Regularisation cannot depend on government’s ‘whims and caprice’: HC Full Bench

13/08/2026

JAMMU, Aug 12: A Full Bench of the High Court of Jammu & Kashmir and Ladakh has held that the government has no unfettered discretion to determine the effective date of regularisation of eligible ad hoc, contractual and consolidated employees once they acquire a statutory right under the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010.
The Full Bench compr-ising Acting Chief Justice Sanjeev Kumar, Justice Sanjay Dhar and Justice Mohd Yousuf Wani pronounced the judgment in LPA No. 70/2022, UT of Jammu and Kashmir through Commissioner Secretary, Forest Ecology Department versus Neeru Pandita.
The judgment was reserved on July 15 and pronounced on August 11, 2026.
The larger bench was constituted following a reference made on September 11, 2024, after a Division Bench noticed conflicting judicial views on the interpretation of Section 5 of the 2010 Act, particularly its first proviso.
The central issue before the Full Bench was whether the government could determine the date from which regular-isation would take effect and whether the 150-day period prescribed under Section 10 could be imported into Section 5 for determining the effective date.
The Full Bench held that the first proviso to Section 5 does not confer an unfettered power upon the government to choose the date of regulari-sation of an eligible employee.
The Court held that an employee acquires the statutory right to regularisation immediately upon fulfilling the conditions prescribed under Section 5.
It distinguished between the date on which the statutory right to regularisation accrues and the date on which the competent authority formally issues the regularisation order.
"The date of acquisition of the right of regularization is statutory in character and does not depend upon the choice or discretion of the authority," the Bench observed.
The Court cautioned that if regularisation were made effective only from the date of the formal government order, the benefit could become dependent upon the timing of administrative action.
It observed that one employee whose case was processed within 150 days could receive regularisation earlier, while another similarly placed employee could lose benefits merely because the Empowered Committee took years to process his case for reasons not attributable to him.
Such an interpretation, the Bench held, would create discrimination between similarly situated employees and suffer from arbitrariness.
The Full Bench also rejected the contention that the 150-day period prescribed under Section 10 determines the effective date of regularisation.
It held that Section 10 is essentially procedural and provides the mechanism and time-frame for processing regularisation cases before the Empowered Committee.
The Bench ruled that the 150-day period cannot be read into Section 5 for determining the effective date, as the statutory right arises once an employee satisfies all the prescribed conditions.
The Court further held that although Section 10 uses the word "shall" while prescribing the timeline, it does not provide any consequence for failure to adhere to the period. The timeline, therefore, cannot control or postpone the substantive statutory right created under Section 5.
The Full Bench clarified that employees who had completed seven years or more of eligible service on the appointed day, April 28, 2010, are to be treated alike and, subject to fulfilment of other statutory requirements, regularised with effect from that date.
The Court said it would make no difference whether an eligible employee had completed seven, 10, 15 or even 20 years of service by the appointed day, as all such employees would stand on the same footing for determining the effective date.
For employees who had not completed seven years on April 28, 2010, the second proviso to Section 5 permits them to continue until completion of seven years, after which the right to regularisation accrues, subject to fulfilment of the other statutory requirements.
While tracing the background of the legislation, the Full Bench made observations regarding employment practices followed by successive governments in the erstwhile State of Jammu and Kashmir.
The Court recorded that successive governments had been "consistently indulging in backdoor appointments", with large numbers of appointments being made without advertisement notifications or a selection process.
It observed that persons were appointed under different nomenclatures, including daily wagers, casual workers, contractual employees and persons engaged on ad hoc or consolidated basis, many of whom were subsequently brought into the regular establishment through government policies.
The Court noted that the 2010 legislation was eventually enacted to provide a statutory framework for regularisation of employees appointed on ad hoc, contractual or consolidated basis.
The Full Bench also settled the conflicting legal positions reflected in Abdul Majid Magray and Rabia Shah.
It overruled Abdul Majid Magray to the extent that it held regularisation takes effect only from the date on which the formal regularisation order is issued.
At the same time, the Bench approved Rabia Shah insofar as it held that the government cannot postpone regularisation at its own discretion and that the right accrues once the statutory conditions are fulfilled.
However, Rabia Shah was overruled to the extent that it held regularisation would become effective only after expiry of 150 days by importing the timeline under Section 10 into Section 5.
Importantly, the Full Bench directed that its judgment would have prospective effect and apply to pending as well as future cases.
It clarified that cases which have already been settled or finally disposed of would not be reopened on the basis of the new interpretation.
Having answered the reference, the Full Bench directed that the matter be placed before the appropriate Division Bench for disposal in accordance with the law laid down.
Advocate Meenakshi Salathia appeared for the UT Government, while Senior Advocate P.N. Bhat represented respondent Neeru Pandita.

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