Prolonged adhoc service followed by prospective regularization cannot deny retrospective benefits and Old Pension Scheme eligibility.

The applicant was appointed as a Craft Teacher in the Social Welfare Department on 11.12.1991 on an adhoc/stop-gap basis

She served continuously for nearly 26 years until her superannuation on 31.08.2017

Her services were regularized prospectively via Government Order No. 257-SW of 2017 dated 19.08.2017 under the J&K Civil Services (Special Provisions) Act, 2010

She submitted a representation seeking retrospective regularization from the date she completed seven years of service (11.12.1998) to avail benefits under the Old Pension Regulations

After a High Court direction in SWP No. 2389/2017 to consider her case, the respondents rejected her claim via Order No. 26-DSWJ of 2019, citing statutory bars in the 2010 Act which mandate that regularization takes effect only from the date of the order

1. Whether the prospective regularization of the applicant’s service, after 26 years of continuous work, was discriminatory and arbitrary in light of similarly situated employees receiving retrospective benefits

2. Whether the applicant is entitled to benefits under the Old Pension Regulations by treating her regularization as effective from the completion of seven years of service

Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, specifically the proviso to Rule 5, which generally mandates prospective regularization

Krishan Chand v. State and others (SWP No. 2162/2014), which established that administrative delay in regularization cannot be used to disadvantage an employee or deny them pensionary benefits

Articles 14 and 16, ensuring equality and preventing hostile discrimination among similarly situated employees

Jai Dev Gupta v. State of H.P. (1997), restricting actual arrears to three years prior to the filing of the petition

The Tribunal found that the applicant had rendered 26 years of uninterrupted service, yet her regularization was delayed without explanation by the respondents

The court rejected the respondents' reliance on the 2010 Act's prospective clause, noting that the applicant's claim was based on long-term service and parity with the Krishan Chand case

In Krishan Chand, the High Court held that SRO 400 (New Pension Scheme) could not be applied to employees whose regularization was delayed due to departmental inaction

The Tribunal observed that the applicant stood on a "stronger footing" than Krishan Chand, as she was appointed earlier (1991 vs. 1995)

It determined that denying retrospective regularization at the "fag end of service" would result in grave injustice, effectively treating decades of service as non-existent for pension purposes

The Tribunal concluded that the respondents cannot benefit from their own delay to deprive an employee of earned pension

It ordered the modification of Government Order No. 257-SW of 2017 to treat the applicant’s regularization as retrospective from 11.12.1998

The respondents were directed to: (i) grant all consequential benefits including pay fixation and seniority; (ii) provide pensionary benefits under the Old Pension Scheme; and (iii) pay actual monetary benefits from the date of retirement, with arrears restricted to three years prior to the petition filing

The exercise must be completed within three months, failing which a 6% per annum interest rate shall apply