Employees appointed on academic arrangement without clear vacancy not entitled to regularisation: CAT

Srinagar, Oct 13: The Central Administrative Tribunal (CAT) Friday ruled that the employees appointed on an academic arrangement basis in the Higher Education Department (HED) for a fixed term, not against a clear vacancy were not entitled to regularisation.

Dismissing nearly a hundred applications transferred from the High Court and filed before it by more than 1000 aggrieved employees, a bench of D S Mahra Member (J) and Shri Krishna Member (A) also held that the tribunal has the jurisdiction over pleas challenging the constitutional validity of any statutory provision.

The applicants were engaged as assistant professors, lecturers, and demonstrators with the HED on an academic arrangement basis for a particular academic session for a fixed tenure which usually started in April and ended in March next year.

The engagement was extendable for the next academic session where the applicants were required to apply afresh for a new session.

The engagement on an academic arrangement basis had been extended either by the respondents (authorities) themselves or they were continuing on the court’s order.

After the J&K Civil Service (Special Provisions) Act, of 2010 was passed by the State legislature, the applicants represented before the competent authority for their regularisation in service.

However, the authorities did not accept their claim for regularisation because they had been appointed on a tenure basis for a particular academic session and not against a clear vacancy.

They had also been denied this benefit by Section 3 (b) of the act.

Section 3 (b) of the act provides that the persons appointed on an academic arrangement basis for a fixed term are not entitled to the benefit of regularisation.

The aggrieved applicants filed various writ petitions before the High Court and sought to declare Section 3 (b) of the act as unconstitutional and violative of Article 14 of the constitution, which were subsequently transferred to the tribunal.

Besides, applications were filed by the aggrieved persons before the tribunal seeking to set aside Section 3 (b) of the act.

The question of law before the tribunal was whether it has jurisdiction to decide the constitutional validity of Section 3 (b) of the Act 2010 and whether Section 3 (b) which denied the benefit of regularisation to the applicants appointed on an academic arrangement basis, for a fixed term was discriminatory, unjust, and unreasonable and in violation of Article 14 and 16 of the Constitution of India.

The tribunal observed that the act had been enacted with the object of providing regularisation to the ad hoc, contractual, and consolidated basis employees against clear vacancies.

Underscoring that the act is a conscious policy decision of the State legislature, the tribunal said: “It (act) makes clear in its statement of object and reasons that the act has been passed to provide for regularisation of the employees appointed on ad hoc, contractual and consolidated basis against clear vacancies.”

The tribunal pointed out that Section 3 and 3 (b) of the act differentiates employees appointed on ad hoc, contractual, and consolidated basis against a clear vacancy from the employees appointed on an academic arrangement basis for a fixed term, not against a clear vacancy.

“Section 3 of the act confers and extends this right to the entitled employees subject to satisfying the requirements and conditions mentioned in Section 5 of the act. Section 3 (b) of the act is an exception to Section 3. Section 3 (b) specifically excludes employees appointed on an academic arrangement basis for a fixed term,” it said.

The tribunal held that the employees or persons appointed under Section 3 read with Section 5 and employees or persons appointed under Section 3 (b) are two separate classes of employees.

“Appointment against clear vacancies and appointment not against clear vacancies differentiates and separates the two groups of employees,” it said. “Section 3 (b) is not violative of Article 14 of the constitution. The applicants are not entitled to the benefit of regularisation rather they have been specifically denied such benefit by Section 3 (b) of the act being a separate class altogether. Section 3 (b) of the act is constitutionally valid and intra vires.”

About the contention whether the tribunal has jurisdiction to decide the constitutional validity of Section 3 (b) of the J&K Civil Service (Special provision) Act, 2010, the bench said that the CAT had been constituted under Article 323 A of the constitution to adjudicate disputes concerning recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any state or any local or other authority within the territory of India or under the control of the Government of India.

The bench held that a constitution bench of the Supreme Court in its judgment in a case has held that the tribunals are competent to hear the matters where the constitutional validity of any statutory provision is challenged.

Meanwhile, the court appreciated the valuable assistance rendered by the counsels appearing for applicants and especially the counsels for the respondents – Hakim Aman Ali, DAG, Bikramdeep Singh, DAG, and Waseem Gul, GA in the batch of cases.