Umesh Kumar Moza vs Govt. Of J & K And Anr
2014 Latest Caselaw 5387 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 1104/2013, 2874/2013 and 2884/2013

                                     Date of decision: 31.10.2014
 s
IN THE MATTER OF:
UMESH KUMAR MOZA                                 ..... Petitioner
ASHOK KUMAR DHAR                                 ..... Petitioner
ROOP KISHAN KAUL                                 ..... Petitioner
                         Through: Mr. B.L. Wali, Advocate


                         versus

GOVT. OF J & K AND ANR.                           ..... Respondents
                     Through: Mr. Suhail Malik, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. By this common judgment, the Court proposes to decide all the

three connected cases, as the facts are quite similar and the

grievance raised by the petitioners are identical. For the purpose of

ready reference, the facts mentioned in WP(C) No.1104/2013 are

being referred to.

2. The petitioner in W.P.(C) 1104/2013 has sought directions to

the respondent No.1/Government of Jammu & Kashmir and the

respondent No.2/ Department of Health & Medical Education,

Government of Jammu & Kashmir (hereinafter referred to as 'the

Department') to amend the Government Order dated 18.7.2011

(Annexure P-9) and grant him the benefits of the Third Time Bound

Promotion monetarily w.e.f. 1.4.2003, as was extended to other

similarly placed doctors working in the Department.

3. The relevant facts of the aforesaid case are that the petitioner

had qualified his MBBS examination on 22.7.1981 and completed his

house job from Shri Maharaja Hari Singh Hospital, Srinagar, Kashmir

in the year 1981-82. On 7.1.1983, he was appointed as an Assistant

Surgeon at Sher-i-Kashmir Institute of Medical Sciences, Soura,

Srinagar, Kashmir. On 2.7.1986, the petitioner completed his Masters

Degree and in August, 1989, he completed his Senior Residency

tenure whereafter he was directed to join his parent department, i.e.,

Directorate of Health Services in the month of September, 1989 and

was posted at Sub-District Hospital, Handwara, Kashmir. In February,

1990, fearing for his life and that of his family members due to the

unrest in the State of Kashmir, the petitioner had left the Valley and

migrated to Jammu but he was not granted any posting there.

However, the petitioner continued drawing his salary from the Office

of the Directorate of Health Services, Jammu.

4. On 22.7.1988, the respondents issued the following Govt.

Order:-

"Government of Jammu and Kashmir Health and Medical Education Department

Subject:- (i) Scheme of time-bound promotions for the doctors in the Health Services Department.

(ii) Enhancement in the rates of NPA.

Reference:- Cabinet Decision No. : 116 dated : 20.7.1988 Government Order No.595 HME of 1988 Dated : 22.7.1988

Sanction is hereby accorded to the introduction of a scheme of Time Bound Promotion for doctors in the Health Services Department (including Dental Surgeons/ Specialists), as detailed in the Annexure, subject to the following conditions:-

(i) The cut off date for computation of the number of years for purposes of the aforesaid scheme shall be March 31 1988, to begin with, and March 31 each year for future.

(ii) In such computation the number of years spent by a doctor on a particular post, in adhoc capacity, except at the entry level, shall also be taken into account;

(iii) The benefit of time-bound promotion shall be applicable only if the AIRs of the doctor concerned for the last 3 years show no adverse comment;

(iv) The scheme shall not have any bearing on inter-se seniority of doctors in a particular class/category/scale and an undertaking to the effect that no such claim shall accrue as a result of the scheme shall be obtained by the concerned Heads of Department/Institution from each beneficiary.

Sanction is further accorded to enforcement of the following pattern of non-practising allowance for such of the doctors as are entitled to this allowance under rules; with immediate effect:-

       Pay                                      Rate
       1.  Below `3000/- P.M.                   `500/- P.M.
       2.  `3000/- and below `3700/-            `600/- P.M.
       3.  `3700/- and above                    `750/- P.M.

By order of the Government of Jammu and Kashmir.

Sd/-

(H.L. Kadlabju) IAS, Commissioner/Secretary to Government Health and Medical Education Department"

5. Following the aforesaid Government Order, a Circular dated

3.3.1994 was issued by the respondent No.2/Department granting the

pay-scale of `3000-4500/- to seven doctors, who were working in the

pay-scale of `2200-4000/- and further clarifying inter alia that grant

of the pay-scale would not affect their inter se seniority. On

12.12.1995, the Relief Commissioner (M), Jammu addressed a letter

to the Director, Health Services, Jammu informing him that the

petitioner herein and another doctor by the name of Dr. Kanwal

Sadhu, had approached him with a request that their leave salary be

issued at Delhi, and that both the doctors were registered as migrants

at the concerned office and the office of the Relief Commissioner did

not have any objection to the leave salary being drawn in their favour

by the Resident Commissioner, Delhi, subject to the condition that the

Director of Health Services, Jammu did not require their services at

Jammu for migrants or otherwise.

6. It is submitted by Mr. B.L. Wali, learned counsel for the

petitioner that after issuance of the aforesaid no-objection by the

office of the Relief Commissioner (M), Jammu, the petitioner has been

drawing his monthly salary from the Office of the Resident

Commissioner, Jammu & Kashmir House, New Delhi ever since the

year 1996, till he had superannuated on 28.4.2013, an event that

took place during the pendency of the present petition.

7. In the meantime, vide order dated 20.12.2002, the Government

of Jammu & Kashmir granted the First Time Bound Promotion to the

petitioner w.e.f. 1.4.1990, in the pay-scale of `2350-4040 (pre-

revised) and the Second Time Bound Promotion w.e.f. 1.4.1998, in

the pay-scale of `2700-4250/- (pre-revised). Subsequently, on

18.7.2011, the respondents granted the Third Time Bound Promotion

to the petitioner in the pay-scale of `4100-5300/- (pre-revised)

w.e.f. 1.4.2003 "notionally" and w.e.f. 1.4.2011 "monetarily".

Aggrieved by the said decision taken by the respondents to grant the

Third Time Bound Promotion to the petitioner "notionally" w.e.f.

1.4.2003, he has filed the present petition.

8. Mr. Wali, learned counsel for the petitioner draws a comparison

between the petitioner and a similarly placed doctor, namely,

Dr.Vinod Kumar Bhat, who was granted the Second and the Third

Time Bound Promotions by the respondents, vide order dated

9.7.2010, without placing any rider in the said order or granting the

same "notionally" for any period, whereas in the case of the

petitioner, the Third Time Bound Promotion has been granted to him

w.e.f. 1.4.1993, but only "notionally". As a consequence, the

petitioner has been deprived of the benefits flowing under the Third

Time Bound Promotion for a period stretching over eight years,

whereas in other cases, the respondents have not followed the same

policy. To substantiate the aforesaid submission, learned counsel

draws the attention of this Court to the order dated 9.7.2010 passed

by the respondents in favour of Dr. Vinod Kumar Bhat, an Assistant

Surgeon (Migrant) like the petitioner herein, who was accorded the

Second Time Bound Promotion in the pay-scale of `2700-4250/- (pre-

revised) on 1.4.1994, and the Third Time Bound Promotion in the

pay-scale of `4100-5300/- (pre-revised) w.e.f. 1.4.1999 (Annexure P-

8).

9. Learned counsel for the petitioner states that aggrieved by the

aforesaid arbitrary and unjustified action of the respondents, the

petitioner had submitted a number of representations to them seeking

amendment of the impugned order dated 18.7.2011, but to no avail.

It is contended that though the case of the petitioner is no different

from that of Dr. Vinod Kumar Bhat, but the respondents have chosen

to treat him differently without any justification. He submits that

unlike Dr. Vinod Kumar Bhat, who was granted the Third Time Bound

Promotion "monetarily" for a period relating back to eleven years,

reckoned from 09.07.2010, the date when the said benefit was

accorded to him. In the case of the petitioner, by virtue of the

impugned order, the said benefit was extended to him "notionally"

only w.e.f. 1.4.2003 and "monetarily" w.e.f. 1.4.2011, thus causing

him a great monetary loss.

10. Counter affidavits in opposition to the present petition have

been filed by the respondents. One of the preliminary objections

taken by the respondents is with regard to the maintainability of the

present petition in this Court on the ground of lack of territorial

jurisdiction.

11. Mr. Malik, learned counsel for the respondents, submits that this

Court is not vested with the territorial jurisdiction to entertain the

present petition in view of the fact that the petitioner is an employee

of the State of Jammu & Kashmir, he was working as an Assistant

Surgeon at Srinagar and his salaries were being released by the State

of Jammu & Kashmir at Srinagar. He further states that the

Department of Health & Medical Education is also situated at Jammu,

which is the seat of the Government, and therefore the petitioner

ought to have approached the High Court of Jammu & Kashmir for

appropriate relief. He argues that merely because the salaries were

being disbursed by the respondents from the Office of the Resident

Commissioner, Jammu & Kashmir House, New Delhi for the

convenience of the petitioner, would not vest territorial jurisdiction on

this Court.

12. On merits, learned counsel for the respondents seeks to justify

the notional benefit extended to the petitioners under the Third Time

Bound Promotion by relying upon Rule 2.43 of the J & K Financial

Code Volume-I, which stipulates as under :

"2-43. The re-opening of old cases should be deprecated as a fundamental principle. Where, however, such cases are opened as a special case as for instance in relation to the refixation of initial pay in time scale, the arrears should not be allowed.

1. Explanations deleted.

Government Instructions. - A question has arisen as to what should be the determining factor for treating a case to be an "Old One" for purposes of rule 2-43. It has been decided that a case which has been under correspondence throughout and in which the question of payment arises only when it is decided and final orders passed thereon, will not attract the provisions of rule 2-43. In such cases the payment of arrears if any, due may be paid retrospectively provided that the competent authority who has issued final orders on the disposal of the case specifically mentions the date from which the arrears due as a result of retrospective sanction are to be paid and also records briefly the reasons for payment of such arrears. Such sanction shall not be issued by the competent authority without the previous consent of the Finance Department and in case of disagreement by the Finance Department with the approval of the Cabinet.

Cases may arise where a claim for payment is taken up suddenly after a considerable period, either because the claim was lost sight of before or because the circumstances under which it was withheld and the relevant orders in force at the time to which it pertains are stated to have escaped notice at that time. Such like cases shall be treated as "Old

Cases" for purposes of rule 2-43 and their re-opening shall be deprecated. Provided that if any such case affects the future emoluments of an official the case will be re-opened and the pay refixed retrospectively but without payment, of arrears up to the date of refixation."

13. Learned counsel for the respondents states that the aforesaid

Rule prescribes that cases where a claim for payment is taken up

suddenly after a considerable period of time, either because the said

claim was lost sight of before or because the circumstances under

which it was withheld and the relevant orders in force at the time to

which it pertains had escaped notice at that point in time, would have

to be treated as "old cases" as explained under Rule 2.43 and such

cases ought not to be reopened. It is submitted that the present case

is an "old case" as defined under Rule 2.43 of the J&K Financial Code

Volume-I and therefore the same ought not to be re-opened for

granting any monetary benefit to the petitioner.

14. The Court has heard the arguments advanced by the counsels

for the parties and considered the averments made in the pleadings

and the documents enclosed therewith.

15. As regards the first objection with regard to territorial

jurisdiction taken by the counsel for the Respondent, it is necessary to

refer to Article 226 of the Constitution of India. Clause (2) of Article

226 of the Constitution of India prescribes that the power conferred

under clause (1) to issue directions, orders or writs to any

Government, authority or person may also be exercised by any High

Court exercising jurisdiction in relation to the territories within which

the cause of action, wholly or in part, arises for the exercise of such

power, notwithstanding that the seat of such Government or authority

or the residence of such person is not within those territories. For the

interpretation of Article 226(2), this Court may usefully refer to a

decision of the Supreme Court in the case of Oil and Natural Gas

Commission Vs Utpal Kumar Basu reported as (1994) 4 SCC 711,

wherein, while discussing Article 226(2) of the Constitution of India, it

was observed as below:-

"5. ................... Under Clause (2) of Article 226 the High court may exercise its power conferred by Clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories..............." (emphasis added)

16. The aforesaid decision was taken note of by the Supreme Court

in the case of Union of India Vs. Adani Exports reported as (2002) 1

SCC 567 and it held as follows:-

"17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower to court to decide a dispute which has, at least inpart, arisen within its jurisdiction. It is clear for the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned................" (emphasis added)

17. In Rajendran Chingaravelu v. R.K. Mishra, Additional

Commissioner of Income Tax and Ors. reported as (2010) 1 SCC

457, while considering the scope of Article 226(2) of the Constitution,

particularly the cause of action for maintaining a writ petition, the

Supreme Court made the following observation:-

"9. ............... The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in

part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a Petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction."

18. In a recent decision, in the case of Nawal Kishore Sharma Vs.

Union of India reported as 2014 (106) ALR 710, when required to

interpret the very same provisions, the Supreme Court referred to the

aforecited decisions and to some others on the same aspect and held

as below:-

"11. On a plain reading of the amended provisions in Clause (2), it is clear that now High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court's territorial jurisdiction. Cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged Under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the Plaintiff to prove in the suit before he can succeed. xxxxxxxxxxxx

19. Regard being had to the discussion made hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings Under Article 226 of the Constitution. In order to maintain a writ petition, the Petitioner has to establish that a legal right claimed by him has been infringed by the Respondents within the territorial limit of the Court's jurisdiction."

19. Coming closer home to a decision of the Division Bench of this

Court in the case of University of Kashmir, Srinagar & Anr. vs. H.L.

Warikoo & Ors., reported as 132 (2006) DLT 606 (DB), cited by

learned counsel for the petitioner, in the aforesaid case, which was

also arising from a service matter, the University of Kashmir had filed

an appeal against the judgment of the learned Single Judge, wherein

the preliminary objection raised by the appellant therein as to the

maintainability of the writ petition filed in this Court by the

respondent No.1, who was a lecturer in the said University and had

prayed for the release of his retiral benefits, was turned down with

the observation that in circumstances where the respondent therein

and other employees had fled the State of Jammu & Kashmir,

apprehending danger to their lives and the State Government as also

the University were conscious of the said reality and had provided for

a mechanism whereunder, the salary and emoluments of the

migrants/employees were being disbursed to the Resident

Commissioner at Delhi, it could not be denied that a part of cause of

action had arisen within the jurisdiction of the High Court of Delhi and

as a result, the petition filed by the respondent was held to be

maintainable.

20. The appellate court had agreed with the findings returned by

the learned Single Judge on this aspect and had turned down the

preliminary objection raised by the University of Kashmir as to the

maintainability of the petition by observing that the respondent No.1

therein was compelled to reside in Delhi on account of the disturbed

situation prevailing in the Kashmir Valley since August, 1990 and

therefore, the question of denying him access to justice by raising an

objection as to the maintainability of the writ petition on the ground

of lack of territorial jurisdiction of the High Court of Delhi, was without

merits.

21. The facts pleaded by the petitioner in the instant case reveals

that he has been residing in Delhi since the year 1993, and conscious

of the circumstances which had led to the Petitioner and many others

fleeing the Valley, the State Government had provided for a

mechanism whereunder their salaries and emoluments were being

disbursed through the Resident Commissioner, Jammu and Kashmir

House, New Delhi.

22. Furthermore, the court has been informed that while still

continuing to reside in Delhi along with his family, the petitioner has

finally superannuated on 28.4.2013 and in all this duration, he was

continuing to draw his salary from the Office of the Director Health

Services, through the Office of the Resident Commissioner, Jammu &

Kashmir House, New Delhi.

23. Given the averments made in the writ petition with regard to

the cause of action, clause (2) of Article 226 of the Constitution of

India, would come to the petitioner's aid and resultantly, the question

of territorial jurisdiction has to be decided in his favour. The

respondents cannot legitimately contend that the present petition

ought to be rejected as not being maintainable in this Court or that

the petitioner ought to have approached the High Court in the State

of Jammu & Kashmir for appropriate relief.

24. In this context, an equally important principle is that of 'forum

conveniens' which must be taken note of while examining the issue of

cause of action. A Full Bench of this Court in the case of Sterling

Agro Industries Ltd.v Union of India reported as AIR 2011 Delhi

174 had interpreted the said concept in the following words:-

"31. The concept of forum convenience fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots and Alloys Ltd. v. Union of India (AIR 2004 SC 2321), Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Ors. (2006) 3 SCC 658 and Ambica Industries vs. Commissioner of Central Excise ( 2007 ) 6 SCC 769 about the applicability of the doctrine of forum convenience while opining that arising of a part of cause of action would

entitle the High Court to entertain the writ petition as maintainable.

32. The principle of forum convenience in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum convenience.

The Full Bench in New India Assurance Co. Ltd. (supra) has not kept in view the concept of forum convenience and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum convenience. We are unable to subscribe to the said view." (emphasis added)

25. The Court is therefore of the opinion that the High Court is

vested with territorial jurisdiction to entertain the present petition and

the objection with regard to the maintainability of the writ petition, as

raised by the counsel for the respondents, has to be turned down.

26. Even otherwise, where the petitioner had to leave his home

State under very unusual circumstances so as to shift with bag and

baggage for relocating himself with his family members to another

part of the country, it would be a gross violation of his fundamental

rights to deny him access to justice merely on the ground of lack of

territorial jurisdiction.

27. The view of this Court finds resonance in the decisions of the

Supreme Court in the cases of M.H. Hoskot vs. State of Maharashtra,

reported as AIR 1978 SC 1548 and Suk Das vs. Union Territory of

Arunachal Pradesh, reported as AIR 1986 SC 991, wherein it was

declared that the right of access to justice is integral to the

fundamental right to life and liberty guaranteed under Article 21 of

the Constitution of India.

28. As for the merits of the case, a perusal of the order dated

9.7.2010 passed in favour of Dr. Vinod Kumar Bhat granting him the

Second and the Third Time Bound Promotions w.e.f. 1.4.1994 and

1.4.1999 respectively, reveals that without any justification, a

different yardstick has been applied by the respondent to the

petitioner for the very same relief while issuing the impugned order

dated 18.7.2011, whereunder he was granted the notional pay-scale

of `4100-5300/- (pre-revised) w.e.f. 1.4.2003, but was not given the

monetary benefits thereunder and w.e.f. 1.4.2011, when the said

pay-scale was granted to him "monetarily". In other words, only the

amount payable w.e.f. 1.4.2011 was ordered to be released in favour

of the petitioner while depriving him of the monetary benefit of the

upgraded pay scale for a period of eight years reckoned from

01.04.2003. No rationale has been offered for dividing the Third Time

Bound Promotion granted to the petitioner in two parts at the time of

issuing the impugned order; nor is there any justification for doing so

when a similarly placed Assistant Surgeon employed with the

respondent, namely, Dr. Vinod Kumar Bhat was granted real time

benefits of the Time Bound Promotions.

29. The plea of the learned counsel for the respondents that Rule

2.43 of the J&K Financial Code Volume-I prohibits re-opening of old

cases and the present case ought to be treated as an old case is

taken note of only to be rejected. The present matter cannot be

treated as a "re-opening of an old case" for the simple reason that the

respondents did not issue the impugned order by re-opening the

petitioner's case. In fact, the impugned order came to be passed for

the first time and it was not on the basis of any representations made

by the petitioner for enhancement of his pay scale by grant of any

upgradation. Having unilaterally taken a decision to pass an order

dated 18.7.2011, the respondents cannot be permitted to discriminate

against the petitioner by declining to grant him the monetary benefits

payable w.e.f. 1.4.2003, the date from which he was granted the

Third Time Bound Promotion. The petitioner, who is an Assistant

Surgeon (Migrant), is similarly placed as Dr. Vinod Kumar Bhat,

Assistant Surgeon (Migrant) and he ought to have been treated on

the same footing for grant of similar relief as was granted to his

colleague.

30. In view of the aforesaid findings, this Court is of the opinion

that the impugned order dated 18.7.2011 granting the Third Time

Bound Promotion to the petitioner ought to be modified by deleting

the words, "notionally" and "monetarily" therefrom. Accordingly, the

present petition is allowed and the respondents are directed to amend

the order dated 18.7.2011, by granting the Third Time Bound

Promotion in the pay-scale of `4100-5300/- (pre-revised) in favour of

the petitioner w.e.f. 1.4.2003. It is further directed that the entire

monetary benefits payable to the petitioner under the Third Time

Bound Promotion shall be payable from the date of his entitlement

and the arrears shall be released in favour of the petitioner within

three months from today, failing which the said amount shall carry

simple interest payable by the respondents @9% per annum, till

realization. The petitioners in the two connected petitions shall also

be entitled to similar relief as granted to the petitioner in W.P.(C)

1104/2013.

31. The writ petitions are allowed and disposed of, with litigation

costs of `7,500/- awarded in favour of each of the petitioners.

                                                    (HIMA KOHLI)
OCTOBER 31, 2014                                       JUDGE
sk/mk