Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 776 (JK)

Sushma Khanna v. State

2018-10-04

SANJEEV KUMAR

body2018
JUDGMENT : 1. Impugned in this petition, is order passed by the respondent No.2 bearing No. 270-DF of 2015 dated 08.9.2015 in so far as it pertains to the petitioners. 2. Briefly stated, the facts of the case are that the petitioners who joined in J&K Funds Organisation as Assistant Compilers in the year 1982, promoted as Senior Compiler and thereafter vide order No. DF/Adm/274 of 1997 dated 27.11.1997 were promoted as Examiners in the then pay scale of Rs. 2000-3200. The order of promotion of the petitioners came to be implemented and the petitioners were adjusted as Examiners and their salary in the pay scale attached to the post was also released in their favour. The petitioners claim that they were given the promotion to the post of Examiner on the recommendation of the Departmental Promotion Committee (DPC) which had determined their merit, experience, qualification and seniority etc. and, therefore, the same was in consonance with law. The petitioners continued to function as Examiners in its sanctioned pay scale till the year 2015, when respondent No.2 issued order impugned in continuation to its earlier order issued vide No. 39-DF of 2015 dated 16.2.2015. In terms of order No.39-DF of 2015 dated 16.2.2015 which is claimed to have been issued by the respondents purportedly in compliance to the direction issued by this Court on 16.3.2011, while disposing of several writ petitions, lead case being Shagufta Parveen (SWP No. 4195/1997), the promotion orders issued in favour of the Compilers both in Jammu Division and Kashmir Division were quashed providing further that the pay fixation against Examiners shall be carried out notionally from the dates shown against each and monetarily from 12.02.2015 i.e. the date of convening of DPC meeting. This was followed by order impugned whereby it was ordered that the pay of all the concerned employees be fixed and wherever required, should be brought down as well, in respect of officials whose date of promotion as Examiners has got postponed. It was further ordered that service benefits which have been given to such Examiners who have retired shall not be taken away and they shall be given monetary benefit of at least ten months so as to make such persons eligible for revised pension. It was further ordered that service benefits which have been given to such Examiners who have retired shall not be taken away and they shall be given monetary benefit of at least ten months so as to make such persons eligible for revised pension. The order impugned further provides that no recovery shall be made from the in-service Examiners whose pay may be re-fixed on account of their modified date of promotion. 3. The order impugned has been assailed by the petitioners inter alia on the ground that they were given substantive promotion as Examiners upon the recommendation of the DPC which had properly determined their eligibility, merit and suitability and, therefore, the same could not have been withdrawn or varied to their disadvantage without complying with the principles of natural justice .The order impugned is also assailed on the ground that the same has emanated from the directions issued by this Court in Srinagar while disposing of bunch of petitions vide order dated 16.3.2011 under the lead case titled Shagufta Parveen and Others Vs State and others wherein the promotion of Senior Compilers to the post of Examiners made in Kashmir Division was under challenge. It is, thus, urged that the aforesaid judgment which was applicable to the promotion of the Examiners in Kashmir Division could not have been applied to the petitioners whose promotions remained unassailed through out till they retired on superannuation. 4. The respondents have filed their objections and the stand taken is that pursuant to the direction issued by this Court in case of Shgufta Parveen and others decided on 16.3.2011 and upheld by the Division Bench of this Court in LPA(SW) No. 79/2011 titled Aijaz Ahmed Bakshi Vs Ali Mohd. Ganai and others decided on 30.7.2013, exercise was undertaken to find out illegality or otherwise of the promotions made in both divisions of the State on the post of Examiners. It is stated that pursuant to exercise conducted, it was found that the promotions to the post of Examiners had not been made in accordance with the recruitment rules having regard to the inter se seniority of the officials. Accordingly, the decision was taken to implement the direction of this court and set right the wrong that had been committed at the time of according promotion to the petitioners and several others, similarly situated to the post of Examiners. 5. Accordingly, the decision was taken to implement the direction of this court and set right the wrong that had been committed at the time of according promotion to the petitioners and several others, similarly situated to the post of Examiners. 5. In nutshell, the stand of the respondents is that since the promotion accorded to the petitioners as Examiners was de hors the recruitment rules and, therefore, did not confer any right on the petitioners. It is, however, not denied by the respondents that before withdrawing the benefit of promotion granted to the petitioners, the petitioners were afforded opportunity of being heard. It is also not in dispute that there was no challenge thrown to the promotion of the petitioners to the post of Examiner. The challenge was only to the promotion of Senior Compilers in the Kashmir Division. Several writ petitions filed in Srinagar Wing of this Court, came to be clubbed under the lead case titled Shagufta Parveen (supra) and were decided on 16.3.2011. The order passed by the Single Bench was also upheld by the Division Bench of this Court in LPA No. 79/2011. 6. Having heard learned counsel for the parties and perused the record, it is seen that the petitioners who were substantively holding the post of Senior Compilers were promoted as Examiners pursuant to the recommendations made by the DPC. It is to be presumed that the DPC recommended the promotion of the petitioners as Examiners after determining their eligibility, merit and suitability having regard to their seniority position. It is not the case of the respondents that the petitioners had misrepresented before the respondents either with regard to their eligibility or seniority or they were in any way party to the proceedings of the DPC and passing of consequent order of their promotion. The promotion granted to the petitioners in the year 1997 remained un-assailed and was not quashed by any competent court of law. Though the respondents submit that there were some petitions filed against the promotion of the petitioners but the same were disposed of with only direction to the respondents to consider the cases of the petitioners. If that is the fact, then it can safely be said that this court did not find fault with the promotion of the petitioners. Though the respondents submit that there were some petitions filed against the promotion of the petitioners but the same were disposed of with only direction to the respondents to consider the cases of the petitioners. If that is the fact, then it can safely be said that this court did not find fault with the promotion of the petitioners. It is true that similar promotions made in the Kashmir Division became subject matter of challenge in batch of petitions under the lead case titled Shagufta Parveen (supra) and the bench of this court in Srinagar vide its judgment dated 16.3.2011, quashed the promotion of the Examiners made in Kashmir Division and directed to convene fresh DPC for considering the eligible candidates for promotion to the post of Examiners. The judgment dated 16.3.2011, as is apparent from bare reading of its operative portion, was the judgment in personam and not judgment in rem. The judgment, on the face of it, is applicable to the promotion made in Kashmir Division which was subject matter of challenge in aforesaid batch of petitions. Be that as it may, as respondents claim, during the course of initiating fresh exercise in terms of direction issued by this court in Shgufta Parveen’s case, it came to the notice of the respondents that similar promotions of Examiners made in the Jammu Division were also de hors the rules and, therefore, while withdrawing promotion of Examiners in Kashmir division by virtue of impugned order, promotion granted to the petitioners were also withdrawn. 7. At this stage, it is pertinent to note that the respondents when found that the promotion of the petitioners as Examiners was also de hors the rules, the respondents should have, at least, afforded an opportunity of being heard to the petitioners. Indisputably, the petitioners had enjoyed their promotion since the year 1997 and its withdrawal in the year 2015, that too, without affording an opportunity to the petitioners, was totally illegal, arbitrary and violative of Articles 14 and 16 of the Constitution. The judgment passed in Shgufta’s case (Supra), for the reasons stated above, could not have been made ipso facto applicable to the petitioners. That apart, the petitioners have now retired on superannuation and their promotion and salary was protected vide interim order passed by this Court and, therefore, it would be highly inequitous to withdraw the benefit already availed by the petitioners. 8. That apart, the petitioners have now retired on superannuation and their promotion and salary was protected vide interim order passed by this Court and, therefore, it would be highly inequitous to withdraw the benefit already availed by the petitioners. 8. Accordingly, for the reasons stated above, this petition is allowed. The order impugned bearing No. 39-DF of 2015 dated 16.02.2015 and order bearing No. 270-DF of 2015 dated 08.9.2015 in so far as the same pertain to the petitioners, are quashed. The petitioners shall be deemed to be Examiners in its sanctioned pay right from the date of their promotion till their superannuation and would also be entitled to the fixation of their pension in the aforesaid pay scale. 9. Disposed of alongwith connected IA(s).