Ajit Singh vs University Of Jammu
2023 Latest Caselaw 1786 j&K

                                                            Serial No. 13

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                               LPA No. 93/2018
                                               IA No. 01/2018

1. Ajit Singh, Age 43 years,
   S/o S. Joginder Singh,
   R/o H. No. 30-A, Govind Nagar,
   Sector - 2, Talab Tillo, Jammu.

2. Rajesh Kumar, Age 43 years,
   S/o Sh. Nand Lal,
   R/o H. No. 298, Old Basti,
   Bahu Fort, Jammu.

3. Pankaj Gupta, Age 39 years,
   S/o Sh. Kailash Gupta,
   R/o 60A/6, Suraj Nagar,
   Talab Tillo, Jammu.

                                                                 ....Appellants

                  Through :- Mr. Abhinav Sharma, Sr. Advocate with
                             Ms. Parkhi Parihar, Advocate.
         V/s

1.   University of Jammu,
     Through its Registrar,
     Baba Sahib Ambedkar Road, Jammu.
2.   Vice-Chancellor, University of Jammu,
     Baba Cahib Ambedkar Road, Jammu.
3.   Anita Khajuria, presently
     Posted as Sr. Assistant,
     University of Jammu, Jammu.
4.   Sandya Sharma, Posted as
     Sr. Assistant, University of Jammu,
     Jammu.
5.   Sheetal Devi, Posted as Sr. Assistant,
     University of Jammu, Jammu.
6.   Ishtak Parvez, Posted as Sr. Assistant,
     University of Jammu, Jammu.
                                 2                          LPA No. 93/2018


7.    Anuradha Raina, Posted as Sr.
      Assistant, University of Jammu,
      Jammu.
8.    Yogesh Khajuria, Posted as Sr.
      Assistant, University of Jammu,
      Jammu.
9.    Deepak Nargotra, Posted as Sr.
      Assistant, University of Jammu,
      Jammu.
10. Reeta Koul, Posted as Sr. Assistant,
    University of Jammu, Jammu.
11. Anjali Sharma, Posted as Sr. Assistant,
    University of Jammu, Jammu.
12. Meenakshi Sharma, Posted as Sr.
    Assistant, University of Jammu, Jammu.
                                                                  .... Respondents

                  Through :-   Mr. Ajay Abrol, Advocate.


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
           HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                               JUDGEMENT

(Oral)

Per: Sanjeev Kumar-J

01. This intra court appeal by the appellants is directed against

the judgment dated 31.05.2018 passed by the learned Single

Judge of this Court ["the writ-court"] in SWP no. 130/2017,

whereby the writ petition filed by the appellants herein has

been partly allowed whereby the order of regularization of

the appellants has been set-aside and they have been held

eligible for regularization upon completion of seven years of

continuous service w.e.f. 01.09.2013, 01.03.2013 &

26.04.2013 respectively. Writ court has, thus, directed the

respondent-University to re-visit the order of regularization

of the appellants and pass speaking order in the light of the

observations made in the judgment.

02. Before we advert to the grounds of challenge urged by Mr.

Abhinav Sharma, learned senior counsel appearing for the

appellants, it is necessary to set out few facts germane to the

disposal of this appeal.

03. The appellants came to be engaged as Junior Assistants on a

consolidated salary w.e.f. 11.06.2002, 16.07.2002 and

20.07.2002 respectively. They continued in temporary

service of the University for some time, but remained out of

action for almost one and a half year till they were re-

engaged by the University vide its orders dated 01.09.2006,

26.04.2006 and 01.03.2006 respectively. The appellants like

the private respondents completed seven years ad hoc

service on consolidated basis and, thus, became eligible for

regularization in terms of the decision taken by the

University of Jammu on the analogy of Jammu and Kashmir

Civil Services (Special Provisions) Act, 2010 (in short "the

Act of 2010").

04. The Vice-Chancellor of the University constituted a

Committee to screen the service records of the persons

working on contractual basis, who had completed seven

years of service and had become eligible for regularization.

The Committee after deliberation recommended the

regularization of the appellants herein on the ground that

they too had completed seven years service on ad hoc basis.

As is pleaded by the appellants in the petition, the

University even issued a formal order of regularization of the

petitioners but the same was later on kept on hold pending

opinion of the Financial Advisor of the University. This is

how the matter came to be referred to the Financial Advisor

of the University who opined that the Provisions of the Act of

2010 were not applicable to the University. However, the

University could take a view in formulating a suitable policy

on the analogy of the Act of 2010.

05. After receipt of the opinion from the Financial Advisor, the

University realized that the order dated 28.10.2011, whereby

the services of the appellants had been directed to be

regularized, was contrary to the opinion of the Financial

Advisor, as such, the said decision was kept in abeyance

until the University formulated a suitable policy.

06. The University did formulate a policy in consonance with the

provisions of the Act of 2010. As could be seen, under Item

no. 72.47, of this agenda note of the decision of the Vice-

Chancellor to regularize the services of the contractual

appointees of the University working as Junior Assistants

was placed before the University Council for approval. It

appears that University Council resolved that the matter in

respect of regularization of the consolidated Junior

Assistants be referred to the Financial Advisor of the

University with full facts for its considered advice.

07. This is how the matter again went to the Financial Advisor,

who while conveying his concurrence to the proposal of the

University made the regularization of the incumbents

subject to the conditions that they had more than seven

years of continuous service without any break at their back.

Upon receipt of the concurrence from the Financial Advisor,

the University Council issued an order dated 17.08.2013,

ordering the regularization of the appellants herein who

stood at serial nos. 9, 10 & 11 of the said order w.e.f.

08.08.2013, i.e. the date on which the concurrence was

given by the Financial Advisor.

08. Feeling aggrieved, the appellants filed SWP No. 130 of 2017

seeking inter alia a direction to the University to regularize

their services w.e.f. 28.10.2011 in terms of the decision

taken by the Vice-Chancellor which got the approval in

principle by the Financial Advisor. It was argued before the

writ-court that the Committee constituted by the Vice-

Chancellor earlier had found the appellants having put in

more than seven years of continuous service reckoned from

the year 2002 and, therefore, there was no occasion to defer

the date of regularization to 08.08.2013.

09. The writ petition was contested by the University. It was the

clear stand taken by the University before the writ-court that

it was erroneous to assert that the appellants had rendered

seven years continuous service as on 31.12.2010. It was

submitted that there was a substantial break in services

rendered by the appellants during their contractual

engagements. It was pleaded that the appellants were

initially engaged on contractual basis in the year 2002 but

their services were discontinued in the year 2004-05. They

were re-engaged w.e.f 01.09.2006, 01.03.2006 & 26.04.2006

respectively. Accordingly, the decision of the University,

regularizing their services from the date the concurrence to

the proposal sent by the University Council, was received

from the Financial Advisor was perfectly legal. The mater

was considered at length by the writ-court which did not

find favour with the arguments raised on behalf of the

appellants that they had completed their continuous and

uninterrupted period of 7 years in the year 2010 and,

therefore, it was rightly decided to regularize the appellants

w.e.f. 28.10.2011. The writ-court, however, found the

appellants having completed seven years continuous service

on 01.09.2013, 01.03.2013 & 26.04.2013 respectively. The

plea of the appellants that they were similarly situated with

the private respondents was also not accepted by the writ-

court on the ground that in the case of private respondents

there was only an artificial break of few days, whereas in the

case of the appellants the break in service was more than

one and a half year.

10. Be that as it may, the writ petition was partly allowed

holding the appellants entitled to regularization w.e.f.

01.09.2013, 01.03.2013 & 26.04.2013 respectively. A

direction was issued to the respondent-University to revisit

the regularization matter of the appellants and, accordingly,

give their regularization effect from the aforesaid dates by

passing a fresh speaking order. The order dated 28.12.2016,

which was impugned in the writ petition was, thus, quashed

to the aforesaid extent.

11. The appellants are aggrieved of and have called in question

the judgment of the writ-court dated 31.05.2018 in this

appeal, primarily, on the ground that the writ-court has

failed to appreciate that the appellants and the private

respondents herein were similarly situated and, therefore,

the appellants could not have been subjected to differential

treatment.

12. It is argued by Mr. Abhinav Sharma, learned senior counsel

for the appellants that in the case of private respondents,

the breaks in temporary service were condoned whereas in

the case of appellants the said period was taken out of

reckoning of seven years continuous service. Mr. Sharma

also refers to the past instances where interruption in

service of more than one year had been condoned by the

University on a case to case basis.

13. Having heard learned counsel for the parties and perused the

record, we are of the considered opinion that the judgment

passed by the writ-court is legally perfect and the view taken

in the matter is unexceptionable and, therefore, does not call

for any interference. Admittedly, in the case of appellants

there was a break of one and a half year in their service and

such break could not have been condoned to the extent of

treating that period to be on duty for the purpose of

reckoning seven years continuous and uninterrupted service

required for regularization. In a way, the break in service of

the appellants has been condoned by the respondents, in

that, the appellants have not been treated to be out of

service for the said period even when they were actually not

serving in the University.

14. So far as the private respondents are concerned, we have

gone through the record and we find that in their cases

there were only artificial breaks. They were engaged by

different orders from time to time and it was only because

the issuance of fresh order each time would take some time

that they used to be re-engaged with the break of day or two.

As a matter of fact the private respondents were not ousted

at any point of time.

15. That being the clear position, the appellants and the private

respondents never formed a single class and, therefore, the

allegation of discrimination based on violation of Article 14

and 16 is not available to the appellants. The case of the

appellants stands clearly on a different footing and has no

parallel or comparison to the case of the private

respondents. Rightly, the appellants have not been treated

as on duty for a period of one and a half year, during which

they were not in the engagement of the University. The

Financial Advisor has tendered correct advice and the same

has been carried out by the University in a perfectly legal

way.

16. For the forgoing reasons, we find no merit in this appeal and

the same is, accordingly, dismissed.

                                     (Rahul Bharti)    )          (Sanjeev Kumar)
                                         Judge                         Judge
Jammu:
28.08.2023
Bunty




                             Whether the order is reportable:       Yes / No
                             Whether the order is speaking :        Yes/ No