durations.

8. The applicants place strong reliance on earlier orders passed by the Hon’ble High Court in SWP No. 1547/2009 and SWP No. 1337/2013, wherein interim protection and directions for consideration under the J&K Civil Services (Special Provisions) Act, 2010 were granted. They further contend that despite specific recommendations made by the Principals of the concerned Polytechnic Colleges and directions issued by the Court, the respondents failed to take a final decision on their regularization, while extending such benefit to private respondents, thereby adopting a discriminatory “pick and choose” approach.

9. On the other hand, the respondents have stoutly opposed the claim and have raised a fundamental objection that the applicants’ engagement itself was dehors the statutory rules and in violation of SRO-64 of 1994, which imposed a ban on engagement of daily rated workers by HARSHIT YADAV HARSHIT YADAV

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after the cut-off date. It is contended that no vested right accrues from an illegal or irregular engagement and that regularization cannot be claimed as a matter of right, particularly in the absence of a policy. The respondents further justify the regularization of private respondents on the ground that their cases were examined by the DPC and found eligible under Government Order No. 794-GAD of 2004.

10. Having heard learned counsel for the parties and having carefully perused the pleadings and record, the Tribunal is required to strike a balance between two competing constitutional imperatives: first, the prohibition against back-door entry and impermissible regularization; and second, the obligation of the State to act fairly, non-arbitrarily and in a non-exploitative manner towards employees who have served it for long years.

11. It is now a settled position of law that regularization cannot be claimed as an automatic or vested right merely on the basis of long continuance in service, especially where the initial engagement is not in accordance with the recruitment rules. The law laid down by the Hon’ble Supreme Court in Secretary, State of Karnataka v. Umadevi

(3) and consistently followed thereafter clearly prohibits courts and by HARSHIT YADAV HARSHIT YADAV

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tribunals from directing blanket regularization in violation of statutory rules.

12. At the same time, it is equally well-settled that the State cannot be permitted to exploit labour by continuing workers for decades together on casual or daily wage basis, extracting work of permanent nature, and thereafter denying them even a fair consideration for regularization or absorption. The constitutional mandate of Articles 14 and 16 requires the State to act with fairness, transparency and consistency, particularly when similarly situated persons have been extended benefits under executive orders.

13. In the present case, the Tribunal finds that the applicants have rendered exceptionally long periods of continuous service, some extending beyond 15 years, without any adverse material on record regarding their conduct or performance. It is also evident that their cases were recommended by the institutional heads and were earlier directed to be considered by the Hon’ble High Court. Despite this, no reasoned decision appears to have been taken by the respondents. Instead, the department proceeded to issue Advertisement Notice No. 01 of 2013 for filling up Class-IV posts, without first concluding the by HARSHIT YADAV HARSHIT YADAV

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exercise of consideration of the applicants’ cases as directed by the Court.

14. At the same time, the Tribunal is unable to accept the prayer for straightaway regularization or for quashing of the regularization orders issued in favour of private respondents. The regularization of respondent Nos. 5 and 6 was admittedly preceded by DPC consideration under a specific Government Order and cannot be lightly interfered with at this stage. The applicants cannot claim parity merely on the basis of length of service, ignoring differences in statutory framework and eligibility conditions.

15. Thus, while outright regularization cannot be granted, denial of consideration altogether would equally offend constitutional fairness.

16. In these circumstances, the only legally sustainable and balanced course is to direct the respondents to undertake a comprehensive, reasoned and time-bound consideration of the applicants’ cases, keeping in view their length of service, nature of duties, availability of sanctioned posts, earlier court directions, and applicable statutory provisions and executive policies.

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17. Accordingly, the Transfer Application is allowed to the following extent: a) The respondents are directed to consider the cases of all the applicants for regularization/absorption against available sanctioned Class-IV posts, strictly in accordance with law, applicable rules, and relevant Government policies, by passing a speaking and reasoned order. b) While undertaking such consideration, the respondents shall specifically examine:  the length and continuity of service rendered by each applicant,  the nature and requirement of work performed,  availability of sanctioned posts,  earlier directions issued by the Hon’ble High Court, and  the principle of non-discrimination vis-à-vis similarly situated employees.  This exercise shall be completed within a period of 03 months from the date of receipt of a certified copy of this order.

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18. Till such consideration is finalized, the applicants shall not be disengaged or replaced by fresh recruits, and their existing engagement shall continue on the same terms and conditions.

19. It is made clear that this Tribunal has not directed automatic regularization, and any regularization, if granted, shall be strictly subject to fulfillment of eligibility conditions and availability of posts. In case the applicants are found not eligible, a reasoned order shall be communicated to each of them.

20. The regularization orders already issued in favour of private respondents are not interfered with.

21. With the above directions, the Transfer Application stands disposed of. No order as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit/

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