[J&K Civil Service Rules] Contractual Employee Not Entitled To Full-Fledged Regular Enquiry Before Termination: High Court

The Jammu and Kashmir High Court on Tuesday ruled that a contractual employee is not entitled to a full-fledged regular enquiry before termination, even if the termination is stigmatic in nature.

Justice Sanjay Dhar made these observations in a case filed by a Gram Rozgar Sahayak (GRS) who was terminated from his services by the Rural Development Department. The petitioner had challenged his termination, arguing departmental enquiry was not conducted before his termination.

The respondents argued that having regard to the fact that the engagement of the petitioner was contractual in nature and was not against any permanent post, as such, he cannot insist upon adherence to the procedure contemplated under Article 311 of the Constitution of India prior to termination of his services.

After hearing the rival contentions and upon examining the record the bench held that the petitioner was not a regular employee of the department, and was only engaged on a temporary basis and hence he was not entitled to the same protections as a regular employee, including the right to a full-fledged regular enquiry.

The bench noted that the petitioner's engagement was contractual in nature and was governed by specific terms and conditions, which allowed for immediate termination based on proven misbehaviour or poor performance.

The termination followed allegations of irregularities and fake MGNREGA job card scams in the district prior to which a committee of officers had been constituted to investigate the allegations, which upon scrutiny of the records had found that most of the allegations against the petitioner were substantiated. Court also noted that the petitioner had the opportunity to respond to the show cause notice.

“It appears that the respondents did not find any substance in the explanation tendered by the petitioner when the same was considered in the light of the observations made by the Committee in its final report, wherein it has been clearly indicated that after scrutinizing the record, all the allegations against the petitioner excepting allegation Nos.4 and 5 contained in the preliminary report were found to have been substantiated”, the bench recorded.

Emphasising that the petitioner was not a regular employee and had not attained temporary status, to enjoy the protection of Article 311 of the Constitution of India, the court stated that a person appointed on a contractual basis does not fall within the ambit of civil service and, therefore, is not entitled to the same protections. Reliance was placed on Supreme Court in the case of Union Public Service Commission v. Girish Jayanti Lal Vaghela (2006).

“…The petitioner was not working as a regular employee against a civil post but he was engaged on temporary basis on consolidated wages for one year and his engagement was continued after the expiry of initial period of one year and, therefore, the safeguards available to an employee appointed on a civil post as contained in Article 311 of the Constitution of India and the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, are not available to the petitioner”, the bench maintained.

Upholding the termination of the petitioner's services, the bench concluded that the termination was carried out in accordance with the terms of the engagement and after following the principles of natural justice.

Case Title: Abid Ahmad Ganai Vs UT of J&k & Ors.

Citation: 2023 LiveLaw (JKL) 182

Counsel For Petitioner: Mr. Jahangir Iqbal Ganai, Sr, Adv. with M/S Mehnaz Rather and Junaid Bin Azad, Advocates

Counsel For Respondents: Mr. Mohsin S. Qadiri, Sr. AAG, with Ms. Maha Majeed, Advocate.

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