Jammu & Kashmir High Court - Srinagar BenchQurat Ul Ain vs University Of Kashmir And Others on 9 May, 2022Author:Moksha Khajuria KazmiBench:Moksha Khajuria KazmiPage 1 of 7\n\n                                                          Sr. No. 68\n\n       IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH\n                          AT SRINAGAR\n\n\n                               SWP No.1295/2018\n                                IA No.01/2018\n\n  Qurat Ul Ain                                             ...Petitioner/Appellant(s)\n\n  Through: Mr. Sofi Manzoor, Advocate\n\n                                        Vs.\n\n  University of Kashmir and others                                     ...Respondent(s)\n\n  Through: Mr. T.H. Khawja, Advocate\n\n  CORAM:\n   HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE\n                                   ORDER09.05.202201.    In the instant petition, petitioner herein has challenged the Notification\n\nNo.F    (Casual/Contra-Gen-Adm)        KU/14      dated     03.09.2014        forming\n\n(Annexure-E) to the writ petition and also order No.F (Regularization/Cont.)\n\nGA/KU/2017 dated 16.06.2017 (Annexure-F) to the extent it regularizes the\n\npetitioner as helper instead of Lab. Assistant/Assistant.02.    Petitioner has also challenged advertisement Notification No.02 of\n\n2018, whereby the post of Lab Assistant was advertised. The petitioner has\n\nfurther sought direction to the respondents to regularize the services of\n\npetitioner strictly in terms of the roadmap as has been approved and issued by\n\nthe respondent No.2 in the same manner as has been done by Jammu\n\nUniversity and on the analogy the similarly circumstanced contractual\n\nemployees were regularized against their own post. The petitioner has also\n\nsought her regularization with effect from the date she had completed her\n\n7(seven) years of service against the post of Lab Assistant.SWP No.1295/2018IA No.01/2018Page 2 of 703.   In terms of advertisement No.Gen. 120 dated 14.05.2009; applications\n\nwere invited by University of Kashmir, Department of Electronics and\n\nInstrumentation Technology for the post of Lab Assistant. The petitioner\n\napplied for the said post and was duly selected in the year 2009. The petitioner\n\ncontinued to discharge her duties as Lab Assistant against the vacant post on\n\ncontractual basis in the department of Electronics and Instrumentation\n\nTechnology in the Kashmir University.04.   The Kashmir University pursuant to the resolution passed by the\n\nUniversity Council of University of Kashmir and a Roadmap approved and\n\ncommunicated by Financial Advisor (Universities) viz University of Jammu\n\nand University of Kashmir vide No.FA-KU/JU/202-204.com/13 dated\n\n20.08.2013 also worked out the roadmap along-with time lines, for\n\noperationalizing the frame work. The relevant paras of the aforesaid\n\ncommunication are quoted hereinbelow: -"..........IV. There will be complete ban on engagement of\n             casual/contractual workers.V. All the cases of casual workers presently engaged in the two\n             universities will be processed and put up to an empowered\n             committee (one each for the two universities) comprising of the\n             concerned vice-chancellor, Registrar, Director General Accounts\n             and Treasuries, Director Budget (both from the Finance\n             Department) and an officer to the General Administration\n             Department (not below the rank of additional secretary) strictly\n             as per the provisions of statutes and regulations for regularizing\n             all " engagees who have completed seven years of uninterrupted\n             service after the date of first engagement and who have been paid\n             regularly by the University from available non plan resources.\n             Upon regularization such of the engagees as can't "Helpers" and\n             be given the pay scales applicable to the lowest class iv or class\n             III level of employees in the Universities, as the case may be. For\n             such a process of regularization, supernumerary and temporary\n             posts of the "Helpers" shall be created outside the\n             normal/existing hierarchy of the University.VI. Helpers could subsequently move to the clear posts/vacancies\n             in the formal organizational hierarchy as and when these become\n             available and the supernumerary/temporary posts of helpers\n             vacated by the incumbents will automatically abolished.SWP No.1295/2018IA No.01/2018Page 3 of 7VII. In case of contractual employees also, a similar dispensation\n            could be followed with the difference that the designation could\n            be "Assistants" in place of "Helpers" in case of class III posts.05.        The University of Jammu vide notification No.Estab/13/477-576\n\n11.04.2014 framed the roadmap in terms of notification No.FA-KU/JU/202-204.com/13 dated 20.08.2013, the persons engaged on casual/contractual\n\nbasis were to be regularized on the basis of following guidelines: -I.     That he/she has been engaged in the Main Campus/Offsite\n                   Campuses of the University of Jammu by the establishment\n                   Section on the approval of the Competent Authority.II.    That he/she is continuously working on casual\n                   basis/consolidated/contractual/adhoc basis without any\n                   break (other than the usual breaks/leave sanctioned by the\n                   Authority i.e., Director/Head of the Department/Branch\n                   Officer).III.   That he/she possessed the requisite qualifications and\n                   eligibility criteria required or the past (as given at Annexure)\n                   on the date of his/her initial engagement on casual or adhoc\n                   or contractual or consolidated basis.IV.    That no disciplinary or criminal proceedings are pending\n                   against him/her on the appointed day i.e., the date on which\n                   he/she is considered for regularization.V.     That he/she has completed seven years or more service as\n                   such on the appointed day i.e., the day of regularization.4. (a). The Committee shall consider the cases of all the\n            casual/contractual engages who have completed seven years of\n            uninterrupted service after the date of first engagement and who\n            have been paid regularly by the University from available resources.Upon regularization, such of the engages as cannot be regularized\n            suitably against available posts, could be designated as "Helpers\n            "and be given the pay scales applicable to the lowest Class-IV or\n            Class-III level of employees in the University and temporary posts of\n            "Helpers" shall be created outside the normal/existing hierarchy of\n            the University.b. Helpers could subsequently move to clear posts/vacancies in the\n             formal organizational hierarchy as and when these become\n             available and the supernumerary/temporary posts of Helpers\n             vacated by the incumbents shall automatically get abolished.SWP No.1295/2018IA No.01/2018Page 4 of 7c. In case of contractual employees also, a similar dispensation\n             could be followed with the difference that the designations could be\n             "Assistants" in place of " Helpers" in case of Class III posts."06.      The University of Kashmir vide notification No.F (Casual/Contra-\n\nGen-Adm) KU/14 dated 03.09.2014 issued guidelines on the basis of which\n\npersons engaged on casual/contractual basis shall be regularized on the\n\nfollowing lines:-"........3. Procedure for regularizationa) The Committee shall consider the cases of all the\n              casual/contractual engagees who have completed seven years of\n              uninterrupted service after the first engagement and who have been\n              paid regularly by the University from available resources. Upon\n              regularization, such of the engagees as cannot be regularized\n              suitably against available posts, could be designated as "Helper"and be given the pay scales applicable to the lowest Class-IV of\n              employees in the University as the case may be. For such a process\n              of regularization, supernumerary and temporary posts of "Helpers"\n              shall be created outside the normal/existing hierarchy of the\n              University.b). Helper could subsequently move to clear posts/vacancies in the\n              format organizational hierarchy as and when these become\n              available and the supernumerary/temporary posts of Helpers by the\n              incumbents shall automatically get abolished.......".07.    The contention of the petitioner that the roadmap of the University of\n\nKashmir which has been issued vide notification dated 03.09.2014 pursuant\n\nto which petitioner has been regularized as Helper is in violation of the\n\naforesaid roadmap. The petitioner has been regularized as Helper instead of a\n\nLab Assistant/Assistant. The petitioner was regularized in terms of order No.\n\nF/Regularization/Cont) GA/KU/17 dated 16.06.2017, wherein she figures at\n\nserial No.322 and has also joined against the post of Helper. The petitioner\n\nstates that she has been working on contractual basis for more than seven years\n\nthat too against the clear vacancy, had to be regularized on the basis of\n\nroadmap approved and issued by respondent No.2 for both the UniversitiesSWP No.1295/2018IA No.01/2018Page 5 of 7i.e., Jammu and Kashmir University. The employees of both the universities\n\nwithin the state are working under one employer i.e., State of Jammu and\n\nKashmir and therefore casual/contractual employees of both the Universities\n\nare supposed to be treated at par and forms a single class. The petitioner states\n\nthat she deserves to be regularized against the post of Lab Assistant from the\n\ndate she completed her seven years of service.08.      The Notification dated 03.09.2014 not only refers to the resolution\n\ndated 11.10.2013 of the University Council but it also refers to the advice of\n\nthe Financial Advisor communicated vide his letter dated 20.08.2013. The\n\naforesaid letter clearly envisages in para (v) as well as in para (vii) the\n\nregularization of engagees not only to the lowest class IV but also to Class III\n\nlevel posts. This advice and opinion of the Financial Advisor has been adopted\n\nand approved by the University Council in its resolution dated 11.10.2013.\n\nTherefore, it does not lie in the mouth of University of Kashmir to contend\n\nthat the resolution adopted by the Council envisages regularization of\n\nengagees only against Class IV posts.09.      Respondents have filed their reply and have stated that petitioner has\n\nbeen regularized against the supernumerary post of Helper pursuant to policy\n\nof regularization adopted by university for adoption of all the contractual and\n\ncasual employees engaged from time to time.10.     It is further stated in the reply that the petitioner is not entitled to any\n\nof the reliefs claimed in the writ petition as she has been engaged on\n\ncontractual basis on consolidated salary with the provision that the wages shall\n\nbe drawn by debit to local funds. Petitioner having been appointed as Lab\n\nAssistant in 2009 claims regularization against the post in terms of policy\n\nadopted by the University. The scheme referred by the petitioner has beenSWP No.1295/2018IA No.01/2018Page 6 of 7primarily made for regularizing casual workers working against the post of\n\nclass IV who are supposed to be regularized against the similar class IV post\n\navailable in the University against the supernumerary post of Helper that may\n\nbe created, as such, the petitioner is not entitled to regularization against\n\nhigher post including that of Lab Assistant.CONCLUSION11.       Heard learned counsel for the parties and perused the record. The\n\ncounsel for the petitioner has placed on record the judgment passed by\n\nDivision Bench of this Hon'ble Court on 26.08.2021 on the same issue. Paras\n\n29, 30 and 33 are relevant to be quoted herein: -............." 29. Thus the finding of the writ court that regularization\n            of casual/contractual engagees has to be considered against the posts\n            in respect of which they have been performing their duties is further\n            strengthened by the road map formulated by the Financial Advisor as\n            approved by the University Council vide its resolution dated\n            11.10.2013. We are, therefore, of the considered opinion that the\n            notification dated 03.09.2014 envisages regularization of engagees\n            not only against Class IV posts but against Class III posts provided\n            the engagees fulfill the requisite conditions postulated in the aforesaid\n            notification30. It is not the case of respondent-University that aforementioned\n            four writ petitioners do not fulfill the requirements postulated in\n            notification dated 03.09.2014 for their regularization. Therefore, the\n            authorities of the University of Kashmir cannot deny accord of\n            consideration of above named four writ petitioners for their\n            regularization against the posts of Junior Professional Assistants as\n            they have been regularly performing the duties as such against these\n            posts. We, therefore, do not find any infirmity or illegality in the\n            finding recorded by the learned writ court in this regard.33. In view of the directions passed in the preceding para, we are not\n            going into the issue with regard to legality of the policy of\n            regularization issued by the University vide its notification dated\n            03.09.2014."12.   Counsel for the respondents has also conceded to the fact that the\n\njudgment of the Division Bench has attained finality and has not been\n\nchallenged by respondent-University so far.SWP No.1295/2018IA No.01/2018Page 7 of 713.     In view of judgment passed by the Division Bench, the writ petition\n\nof the petitioner is hereby allowed and the respondent-University is directed\n\nto accord consideration to the regularization of the petitioner to any of vacant\n\npost of Lab Assistant/Assistant subject to its availability and also to consider\n\nthe regularization of the petitioner from the date she completed her seven\n\nyears of service.14.    Disposed of.(MOKSHA KHAJURIA KAZMI)\n                                                   JUDGE\nSRINAGAR\n09.05.2022\nShameem H.SWP No.1295/2018IA No.01/2018