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2012 DIGILAW 201 (JK)

Ghulam Hassan Kinah v. State of J&K & Ors.

2012-04-30

HASNAIN MASSODI

body2012
1. The petitioner on the strength of averments made in the petition seeks following reliefs: i) A writ of certiorari quashing government order no. 1158of 2001 dated 9.10.2001 issued by respondent no. 2 being a nullity as far as the petitioner is concerned and as such petitioner be declared and deemed to be inducted in 1977 in KAS so that all the retirement benefits are given to the petitioner on the said basis to which he will be entitled to. ii) A writ of certiorari quashing communication dated 8.9.2009 and 14.12.2009 issued by respondent no. 2, being of no substance and legally unsustainable. iii) A writ or order declaring petitioner entitled to the Time Scale grade of the Post of Deputy Labour Commissioner from 1993 since when he was holding the said post on charge allowance basis and entitled to the same benefit as was given to similarly circumstanced employees of other services vide Govt. Order No. 1126 — GAD of 1996 dated 20.11.1996 as was done in case of M/s G. H. Dar, S. L. Kapai and R. K. Zutshi and to consequential benefits thereof by way of post-retirement benefits. 2. The background facts are as under: The petitioner appointed as Assistant Labour Commissioner in the year 1972 was made to stagnate in the post for next 20 years and favoured with promotion in his own pay and grade only after he filed a writ petition registered as SWP no. 471/1993. The order JC/32-32 of 6 April 1993 whereby the petitioner was placed as Deputy Labour Commissioner in his own pay and grade found approval of the State Government vide government order no. 33-Lab of 1994 dated 31st August 1994. Earlier the petitioner was placed in the substantive grade of 2125-3600 vide GO no. 634 of 1993 dated 23rd July 1993. The petitioner retired in May 1996. The respondents vide government order no. 1126-GAD of 1986 dated 20th Nov. 1986 released pay scale of Rs. 3000-4500 in favour of as many as 34 officers including S/Shri G. H. Dar, S. L. Kapai and R. L. Zutshi who were similarly placed as petitioner and had retired on superannuation on 31st May 1996 with the exception of Mr. G. H. Dar. The petitioner obviously was not granted the benefit extended to Shri G. H. Dar and other colleagues of the petitioner. G. H. Dar. The petitioner obviously was not granted the benefit extended to Shri G. H. Dar and other colleagues of the petitioner. The repeated representations of the petitioner persuaded the respondents to address petitioner's grievance and vide government order no. 1532-GAD of 1997 of 23rd September 1997, the petitioner along with other five officers was inducted in Kashmir Administrative Service (KAS). All the officers so inducted had already retired on superannuation. The petitioner not satisfied with the aforesaid government order filed writ petition registered as SWP no. 143/1999 seeking pensionary and other benefits on the basis of his induction in KAS. The respondents instead of acceding to the petitioner's request for grant of revised pensionary benefits in light of said government order issued government order no. 1158-GAD of 2001 dated 9th October 2001 whereby the petitioner's induction in KAS was withdrawn. The ground made use of by the respondents to withdraw petitioner's induction was that the petitioner had already retired on superannuation on the date he was so inducted and not thus available for undergoing probation. The writ petitions SWP no. 471/1993 and 143/1999 were dismissed on 25th September 2002 with the observation that as the petitioner's induction in KAS was withdrawn, the petitions were rendered infructuous. The petitioner filed yet another writ petition registered as SWP no. 1320/2002 throwing challenge to the government order no. 1158-GAD of 2001 dated 9th October 2001 whereby his induction in KAS was withdrawn. The writ petition was disposed of on 27th Feb. 2009 with a direction to the respondents to reconsider and re-examine the petitioner's case in light of the averments made in the petition and after affording the petitioner an opportunity of being heard. The petitioner during pendency of the writ petition filed supplementary affidavit stating therein that the respondent vide government order no. 882-GAD of 2004 dated 9th July 2004 had inducted in KAS not only the officers who had retired on 31st January 2003 but also one deceased officer namely Jamsheed-ul-Nisa, who like the petitioner were also not available for undergoing the probation. The petitioner not satisfied with the writ court judgement questioned it in LPA registered as LPA no. 60/2009. 882-GAD of 2004 dated 9th July 2004 had inducted in KAS not only the officers who had retired on 31st January 2003 but also one deceased officer namely Jamsheed-ul-Nisa, who like the petitioner were also not available for undergoing the probation. The petitioner not satisfied with the writ court judgement questioned it in LPA registered as LPA no. 60/2009. The LPA court on 25th May 2009 dismissed the appeal observing that the writ court judgment was in favour of the petitioner; that a direction had been given to Commissioner Secretary, GAD, to re-examine the petitioner's case and that the order did not call for any interference. The respondents nonetheless vide government order 1251-GAD of 2009 dated 08-09-2009 rejected the petitioners claim reiterating their stand set out in the earlier order whereby the petitioner's induction in KAS was withdrawn. 3. The petitioner as already stated seeks quashment of the order no. 1158-GAD of 2001 dated 09-10-2001 whereby the petitioner's induction was ordered as also order no. 1251-GAD of 2009 dated 08-09-2009 rejecting the petitioner's claim on the grounds that the impugned orders expose the petitioner to hostile discrimination. It is insisted that the order no. 1251-GAD of 2001 dated 08-09-2009 is in conflict with judgment dated 27.02.2009 passed in SWP no. 1320/2002. 4. The writ petition is resisted by the respondents inter alia on the grounds that though the respondents vide government order no. 1532-GAD of 1997 dated 23.09.1997 inducted petitioner in KAS, yet the respondents on examining the matter found that the petitioner and some other officers had retired on the date the government order was issued and were erroneously included in the list of officers inducted in the KAS. The respondents claim that they in exercise of power available under Rule 55 of J&K Civil Service (Classification, Control and Appeal) Rules, deleted the name of the petitioner and other 31 officers who had retired prior to the date of the order from the list of inducted officers. It is insisted that order no. 1251-GAD of 2009 dated 08/09/2009 is in conformity with law as in terms of j&K Administrative Service Rules, an officer appointed to the service has to complete probation for a period of one year and a retired government officer being not available for undergoing such probation is not entitled to be inducted in the service. The respondents claim that the order no. The respondents claim that the order no. 1158-GAD of 2001 dated 09/10/2001 is well reasoned and has been made after proper consideration of the matter. The respondents however have avoided to respond to petitioner's case set out in para 13 of the petition to the effect that the respondents vide government order no. 882-GAD of 2004 dated 9th July 2004 granted retrospective induction in KAS to the officers who had retired on superannuation and such officers included one Jamsheed ul Nisa who was dead on the date she was inducted retrospectively in KAS. 5. The petitioner in his rejoinder/response filed on 25.8.2011 has rebutted the stand taken by respondents, stating that this court in V.N. Gupta v. State and others (SWP No. 2786/2001) rendered judgement on 29th July 2010 : 2010 (4) JKJ HC-780 whereby the court rejected the respondent's stand pointing out that the respondent's had allowed this benefit to some officers who had not only retired but also expired on the date they were inducted in KAS. The petitioner pointed out that in yet another case titled Bashir Ahmad Malik v. State (SWP No. 1656/2008) filed by one of the officers, the court held that the induction could not be denied on the ground that the officer had retired on the date of induction when such benefit was extended to other retired officers. The judgment in Bashir Ahmad Malik's case, according to the petitioner, was upheld by the Division Bench on 20th May 2011. 6. I have gone through the pleadings and have heard learned counsel for the parties. 7. It is admitted by the respondents that the petitioner was appointed as Assistant Commissioner Labour in the year 1972 and vide order JC/32-32 of 6 April 1993 placed as Deputy Labour Commissioner in his own pay and grade. The respondents further admit that the petitioner belonged to J&K Labour (Gazetted) Service — one of the services that with other 14 services constitute feeding services for Kashmir Administrative Service. The petitioner admittedly was inducted in KAS in 1997. However, the respondents insist that though the petitioner otherwise eligible to be inducted in KAS was not entitled to the benefit for the reason that on the date the petitioner was inducted in Kashmir viz. The petitioner admittedly was inducted in KAS in 1997. However, the respondents insist that though the petitioner otherwise eligible to be inducted in KAS was not entitled to the benefit for the reason that on the date the petitioner was inducted in Kashmir viz. 23-09-1997, the petitioner was no more in service as the petitioner had retired on superannuation on 31st May 1996 and thus could not become member of the service. It is pleaded that only such member of any of the 15 feeding services would be eligible to be inducted in KAS who is in service on the date he is so inducted as in terms of J&K Administrative Service Rules, he is to be available to undergo probation for one year. 8. The petitioner in response to the stand taken by the respondents pleads that after the petitioner and 31 other officers were deleted from the list of inducted officers vide government order no. 1158-GAD of 2001 dated 09/10/2001, the respondents vide government order no. 882-GAD of 2004 dated 9th July 2004 inducted S/Shri Ghulam Mohammad Dhobi (retired), Razia Begum (retired), R. K. Kapai (retired) and Jamsheed ul Nisa (deceased) into Kashmir Administrative Service though they had retired and Jamsheed ul Nisa passed away in the year 2003. It is pleaded that in presence of government order no. 882-GAD of 2004 dated 9th July 2004, the petitioner and his other colleagues could not be singled out for discriminatory treatment and denied timescale of KAS on the ground that the petitioner had retired on the date the order of his induction was made. 9. The case set up by the petitioner as regards discriminatory treatment may sound convincing but does not stand close scrutiny. It needs to be pointed out that government order no. 1532-GAD of 1997 dated 23-09-1997 did not mention the date with effect from which the timescale of KAS/induction in KAS was granted in favour of the petitioner and others inducted in KAS. The order thus took effect from 23-09-1997, the date on which the petitioner and other 31 officers were no more in service due to their retirement on superannuation. However, the respondents were conscious of their retirement inasmuch as they were shown to have retired, in the order itself. On the other hand in the government order no. The order thus took effect from 23-09-1997, the date on which the petitioner and other 31 officers were no more in service due to their retirement on superannuation. However, the respondents were conscious of their retirement inasmuch as they were shown to have retired, in the order itself. On the other hand in the government order no. 882-GAD of 2004 dated 9th July 2004 the date with effect from which the officers were inducted, was given as 01-01-2003 and all the officers including the retired officers and the deceased officer were in service on the date with effect from which they were inducted in KAS. The petitioner thus cannot be heard saying that he was similarly placed as S/Shri Ghulam Mohammad Dhobi and others, who unlike the petitioner were in service on the date with effect from which they were placed in the timescale of KAS/inducted in KAS as against the petitioner who was not at all in service on the date he was granted timescale KAS/inducted in KAS. 10. However, this does not clinch the issue. It is nowhere pleaded by the respondents that the petitioner was not entitled to the timescale of KAS/induction in KAS on the date immediately before he retired on superannuation and such slot was not available on such date. The respondents did not embark on any exercise to accord consideration to the petitioner's case and that of other eligible officers from different feeding services before or in the year 1996 or till the petitioner was inducted vide government order no. 1532-GAD of 1997 dated 23.09.1997. The respondents sat over the matter till the petitioner retired on superannuation irrespective of availability of slot or his eligibility for induction. The respondents cannot turn around to say that on the date the petitioner was inducted vide order no. 1532-GAD of 1997 dated 23.09.1997, he was no more in service as he had already retired on superannuation. The petitioner cannot be penalized for the delay that is not attributable to him. It may be stated at the cost of repetition that the respondents nowhere pleaded that the petitioner was not member of one of the feeding services or that he was not eligible for induction immediately before his retirement on superannuation. 11. The petitioner cannot be penalized for the delay that is not attributable to him. It may be stated at the cost of repetition that the respondents nowhere pleaded that the petitioner was not member of one of the feeding services or that he was not eligible for induction immediately before his retirement on superannuation. 11. This apart, the respondents' case that the petitioner and his other 31 colleagues could not be inducted as they were not available to undergo probation for one year in terms of J&K Administrative Service Rules is belied by the government order no. 882-GAD of 2004 dated 9th July 2004. It is pertinent to point out that Shri Dhobi was no more in service on the date he was inducted in KAS. Similarly, Jamsheed ul Nisa died two months after tne date with effect from which she was inducted in KAS. S/Shri Razia Begum and R. P. Kapai also were not in service on 09.7.2004 and had respectively retired eight and one month earlier with effect from the date they were inducted in KAS. None of the above officers in the circumstances was available to undergo the probation for the period of one year in terms of J&K Administrative Service Rules. It makes no difference if an officer not in service on the date he is inducted, was in service for a few days or few weeks from the date he was inducted as like the officer, who was not in service on the date with effect from which he was placed in KAS. Such officer is also not available for completing probation of one year under rules. So viewed the respondents were not justified in rejecting the petitioner's claim for induction in KAS in terms of government order no. 1532-GAD of 1997 dated 23-09-1997. The order no. 1158-GAD of 2001 dated 09-10-2001 is discriminatory in character and infringes petitioner's fundamental rights guaranteed under Articles 14 and 16 Constitution of India. 12. Resultantly, the writ petition succeeds and is accordingly allowed. The order no. 1158-GAD of 2001 dated 09-10-2001 is set aside and the petitioner held entitled to be placed in timescale KAS and to get the pensionary benefits accordingly. 13. 12. Resultantly, the writ petition succeeds and is accordingly allowed. The order no. 1158-GAD of 2001 dated 09-10-2001 is set aside and the petitioner held entitled to be placed in timescale KAS and to get the pensionary benefits accordingly. 13. The petitioner, as stated, has retired on superannuation and can get no benefits under the present judgment except the monetary benefits to which he would be entitled in the wake of his placement in Timescale/induction in KAS from the date he was placed in Timescale/inducted in KAS vide Government Order no. 1532-GAD of 1997 dated 23.09.1997. The respondents shall accordingly workout the monetary benefits to which the petitioner is entitled and release the benefits with proper dispatch.