Reserved On 10.08.2023 vs University Of Jammu And Another
2023 Latest Caselaw 1766 j&K

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU

                                                          SWP No. 2631/2012

                                                       Reserved on 10.08.2023
                                                    Pronounced on 25.08.2023
Neeraj Sharma
                                                            ...Petitioner(s)
                             Through:-   Mr. Abhinav Sharma, Sr. Advocate with
                                         Mr.Abhirash Sharma, Advocate
                                  vs.
University of Jammu and another
                                                            ...Respondents
                             Through:-   Mr Ajay Abrol, Advocate
Coram:
                    Hon'ble Ms Justice Moksha Khajuria Kazmi, Judge
                                    JUDGMENT

1. The petitioner herein is challenging and seeking quashment of the Order

No. Estab./12/16462-69 dated 10.12.2012 passed by respondent No. 1,

whereby and whereunder he has been reverted from the pay scale of

Rs.16400-22400 to 12000-18300, by withdrawing the Order No.

Estab./08/6858-70 dated 30.06.2008 by virtue of which such benefit was

extended in his favour.

2. Precisely, the case of the petitioner is that the respondent-Jammu

University issued an Advertisement Notice No. Adm/TW/2002/10461-

560 dated 1st June 2002, for filling up of various posts including that of a

Deputy Registrar and two posts of Assistant Registrar. Being eligible for

both the posts, i.e. Assistant Registrar as well as the Deputy Registrar, the

petitioner applied for the post of Deputy Registrar and also for that of

Assistant Registrar. The petitioner was accordingly called for the

interview for both the posts.

3. That the Kashmir University Council in its 73rd Council meeting

convened on 18th of October, 2012, withdrew the decision dated 2nd June

2008, appointing/re-designating Sh.Qaiser Aijaz, Senior most Deputy

Registrar (Special Assistant to Vice Chancellor) as Special Secretary to

Vice Chancellor in the upgraded pay-scale of Rs. 16,400-22,400 and

continuance of such benefit even on his transfer to some other post and

applicability of the said decision to the case of the petitioner as well i.e.

the continuance of the pay scale of Rs.16400-22400 even after his transfer

from the post of Special Secretary to Vice Chancellor, was also

deliberated and reconsidered. The said benefit of higher pay-scale and the

re-designation of the Special Assistant as Special Secretary was done

pursuant to 67th University Council Resolution dated 25th February, 2008.

However, the extension of the benefit of pay scale of Rs. 16400-22400

attached to the post of Special Secretary to Vice Chancellor was

withdrawn only from the petitioner, by cancelling the order dated 30th of

June 2008, by virtue of which such benefit was extended in his favour.

4. The petitioner is stated to have been discriminated as one Mr Qaiser Aijaz

was allowed the said benefit in terms of the decision of the 73rd

University Council which provided that the changes will apply

prospectively, however, it has retrospectively been given effect in case of

the petitioner.

5. That, the respondent No. 1, pursuant to the decision of the 73rd University

Council Meeting dated 18.10.2012, passed the order impugned bearing

No. Estab./12/16462-69 dated 10.12.2012, whereby the benefit of higher

pay scale, accorded in favour of the petitioner, in terms of Order No.

Estab/08/6858-70 dated 30.06.2008 was withdrawn.

6. Feeling aggrieved of the impugned decision, the petitioner filed the

instant writ petition seeking its quashment by a writ of CERTIORARI.

7. Upon notice, the respondents appeared and filed their reply and resisted

the claim of the petitioner inter alia on the grounds that the impugned

order is well reasoned as the petitioner was not entitled to the same

treatment as given to Mr. Qaiser Aijaz, as the later was the senior most

Deputy Registrar in the Kashmir University, therefore, he would have

continued to have the higher pay-scale than his junior counterparts even

on his transfer which, however, is not the case with the petitioner who

was junior to many officers of his cadre; the benefit extended to the

petitioner was an outcome of manipulation made to the records as the

resolution by virtue of which the withdrawn benefit was given to the

petitioner was done pursuant to the decision taken in the University

Council of Kashmir University despite petitioner being a Jammu

University official and without there being any agenda of that type in the

said meeting; that further based on a complaint being made, an enquiry in

the matter was got conducted pursuant to which the benefit was

withdrawn from the petitioner being not entitled to it.

8. Learned counsel for the petitioner submits that the impugned order is bad

in the eyes of law as the petitioner and Mr Qaiser Ajaz are similarly

placed and when the benefit of higher pay-scale was protected in case of

Qaiser Aijaz but its withdrawal in case of petitioner is discriminatory,

therefore, same is violative of Article 14 of the Constitution.

9. Learned counsel for the petitioner further submits that the petitioner is

continuing on the post of Special Secretary as on date pursuant to an

interim order dated 12.12.2012 passed by this Court upon consideration

of the matter and staying the operation of the impugned order.

10.Learned counsel for the petitioner also submits that the petitioner is

presently the senior most Deputy Registrar in the Jammu University,

therefore, he is entitled to the same treatment as has been given to Mr

Qaiser Aijaz being similarly placed moreso when the petitioner has

reached the age of superannuation.

11.On the other hand, the learned counsel for the respondents submits that no

fundamental right of the petitioner has been infringed by the impugned

order. The learned counsel submits that the petitioner has come with

unclean hands and has tried to misrepresent the facts before the court. The

learned counsel further submits that the official respondents have

established that the benefit as sought for by the petitioner had been

released in his favour by manipulation and when the respondents came to

know about such manipulation they withdrew the order insofar as it

pertained to petitioner.

12.Considered the submissions made and perused the material made

available.

13.It appears that the Secretariat of the Vice Chancellor of the respondent

University had been upgraded in terms of the 67 th University Council

Resolution dated 25th February, 2008, consequent whereupon the post of

Special Assistant to the Vice Chancellor was re-designated as Special

Secretary who would get a higher pay-scale and a special perk of 10% of

the basic pay. The Special Assistant was to be chosen from amongst the

Deputy Registrars of the University.

14.Admittedly, the petitioner while serving as Deputy Registrar in the

Jammu University was posted as Special Assistant which was re-

designated later as Special Secretary in terms of the 67th University

Council Resolution dated 25th February, 2008 and pursuant to 73rd

University Council Resolution dated 18.10.2012 the said benefit accorded

in favour of the petitioner was withdrawn.

15.The other admitted fact is that one Mr Qaiser Aijaz, petitioner's

counterpart in the Kashmir University was also extended the said benefit

pursuant to the same resolution and he continued to receive such benefit

on his transfer as also on his superannuation while it was discontinued/

withdrawn insofar as petitioner is concerned.

16.No justifiable cause has been projected by the respondents to inspire the

confidence of the court that the benefit of the 67th University Council

Resolution has rightly been withdrawn in the case of the petitioner. How

would it be acceptable that two persons of the same status and cadre are

treated differently- where one will enjoy certain special privileges while

the other is denied the same especially when such privileges/benefits are

extended in favour of both pursuant to one and the same resolution.

17.This court is convinced that there was no differentia much less an

intelligible differentia available with the respondents to treat the petitioner

and Mr Qaiser Aijaz differently. The petitioner appears to have been

meted out with a discriminatory treatment in violation of Article 14 of the

Constitution.

18.Furthermore, the petitioner has reached the age of superannuation, is

continuing on the post of Special Secretary ever-since his appointment as

such and is getting the benefits attached with the said post pursuant to the

order of this Court dated 12.12.2012 by virtue of which the operation of

the impugned order was stayed. The petitioner is shown to be the senior

most Deputy Registrar in the University of Jammu and in case the benefit

of higher pay-scale is extended in his favour, as was given to Mr Qaiser

Aijaz on his transfer and subsequently on his superannuation, is not going

to prejudice any officer of the said cadre.

19.The benefit extended in favour of the petitioner in the year 2008 cannot

be upset after a gap of 15 years on the vague assumptions of the

respondents. This Court, therefore, is not convinced that respondents have

been able to defend their impugned action.

20.The Hon'ble Apex Court in case titled, "Union of India Vs. Munshi

Ram", 2022 Online SC 1483 held as under:-

"7. It cannot be disputed that employees working in different divisions/zones in the Railways are under the very same employer - Railway Board which is under the Ministry of Railways. There are 16 Zones and 68 Divisions in the Railways. Therefore, the employees working under the same employer - Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment. As rightly submitted on behalf of the respondents, there cannot be any discrimination inter se. Under the circumstances, on the ground of parity, the Commission Vendors/bearers working in the Northern Railway are entitled to the same benefits which are held to be entitled to all the similarly situated Commission Vendors/Bearers working under different Zones/Divisions. There cannot be different criteria/parameters with respect to similarly situated employees - Commission Vendors/bearers working in different Zones/Divisions, but working under the same employer.

8. The Railways/UOI/Railway Board cannot be permitted to repeat the same arguments which were raised before different Tribunals, High Courts and also before this Court. Under the circumstances, the respondents - Commission Vendors/bearers working in the Northern Railway shall also be entitled to the same benefits which the other Commission Vendors/bearers working in different Zones/Divisions are held to be entitled to. There cannot be discrimination among the similarly situated Commission Vendors/bearers. To deny similar benefits would tantamount to discrimination and in violation of Articles 14 and 16 of the Constitution of India".

21.Having regard to what has been said hereinbefore, this writ petition is

allowed and by issuance a writ of CERTIORARI the impugned order

No.Estab./12/16462-69 dated 10.12.2012 is quashed. The respondents

shall consider the claim of the petitioner for extending him the similar

treatment as has been given to Mr.Qaiser Aijaz.

22.Disposed of in the terms aforesaid.

23.Let the record of the case be returned back to the counsel for the

respondents.

(Moksha Khajuria Kazmi) Judge JAMMU 25.08.2023 Amjad lone, Secretary Whether the judgment is speaking: Yes Whether the judgment is reportable: Yes/No.