Abdul Rashid Zargar vs Union Territory Of Jammu & Kashmir
2024 Latest Caselaw 36 j&K

Jammu & Kashmir High Court

Abdul Rashid Zargar vs Union Territory Of Jammu & Kashmir on 31 January, 2024

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                              Reserved on 21.12.2023
                                              Pronounced on 31.01.2024


                                              WP(C) No.1052/2022
                                              CM No.3163/2022


Abdul Rashid Zargar, Age 58 yrs,
S/o Sh. Abdul Subhan Zargar,
R/o Village Gundow, Tehsil Chilypingal,
District Doda.                              .....Petitioner

                        Through: Mr. Rahul Pant, Sr. Advocate, with Mr.
                                 Dhruv Pant, Advocate.
             versus

1. Union Territory of Jammu & Kashmir,
through Commissioner/Secretary to
Government,
Department of Food, Civil Supplies &
Consumer Affairs,
Government of Jammu & Kashmir,
Civil Secretariat, Jammu

2. Director,
Food Civil Supplies & Consumer Affairs,
Near Nehru Market, Warehouse,
Jammu                                   .....Respondent(s)
                        Through: Mr. Mohd. Irfan Inqlabi, GA.


          HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Coram:
          HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE


                               JUDGMENT

Tashi Rabstan - J

1. The instant petition has been filed against the order dated 21.01.2022

passed by the Central Administrative Tribunal, Jammu Bench, Jammu in O.A.

No.61/190/2021, whereby the learned Tribunal, while allowing the O.A., has

directed the respondents to release the arrears on account of entitlement to the 2 WP(C) 1052/2022

financial benefits with effect from 01.01.1995 in favour of the petitioner within

a period of three months from the date of receipt of the order. It was further

directed that in case the payment is not released within the stipulated period,

the same shall be payable along with interest @ 6% per annum.

2. The facts-in-brief, as gathered from the file, are that the petitioner being

a matric pass was appointed as a Class IV employee (Chowkidar) on

02.07.1985 in the Department of Food, Civil Supplies & Consumer Affairs.

After his appointment as such, he continued to discharge his duties on the same

post on substantive basis, but was not granted even a single promotion in his

entire service career of 36 years. It is averred that he was eligible to be

promoted against the post of Junior Assistant/Junior

Clerk/Storekeeper/Assistant Store Keeper/Depot Assistant. As per Jammu &

Kashmir Food and Supplies (Subordinate) Service Recruitment Rules, 1972,

75% of the posts of Junior Clerks/Storekeeper etc. were required to be filled up

by promotion from Class IV and 25% by direct recruitment. Accordingly, on

the basis of seniority and qualification, 192 Class IV employees, who were

recruited in 1986 or before, were notionally promoted as Junior

Assistants/Salesmen-cum-Storekeepers with effect from 03.12.1993 vide Order

No.87-CAPD of 2009 dated 03.01.2009. They were given the effect of

promotion notionally with effect from 03.12.1993, i.e., the date from which

their counterparts in Kashmir Division were up-graded/promoted. However, as

per Annexure "B" to the said order, 15 officials including the petitioner herein,

who has been shown to have joined the services on 02.07.1985, were not

cleared for up-gradation/promotion for want of certain codal requirements and

it was stated that their names would be included at the appropriate place in the

seniority list after issuance of their up-gradation/promotion orders. It is also the 3 WP(C) 1052/2022

case of petitioner that otherwise too his services were being utilized as

Incharge Storekeeper with effect from 1986.

3. As per the case set up by the petitioner, the Class-IV employees, who

were far junior to the petitioner but promoted as Junior Assistants/Salesman,

again vide Order No.193-DFC S&CAJ of 2018 dated 09.08.2018 came to be

promoted as Senior Assistants/Storekeepers in the higher pay scale

retrospectively. However, the case of petitioner was not considered at all

despite his being repeatedly representing the respondents. The respondents

only vide Order No.75-DCAPDJ of 2016 dated 19.03.2016 posted the

petitioner as Incharge Storekeeper, Food Store Changa in his own pay and

grade without any benefit of substantive promotion.

4. The further case of petitioner is that since he was not granted any

substantive promotion, as such respondents decided to grant him in-situ

promotion, as such vide Order No.241-DFCS&CAJ of 2020 dated 20.10.2020

the respondents accorded him three in-situ promotions on completion of 9

years, 18 years and 27 years of service. These in-situ promotions were granted

to the petitioner notionally only and monetary benefit was accorded to him

only from the date of order, i.e., 20.10.2020. It is averred that the aforesaid

approach adopted by the respondents was absolutely illegal and arbitrary as the

petitioner was entitled to be promoted on substantive basis from the dates his

juniors had been promoted.

5. When nothing happened even after filing of number of representations,

the petitioner filed O.A. No.61/190/2021 before the Central Administrative

Tribunal, Jammu Bench, Jammu seeking the following reliefs:

4 WP(C) 1052/2022

i) Direct the respondents to upgrade/promote the applicant as Junior Assistant retrospectively w.e.f. the date the juniors of the applicant were granted the said benefit i.e. w.e.f.

03.12.1993 with all consequential benefits including further promotions to the next higher post.

ii) Direct the respondents to promote the applicant as Senior Assistant retrospectively w.e.f. the date his juniors have been granted the said benefit i.e. w.e.f. 17.08.2013 with all consequential benefits.

iii) Direct the respondents to grant In-situ promotions to the applicant retrospectively w.e.f. the date same became due to the applicant with monetary benefits.

iv) Quash the order No.241-DFCS&CAJ of 2020 dated 20.10.2020 to the extent benefit of in-situ promotions has been granted to the applicant notionally w.e.f. 01.01.1995.

v) Direct the respondents to grant the benefit of all the three in-situ promotions monetary w.e.f. 01.01.1995.

vi) Any other relief this Hon'ble Court may deem fit and proper in the facts and circumstances of the case also grant in favour of the applicant and against the respondents.

6. The learned Central Administrative Tribunal vide order dated

21.01.2022 allowed the O.A., with a direction to the respondents to release the

arrears on account of entitlement to the financial benefits with effect from

01.01.1995 in favour of the petitioner within a period of three months from the

date of receipt of the order. It was further directed that in case the payment is

not released within the stipulated period, the same shall be payable along with

interest @ 6% per annum.

7. Besides the prayer for grant of in-situ promotions, the other prayer of

petitioner before the learned Tribunal was to direct the respondents to

upgrade/promote him as Junior Assistant with effect from the date his juniors

were granted the said benefit, i.e., with effect from 03.12.1993 and, thereafter,

Senior Assistant with effect from the date his juniors were granted the said

benefit, i.e., with effect from 17.08.2013 with all consequential benefits. Since 5 WP(C) 1052/2022

the learned Tribunal vide order dated 21.01.2022 has only allowed the prayer

relating to the grant of in-situ promotions and did not consider/deal with other

prayers, as such, feeling aggrieved, the petitioner has filed the instant petition.

8. Learned counsel appearing for petitioner argued that although the

learned Tribunal considered and allowed the alternative prayer of the petitioner

but has failed to consider the main prayer, even a reference has not been made

about the same in the order impugned. It was further argued that it was

incumbent upon the learned Tribunal to decide the main relief first as the cause

of action for the alternate prayer would have arisen only after the first/main

prayer was decided one or the other way. He further argued that the learned

Tribunal without recording the reasons for grant or rejection of his prayer has

passed the order impugned, as such the same is against the principles of natural

justice.

9. Learned counsel appearing for respondents argued that the petitioner

raised the instant issues after a period of almost 24 years; as such the same are

barred by delay and laches. Further, it was argued that the respondents were

not having the knowledge of order dated 21.01.2022 as they did not receive the

copy of said order. It was argued that had it been received, the order of learned

Tribunal would have been challenged before this Court by now. Lastly, it was

argued that since there were certain shortages against the petitioner, as such he

was not entitled to any kind of relief as claimed in the petition.

10. Heard learned counsel appearing for the respective parties, considered

their rival contentions and also perused the file.

6 WP(C) 1052/2022

11. It is not in dispute that the petitioner came to be appointed as a Class IV

employee in July 1985. The respondents have also not denied that number of

Class-IV employees, who were junior to the petitioner, came to be notionally

promoted as Junior Assistants/Salesmen-cum-Storekeepers vide order dated

03.01.2009 and that they were given the effect of promotion with effect from

03.12.1993. It is also the admitted position that in the said order itself the

respondents had specifically provided that the petitioner including some other

employees could not be cleared for up-gradation/promotion for want of certain

codal requirements, however, the order says that their names would be

included at the appropriate place in the seniority list after issuance of their up-

gradation/promotion orders; meaning thereby the petitioner too was to be

promoted as such and his name was to be appropriately placed at the seniority

list after completion of certain codal requirements by the department.

However, the respondents had not mentioned what were those codal

requirements. Nowhere in the said order was it mentioned that the petitioner or

some other employees were dropped from promotion as there were certain

allegations against them or there were alleged shortages in respect of petitioner

herein.

12. It is very strange that even after passing off more than 15 years since the

issuance of order dated 03.01.2009, the respondents have failed to complete

those codal requirements, leaving no option for the petitioner, but to work on

the same post on substantive basis for the last more than 38 years. Not only

this, he has also been made to work under his juniors for the last more than 15

years since the issuance of order dated 03.01.2009. Even juniors to the

petitioner have also been promoted as Senior Assistants and might be on the 7 WP(C) 1052/2022

next higher post too, but the petitioner has been made to sit on the same very

post against which he had been appointed.

13. The stand taken by the respondents in not granting the in-situ

promotions in time as also regular promotions to the petitioner is that there was

alleged shortage against him. A perusal of the objections filed before the

learned Tribunal reveals that the respondents in paragraph-3 of the factual

matrix had averred that the petitioner was not granted 1 st and 2nd in-situ

promotion due to shortage; meaning thereby once the respondents themselves

have granted him three in-situ promotions after completion of 9 years, 18 years

and 27 years of service in October, 2020, it leads to the conclusion that the

alleged shortage has already been fulfilled. Otherwise too, the respondents

have also admitted in the reply to the rejoinder filed in November, 2023 that

the petitioner has already remitted the amount on account of alleged shortage.

Therefore, it was obligatory on the part of respondents to accord promotions to

the petitioner too in terms of order dated 03.01.2009.

14. Further, a perusal of the file reveals that the Administrative Department

vide Letter No.CA&PD/Estt/144/2005-Gen dated 29.12.2008 had specifically

directed that in order to rectify the wrong and to meet the ends of justice, best

could be to promote all the Class-IV employees recruited in 1986 or before

maintaining their inter-se seniority as it was in the Class-IV Cadre; meaning

thereby the Administrative Department had itself admitted that wrong had been

committed by the Department and justice had not been done with the Class-IV

employees by not promoting them to the post of Junior Assistants/Salesmen-

cum-Storekeepers. However, when the order of promotion came to be issued

on 03.01.2009, the petitioner could not be accorded promotion for want of 8 WP(C) 1052/2022

certain codal requirements. The respondents have failed to give any substantial

or plausible reason in not granting substantive promotions to the petitioner on

the next higher posts; neither in the order 03.01.2009 nor in the pleadings

before the learned Tribunal or before this Court and, perhaps, that is why the

respondents always avoided to file para-wise reply/objections to the petitions -

either before the learned Tribunal or before this Court, instead they opted to

file usual reply, which too seems to be evasive in nature. The respondents,

thus, cannot be expected to allege something out of the context of order dated

03.01.2009. The doer in this case was the department itself. Once the

department has failed to act for the last more than 15 years, the petitioner

cannot be held responsible for the delay in approaching the department. The

lapse, if any, was on the part of respondents themselves, therefore, they can be

allowed to attribute delay on the part of petitioner herein, especially as regards

non-granting of monetary benefits of in-situ promotion on the ground of delay

and laches.

15. On one hand the respondents declined the in-situ promotions on the

ground of alleged shortage and, on the other hand, they allowed the same

notionally on completion of 9 years, 18 years and 27 years of service and

monetary benefit was accorded to him only from 20.10.2020. Once, as alleged,

as there was delay of 24 years on the part of petitioner herein, as such his claim

was barred in terms of Rule 2.4(i) and 2.4(iii) of the Jammu and Kashmir

Financial Code Vol-1, then how the respondents in October 2020 accorded him

in-situ promotions; meaning thereby there was in-action on the part of

respondents themselves, as in the year 1995 itself the respondents had found

the petitioner entitled to the grant of 1st in-situ promotion with effect from

01.01.1995. Otherwise too, the financial benefits accruing on account of in-situ 9 WP(C) 1052/2022

promotions to a Class-IV employee cannot be said to be petty claim. Further,

the respondents were otherwise under an obligation to grant in-situ promotions

to the petitioner monetarily from the date the same became due to him.

Therefore, the approach adopted by the respondents is totally illegal and

violates the fundamental right of the petitioner to seek consideration for

promotion to the post of Junior Assistant and Senior Assistant subsequently.

The petitioner has been discriminated against for the purposes of promotion,

whereas in respect of one Mr. Mangat Ram, against whom also shortages had

been alleged, has already been given promotions. Further, the idea of grant of

in-situ promotion on notional basis is totally illegal and arbitrary, as in terms of

the scheme of the rules issued vide SRO 14 of 1996, the petitioner was entitled

to all the monetary benefits with effect from the dates of such in-situ

promotions and it can never be on notional basis.

16. Even the respondents did not challenge the order dated 21.01.2022

passed by the learned Tribunal in O.A. No.61/190/2021; meaning thereby the

respondents have accepted the said order, thus, the same has already attained

finality. It was averred by the respondents that since they did not receive the

copy of the order of learned Tribunal, that is why they did not challenge the

same.

17. A perusal of the order dated 21.01.2022 passed by the learned Tribunal

reveals that the same was kept reserved in presence of one Mr. Sudesh

Magotra, learned Dy.A.G. for Union Territory of J&K, therefore, the

respondents cannot be allowed to escape merely by claiming that they were not

in knowledge of order dated 21.02.2022 or that the same was not received by

them. Otherwise too, the copy of the instant petition along with copy of order 10 WP(C) 1052/2022

dated 21.01.2022 was received by the Office of Advocate General as well as

by the Government Advocate on 28.04.2022. The respondents filed objection

to the instant petition in January 2023, thus, what prevented the respondents in

not challenging the order of learned Tribunal for the last more than twenty

months. The fact of the matter is that the respondents fully know that they were

wrong in not granting the in-situ promotions as well as regular/substantive

promotions to the petitioner on the analogy of his juniors and that is why they

did not opt to challenge the order dated 21.01.2022 of learned CAT.

18. Therefore, in view of what has been discussed above, we deem it proper

to allow the petition. Accordingly, the same is allowed. The order of learned

Tribunal is modified with a direction to the respondents to consider the case of

petitioner for giving him promotions to the post of Junior Assistants/Salesmen-

cum-Storekeepers and Senior Assistants/Storekeepers or any other higher post

from the date his juniors came to be promoted as such, thereby maintaining his

inter-se seniority. It is made clear that the petitioner shall be entitled to all

consequential benefits. The petitioner shall also be entitled to in-situ

promotion(s), whichever is due to him under rules, with all monetary benefits

from the date the same became due to him. Let this exercise be completed

within a period of three months from today, failing which the payment/arrears

shall be payable along with interest at the rate of 6% per annum from the date

the same became due to the petitioner till its actual realization. Connected CM,

accordingly, stands disposed of.

Jammu                                 (Rajesh Sekhri)            (Tashi Rabstan)
31.01.2024                                     Judge                     Judge
(Anil Sanhotra)

                          Whether the order is reportable ?         Yes/No
                          Whether the order is speaking ?           Yes/No