WP(C) No. 551/2021 Serial No. 15 REGULAR CAUSELIST HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 551/2021 CM No. 1690/2021 Dr. Muneeb Iqbal. …Petitioner(s) Through: Mr. Bhat Fayaz Ahmad, Advocate with Ms. Nighat Amin, Advocate. Vs. Union Territory of J&K and Others. ...Respondent(s) Through: Mr. Ilyas Nazir Laway, GA. CORAM: Hon’ble Mr. Justice Sanjeev Kumar, Judge. Hon’ble Mr. Justice Puneet Gupta, Judge. JUDGMENT (ORAL) Per Sanjeev Kumar; J: 01. This petition under Article 226 of the Constitution of India is filed by the petitioner Dr-Muneeb Iqbal, seeking to challenge an order and judgment dated 28th October, 2020 passed by the Central Administrative Tribunal, Jammu,Bench [the “Tribunal”], in OA No. 62/996/2020, whereby the Original Application filed by the petitioner seeking a direction to the respondents to regularize his services with effect from 16th October, 2008, has been dismissed. 02. Before we advert to the grounds of challenge urged by Mr. Bhat Fayaz Ahmad, learned counsel appearing for the petitioner, we deem it appropriate to take note of the few material facts. 03. Indisputably, the petitioner came to be appointed as Assistant Surgeon by the then Government of Jammu and Kashmir on ad hoc basis on 16th October, 2001.The services of the petitioner were continued on ad hoc basis from time to time till he was regularized by the Government vide order dated 12th October, 2012 prospectively in terms of the Jammu and Kashmir Civil Services (Special Provisions), Act, 2010 [hereinafter referred to asthe “Act of 2010”]. WP(C) No. 551/2021 04. The short grievance that was projected by the petitioner before the Tribunal was that, in terms of Section 5 of the Act of 2010, the petitioner was entitled to be regularized immediately on completion of continuous ad hoc service of seven years and, therefore, his regularization should have been given effect from 16th October, 2008. In the alternative, it was pleaded by the petitioner, that on the appointed date i.e. on the date of coming into operation of the Act of 2010, the petitioner had already completed seven years ad hoc service, as such, was entitled to be regularized with effect from the appointed date. 05. The Original Application filed by the petitionerwas contested by the respondents. Placing reliance on Proviso (Ist) and (IInd) of Section 5, it was contended by the respondents that regularization of an ad hoc appointee eligible under the Act of 2010, would take place from the date he/she is actually regularized by the competent authority. 06. The Tribunal having considered the rival contention of the parties and having gone through the material on record, came to the conclusion that in the absence of challenge to the vires of Section 5 of the Act of 2010, the petitioner was entitled to be regularized from the date a formal order of regularization was passed by the competent authority. On this ground as also on the ground of delay and laches, the OA filed by the petitioner was dismissed by the Tribunal. 07. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the impugned judgment passed by the Tribunal is not correct in law. It is not in dispute that the petitioner having been appointed as Assistant Surgeon on ad hoc basis on 16th October, 2001, completed mandatory seven years of service on 16th October, 2008. He was, thus having more than seven years ad hoc service to his credit at the time the Act of 2010 came to be promulgated. 08. In terms of Section 5 of the Act of 2010, the petitioner was entitled to be regularized with effect from the date the Act of 2010 came into force. This is evident from Section 5 of the Act of 2010. Section 5 of the Act of 2010 reads thus: WP(C) No. 551/2021 “5. Regularization of ad hoc or contractual or consolidated appointees:-Notwithstanding anything to be 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) The he has been appointed against a clear vacancy or post; (ii) The he continues as such on the appointed day; (iii) The he possessed the requisite qualification and eligibility for the post on the day of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or post; (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.” 09. From plain reading of Section 5 in particular Proviso Ist, it clearly transpires that an eligible ad hoc, contractual or consolidated appointee is entitled to regularization under the Act of 2010, only with effect from the appointed date, provided he/she has completed more than seven years’ service on the said date. The appointed date as defined in Section 2(C) is WP(C) No. 551/2021 the date of commencement of the Act of 2010. The right to regularization accrues to such appointee on the appointed date, provided he/she has to his/her credit seven years or more service on such date. 10. The Proviso came up for interpretation before the Hon’ble Supreme Court in SLP (C) No. 8720/2021 titled “State of Jammu and Kashmir & Ors vs Mohammad Syed Parrey& Ors”, wherein the Hon’ble Supreme Court after adverting to the provisions of the Act of 2010, in particular Section 5, held that ad hoc/contractual/consolidated appointees, having completed seven years continuous service as such on the appointed date, are entitled to be regularized only with effect from the appointed date and not from any date anterior thereto. 11. It is only such of the ad hoc, contractual or consolidated appointees who complete their seven years continuous service after the appointed date, are required to be dealt with under second proviso to Section 5 of the Act of 2010. 12. In view of clear interpretation of Proviso Ist made by the Hon’ble Supreme Court, it is no more debatable as to whether aneligible ad hoc, contractual or consolidated appointee who has completed seven years or more service on the appointed date, is to be regularized with effect from the appointed date or from the date a formal order of his regularization is passed. 13. The first proviso clearly indicates that the ad hoc, contractual or consolidated appointees who have completed seven years or more service on the appointed date, are entitled to be regularized from the appointed date. The Act clearly defines the appointed date as the date on which the Act of 2010 came into force. This aspect of the matter has not been considered by the Tribunal in correct perspective and, therefore, the judgment passed by the Tribunal is flawed and deserves to be set aside. 14. There was, of course, a considerable delay on part of the petitioner in approaching the Tribunal. Undoubtedly,the event which gave cause of action to the petitioner happened in the year 2012, whereas, the petitioner chose to file the OA in the year 2020. Since the OA was admitted and was WP(C) No. 551/2021 taken up for final consideration on merits by the Tribunal, as such, it would be too late in the day to dismiss the OA on the ground of delay and laches. 15. For the foregoing reasons, this petition is allowed and the impugned order dated 28th October, 2020 passed by the Tribunal is set aside. The petitioner is held entitled to be regularized as Assistant Surgeon with effect from the appointed date i.e. 29th April, 2010, when the Act of 2010 came into force. The petitioner would be entitled to all consequential benefits. 16. Writ petition disposed of along with connected CM(s). (Puneet Gupta) (Sanjeev Kumar) Judge Judge SRINAGAR: 10.02.2025 “HAMID” ❖ Whether the Judgement is Reportable? Yes/No ❖ Whether the Judgment is Speaking? Yes/No Abdul Hamid Bhat I attest to the accuracy and authenticity of this document 13.02.2025