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2009 DIGILAW 361 (JK)

M. Peshin v. State

2009-07-27

NIRMAL SINGH, SUNIL HALI

body2009
1. Judgment dated 4th of Sept2000, passed by a learned Single Judge of this court in writ petition,SWPNo.204/98,is being impugned in the present appeal. 2. The case as projected by the appellant is that he retired from service on 31st of Jan95, as Deputy Director, ICDS. Vide Order No. SW/Estt-52/Gazetted/Gen/86, dt. 26th of Feb93, the authority concerned had issued a seniority list of the Gazetted Officers of Social Welfare Department in which the name of the appellant figured at Sl.No.l. It is stated that in the combined seniority list, the name of the appellant figured at Sl.No.2. The grievance projected by the appellant in the writ petition was that in the year 1991, induction was made to the time Scale of Jammu & Kashmir Administrative Service, but the appellant who was the senior most was denied this benefit, whereas, his juniors were given the benefit of the said induction. It was stated that respondent No. 6 along with other four persons were junior to the appellant but despite that they were given the benefit and the claim of the appellant was ignored. The appellant had preferred representations before the authority concerned when his claim was not considered but the said representations as per the appellant were not decided by the said authority as a result of which, the claim of the appellant remained unsettled. The further case as projected in the writ petition was that the appellant was promoted in officiating capacity as Deputy Director, Social Welfare (ICDS) in the year 1993, and he retired as such in Jan95. It was further stated that vide Government Order No. 1532-GAD of 1997 dt. 23rd of Sept97, the respondent State granted the benefit of time scale of Rs. 3000-4500/- (un-revised) in favour of the 38 officers of the Jammu & Kashmir Social Welfare Department (Gazetted Service) including four persons who had already retired from service but the claim of the appellant who was the senior-most officer in the said department was again not considered. It was stated that even though, the appellant had retired from service, he again made a representation before the authority concerned after the issuance of the aforementioned order dt. 23rd of Sept97, but even that representation was not considered and decided by the said authority. 3. It was stated that even though, the appellant had retired from service, he again made a representation before the authority concerned after the issuance of the aforementioned order dt. 23rd of Sept97, but even that representation was not considered and decided by the said authority. 3. A learned Single Judge of this court vide judgment impugned dismissed the writ petition of the appellant on the ground that the case of the appellant is not similarly situated to private respondent No.6 and it was further observed that the writ petition is also not maintainable on the ground of delay and laches. 4. It is apt to mention here that neither the official nor the private respondents chose to file any response before the learned writ court despite service. Therefore, under these circumstances, the conclusion arrived at by the learned writ court that, appellant-petitioner is not similarly situated with respondent No.6 cannot be accepted. It is not that the learned writ court has arrived at the conclusion that the appellants case is not similarly situated to private respondent No. 6 on the basis of any record. On the other hand, the observations made by the learned writ court at page 3 of the judgment are that the appellant petitioner remained silent for about six years after issuance of order dt. 18th of Sept91, vide which benefit was granted to private respondent No. 6 along with others and the appellant has not explained the said delay. The specific pleadings in this regard by the appellant are that after the issuance of aforementioned order, he filed representations before the authority concerned but the same were not considered and disposed of. The said pleadings, in the absence of any response either from official or private respondents should have been taken into consideration by the learned writ court. 5. It be further noticed that at page 2 of the judgment, the learned writ court has observed that "as per Rule 8 the Selection Committee has to make the selection on the basis of merit. Merit is determined on the basis of APRs of the officer. So it is not the seniority but the grading of the officer in his confidential role which determines his merit and suitability. Merit is determined on the basis of APRs of the officer. So it is not the seniority but the grading of the officer in his confidential role which determines his merit and suitability. Since the petitioner has not challenged the selection of any candidate who was selected ignoring his claim or on the ground that his merit was better, no relief can be granted to him.. ." 6. In the present case, the appellant is seeking parity with respondent No. 6 and other persons who have been granted benefit of induction into Time Scale of J&K Administrative Service even after their retirement, which benefit has been denied to the appellant. Therefore, as indicated above, in the absence of any reply by the official respondents, it could not have been concluded that the appellant may have been or was denied the benefit on account of his not possessing the merit even though he was No.l in the seniority list. The pleadings on the other hand, having remained unrebutted and unchallenged, should have been accepted by the learned writ court. Keeping in view the above facts, We would have adopted the said course as the respondents have not chosen to file any response even in the present appeal also even though the same was admitted on 2nd of Nov2000, and would have accepted the appeal but in the interest of justice, we deem it proper that the matter is decided after obtaining the response from the official respondents. 7. For the reasons mentioned above, the judgment impugned dt. 4th of Sept2000, is set aside. The matter is remanded to the learned Writ court for deciding the writ petition afresh after calling for counter from the official respondents who shall file the same within a period of four weeks from today. Learned writ court is requested to decide the writ petition within a period of one month thereafter. Disposed of accordingly.