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2015 DIGILAW 599 (JK)

Yasmeen Khan v. State of J&K

2015-11-18

HASNAIN MASSODI, MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Muzaffar Hussain Attar, J. 1. In terms of order dated 17.06.2005 the review petitioner was promoted from the post of Dy. Manager (Operations) to the post of Manager Operations in the pay scale of Rs. 10000-15200. One, Mr. Yaqoob Iqbal Bhat, Dy. Manager Finance was promoted to the post of Manager Finance in the pay scale of Rs. 10000-15200. Respondent No. 5 (hereinafter referred to as writ petitioner) who was holding the post of Administrative Officer was adjusted on the post of Manager Administration in the pay scale of Rs. 10000-15200. The post of Administrative Officer was treated to be abolished. The order issued by the Managing Director further provide that the writ petitioner is placed in the pay scale of Rs. 8000-12950 for a period of five years after which he will get the pay scale of Rs. 10000-15200 against the available post of Manager Administration. On 01.07.2005, the Managing Director JKTDC/SKICC issued an order, whereunder, it is provided that the post of Administrative Officer (7500-12000) is upgraded to the pay scale of Rs. 10000-15200 and redesignated as post of Manager Administration. The writ petitioner was adjusted as Manager Administration in the pay scale of Rs. 8000-12950 for a period of five years, whereafter, he was to be placed in the pay scale of Rs. 10000-15200. The writ petitioner, feeling aggrieved of the condition of placing him in the pay scale of Rs. 8000-12950 for a period of five years contained in order dated 01.07.2005, challenged the same in SWP No. 1251/2005. The writ petition was decided on 16th May, 2007 and the Learned Writ Court directed that the writ petitioner shall be paid the grade of Rs. 10000-15200 w.e.f. 18.06.2005 and his promotional benefits shall be worked out accordingly. 2. Respondent-Corporation challenged the decision of Learned Single Judge in LPA No. 164/2007 which v/as dismissed by the Letters Patent Bench (LPA Bench) vide its order 01.09.2007. Thereafter the judgment of the Court was implemented and the writ petitioner was placed in the pay scale of Rs. 10000-15200. 3. 2. Respondent-Corporation challenged the decision of Learned Single Judge in LPA No. 164/2007 which v/as dismissed by the Letters Patent Bench (LPA Bench) vide its order 01.09.2007. Thereafter the judgment of the Court was implemented and the writ petitioner was placed in the pay scale of Rs. 10000-15200. 3. The review petitioner has filed the review petition seeking recalling of order of the LPA Bench dated 01.09.2007, inter-alia, on the ground that in the writ petition the writ petitioner had made reference to her which reference is transcribed in the judgment of Learned Single Judge also, as such, the review petitioner was a necessary party to the lis, but she was not impleaded as party respondent; the judgment of the writ Court which has merged into the orders of the LPA Bench dated 01.09.2007 adversely affects the legal rights of the review petitioner, inasmuch as, on the basis of the judgment the writ petitioner would steal a march over her notwithstanding this fact that she is senior to the writ petitioner. 4. The writ petitioner alongwith his objections has placed statement of service details of the officers of SKICC (Annexure- R/19). The perusal of the said statement of service details would show that the review petitioner was first appointed on 18.04.1989 as Conference Co-ordinator in the pay scale of Rs. 1650-2800 which pay scale was revised in terms of Revised Pay Rules of 1992 to Rs. 2000-3400. The writ petitioner was first time appointed in the service on 25.07.1992 and was designated as Administrative Officer in the pay stale of Rs. 2000-3500. Upto the year 1998 the writ petitioner was carried on the higher pay scale than that of the review petitioner. 5. The review petitioner was promoted to the post of Dy. Manager (Operations) on 20.07.1999 and was placed in the pay scale of Rs. 8000-12950. Thereafter she was promoted to the post of Manager Operations on 18.06.2005 which post is carried on pay scale of Rs. 10000-15200. 6. The writ petitioner was promoted on 18.06.2005 to the post of Manager Administration and was to hold the pay scale of Rs. 8000-12950 for a period of five years whereafter he had to be placed in the pay scale of Rs. 10000-15200. 7. When the review petitioner was promoted on 20.07.1999 to the post of Manager Operations and was placed in the pay scale of Rs. 8000-12950 for a period of five years whereafter he had to be placed in the pay scale of Rs. 10000-15200. 7. When the review petitioner was promoted on 20.07.1999 to the post of Manager Operations and was placed in the pay scale of Rs. 8000-12950, the writ petitioner was not aggrieved of such promotion, inasmuch as, he did not challenge the same. The promotion of the writ petitioner on 18.06.2005 to the post of Manager Administration, which post is carried on pay scale of Rs. 10000-15200 would be rightly given effect only after the writ petitioner would cover the grade of Rs. 8000-12950. 8. In the aforesaid fact situation the review petitioner was a necessary party to the writ petition filed by the writ petitioner as her accrued service rights were adversely affected by the relief sought for in the writ petition. 9. It is not in dispute that when the writ petitioner and review petitioner were promoted to the post of Manager Administration on 17.06.2005 the old rules were in force and the new recruitment rules came into force on 18.06.2005. In the old rules in between the grade of Rs. 7500-12000 and Rs. 10000-15200 was the grade of Rs. 8000-12950 attached to the post of Dy. Manager. It is also admitted position that the writ petitioner was never promoted to the grade of Rs. 8000-12950. In terms of new recruitment rules the grade of Rs. 8000-12950 was abolished. Since the writ petitioner was promoted prior to coming into force of new recruitment rules, thus, before he could be placed in the pay scale of Rs. 10000-15200 he had to cover the grade of Rs. 8000-12950. 10. As already stated on 20.07.1999 the review petitioner was promoted to the post of Dy. Manager (Operations) which post was carried on in the pay scale of Rs. 8000-12950. The writ petitioner was not promoted to the said post and was not given the said pay scale. He did not challenge the order of granting promotion to the review petitioner to the post of Dy. Manager (Operations). Though initially the writ petitioner was carried on a higher pay scale notwithstanding this fact that he was appointed to the service more than three years after the review petitioner was appointed to the service, but because of the promotion order dated 20.07.1999, the review petitioner became senior to the writ petitioner. 11. Manager (Operations). Though initially the writ petitioner was carried on a higher pay scale notwithstanding this fact that he was appointed to the service more than three years after the review petitioner was appointed to the service, but because of the promotion order dated 20.07.1999, the review petitioner became senior to the writ petitioner. 11. In the aforesaid fact situation the judgment of the writ Court adversely affects the accrued legal rights of the review petitioner. 12. Since the review petitioner has not been impleaded as party respondent in the writ petition, the order of LPA Bench dated 01.09.2007 in which the writ Court order has merged, would require to be recalled and set aside and review petitioner would require to be impleaded as party respondent in the writ petition and after completing of pleadings the writ Court would rehear the matter afresh, inasmuch as, in view of the aforesaid fact situation there is error on the face of record which would warrant allowing of review petition. 13. Mr. B.A. Bashir, learned senior counsel, however, argued at great length and submitted that the review petition would require to be dismissed, inasmuch as, the review petitioner has suppressed the material facts from the Court. Learned counsel submitted that review petitioner has made false averment in the petition by stating that she was not having knowledge of the judgments of the Court passed in the case of writ petitioner, and got the knowledge about the same in the manner which has been pleaded in the condonation of delay application and review petition. Learned counsel referred to the official record to show that the review petitioner was privy to the circumstances which lead to the implementation of the court judgment. Learned counsel also submitted that review petitioner wields huge clout in the respondent-organization and it is for this reason that she has stolen march over the writ petitioner. 14. The condonation of delay application has been allowed by the Court. If the writ petitioner was aggrieved of the same he could have challenged the same. While considering the review petition the Court will not look into the pleadings of condonation of delay application. The Court's jurisdiction to review its orders/judgment is circumscribed by the statute. 14. The condonation of delay application has been allowed by the Court. If the writ petitioner was aggrieved of the same he could have challenged the same. While considering the review petition the Court will not look into the pleadings of condonation of delay application. The Court's jurisdiction to review its orders/judgment is circumscribed by the statute. If the review petitioner has stolen a march over the writ petitioner in the course of the service career then writ petitioner should have challenged that action of respondents-organization. The writ petitioner has not challenged the order of 1999, whereunder, the review petitioner was promoted to the post of Dy. Manager (Operations) and was placed in the higher pay scale than that of writ petitioner. The writ petitioner has thus accepted the promotion of the review petitioner to the post of Dy. Manager (Operations) in a higher pay scale. From the year 1999 the review petitioner would rank senior to the writ petitioner having been promoted to the higher grade. The argument of learned counsel for the writ petitioner, in this fact situation, does not carry any conviction and does not even appeal to the conscience of the Court. 15. The Court in review jurisdiction cannot initiate investigation into the circumstances in which the review petitioner has been promoted. 16. As already stated, the order under review in the facts and circumstances of this case would require to be recalled and the judgment under review would require to be set aside. Adopting that course however would result in stripping of writ petitioner of all the benefits which have been given to him in terms of the writ Court judgment. 17. In the peculiar facts and circumstances of this case that course will only harm the writ petitioner, inasmuch as, the review petitioner is holding the post of Director in an incharge capacity and the writ petitioner is holding the post of General Manager, which otherwise means that placement of review petitioner as Incharge Director has also been accepted by the writ petitioner, he has not challenged the said action of the competent authority. 18. This review petition can be thus disposed of by clarifying the position vis-a-vis parties i.e. the review petitioner would rank senior to the writ petitioner. 18. This review petition can be thus disposed of by clarifying the position vis-a-vis parties i.e. the review petitioner would rank senior to the writ petitioner. Adopting such a course would save the writ petitioner from undergoing the ordeal of getting his writ petition decided afresh and in the meanwhile he will be deprived of the benefits which he has got under the writ court judgment. For our above recorded reasons we dispose of this review petition in the following manner:- "The review petitioner shall rank senior to the writ petitioner and the judgment of the writ Court which has merged into the judgment of the LPA Bench shall not adversely affect the accrued service rights/benefits of the review petitioner."