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2017 DIGILAW 779 (JK)

Abdul Latief v. State of J&K

2017-08-31

TASHI RABSTAN

body2017
1. Through the medium of instant petition, petitioner is seeking following relief:- (i) Certiorari for quashing Order No.JKSRTC-III/1291 dated 20.10.2011 pursuant to which wrongly, illegally and arbitrarily, the promotion of the petitioner to the higher posts has been ordered to remain on notional basis on the erroneous and illegal assumption of the ‘financial position’ of the Corporation. (ii) Mandamus commanding the respondents to provide the pecuniary benefit to the petitioner with regard to the promotions ordered in favour of the petitioner to the posts of Junior Assistant, Senior Assistant and Booking Manager with effect from 23.10.1978, 23.09.1985 and 02.11.1999 respectively on the analogy and principle on which such benefit came to be provided to many of the juniors of the petitioner. 2. The succinct facts are that petitioner was initially appointed as Conductor on 21st October, 1971 and came to be allotted Registration No.1427. When he was not promoted to the higher posts, on his turn and continued to get superseded, he filed writ petition being SWP No.683/2003, which came to be disposed off with a direction to the respondents to consider the case of the petitioner for grant of promotion from the date his juniors were promoted. On Consider, respondents have passed order dated 09.09.2011 by virtue of which they rejected the claim of the petitioner by saying that same does not hold any merit for promoting the petitioner to the post of Junior Assistant from the date of his initial appointment i.e. 21.10.1971 as this shall give rise to disturbing the seniority of other incumbents and become a source of further resentments and litigation in the cadre/organization. Petitioner also filed contempt petition being COA (SW) No.29/2011, wherein this Court directed that order was not in consonance with the directions passed by this Court. Accordingly, respondents were directed to pass fresh order. Petitioner also filed contempt petition being COA (SW) No.29/2011, wherein this Court directed that order was not in consonance with the directions passed by this Court. Accordingly, respondents were directed to pass fresh order. Subsequently, fresh order dated 20.10.2011 came to be passed by the respondents which provides as follows:- (i) The petitioner could have been promoted to the post of Junior Assistant, Senior Assistant and Booking Manager respectively with effect from 23.10.1978, 23.09.1985 and 02.11.1999 keeping in view the treatment given to his juniors; (ii) The petitioner, however, has not agitated his claim before the Corporation till he filed the writ petition in 2003; (iii) The petitioner, therefore, deserves to be given his promotions to the above posts with effect from the dates shown above, on notional basis, keeping in view the financial position of the Corporation. 3. It is contended by learned counsel for the petitioner that though petitioner came to be promoted to the post of Junior Assistant, Senior Assistant and Booking Manager respectively with effect from 23.10.1978, 23.09.1985 and 02.11.1999 respectively but the promotion of the petitioner was ordered to remain notional in view of so called financial position of the Corporation. Apparently, respondents have not pleaded any legal ground to deny the petitioner the benefit of promotion from the dates he was ordered to be promoted except so called financial condition of the Corporation. 4. On notice, respondents have filed reply contending therein that petitioner continued to perform his duties as Conductor on the buses since 21.10.1971 and was getting all pecuniary benefits vis-à-vis trip money, uniform and night halt charges. He never approached or ever represented the authorities of the Corporation for the redressal of his grievances, if any, against the promotion of his junior colleagues and for the first time he after 32 years of his service sought a relief through the medium of writ petition seeking his placement ahead of his juniors. He never approached or ever represented the authorities of the Corporation for the redressal of his grievances, if any, against the promotion of his junior colleagues and for the first time he after 32 years of his service sought a relief through the medium of writ petition seeking his placement ahead of his juniors. It is contended that vide order dated 09.09.2011, the case of the petitioner after being considered in terms of the directions of the court came to be rejected and subsequent to passing of direction in contempt petition on 24.08.2011, his case was again considered and taking into consideration orders passed in the connected petitions, he was promoted on notional basis to the post of Junior Assistant with effect from 23.10.1978, to the post of Senior Assistant with effect from 23.09.1985 and to the post of Booking Manager with effect from 02.11.1999 vide order dated 20.10.2011. It is pleaded on behalf of respondents that petitioner never worked on the posts of Junior Assistant and Senior Assistant and cannot claim to be entitled to those pecuniary benefits which have been accorded to similarly situated persons. His claim of parity, therefore, cannot be sustained. It is further contended that petitioner never worked on the post for which notional promotion have been granted. His claim of monetary benefits on account of salary arrears cannot be extended, when he has never actually worked on those posts/positions. 5. Heard learned counsel for the parties and perused the record. 6. Appointment of petitioner as Conductor on 21st October, 1971 having registration No.1427, is not disputed. This Court, during pendency of present petition, vide Order dated 27.02.2017 directed the respondents to consider the case of the petitioner for release of retiral benefits against the post of Booking Manager in accordance with rules and necessary orders be passed within six weeks. In compliance thereto, respondents have passed order dated 12.05.2017. It is contended that while considering the case of petitioner, it has been found that the petitioner never worked on the post for which notional promotion was granted, so his claim for release of retiral benefits against the post of Booking Manager could not be extended. 7. The petitioner appears to be the victim of non-application of mind on the part of respondents. 7. The petitioner appears to be the victim of non-application of mind on the part of respondents. Despite order dated 15.04.2010 passed in SWP No.683/2003, petitioner has neither been provided pension as Booking Manager with effect from 02.11.1999 nor have any arrears been paid to him as the petitioner has been given the promotion to higher posts on notional basis. Perusal of order passed by this Court on 15.04.2010, inter alia, reveals that the official respondents were directed to consider the case of petitioner for grant of promotion from the date his juniors were promoted. Later on vide order dated 20.10.2011, though respondents promoted petitioner retrospectively as Junior Assistant on 23.10.1978, as Senior Assistant on 23.09.1985 and as Booking Manager on 02.11.1999 in view of the treatment given to his juniors, yet promotion to the higher posts was granted notionally, which has been attributed to the financial position of the Corporation. But in the reply filed by the respondents, contradictory assertion has been made by respondents and reason given by respondents for granting notional promotion to petitioner, is that he has not worked on higher posts. To controvert what respondents averred in their reply, petitioner has filed Supplementary Affidavit. 8. Apparently, in the order impugned, cause for giving notional promotion to petitioner has been attributed to financial condition of the Corporation, but in the objections respondents have taken different stand. Perusal of supplementary affidavit filed by the petitioner divulges that the petitioner has also worked on the higher posts but in the order dated 15.04.2010 passed by this Court in SWP No.683/2003, it was provided that the case of the petitioner was to be considered for promotion from the dates his juniors were promoted. Petitioner retired on superannuation on 30.04.2008 on the post of Booking Manager, but the retiral benefits against the said post have not been released. Learned counsel for the petitioner, while advancing his arguments, has submitted that despite having been granted the benefit of promotion notionally, the petitioner was being paid the retiral benefit only against the post of Junior Assistant. Once the petitioner has been promoted to the post of Booking Manager, though on notional basis, he was required to be paid the retiral benefits of promoted post over which he retired. Once the petitioner has been promoted to the post of Booking Manager, though on notional basis, he was required to be paid the retiral benefits of promoted post over which he retired. Thus, the assertion of respondents that he had not worked against the post of Booking Manager pails into insignificance insofar as there has been question of providing the retiral and other benefits of the post of Booking Manager to the petitioner. 9. Viewed thus, this petition is disposed of with a direction to respondents to consider the claim of the petitioner for grant of promotion to the post of Booking Manager from the date his juniors were promoted and consequently release all retiral benefits against the post of Booking Manager in accordance with rules occupying the filed by passing speaking order within a period of six weeks from the date of receipt of copy of this order. 10. Disposed of as above along with connected MP(s).