Abhishek Sharma vs The State of Jammu and Kashmir & Ors.

Held: Nomenclature is not determinative of constitutional entitlement – Where employees appointed on an “academic arrangement” basis are similarly situated to those engaged on ad hoc, contractual or consolidated basis in terms of duties, tenure, conditions of service and mode of appointment, denial of equal treatment solely on the basis of nomenclature is impermissible u/Art.14 of the Constitution of India – The exclusion u/s.3(b) of the 2010 Act does not satisfy the test of reasonable classification – It lacks an intelligible differentia and bears no rational nexus with the object of the Act, which is to regularize long-standing irregular appointments, and therefore results in invidious discrimination qua appointments on academic arrangement basis – Fulfilment of statutory conditions u/s.5(i) to (v) of the 2010 Act is determinative of eligibility for regularization – Once such conditions are satisfied, the nature of the initial engagement, whether academic arrangement, ad hoc, contractual or consolidated, ceases to have any legal relevance – The second proviso to s.5 of the 2010 Act is a beneficial provision and must receive purposive interpretation – Any construction which defeats the legislative intent of protecting employees who subsequently complete the qualifying service period is constitutionally unsustainable – State, as a model employer, cannot adopt artificial classifications to deny statutory benefits – Repackaging contractual engagements under a different nomenclature, while denying regularization, violates the equality mandate u/Arts.14 and 16 – Judgments passed by the High Court set aside – s.3(b) of the 2010 Act, insofar as it excludes employees appointed on an academic arrangement basis from consideration for regularisation despite fulfilment of conditions u/s.5 of the Act, is unconstitutional and violative of Art.14 of the Constitution – Respondent-State to consider the cases of the appellants for regularisation in accordance with s.5 of the 2010 Act, without reference to the nomenclature of their initial appointment – Jammu and Kashmir Contractual Appointment Rules, 2003. [Paras 12, 13.1, 13.2, 13.3]

Jammu and Kashmir Medical and Dental Education (Appointment on Academic Arrangement Basis) Rules, 2009 – Jammu and Kashmir Contractual Appointment Rules, 2003 (SRO of 2003) – State to act as a model employer and not as a hard-bargaining negotiator:

Held: State is expected to act as a model employer and not as a hard-bargaining or avaricious negotiator – The manner in which the respondent-State proceeded to issue the impugned SRO of 2009, disapproved – Undisputedly, SRO of 2003 was already in force, providing for appointments on a contractual basis under the respondent-State – Thus, subsequent decision of the respondentState to promulgate the impugned SRO of 2009 was not a benign or innocuous exercise – What was sought to be done was merely to repackage a substantially similar mode of engagement under a new nomenclature, namely “appointment on academic arrangement”, while simultaneously imposing an artificial ceiling of six years on the tenure of such appointments – To compound the matter, when the respondent-State did eventually act in the manner expected of a responsible employer by enacting the 2010 Act providing for regularisation of services, it once again carved out an exclusion by wholly denying appointees engaged on an academic arrangement basis the benefit of regularisation – Such a classification rests on considerations alien to settled constitutional jurisprudence and the equality mandate – By creating two categories, one comprising appointees on an academic arrangement basis and the other consisting of those engaged on a contractual, ad hoc or consolidated basis, the respondent-State has failed to establish any reasonable nexus between the classification and the object sought to be achieved by extending the benefit of regularisation to the latter category alone. [Paras 10.23, 10.24] Jammu and Kashmir Medical and Dental Education (Appointment on Academic Arrangement Basis) Rules, 2009 vis-à-vis Jammu and Kashmir Contractual Appointment Rules, 2003 (regulating appointments of a contractual nature) – Rule 4(1) of SRO No. 384 of 2009 (the impugned SRO) and Rule 4(1) of SRO No. 255 of 2003 (the 2003 Contractual Rules) – Discussed. [Paras 10.11-10.14]

Constitution of India – Art.14 – When violated: Held: Art.14 of the Constitution does not fetter the power of the State to frame classifications, for equals alone are entitled to equal treatment – Persons who are not similarly situated cannot claim parity – However, the said principle does not confer upon the State an unfettered licence to carve out artificial distinctions within a class of persons who are otherwise similarly situated – Any such artificial or unreasonable classification would strike at the very core of the right to equality and violate the mandate of Art.14 – For a classification to withstand constitutional scrutiny, two conditions are required to be satisfied – First, there must exist an intelligible differentia, namely, a rational and discernible basis which distinguishes one group of persons from another, founded on a real and relevant criterion and in the absence of such a yardstick, the differentiation would be bereft of any rational foundation and would, therefore, be unreasonable – Second, the differentia so adopted, being the basis of the classification, must bear a rational nexus with the object sought to be achieved by the classification. [Paras 10.8, 10.9]