The High Court of Jammu and Kashmir and Ladakh at Jammu has held that the government cannot select persons of its choice from the open market, engage them under casual or ad hoc designations and then regularise them with a view to conferring permanent employment. A bench comprising Justice Sanjeev Kumar and Justice M A Chowdhary described the practice as a fraud on the Constitution of India.
The ruling arose in a writ petition filed under Article 226 of the Constitution by the Union Territory of Jammu and Kashmir and other petitioners. They challenged an order of the Central Administrative Tribunal, Jammu Bench, which had directed the regularisation of certain respondents who had completed ten years of continuous casual service.
What did the J&K High Court hold about regularisation of casually engaged workers?
The court held that the government or its officers cannot choose people from the open market, designate them as daily wagers, casual workers, ad hoc appointees or consolidated workers, and then adopt a regularisation policy to give them the benefit of permanent employment. Such a practice constitutes fraud on the Constitution. A permanent government post must be granted in accordance with the applicable recruitment rules and selection process, rather than through retrospective regularisation of informally appointed persons.
How the respondents came to be engaged
The court recorded that the respondents donated land for the construction of tube wells in different villages. The gift deeds executed by them contained a stipulation that, in consideration of the donated land, they would be provided a government job. Their engagement with the Department of Irrigation and Flood Control as casual labour in 2014 was not disputed, as was their continuation in casual service.
After nearly five years of service, the respondents approached the High Court. The petition was subsequently transferred to the Tribunal. The Union Territory contended before the High Court that the provision of employment under the gift deeds was not intended to create a permanent post and that the respondents were engaged on a casual basis. Any regularisation, the petitioners argued, could arise only under the applicable statutory rules or executive orders.
The respondents took the opposite position. According to them, the stipulation in the gift deeds contemplated a permanent government job, not casual labour. The applicable framework identified by the petitioners was the Jammu and Kashmir Casual and Other Workers Regular Engagement Rules, 2017, issued through SRO 520.
Aspect | Position considered by the court | Court's assessment |
|---|---|---|
Initial engagement | Respondents were engaged as casual labour in 2014 after donating land for tube wells | The engagement and continuation in casual service were not disputed |
Stipulation in gift deeds | The land donation deeds referred to the provision of a government job | The government had no authority to promise or give a permanent government job in return for land donated for a public purpose |
Regularisation authority | The petitioners relied on the 2017 Regular Engagement Rules | Permanent employment had to follow the applicable recruitment rules and selection process |
Tribunal's direction | Regularisation after ten years of continuous casual service | The order was modified to the extent that the respondents were entitled to regular engagement under the applicable Rules |
What was the court’s operative direction?
The High Court disposed of the writ petition and modified the Tribunal’s judgment to the extent that the respondents were entitled to regular engagement as envisaged under the applicable Rules. The operative relief therefore did not confer permanent government employment or approve the broader regularisation practice criticised by the court.
The bench’s reasoning focused on the distinction between regular engagement within a lawful framework and the grant of permanent status through regularisation. It noted that a permanent job in a government department must accord with the recruitment rules in force and a selection process. The government could not convert personal selection and casual engagement into a route to permanent employment by devising or applying a regularisation policy after the fact.
At the same time, the court did not dispute the respondents’ factual position. Their donation of land, the relevant stipulation in the gift deeds and their continuation as casual workers were accepted as established for the purposes of the ruling. The illegality lay in the alleged authority to promise permanent employment and in the regularisation method, not in a denial that the respondents had performed casual service.
The disposition accordingly balances two positions: the respondents retain regular engagement under the applicable Rules, but the government cannot treat regularisation of persons selected from the open market under casual designations as a constitutional route to permanent employment.