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| State Cannot Exploit Worker for 28 Years and Call Him Casual: HC | | | Early Times Report
JAMMU, July 27: The High Court of Jammu & Kashmir and Ladakh has held that the Government cannot continue taking the services of an employee for nearly three decades and still describe him as a casual worker, while clarifying that long service does not automatically confer a right to regularisation against a higher post reserved for direct recruitment.
A Division Bench comprising Justice Sindhu Sharma and Justice Rajesh Sekhri partly allowed two petitions filed by the Union Territory of Jammu and Kashmir against orders passed by the Central Administrative Tribunal, Jammu Bench, in favour of Aftar Hussain, who had been working in the Sericulture Department since 1998.
The High Court upheld Hussain's entitlement to regularisation but modified the Tribunal's direction to regularise him as a driver. Instead, the Bench ordered the Government to immediately regularise him as an orderly in the entry-level grade of Rs 345-460, with effect from the date he completed seven years of service.
The court further directed that Hussain be granted all consequential benefits, emoluments and arrears from the date of his regularisation. The exercise has to be completed within three months from the date the judgment is made available to the authorities.
Hussain was initially engaged as a casual-hand driver by the Sericulture Development Department on August 20, 1998. His engagement was extended from time to time, with the Government maintaining that he had been appointed purely on a need basis and had worked only for a limited number of days each month.
Hussain, however, claimed that he had continuously discharged duties as a driver against a clear vacancy created following the retirement of a permanent driver in July 1998. He sought regularisation and permanent absorption on the post on which his services had been utilised for years.
The Tribunal, through two orders dated September 22, 2025, had accepted his claim and directed the authorities to regularise him as a driver under the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, with all associated service benefits and arrears.
Challenging the Tribunal's orders, Government Advocate Suneel Malhotra argued that Hussain was admittedly engaged as a casual labourer and could not be regularised as a driver because the post was required to be filled exclusively through direct recruitment under the J&K Sericulture Subordinate Service Rules.
Senior Advocate Surinder Kour, assisted by Advocate Manpreet Kour, appeared for Hussain and submitted that the employee's continuous service for 28 years against an available post could not be ignored merely by describing his engagement as casual or need-based.
The High Court noted that departmental master sheets, attendance-cum-salary records and an official communication dated May 14, 2010, showed that Hussain had been working as a driver against an available post after the retirement of the permanent incumbent.
The Bench observed that although Hussain had been engaged under the description of casual labour, his services had continuously been utilised for about 28 years and his engagement had repeatedly been extended through departmental orders.
The court said that where an employee continues to work for a sufficiently long period, it would not be appropriate to continue treating him as a casual worker. Such prolonged engagement, it observed, creates a presumption that there is a regular and continuing need for his services.
The Bench further held that the UT administration and its instrumentalities, being a model and welfare employer, were under a bounden duty to protect the rights of employees whose services had been continuously utilised over a long period.
"The length of service rendered by the respondent, that is 28 years, substantiates his claim for regularisation," the court observed while agreeing with the Tribunal that Hussain's service could no longer be treated as merely temporary or occasional.
However, the High Court found that the Tribunal had committed a "grave error of law" by directing his regularisation as a driver in the higher grade of ?475-850.
The Bench held that regularisation cannot be ordered in violation of statutory recruitment rules. Since the post of driver was required to be filled through direct recruitment, Hussain could not claim that post merely because he had performed driving duties for several years.
The court said permitting a lower-tier employee to secure a higher post solely on the basis of duties performed would bypass the constitutionally mandated transparent and merit-based recruitment process under Articles 14 and 16.
Accordingly, the High Court protected Hussain from disengagement, recognised his right to regularisation and arrears, but directed that he be absorbed in the lowest entry-level post of orderly rather than as a driver. (JNF) |
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