J&K&L High Court: Regularisation of Casual Workers Engaged Through 'Persons of Choice' is Fraud on Constitution
- Statutes
- Constitution of India — s.14, s.16
- Source
- LiveLaw
The Jammu & Kashmir and Ladakh High Court, in *Mohammad Shafi Dar v. UT of J&K*, held that the practice of engaging casual workers based on personal choice and subsequently regularising them constitutes a fraud on constitutional provisions for public employment. The Court quashed an order directing regularisation, emphasising adherence to Articles 14 and 16.
Ratio Decidendi · Legal Principle Established
The practice of engaging individuals as casual workers without following due process and then regularising their services is a violation of Articles 14 and 16 of the Constitution of India, as it bypasses the constitutional mandate of equal opportunity in public employment and amounts to a fraud on the Constitution.
Practice & Procedural Impact for Advocates
Advocates should scrutinise regularisation claims for adherence to constitutional principles of equal opportunity. Litigants seeking regularisation must demonstrate initial engagement through a fair and transparent process, not merely prolonged service. Government departments must ensure all appointments, including casual, follow due process to avoid legal challenges.
Key Legal Takeaways
- 1Regularisation of 'persons of choice' as casual workers is unconstitutional.
- 2Appointments must adhere to Articles 14 and 16, ensuring equal opportunity.
- 3Courts will quash regularisation orders if initial engagement lacked due process.
- 4Prolonged service alone does not validate an unconstitutional initial appointment.
The Legal Issue
The Jammu & Kashmir and Ladakh High Court addressed the legality of regularising casual workers who were initially engaged without following proper recruitment procedures, often based on personal preference or 'choice'. The core issue was whether such regularisation, despite prolonged service, violates the fundamental rights to equality and equal opportunity in public employment enshrined in Articles 14 and 16 of the Constitution of India.
Court's Reasoning
The Division Bench, comprising Chief Justice N. Kotiswar Singh and Justice M.A. Chowdhary, in *Mohammad Shafi Dar v. UT of J&K*, unequivocally stated that the practice of engaging individuals as casual workers based on personal choice and subsequently regularising their services is a "fraud on the Constitution." The Court emphasised that public employment must strictly adhere to the principles of equality and equal opportunity. Any appointment made without following a transparent and open recruitment process, which allows all eligible candidates to compete, is unconstitutional from its inception. The Court relied on established Supreme Court precedents, particularly *Secretary, State of Karnataka v. Umadevi (3)*, which held that regularisation cannot be a mode of recruitment and that appointments made in violation of Articles 14 and 16 are void *ab initio*. The bench found that merely serving for a long period does not cure the initial illegality of an appointment made outside the constitutional framework.
Why It Matters
This decision reinforces the constitutional mandate for fair and transparent public employment processes. It serves as a strong deterrent against backdoor entries and arbitrary appointments in government services. For advocates, it highlights the importance of scrutinising the initial engagement process when challenging or defending regularisation claims. Litigants seeking regularisation must demonstrate that their initial appointment, even as a casual worker, was made through a legitimate process, not merely that they have served for an extended period. Government departments are put on notice that any attempt to regularise 'persons of choice' will be struck down, thereby promoting meritocracy and accountability in public sector recruitment. This ruling is crucial for upholding the integrity of the public employment system and preventing its subversion through irregular practices.