(h) ..............................................
against a civil post under the Government is a sine qua non. Section
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 :--
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made against clear vacancies. All other temporary arrangements,
been kept outside the purview of the Act of 2010. Section 3 further
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;
(iii) Non-governmental agencies or autonomous
bodies or public sector undertakings or cororations
or government companies or societies or other local
authorities which have htier own rules and
regulations governing their functioning; and
(iv) Part-time or seasonal employees inclouding
those whose wages are paid from out of the local
funds or contingent grants.
of his services. Apart from other terms and conditions, an ad hoc,
initial appointment. Section 10(2) and Section 10(2A) of the Act of
appointees.
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20 In order to appreciate whether the exclusion of „academic
temporary arrangements as are known to service jurisprudence. The
appointment‟. Rule 14 reads as under:
(1) Where it is necessary in the public interest owing to an
emergency which has arisen and could not have been
foreseen, to fill immediately a vacancy in a post borne, on
the cadre of service, class or category and the making of an
appointment to such vacancy in accordance with these
rules would involve undue delay, excessive expenditure or
administrative inconvenience, the appointing authority
may appoint a person otherwise than in accordance with
these rules temporarily with the prior approval of the Chief
Minister to Coordination until a person is appointed. in
accordance with these rules but such temporary
appointment shall in no case exceed three months on. each
occasion and not more than nine months in all;
(2) A person appointed under sub-rule (1) shall be replaced
as soon as possible by a member of the service of a
candidate qualified and considered fit to held the post
under these rules; and,
(3) A person appointed under sub-rule (1) shall not be
regarded as a probationer in such service, class or category
or be entitled by reason only of such appointment to any
preferential claim to future appointment to such service
class or category.
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22 It is thus evident that, with a view to meeting an
emergency that has arisen and could not have been foreseen, so as to
immediately fill a vacancy in a post born on the cadre of a service,
class, or category, and where making of a regular appointment in
accordance with the Rules would involve undue delay, excessive
expenditure, or administrative inconvenience, the appointing authority,
if it deems it necessary in public interest, may appoint a person
temporarily, with the prior approval of Chief Minister, for a period not
exceeding three months on each occasion and not more than nine
months in all. Such person shall be replaced as soon as possible by a
member of the service or by a candidate qualified and considered fit to
hold the post under the Rules. Such person, as is provided in Rule 11
itself, is not entitled, by reason of such appointment to any preferential
claim for future appointment to the service or category. If such a person
is subsequently appointed in accordance with the R ules, his probation
shall commence from the date of such subsequent appointment, and not
from the earlier temporary appointment, unless otherwise determined
by the Minister In-charge.
23 In the absence of any specific definition of
"ad hoc appointment" the only provision that can be referred to for
understanding the appointments made on ad hoc basis is Rule 14 of the
Rules of 1956, reproduced above. There is, however, no specific
definition of ad hoc or contractual appointees. A contractual
appointment, as the term itself conveys, is an appointment for a fixed
term governed by the terms and conditions of contract of engagement.
Such appointment may or may not be against a vacant post. Similarly, a
consolidated appointment, as the term suggests, is an appointment
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where a fixed sum per month is paid to an employee engaged to
perform the duties of a post. Such appointment too may or may not be
against a vacant post. The clear object with which the Act of 2010 has
been enacted is to confer the benefit of regularization on those who are
engaged to perform the duties of a post held by them, either on ad hoc,
contractual, or consolidated basis. The benefit of regularization is,
therefore, envisaged only for those whose appointments were made
against clear vacancies and who discharged the duties of the post in the
capacity of ad hoc, contractual, or consolidated appointees and to none
else. Appointments made on academic arrangement for a fixed term in
any Government Department were kept outside the purview of the Act
of 2010. The academic arrangements typically refer to temporary
faculty positions or teaching roles in educational institutions, created to
meet the specific requirements of a particular academic session. These
arrangements are generally governed by the agreements entered into
between the educational institutions and the candidates offering for
such appointments.
24 The academic arrangements are made annually, keeping in
view the requirements of the institutions arising out of admissions to
various courses. The availability of substantive vacant post is not a sine
qua non for such arrangements. It is in consonance with this concept of
academic arrangement that the legislature, in its wisdom, excluded such
fixed-term academic engagements from the purview of the act of 2010.
Therefore, the appointments made by the Government from time to
time against clear vacancies, whether on ad hoc, contractual, or
consolidated basis, form a class apart from (i) the appointments which
are made against tenure posts co- terminus with the life of a project or
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scheme of the State and the Central Government, and (ii) the
appointments made on academic arrangement for a fixed term in the
Government Departments. As is rightly held by the Tribunal as also by
a Single Bench of this Court in WP (c) No. 1797/2019, there is an
intelligible differentia in the classification made between the aforesaid
categories of appointments, and this classification made by the
legislature has a nexus with the object sought to be achieved, i.e
providing regular appointments only to those who are engaged against
clear vacancies.
25 A Constitution Bench judgment of the Supreme Court
rendered by seven Judges in State of West Bengal v. Anwar Ali
Sarkar, 1952 AIR 75, is a locus classicus on the permissibility of
reasonable classification under Article 14 of the Constitution of India.
It was authoritatively held therein that although Article 14 does not
permit class legislation, yet reasonable classification can be made by
the State without offending the mandate of equality enshrined in Article
14. Relevant extracts of paragraph (54) are noteworthy and are set out
hereinbelow for ready reference.
"54....... All persons are not, by nature, attainment or
circumstances, equal and the varying needs of different
classes of persons often require separate treatment and,
therefore, the protecting clause has been construed as a
guarantee against discrimination amongst equals only and
not as taking away from the State the power to classify
persons for the purpose of legislation. This classification
may be on different bases. It may be geographical or
according to objects or occupations or the like. Mere
classification, however, is not enough to get over the
inhibition of the Article. The classification must not be
arbitrary but must be rational, that is to say, it must not
only be based on some qualities or characteristics which
are to be found in all the persons grouped together and not
in others who are left out but those qualities or
characteristics must have a reasonable relation to the
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object of the legislation. In order to pass the test, two
conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from
others and (2) that that differentia must have a rational
relation to the object sought to be achieved by the Act. The
differ- entia which is the basis of the classification and the
object of the Act are distinct things and what is necessary
is that there must be a nexus between them. In short, while
the Article forbids class legislation in the sense of making
improper discrimination by conferring privileges or
imposing liabilities upon persons arbitrarily selected out of
a large number of other persons similarly situated in
relation to the privileges sought to be conferred or the
liability proposed to be imposed, it does not forbid
classification for the purpose of legislation, provided such
classification is not arbitrary in the sense I have just
explained. The doctrine, as expounded by this Court in the
two cases I have mentioned, leaves a considerable latitude
to the Court in the matter of the application of Article
14 and consequently has the merit of flexibility".
26 It is thus trite law that the constitutional validity of a
legislation is required to be tested by applying the twin tests: (i) the
classification must be founded on an intelligible differentia which
distinguishes those that are grouped together from others, and (ii) such
differentia must have a rational nexus with the object sought to be
achieved by the legislation.
27 The equality before law or equal protection of laws does
not mean that the State should provide uniform treatment to everyone,
even if they are not similarly situated. It emphasises the principle that
equals must be treated equally, and that treating unequals as equals
would itself offend the right to equality envisaged under Article 14 of
the Constitution. With a view to achieve equality and equal protection
of laws, equals must be treated alike, while unequals must be treated
differently.The universal application of law to different classes of
persons, who are differently situated, is essentially a denial of the right
to equality envisaged under Article 14 of the Constitution.
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28 Applying the twin tests to the legislation on hand, we find
that persons appointed on ad hoc, contractual, or consolidated basis
against clear vacancies are different from those who are engaged
against tenure posts co-terminus with the life of a project or scheme, or
under academic arrangements made for a fixed term, i.e., one academic
session alone. This differentia between the two classes is rational,
having regard to the object sought to be achieved by the Act of 2010,
which provides for the regularization of only those who have been
working on ad hoc, contractual, or consolidated basis against posts for
more than seven years. Tenure appointments, or for that matter
academic arrangement appointments, are not intended to continue
beyond the tenure or academic session, and therefore constitute a class
altogether different from ad hoc, contractual, or consolidated
appointments.
29 Viewed from any angle, we find no reason or justification
to take a view different from the one taken by the Tribunal, namely,
that Section 3 (b), or for that matter Sections 10(2) and 10(2A) of the
Act of 2010 violate Article 14 of the Constitution and are, therefore.
ultra vires. Question No.(i) is answered accordingly.
30 Coming to Question No. 2, suffice it to say that what was
initially envisaged by the Government in the year 1991 was to make
academic arrangements for providing teaching faculty to various degree
colleges of the erstwhile State of Jammu and Kashmir. The necessity to
resort to such academic arrangements had apparently arisen for the
following reasons: (i) the Department of Higher Education had decided
not to fix any intake capacity of students across Government colleges in
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Jammu and Kashmir, which resulted in a huge enrolment of students in
the Government degree colleges; and (ii) the permanent teaching
faculty required to meet the needs of such huge enrolments was not
available.
31 With a view to meeting the exigency that arose due to
opening of admissions to degree courses without fixing any intake
capacity, a "pool fund" was created by adding a component to the fee
structure, and this fund was utilised to make need-based academic
arrangements for faculty to meet the fluctuating demand in each
academic session. Although the Government has not been able to place
on record any formal policy, yet we have no manner of doubt that the
object of making such arrangements was nothing other than what has
been indicated above. This is also apparent from the various documents
on record, including the Government orders issued from time to time
laying down guidelines for engagement of candidates on an academic
arrangement basis. It also cannot be debated or disputed that some of
the candidates came to be engaged on academic arrangement basis
against available vacancies in a college, while others were engaged
even without the availability of vacancies. The nature of such
engagement was that it was to end with the expiry of the academic
session and was to be repeated only if a need would arise in the
subsequent session. Thus, the availability of a vacancy was not a sine
qua non for making academic arrangements. However, it cannot be
ignored that some of the petitioners who were engaged against
available posts on contractual basis for a particular academic year were
continued from year to year. Earlier, there used to be a break in their
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service due to winter/summer vacations, but later, on the intervention
of this Court/Tribunal, they were continued throughout the year and
were also paid even for the vacation period. This rendered their
engagements continuous in nature.
32 It is true that in some cases, the petitioners were allowed
to continue in their engagements on the strength of interim directions
passed in their favour by this Court or the Tribunal. Nonetheless, the
basis of such indulgence was that, having regard to the perennial nature
of duties entrusted to the academic arrangement appointees, it was not
permissible to replace them by the similar arrangements. In short, this
Court at least found a right vested in the petitioners to continue in their
engagements till they were replaced by a candidate regularly appointed
against the post, or till the post is otherwise filled through transfer or
adjustment of permanent faculty. It also cannot be lost sight of that the
process for adjustment of permanent faculty, either by direct
recruitment or by transfer, was not resorted to for years together . It
needs to be emphasized that it is not the nomenclature but the nature of
the appointment and the terms and conditions subject to which it is
made that determines whether the appointment qualifies to be an
ad hoc, contractual, or consolidated. The appointments of the
petitioners, having been made against sanctioned posts, would certainly
qualify as appointments envisaged for the benefit of regularization
under the Act of 2010. Their appointments are governed by the terms
and conditions of their contracts of engagement, which are either
contained in the guidelines issued by the Government from time to time
or incorporated in the advertisement notifications. This would render
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the appointments of the petitioners contractual in nature, though
initially made only for one academic year.
33 Indisputably, the petitioners are paid a consolidated salary
and not the salary in the pay scale of Lecturer/Assistant Professor. That
makes the appointment against a post on a consolidated basis.
Therefore, such appointments as have been made by the respondents
from time to time prior to the commencement of the Act of 2010,
against clear vacancies, and continued either by repeating such
appointments every year by a limited competitive process or in
compliance with interim directions passed by a competent court of
jurisdiction, shall be treated as contractual appointments on a
consolidated basis and would, therefore, definitely fall within the
purview of the Act of 2010, the nomenclature of the appointment i.e
"academic arrangement" notwithstanding.
34 This Court cannot lose sight of the fact that for more than
two decades, the respondents have failed either to create additional
posts or even to fill up the existing vacant positions of
Lecturers/Assistant Professors in various degree colleges. The degree
colleges are being run almost entirely on the basis of such academic
arrangements made year after year to cater to the needs of students
undergoing undergraduate courses.The reason is obvious and not too
far to seek. These appointments are cost-effective and save the time
that would otherwise be incurred in following the due process of
selection in consonance with Articles 14 and 16 of the Constitution. By
resorting to academic arrangements from time to time, and by picking
up candidates solely on the basis of academic merit without subjecting
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them to the arduous selection process conducted by the J&K Public
Service Commission, the respondents have undoubtedly compromised
both the quality of faculty and the standard of education imparted in the
Government Degree Colleges of the State/UT of Jammu and Kashmir.
35 It is true that the selection of candidates for appointment
as teaching faculty on an academic arrangement basis is not wholly
arbitrary. An advertisement notification inviting applications is issued,
and eligible candidates are allowed to participate and compete in the
selection process. The object of the selection process is to ensure that
candidates are picked up on the basis of their academic merit. However,
since these arrangements are, by their very nature, temporary, as such
many meritorious candidates with better and higher qualifications do
not participate and instead feel satisfied with their appointments as
Teachers/Lecturers in the School Education Department or in other
lower positions in various Government Departments. Such candidates
may be waiting for the Public Service Commission to issue an
advertisement notification so that they can apply and compete with
other eligible candidates for appointment as Assistant Professors in the
Higher Education Department on a permanent basis. The process of
making academic arrangements and thereafter regularizing the services
of such appointees after a few years definitely deprives other
meritorious candidates of their right to employment and thus violates
Articles 14 and 16 of the Constitution. The Act of 2010, which aims at
regularizing the services of temporary employees appointed on ad hoc,
contractual, or consolidated basis, therefore strikes at the root of
Articles 14 and 16 of the Constitution and is, on the face of it,
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unconstitutional. However, in the absence of any challenge to the said
Act, and in view of its subsequent repeal post reorganization of the
State in terms of the J&K Reorganization Act, 2019, this question is
rendered academic and does not otherwise arise for consideration in
these petitions. Question No.2 is answered accordingly.
Question No.3
36 In view of the aforesaid discussion, we are of the
considered opinion that the engagement of such petitioners, who were
appointed against clear vacancies prior to the commencement of the
Act of 2010 and whose services have been continued from time to time
either by the act of the respondents or on the intervention of this Court
or the Tribunal, on the principle that one temporary appointee cannot
be replaced by another, do fall within the category of ad hoc,
contractual, or consolidated appointments. Such engagements,
therefore, cannot be excluded from the benefit of regularization
envisaged under the Act of 2010.However, the engagements of those
petitioners whose appointments are found to have been made over and
above the sanctioned posts are definitely outside the purview of the
Act, for, holding of a vacant post by a temporary appointee for more
than seven years is sine qua non for claiming the benefit of
regularization envisaged under the Act of 2010. An exercise in this
regard is thus required to be conducted by the respondents to determine
which of the petitioners engaged prior to the commencement of the Act
of 2010 have been working continuously for more than seven years
against substantive vacant posts created by the Government in the
Department of Higher Education.
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37 For the foregoing reasons, we find merit in these petitions,
and the same are allowed by providing as under:
(i) The respondents shall constitute a High-Level
Committee headed by the Chief Secretary, with the
Secretary to Government, Department of Higher
Education; the Secretary to Government, General
Administration Department; the Secretary to Government,
Finance Department; and the Secretary to Government,
Department of Law, as its members, within a period of one
month;
(ii) The Committee shall, within a period of two months,
embark upon an exercise to identify those candidates who
were appointed as Assistant Professors/Librarians/PTIs
prior to the commencement of the Act of 2010, against
clear vacant posts; who were in position on the said date;
and who have rendered continuous service for a period of
seven years or more;
(iii) Such candidates who are found by the Committee to
have been appointed against vacant posts prior to the
commencement of the Act of 2010, and who satisfy the
eligibility criteria, shall be considered for regularization
under the Act of 2010 within one month thereafter;
(iv) The regularization of those found entitled under the
Act shall be given retrospective effect from the date they
are found eligible for such regularization i.e those who
completed continuous service of seven years on or before
the commencement of the Act of 2010 shall be regularized
from the date of commencement of the Act, while those
who completed seven years of service after the
commencement of the Act shall be regularized from the
date on which they actually completed seven years of
continuous service.
(iv) No fresh academic arrangements shall be made by the
Government against clear vacancies of Assistant
Professors, Librarians, and PTIs borne on the Jammu and
Kashmir Education Gazetted Colleges Service
Recruitment Rules 2008 and efforts shall be made to
immediately refer all such vacant posts to the Jammu and
Kashmir Public Service Commission for selection. The
Committee shall also examine the desirability of creating
additional posts of teaching faculty, Librarians, and PTIs
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in various degree colleges to meet the current and future
demand of admissions and shall take requisite steps for
creation of such additional posts, to be filled up only under
the Jammu and Kashmir Education Gazetted Colleges
Service Recruitment Rules 2008 Jammu and Kashmir
Rules through a selection process conducted by the Public
Service Commission; and,
(v) All academic arrangements made de hors the
vacancies or outside the sanctioned strength of Assistant
Professors, Librarians, and PTIs shall be dispensed with
from the next academic session, unless such engagements
are required to meet the exigency of the situation obtaining
in the next academic year and thereafter. Any such
engagements, if made, shall be treated as fresh
engagements, purely contractual in nature, and shall not
confer any right of regularization under any law in force or
that may be framed by the Government in future.
(vi) These directions shall not be applicable to Teaching
Associates engaged on contractual basis and their
engagements shall be governed by the terms and
conditions of their appointments.
Disposed of in the above terms.
The pending files which have been received from the
Tribunal be sent back to the concerned Benches of the Tribunal.
Registry shall place a copy of this judgment in each of the
files.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
30.08.2025
Sanjeev
Whether the order is speaking: Yes
Whether the order is reportable:Yes
