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2011 DIGILAW 348 (JK)

Allah Rakha Shakti Kumar v. State & Ors.

2011-07-14

MOHAMMAD YAQOOB MIR

body2011
JUDGMENT Honble Mr. Justice Mohammad Yaqoob Mir, Judge The issues for determination being identical in both the two petitions so are taken up together. 1. Precise factual background: (a) SWP No.2988/2002 Petitioner Allah Rakha has been appointed as Conductor in Jammu & Kashmir State Road Transport Corporation (JKSRTC) on 16.1.1978, has been allotted registration No.1654 and is admitted to have passed matriculation examination in the year 1974. Petitioner's claim is that he was entitled to be promoted as Junior Assistant w.e.f. 18.10.1980 and then as Senior Assistant w.e.f. 24.3.1988 as the similarly appointed Conductors i.e. respondents No.3 to 5 (Ragubir Singh, Vijay Kumar and Avtar Singh) were respectively appointed as Conductors on 8.11.1978, 2.8.1979, and 22.11.1978, thereafter were promoted to the posts of Junior Assistants w.e.f. 24.10.1980, 18.10.1980 and 18.10.1980. Subsequent to that have been promoted to the posts of Senior Assistants on 24.3.1988. All the three respondents admittedly were junior to the petitioner. Ignoring the seniority position, petitioner has been superceded. He had moved representations, poor response forced him to file writ petition (SWP) No.1717/2001, wherein direction was passed for according consideration to the case of the petitioner for promotion to the post of Junior Assistant. Then again, when case of the petitioner was not considered, he filed motion for initiating contempt proceedings. It is only then his case was considered and he was promoted to the post of Junior Assistant w.e.f. 31.1.1997. The actual grievance of the petitioner i.e. promotion to the post of Junior Assistant w.e.f. 18.10.1980 and then promotion to the post of Senior Assistant w.e.f. 24.3.1988, remained to be redressed. Numerous representations as are claimed to have been filed were not considered and in the process i.e. during the pendence of this petition, writ petition of similarly situated employees titled Prithpal Singh & anr Vs. State & Ors was decided on 2.3.2002. In compliance thereof, petitioner No.2 therein, namely, Amarjeet Singh, admittedly junior to the petitioner, was promoted to the post of Junior Assistant w.e.f. 18.10.1980 and Senior Assistant w.e.f. 24.3.1988. State & Ors was decided on 2.3.2002. In compliance thereof, petitioner No.2 therein, namely, Amarjeet Singh, admittedly junior to the petitioner, was promoted to the post of Junior Assistant w.e.f. 18.10.1980 and Senior Assistant w.e.f. 24.3.1988. (b) SWP No.28/2005 Petitioner Shakti Kumar admittedly has been appointed as Conductor on 23.1.1978, has been promoted as Junior Assistant on 5.2.1997 but the claim of the petitioner is that he was entitled to be promoted to the post of Junior Assistant w.e.f. 18.10.1980 and to the post of Senior Assistant w.e.f. 24.3.1988 as his juniors i.e. respondent No.4 (Vijay Kumar) and respondent No.5 (Charan Das), were appointed respectively on 20.8.1978 and 15.2.1978, so admittedly junior to the petitioner. The said respondents have been promoted to the post of Junior Assistant and then to the post of Senior Assistant respectively on 18.10.1980 and 24.3.1988. Petitioner claim to have moved various representations which were not responded and in the process similarly situated employees filed various petitions and in compliance to the judgments rendered thereon, they have been given benefit of promotion with effect from the date as was due to them and in the process juniors of the petitioners have superceded him. (c) The point for determination in both the petitions is as to whether petitioners are entitled to the promotion to the post of Junior Assistant and Senior Assistant respectively w.e.f. 18.10.1980 and 24.3.1988? 2. Learned counsel appearing for the respondents in both the petitions at the very outset contended that both the petitions are hit by latches. Petitioners of both the petitions were simply waiting on the fence watching for the results of the petitions of similarly situated employees, on noticing their success have come forward to claim the similar benefit. In support of this contention, learned counsel has placed reliance on the judgment rendered by the Coordinate Bench in SWP No.2272/2002 captioned Vijay Kumar Khajuria Vs. J&K SRTC & Ors. In the backdrop of particular facts of the said case, petition was held to be hit by latches but so far as instant cases are concerned, these have their own factual background i.e. petitioner Allah Rakha has been pursuing his case, he has moved various representations and had earlier also filed writ petition (SWP) No.1717/2001 and it is only on the basis of the judgment rendered in the said petition, he was promoted to the post of Junior Assistant. Thereafter he has filed the instant petition, which means he has not been waiting at the fence so as to watch result of other pending petitions. Similar is the position of petitioner Shakti Kumar who all along has been pursuing his grievances and has filed various representations, mention of which is made in the petition and copy of one such representation is also placed on record. 3. The petitioners of both the petitions cannot be said to have been waiting at the fence, their cases relatable to the latches are to be considered in their own factual background. In this view I am fortified by the judgment rendered by Hon'ble Apex Court captioned: (i) P. C. Sethi & ors. Vs. Union of India & ors ( AIR 1975 SC 2164 ). Para 20 is relevant to be quoted: 20. The learned counsel for the respondents strenuously contended that the petition may be dismissed on account of delay and latches. In view of the entire circumstances of the case and the hopes held out by the Government from time to time we are not prepared to accede to this submission. (ii) From the judgment rendered by the Hon'ble Apex Court captioned Ramchandra Shankar Deodhar & ors Vs. The State of Maharashtra & ors ( AIR 1974 SC 259 ),following portion from para 9 is also apt to be quoted: 9. The first preliminary objection raised on behalf of the respondents was that the petitioners were guilty of gross latches and delay in filing the petition' We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J, in Tilockchand Motichand V. H. B. Munshi, (1969) 2 SCR 824 : AIR 1970 SC 898 is one of discretion for this Court to follow from case to case. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J, in Tilockchand Motichand V. H. B. Munshi, (1969) 2 SCR 824 : AIR 1970 SC 898 is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit'.it will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. (iii) From the judgment rendered by the Hon'ble Apex Court in the case captioned Uttaranchal Road Transport Corpn. & Ors Vs. Mansaram Nainwal ( AIR 2006 SC 2840 ). It shall be quite relevant to quote following from para 13: 13. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on earlier decision of the Court held that reinstatement was mandated. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a judge while giving judgment that constitutes a precedent. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a decision and isolate from it the ratio decidendi. 4. From the above what emerges is that every case has to be considered in the background of its own features which would mean that a decision in a particular case is to be treated as a precedent on its own facts. 5. Learned counsel for the respondents next relied on the judgment rendered by the Hon'ble Apex Court in case Ghulam Rasool Lone Vs. State of J&K and Ors. (AIR 2009 (SCW) 5260). In the reported judgment it has been held that equality clause must be enforced in legality and not in illegality. In the reported judgment Assistant Sub Inspector was promoted as Sub Inspector after illegally relaxing the rules and it is in that background it has been held that equality can be enforced in legality not in illegality. 6. In the reported judgment it has been held that equality clause must be enforced in legality and not in illegality. In the reported judgment Assistant Sub Inspector was promoted as Sub Inspector after illegally relaxing the rules and it is in that background it has been held that equality can be enforced in legality not in illegality. 6. With respects, said judgment is not helpful to the respondents because in the instant case all the employees i.e. petitioners and private respondents were admittedly appointed as Conductors, so there was an arbitrary approach adopted in promoting juniors over the head of seniors. No cause or reason has been put forth so as to justify the action of promoting juniors over the head of seniors. 7. Various similarly situated employees filed petitions which include SWP No.1334/96 decided on 14.3.2000. The direction was issued to the effect that in case petitioners possess the matriculation qualification, then they shall be given the same benefits which were given to other persons who were junior to the petitioners. In another petition bearing SWP No.1220/1997 titled Kali Das vs. The Managing Director & ors, decided on 15.5.2000, it has been directed that the respondents would look into the matter and if the issue involved is covered by the decision given in aforementioned two writ petitions i.e. SWP No.323/94, decided on 7th of July, 1999 and SWP No.673/90. In compliance thereof, cases of petitioners of the said petitions have been considered and they have been promoted as Junior Assistants with effect from 18.10.1980 and Senior Assistants with effect from 24.3.1988 retrospectively notionally. 8. Since the representations of the petitioners have not been considered by the official respondents, therefore, cause survives and it is only in that background two instant petitions have been entertained and admitted to hearing. 9. For the stated reasons, both the petitions are disposed of with the direction to the respondents (authorities) to accord due consideration to the case of the petitioners for grant of promotion to the posts of Junior Assistants and to the posts of Senior Assistants with effect from the date they have claimed the same. While according consideration the authorities concerned shall also take note of implementation part of the judgment rendered in SWP No.1334/96 captioned Raghubir Singh & anr. Vs. While according consideration the authorities concerned shall also take note of implementation part of the judgment rendered in SWP No.1334/96 captioned Raghubir Singh & anr. Vs. State Road Transport Corporation & ors, decided on 14.3.2000 and of the judgment rendered in SWP No.1220/97 captioned Kali Das vs. Managing Director & ors, decided on 15.5.2000. 10. Let the exercise of accord of consideration to the cases of the petitioners of both the petitions be completed at an earliest, preferably within six weeks from the date copy of the judgment is made available to the respondents (authorities concerned). 11. Disposed of as above.