Substance Over Nomenclature: J&K High Court Treats Long‑Term “Academic Arrangements” Against Sanctioned Posts as Contractual/Consolidated Appointments Eligible for Regularization under the 2010 Act

Introduction

In a batch of writ petitions led by Mohammad Yousuf Nengroo and others v. Union Territory of J&K and others, the High Court of Jammu & Kashmir and Ladakh at Srinagar revisited a long‑running controversy surrounding the status and future of “academic arrangement” lecturers serving in Government Degree Colleges. The petitioners—many of whom have served since 2003/2006—challenged a 13 October 2023 judgment of the Central Administrative Tribunal (CAT), Srinagar Bench, which had rejected their plea to strike down Section 3(b) and allied provisions of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 (“2010 Act”) and to regularize their services.

The case presents three interlinked issues: first, the constitutional validity of the 2010 Act’s exclusion of “academic arrangements” from its ambit; second, the true legal nature of the petitioners’ engagements vis‑à‑vis “ad hoc/contractual/consolidated” appointments; and third, whether these engagements qualify for regularization under the 2010 Act. The Court’s resolution lays down a pivotal doctrinal shift: while upholding the facial exclusion of fixed‑term academic arrangements, it simultaneously holds that many such engagements—where they occupy sanctioned posts, have been continued year after year, and discharge the duties of regular posts—are in substance contractual or consolidated appointments and therefore are regularizable under the 2010 Act. The Court also prescribes a forward‑looking roadmap that curtails future academic arrangements against clear vacancies and mandates PSC‑based recruitment.

Summary of the Judgment

Constitutional validity: The Court upholds Section 3(b) of the 2010 Act and allied provisions (Sections 10(2) and 10(2A)) against challenge under Articles 14 and 16. The exclusion of fixed‑term academic arrangements and co‑terminus posts is a reasonable classification with a rational nexus to the Act’s objective—regularization of those holding clear vacancies on an ad hoc/contractual/consolidated basis.
Substance over nomenclature: The Court holds that the label “academic arrangement” is not decisive. Where academic‑arrangement appointees were in fact engaged against sanctioned posts, paid consolidated remuneration, and continued over the years (including under court orders), their appointments are, in essence, contractual/consolidated. Such appointees fall within the 2010 Act.
Relief and directions: The Court allows the petitions and issues structural directions:
- Constitute within one month a High‑Level Committee headed by the Chief Secretary with Secretaries of Higher Education, GAD, Finance, and Law as members.
- Within two months, identify candidates appointed as Assistant Professors/Librarians/PTIs prior to the commencement of the 2010 Act, against clear vacant posts, who were in position on that date and rendered at least seven years’ continuous service.
- Regularize those found eligible “under the 2010 Act” within one month thereafter, with retrospective effect:
  - If seven years’ service was completed on or before the Act’s commencement, regularization from the Act’s commencement date.
  - If seven years’ service was completed after commencement, regularization from the date that seven years were completed.
- No fresh academic arrangements against clear vacancies. All such vacancies to be referred to the J&K Public Service Commission (PSC) for selection under the 2008 Recruitment Rules. The Committee shall also examine the creation of additional posts to meet current/future demand.
- Academic arrangements beyond sanctioned strength (de hors vacancies) to be discontinued from the next academic session except for genuine exigencies; any such future engagements are purely contractual and confer no regularization rights.
- Teaching Associates engaged on contractual basis are expressly excluded from these directions.
Important caveat: While observing that the 2010 Act’s regularization framework can be at tension with Articles 14 and 16, the Court does not decide that question because the Act’s overall constitutionality was not under challenge and the Act was subsequently repealed after the J&K Reorganization Act, 2019. The Court treats the present dispute as governed by the 2010 Act’s scheme as applicable to accrued situations.

Background and Procedural History

The petitioners, engaged for years as lecturers on “academic arrangement” in Government Degree Colleges, initially approached the High Court in 2019 to challenge Section 3(b) (and Sections 10(2), 10(2A)) of the 2010 Act and to seek regularization or protection against replacement by similarly engaged persons. After the J&K Reorganization Act, 2019, the cases were transferred to CAT, Srinagar, which, in TA No. 297/2021 and connected matters, upheld the exclusion of academic arrangements and dismissed the petitions.

The petitioners then invoked the High Court’s writ jurisdiction under Article 226 to assail the CAT’s common judgment. The State opposed the petitions on maintainability (delay and laches) and on merits, maintaining that academic arrangements are need‑based, fixed‑term and inherently not comparable to appointees holding clear vacancies on ad hoc/contractual/consolidated bases.

Issues Framed by the High Court

Are Section 3(b), Section 10(2) and Section 10(2A) of the J&K Civil Services (Special Provisions) Act, 2010 ultra vires the Constitution?
What is the true nature of the petitioners’ appointments described as “academic arrangements” in Government Degree Colleges?
Do the petitioners’ engagements qualify as contractual/ad hoc/consolidated so as to bring them within the 2010 Act?

Precedents and Authorities Cited

1) L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

Cited at the Tribunal stage. The Constitution Bench affirmed that Tribunals constituted under Articles 323‑A/323‑B can adjudicate constitutional challenges to statutes, save and except challenges to the parent legislation creating the Tribunal itself. The Tribunal correctly assumed jurisdiction to examine the vires of Section 3(b) of the 2010 Act. Before the High Court, this jurisdictional issue was not pressed and the Court proceeded on merits.

2) State Of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 (Seven‑Judge Bench)

The Court relies on this locus classicus on Article 14 equality to test legislative classification. Two well‑known prongs are reiterated:

There must be an intelligible differentia distinguishing those included in a class from those excluded; and
That differentia must have a rational nexus with the objective of the statute.

Applying these tests, the Court holds that excluding fixed‑term academic arrangements and co‑terminus tenure posts from the 2010 Act, while including ad hoc/contractual/consolidated appointees holding clear vacancies, is constitutionally permissible.

3) Rule 14, J&K Civil Services (Classification, Control and Appeal) Rules, 1956

Though not a precedent, Rule 14 is used to explain “temporary appointments” in the nature of ad hoc engagements—made in emergent circumstances against posts borne on the cadre—with limited tenure and without conferring preferential claims. This statutory frame helps distinguish “ad hoc” appointees (against posts) from “academic arrangements” (need‑based, sessional, often not tied to a post).

Other Executive Instruments and Rules Referenced

SRO 64 of 1994 (Regularization of daily wagers/work‑charged employees).
Government Order No. 1220‑GAD of 1989 (one‑time regularization of ad hoc appointees after 7 years).
SRO 124 dated 21.04.2014 (amendments to the 2008 Recruitment Rules affecting eligibility).
J&K Education (Gazetted) Colleges Service Recruitment Rules, 2008.
Government Order No. 125‑GAD of 2001 (contractual staff in Ministers’ personal sections, specifically excluded by the 2010 Act).

Statutory Framework and the Court’s Interpretation

The 2010 Act’s Scope and Exclusions

The 2010 Act’s preamble reveals a narrow purpose: regularization of employees appointed on ad hoc, contractual, or consolidated bases. Section 2 defines these categories, and critically presupposes engagement “against any post under the Government.” Section 3 applies the Act to ad hoc/contractual/consolidated appointees appointed against clear vacancies, and excludes, inter alia:

Contractual staff in Ministers’ personal sections;
Co‑terminus tenure posts and “academic arrangements” for a fixed term;
Employees in autonomous bodies/PSUs/local authorities governed by their own rules; and
Part‑time/seasonal workers paid from local/contingency funds.

Section 5 lays down regularization conditions, including that the appointee must have possessed the requisite qualifications under the applicable Recruitment Rules at the time of initial engagement. Sections 10(2) and 10(2A) provide the operational mechanism for regularization.

Legal Reasoning

1) Article 14 Analysis: Validity of Excluding Academic Arrangements

The Court endorses the Tribunal’s approach that ad hoc/contractual/consolidated appointees holding clear vacancies constitute a distinct class from those on co‑terminus tenure posts or fixed‑term academic arrangements. Academic arrangements are session‑based, responsive to fluctuating admissions, often not tied to sanctioned posts, and are typically funded through college “pool funds.” This classification meets both Anwar Ali prongs: it identifies a real difference, and that difference aligns with the Act’s objective of regularizing those who have in fact been discharging duties against clear vacancies.

2) Substance Over Nomenclature: The Functional Test

The Court’s transformative contribution lies in its insistence that the “nature” of the appointment, not its label, determines whether an engagement falls within the 2010 Act. The inquiry is fact‑intensive:

Was the engagement against a sanctioned post (a “clear vacancy”)?
Was the appointee continuously continued across years (even if initially sessional), including under judicial protection against replacement by similarly situated temporary appointees?
Was the remuneration on a consolidated basis?
Did the appointee perform the duties of the post as a de facto member of the teaching faculty?

If these answers are affirmative, the engagement—though called “academic arrangement”—is, in essence, a contractual/consolidated appointment against a post and qualifies for consideration under the 2010 Act. Conversely, engagements made over and above sanctioned strength (de hors vacancies) remain outside the Act.

3) A Candid Caveat on Regularization Jurisprudence

The Court frankly observes that the broader public employment principle under Articles 14 and 16 favors open, merit‑based competition through constitutionally recognized selection mechanisms (like the PSC), and that recurrent regularization schemes risk undermining equality of opportunity. Although the Court hints that regularization statutes can be suspect, it refrains from adjudicating the 2010 Act’s overall constitutionality for two reasons: the issue was not directly raised; and, post‑reorganization, the Act has been repealed. Within those limits, the Court nevertheless applies the Act to accrued factual matrices and directs a calibrated regularization exercise.

4) Application to the Higher Education Context

The judgment situates the Higher Education Department’s practice within J&K’s unique admissions policy: absence of subject‑wise intake caps at Government colleges created fluctuating faculty needs, leading to annual academic arrangements funded via “pool funds.” Over time, a large segment of the college teaching workload came to be shouldered by these appointees. The Court notes that while the selection of such appointees is not wholly arbitrary (advertisements and merit‑based shortlisting exist), the practice cannot become a substitute for substantive recruitment. The directions that follow are designed to restore the constitutionally mandated recruitment architecture.

Final Directions (Operative Part)

Committee: A High‑Level Committee headed by the Chief Secretary (with Secretaries of Higher Education, GAD, Finance, and Law) to be constituted within one month.
Identification within two months: The Committee must identify candidates appointed as Assistant Professors, Librarians, or PTIs prior to the 2010 Act’s commencement, who held clear vacant posts, were in position on that date, and rendered seven years or more of continuous service, and who satisfy eligibility under the Recruitment Rules.
Regularization within one month thereafter: Those found eligible are to be regularized under the 2010 Act with retrospective effect calibrated to when they completed seven years (on or before the Act’s commencement, or thereafter on the date of completion).
Prospective prohibition: No fresh academic arrangements against clear vacancies; all such vacancies should be referred to PSC under the 2008 Rules. The Committee must also examine and initiate the creation of additional posts to meet present and future demand.
De hors vacancies: Academic arrangements outside sanctioned strength to be discontinued from the next session, save exigencies; any such engagement is a fresh, purely contractual appointment conferring no regularization rights.
Teaching Associates: These directions do not apply to Teaching Associates engaged on contractual basis; their engagements remain governed by their specific terms.

Impact Assessment

Immediate Effects

Pathway to regularization: Long‑serving college appointees engaged prior to the 2010 Act, who meet the “sanctioned post” and “seven‑year continuity” thresholds and possess prescribed qualifications, gain a concrete route to regularization with appropriately back‑dated effect.
Administrative overhaul: The High‑Level Committee is tasked with a rigorous audit—mapping posts, service continuity, qualification compliance, and the timing of accrual of the seven‑year threshold.
Recruitment reset: A categorical bar on using academic arrangements to fill clear vacancies pushes the Department back toward PSC‑centric, rule‑compliant recruitment.

Medium‑to‑Long Term Consequences

Quality and standards: By channeling vacancies to PSC and contemplating creation of additional sanctioned posts, the judgment aims to improve the quality and stability of faculty, addressing long‑standing concerns about reliance on temporary arrangements.
Budgetary and HR planning: Regularization and post‑creation entail financial commitments. The Finance Department’s role on the Committee signals the need for synchronized fiscal planning.
Doctrinal ripple: The “substance over nomenclature” test may influence analogous disputes in other departments where engagements have been labeled to avoid statutory benefits, though each sector’s statutory framework must be examined on its own terms.

Limitations and Guardrails

Temporal and positional limits: Only engagements prior to the 2010 Act’s commencement and against sanctioned posts are in the zone of consideration.
Eligibility compliance: Section 5’s requirement—that appointees possess requisite qualifications as per the Recruitment Rules at the time of initial engagement—remains a non‑negotiable condition.
No precedent for post‑reorganization free‑for‑all: The Court is careful to signal that ad hoc regularization cannot substitute for lawful recruitment. Indeed, it prospectively narrows the use of academic arrangements.

Complex Concepts Simplified

Ad hoc appointment: A temporary appointment against a sanctioned post to meet emergent needs, typically short in duration and without conferring any preference for future regular appointment. Rule 14 of the 1956 Rules is illustrative.
Contractual appointment: An engagement governed by express terms and for a fixed period; may or may not be against a sanctioned post. Under the 2010 Act, what matters is whether it is “against any post under the Government.”
Consolidated appointment: Remuneration is a fixed monthly sum rather than the full pay scale; again, the determinative factor for the 2010 Act is whether the work is against a sanctioned post.
Academic arrangement: A session‑based, need‑driven engagement, often responsive to fluctuating admissions and funded through college “pool funds.” Not inherently tied to a sanctioned post and therefore excluded by Section 3(b). But where, in practice, it sits against a sanctioned post with continuity, it may be recharacterized.
Clear vacancy / sanctioned post: An approved post borne on the cadre/establishment with budgetary sanction. Occupying such a post is a sine qua non for invoking the 2010 Act.
De hors the sanctioned strength: An engagement made beyond the authorized posts. Such engagements fall outside the 2010 Act’s purview.
Reasonable classification under Article 14: The State may treat different classes differently if there is an intelligible basis for the distinction and a rational link to the law’s objective (per Anwar Ali Sarkar).
Retrospective regularization: Granting regular status with effect from a past date tied to when legal eligibility was met (here, seven continuous years and other conditions), which can affect seniority and service benefits. The precise financial implications depend on the implementation order.

Implementation Notes

For the Committee and Departments:

Prepare a comprehensive post‑level inventory of sanctioned vacancies as on the 2010 Act’s commencement, and thereafter.
Cross‑verify each petitioner’s appointment orders, renewals, periods of continuity (including court‑protected periods), and source of remuneration.
Confirm qualification compliance as per the 2008 Recruitment Rules (as amended) as on the date of initial engagement.
Compute seven‑year thresholds and determine the precise effective date for regularization in each case.
Issue reasoned orders and, where necessary, afford a brief opportunity of hearing for disputed factual determinations.
Simultaneously, finalize and forward requisitions to PSC for all existing clear vacancies; initiate the process for creation of additional posts where justified.

For affected employees:

Gather and preserve original appointment/renewal orders, court orders, salary records, and documents evidencing duties performed against sanctioned posts.
Maintain proof of continuous service and qualification certificates as per the Recruitment Rules operative at initial engagement.

Open Questions

Financial and service‑benefit contours: While the Court orders retrospective regularization from the eligibility date, detailed directions on arrears, seniority inter se, and ancillary service benefits will likely be addressed in implementation orders.
Post‑reorganization interface: The Court applies the 2010 Act to accrued situations. The operational interface with post‑2019 legal architecture may require careful reliance on savings provisions and general principles safeguarding accrued rights.
Potential appellate scrutiny: The UT may consider challenging aspects of the relief. Until then, the directions are binding and time‑bound.

Conclusion

This judgment carves an important doctrinal and practical path through a dense thicket of temporary staffing practices in J&K’s Higher Education Department. On the one hand, it reaffirms that the legislature may validly exclude fixed‑term academic arrangements from a regularization statute without offending equality. On the other, it squarely holds that courts will not be misled by labels: if a person has, in truth, been continuously discharging the functions of a sanctioned post under the Government on a consolidated/contractual basis, the 2010 Act’s protection is attracted despite the “academic arrangement” tag.

By mandating a time‑bound, high‑level identification and regularization exercise, prohibiting fresh academic arrangements against clear vacancies, and redirecting recruitment back to PSC processes, the Court sets a dual agenda—fairness to long‑serving appointees who meet the statutory thresholds, and a restoration of constitutional norms in public employment going forward. The ruling thus stands as both a corrective for the past and a blueprint for the future, with the “substance over nomenclature” principle at its core.