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J&K High Court · body

2017 DIGILAW 593 (JK)

A. K. Kak v. State

2017-08-09

B.S.WALIA

body2017
1. Grievance of the petitioner is that despite his entitlement to the 2nd in-situ promotion with effect from 01.12.2004, the same although processed was not allowed in his favour till the year 2011 and even then, the same was only allowed notionally. In other words, the only benefit i.e. of higher pay scale which was the entitlement of the petitioner on grant of 2nd in-situ promotion was not granted to the petitioner with effect from the date of his entitlement to the 2nd in-situ promotion but was granted only notionally in the year 2011 with effect from the date of his entitlement i.e.-1.12.2004. Learned counsel contended that the aforementioned action of the respondents was legally unsustainable. 2. Per contra, learned counsel for the respondents states that complete documents were not submitted by the petitioner and had the same been done, the benefit would have been given with effect from the due date. 3. I have considered the submissions made by learned counsel for the parties and am of the considered view that there is merit in the submissions of learned counsel for the petitioner. 2nd in-situ promotion was to be granted to an employee who did not get regular promotion in due course of time and the only benefit which accrues to an employee on account of 2nd in-situ promotion is higher pay scale with effect from the date of grant of 2nd in situ promotion. The employee concerned continues to discharge duties on the substantive post. The employee concerned is not promoted to a next higher post but gets benefit of scale only. 4. It is not the case of the respondents that the petitioner was not entitled to 2nd in-situ promotion with effect from 01.12.2004. It is only that certain documents were claimed to have not been supplied by the petitioner. The fact remains that whatever documents were required were in the possession of the employer i.e., the respondents, therefore, the objections raised do not merit acceptance particularly in view of the fact that in the year 2011 the respondents found the petitioner entitled to the grant of 2nd in-situ promotion with effect from 01.12.2004. If that be so, then there is no reason as to why the petitioner be not granted financial benefits in respect thereto with effect from the date, the petitioner was granted 2nd in-situ promotion. 5. If that be so, then there is no reason as to why the petitioner be not granted financial benefits in respect thereto with effect from the date, the petitioner was granted 2nd in-situ promotion. 5. At this stage, learned counsel for the respondents contends that the claim was rejected in terms of Rule 2-4(i) and 2-4(ii) of the Jammu and Kashmir Financial Code Vol-I. The same is reproduced as under:- “2-41 - All petty claims of Government servants more than three years old other than those affecting his pension and all such claims for whose delayed submission an adequate explanation is not forthcoming should be rejected forthwith. 2-43 -The re-opening of old cases should be deprecated as a fundamental principle. Where, however, such cases are opened as a special case as for instance in relation to the refixation of initial pay in time-scale, the arrears should not be allowed.” 6. A perusal thereof reveals that all petty claims of Government servants more than three years old other than those affecting his pension and all such claims for whose delayed submission an adequate explanation isnot forthcoming should be rejected forthwith and further that the reopening of old cases should be deprecated as a fundamental principles but where such cases are opened as a special case, then arrears are not to be paid. 7. The fact remains that grant of financial benefits accruing on account of 2nd in-situ promotion for a period of seven years cannot be said to be petty claim for the petitioner, who is working as Compiler, a Class-III post and by no stretch of imagination can be said to be a person enjoying a high status. In the circumstances, even a meager financial benefit would not tantamount to a petty claim qua a Class-III employee. The respondents were under a bounden duty to take action in accordance with the rules and in case of any short coming, it was binding upon the respondents to get formalities completed particularly when the documentation required is not one which is not available with the respondents. Moreover, the respondents having realizing the implications of in-action on their part, granted the 2nd in-situ promotion to the petitioner in the year 2011 with effect from the date of his entitlement i.e., 01.12.2004. 8. Moreover, the respondents having realizing the implications of in-action on their part, granted the 2nd in-situ promotion to the petitioner in the year 2011 with effect from the date of his entitlement i.e., 01.12.2004. 8. In the circumstances, denying financial benefits to a low paid employee does not commend to a model employer who is required to ensure that admissible benefits are given to employees as per their entitlement. Rule 2-43 could have been relied upon only where the respondents had not been complacent and had processed the claim as per official record. The respondents cannot be allowed to take advantage of their in action. Accordingly, arrears on account of entitlement to the financial benefits be released to the petitioner within a period of three months from the date certified copy of this order is submitted. In case the payment is not released within the stipulated period of three months, then the same shall be payable along with interest @ 6% p.a w.e.f the date of entitlement till date of payment. Writ petition stands allowed in the aforementioned directions.