Ordinarily, the grounds of attack of legislation are whether the legislature has the legislative competence and whether the legislation is ultra vires the provisions of the Constitution. This was held in the judgment passed by a two – judge bench comprising of Hon’ble Mr. Justice Ali Mohammad Magrey, Hon’ble Mr. Justice Dhiraj Singh Thakur, in the matter of Suhail Maqbool Dar V. State of J&K & ors [CM no.3588/2019], dealt with an issue where the petitioner filed a petition seeking to ive effect to his regularization as Junior Assistant from the date he was initially appointed on ad hoc basis vide High Court, and to declare him entitled to consequential service benefits.
his initial appointment on ad hoc basis, without any doubt, was dehors the Rules and a backdoor appointment; therefore, in terms of the law as it existed, he was not entitled to, and could not have dreamt of, regularisation on the post. However, the then State of Jammu and Kashmir passed a legislative enactment, namely, the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 [Act No.XIV of 2010], which came into force with effect from 28.04.2010, providing for regularization of the employees appointed on ad hoc, contractual or consolidated basis, subject to the conditions prescribed therein, especially in Section 5 thereof. Notwithstanding the law, as it existed, the petitioner in this petition, apart from seeking other reliefs, has challenged the very provision contained in the aforesaid enactment, i.e. the first proviso to Section 5 thereof, as enabled the competent authority to regularize him. Thus, the petitioner is seeking to sever the very perch he has been given a legal right to securely settle on.
Counsel for the petitioner also sought to refer to Regulation 177-A of the Jammu and Kashmir Civil Service Regulations to contend that the impugned proviso was dehors, rather ultra vires the said Regulation. It is unfortunate, the learned counsel seems to be labouring under a misconception that the Special Provisions Act has been enacted by the State Legislature under the aforesaid Regulations. Regulation 177-A relates to a different class of employees whose regularization is governed by a different set of Rules providing for, inter alia, a minimum of seven years continuous service.
After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that that the State Legislature had the competence to pass the enactment and that it is not ultra vires the provisions 13 of the Constitution; it rather is intra vires thereto. Therefore, there is no merit in the claims of the writ petitioner and, consequently, in this writ petition.
Judgement reviewed by – Vaishnavi Raman
