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2013 DIGILAW 700 (JK)

State Of J&K v. Rakesh Warikoo

2013-12-02

Hasnain Massodi, M.M.Kumar

body2013
M.M. Kumar, CJ. 1. The controversy in this case falls in a narrow compass. The writ petitioner-respondent No. 1 undertook an uphill task by filing various petitions seeking relief of participation in viva voce test before the Jammu and Kashmir State Subordinate Services Recruitment Board for appointment to the post of Junior Engineer (Electrical) Grade-II in the Power Development Department of the State Government. Eventually he filed SWP No. 1365/2002 seeking the relief that he was entitled to appointment on the post of Junior Engineer (Electrical) Grade-II w.e.f. the date other candidates competing with him and had secured marks lower than him were appointed i.e. 30.03.1993. It is appropriate to mention that the writ petitioner-respondent has secured 65.32 marks whereas the last candidate appointed on 30.03.1993 had secured 64 marks. The matter traveled via Letters Patent Bench to the Supreme Court when the appeal filed by the State Government was dismissed on 04.12.2006 by passing the following order:- "Leave granted. Heard learned counsel appearing on behalf of both sides. It is stated in para 6 of the counter affidavit of respondent No. 1 as under:- "After having considered repeated orders passed by the Hon'ble Single and Division Benches of the Hon'ble High Court in Writ Petitions filed by the deponent and after having considered the fact that the less meritorious candidates who had acquired much lesser marks/points than the deponent, had already been appointed, the J&K State Service Selection Board, Jammu by letter dt. 22.1.2004 recommended the State of Jammu & Kashmir, Department of Power Development, to issue appointment letter to the deponent for the post of Junior Engineer (Electrical), Grade-II. A copy of the said letter dated 22.1.2004 issued by the J&K State Service Selection Board had already been enclosed as Annexure P-11 (page 94 to 97) of the Special Leave Paper Book." Pursuant to the above recommendation, the J&K State Service Selection Board, Jammu observed and issued the directions as under:- "Whereas the last selected candidate in the year 1992/93 has scored 64 points. Now, therefore, the petitioner namely Mr. Rakesh Warikoo S/o R.J. Warikoo R/O 2/109 Indira Nagar, Udhampur having scored higher marks and being meritorious than the last selected candidate is recommended for appointment as Junior Engineer Grade-2 in the P.D.D. against an available vacancy. Now, therefore, the petitioner namely Mr. Rakesh Warikoo S/o R.J. Warikoo R/O 2/109 Indira Nagar, Udhampur having scored higher marks and being meritorious than the last selected candidate is recommended for appointment as Junior Engineer Grade-2 in the P.D.D. against an available vacancy. His appointment orders may be issued subject to the final outcome of the SLP pending before the Hon'ble Supreme Court in the lead case titled J&K State v. Narinder Verma and others." It is not in dispute that the last selected candidate in the year 1992-1993 has secured 64 points whereas the respondent No. 1 (Rakesh Warikoo) secured 65.32 which is higher than the last selected candidate. We, therefore, direct the appellant to consider the request of the first respondent (Rakesh Warikoo) and issue appointment orders as per the recommendation. The appeal stands disposed of accordingly. No costs." The aforesaid order would show that no direction was issued by their Lordships of the Supreme Court with regard to payment of salary. However, it is conceded as a fact by the learned counsel that the writ petitioner-respondent that the appointment to the writ petitioner-respondent has been given w.e.f. 30.03.1993 along with seniority. However, the monetary benefits have been granted from 22.01.2004. The aforesaid date has been taken on the basis of recommendations made by the Jammu & Kashmir Services Selection Board. The only question which survives for consideration is whether the writ petitioner-respondent would be entitled to the monetary benefits from the date persons lower in merit were appointed or from a different date? The law on the issue is well settled that a person is entitled to monetary benefits for three years and two months preceding the date of filing of the writ petition. Admittedly SWP No. 1365/2002 relatable to the SLP was filed on 24.04.2002. 2. Mr. Abhinav Sharma, learned counsel for the writ petitioner-respondent has made another grievance. According to the learned counsel, the writ petitioner-respondent has been granted benefit of seniority along with other benefits but his case for further promotion has not been considered by keeping in view the promotion of his juniors. Mr. Sharma has illustrated that persons appointed as Junior Engineer on 30.03.1993 have been considered and promoted on the posts of Junior Engineer Grade-I in the year 1998, then Assistant Engineers in the year 2006 and further Assistant Executive Engineers in 2012. Mr. Mr. Sharma has illustrated that persons appointed as Junior Engineer on 30.03.1993 have been considered and promoted on the posts of Junior Engineer Grade-I in the year 1998, then Assistant Engineers in the year 2006 and further Assistant Executive Engineers in 2012. Mr. Sharma has requested that the claim of the writ petitioner-respondent is also required to be considered as a part of consequential benefits with permissible monetary benefits. 3. There cannot be any quarrel with the proposition that the claim of the writ petitioner-respondent for further promotion has to be considered by keeping in view the promotions given to his juniors particularly when the appellants themselves have granted him seniority from 30.03.1993. Therefore, it is evident that the writ petitioner-respondent's right to be considered for promotion cannot be denied. Accordingly, a direction is issued to the appellants to consider the case of the writ petitioner-respondent for promotion to the post of Junior Engineer Grade-I, Assistant Engineer and Assistant Executive Engineer with effect from the dates persons junior to him were considered and promoted. With regard to monetary benefits the writ petitioner-respondent has to be given benefit of fixation of salary from 30.03.1993. However, the arrears are confined to three years two months from the date preceding the date of filing of SWP No. 1365/2002 i.e. 24.04.2002. The needful shall be done by the appellant within a period of four months. 4. The appeal along with connected applications stand disposed of in the above terms.