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2019 DIGILAW 260 (JK)

Bashir Ahmad Mir v. High Court of J&K

2019-04-30

ALI MOHAMMAD MAGREY, TASHI RABSTAN

body2019
Judgment 1. Petitioner, a retired Section Officer of the High Court, has filed the present writ petition questioning and seeking reversal of the Order bearing No. 659 dated 17th August, 2017, for short impugned order, whereby his claim of seeking fixation of his seniority from the date of his appointment in the subordinate judiciary and consequent release of benefits in his favour has been rejected. The petitioner, further seeks a command in the name of respondent to fix his seniority after taking into account his past service rendered in the Subordinate Judiciary as has been done in the similarly placed cases and release the benefits flowing therefrom in his favour. The petitioner has further sought damages/ compensation of rupees Ten Lacs for the loss, inconvenience and mental agony suffered by him due to the inaction of respondent. The petitioner has further prayed that after settling the claim, his case be forwarded to the Accountant General’s office for re-fixation of his pension, gratuity and other benefits. 2. The prayers supra are inter alia made on the ground that the conclusion drawn by the respondent in terms of the impugned order is misconceived and the transfer of petitioner from the subordinate judicial service to the High Court at his own request as reflected in the impugned order is illusory; the case of the petitioner has not been considered by the respondent in terms of order dated 19.04.2017 passed in SWP no. 672/2017 on the analogy of the similarly situated persons which has resulted in serious prejudice to the petitioner; no opportunity of hearing has been given to the petitioner before passing the impugned order; the petitioner has been singled out when it comes to the parity and petitioner thus has been prejudiced on that count too; the petitioner cannot be treated as a separate class when the issue stands judicially determined and the respondent cannot disregard the service rendered by the petitioner previously as the same would amount to denial of his fundamental right to service benefits; on the principles of equality before law the petitioner is entitled to seniority and service benefits which are made admissible to the similarly placed persons; etcetera. 3. Upon notice respondents appeared and sought time to file objections initially. However, later on in terms of order dated 12.12.2018, Mr R. A. Jan, learned Sr. 3. Upon notice respondents appeared and sought time to file objections initially. However, later on in terms of order dated 12.12.2018, Mr R. A. Jan, learned Sr. Counsel for the respondent, submitted that reply in the matter is not needed as the issue involved in the writ petition is purely legal, therefore, can be argued in absence of the reply. 4. We have heard learned counsel for the parties. 5. A brief re-look at the events leading to the filing of the instant petition is desirable, thus:— 6. The petitioner has been appointed as a Junior Assistant in the Subordinate Judiciary on 5th December, 1985, in terms of the High Court Order No. 585 dated 05.12.1985 and subsequently transferred to the High Court of Jammu and Kashmir on 17th July, 1993. The petitioner claims fixation of his seniority from the date of his appointment in the subordinate judiciary as has been done in the cases of Mian Rafiq and Rashid Munim pursuant to the judgment dated 26.5.2011 delivered in SWP no. 3437/1997, by virtue of which the High Court had been directed to reckon their seniority with effect from the date of their appointment in the subordinate judiciary. 7. The petitioner is stated to have filed many representations to the respondent for extending him the similar treatment, but the same has not been done, constraining him to file a writ petition, SWP no. 672/2017, which has been disposed of in terms of order dated 19th April, 2017, by directing the Registrar General, High Court of J&K, to examine and settle the claim made by the petitioner and pass appropriate orders thereon within a period of four weeks from the date a copy the order is made available to the Registrar General. 8. Thereafter, the case of the petitioner has been considered and rejected in terms of order dated 659 dated 17th August, 2017, while relying on the decision of the Hon’ble Supreme Court rendered in case titled K. P. Sudhakaran and anr. v. State of Kerala and others reported as AIR 2003 SC 2138. 9. Feeling aggrieved of the rejection the petitioner challenges the same on varied grounds with particular reference of it being discriminatory. 10. v. State of Kerala and others reported as AIR 2003 SC 2138. 9. Feeling aggrieved of the rejection the petitioner challenges the same on varied grounds with particular reference of it being discriminatory. 10. Learned counsel for the petitioner while reiterating the grounds of the writ petition submits that the general principle of service jurisprudence is that the service of the petitioner is to be reckoned from the date of his appointment. He further submits that tendering of an undertaking by the petitioner, to the effect that he will not claim any seniority before 17th July, 1993, at the time of his absorption in the High Court, does not create an exception in the Statute to be made applicable to the petitioner only to deprive him of his service benefits. Learned counsel for the petitioner further submits that the public employment is a state of contract between the employer and the employee and the parties to the contract are governed by the principles of contract. Having said that, the learned counsel for the petitioner referred to the Section 23 of The J&K Contract Act, Svt. 1977, to indicate that the consideration made in petitioner’s case is void as it goes against the public policy. He submits that the order of consideration cannot be enforced if the same is against the Public Pollicy. Section 23 of the J&K Contract Act, Svt. 1977, for facility of reference, is reproduced as under:— “23. What considerations and objects are lawful and what not.— The consideration or object of an agreement is lawful, unless— It is forbidden by law; or Is of such a nature that, if permitted, it would defeat the provisions of any law; or Is fraudulent; or Involves or implies injury to the person or property of another; or the Court regards it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” (Emphasis supplied) 11. Learned counsel further submits that a right accrued in favour of the petitioner by virtue of a Statute cannot be taken away from him by the employer on his wish, nor would the undertaking given by the employee has that effect. 12. Every agreement of which the object or consideration is unlawful is void.” (Emphasis supplied) 11. Learned counsel further submits that a right accrued in favour of the petitioner by virtue of a Statute cannot be taken away from him by the employer on his wish, nor would the undertaking given by the employee has that effect. 12. Learned counsel for the petitioner, further submits that the doctrine of latches will also not apply to the case in hand as the same is applicable to the cases where the third party interest is involved. 13. Learned counsel for the petitioner, submits further that the judgment relied upon by the respondent in the impugned consideration order titled K. P. Sudhakaran and Anr. v. State of Kerala and Ors., reported in AIR 2003 SC 2138, is not at all applicable to the instant case. 14. He further submits that there is no corresponding Rule in the J&K High Court Rules to the Rule 27 of the Classification Control and Appeal Rules, 1956. 15. In support of his submissions, the learned counsel for the petitioner, referred to and relied upon AIR 2017, SC 4438; AIR 1987 SC 2299; AIR SC 2003 391 and AIR 1959 SC 157. The learned counsel lastly made a prayer that the writ petition be allowed and the impugned consideration order may be quashed with a command to the respondent to release the requisite service benefits in favour of petitioner on account of his previous service rendered in the subordinate judiciary. 16. Mr R. A. Jan, learned Sr. Counsel appearing for the respondent, submits that none of the rights of the petitioner has been infringed that would warrant this Court to show interference. He submits that service jurisprudence can be altered provided there is a Rule to the contrary. 17. Learned sr. counsel for the respondent submits that Rule has no application and we are concerned here with the general rule of precedence where the employee is transferred from one establishment to other establishment of the Government and thereafter he desires to be absorbed at the transferred place. He further submits that the Court has to draw a difference between the case where the transfer is affected at the request of the employee and the case where the transfer is affected in the interests of administration. 18. He further submits that the Court has to draw a difference between the case where the transfer is affected at the request of the employee and the case where the transfer is affected in the interests of administration. 18. He further submits that the law is applied to the facts and not in vacuum, therefore, whenever a particular case law is cited it has to be shown mandatorily that the facts in which the cited judgment is passed fits to the facts of the case being dealt with as even a single different feature would make the case law distinguishable and renders the judgment untenable. 19. He further submits that the Court has to see as to whether the doctrine of waiver is to be dealt with or the principles of Approbate and Reprobate would apply. He submits that since the petitioner, out of his own free will, has chosen to seek absorption in the High Court and given up his claim for the service rendered in the lower judiciary, he cannot be allowed now to raise such claim as he has, at the relevant point of time, received the benefit of absorption and is estopped under law to make a summersault and seek the benefit of past service too. 20. He further submits that the impugned order is legally valid and does not warrant interference. 21. In support of his submissions Mr R. A. Jan, learned Sr. Counsel, referred to and relied upon the case law reported as 2014 (15) SCC 144 and (2009) 9 SCC 304 . 22. In rebuttal Mr Salih Pirzada, learned counsel appearing for the petitioner, submits that the doctrine of Approbate and Reprobate is based on the doctrine of estoppel and the submission is already made that the doctrine of estoppel will not apply in a case where third party interest is not involved. 23. We have given our thoughtful consideration to the rival submissions of the learned counsel for the parties having reference to the claim made in the writ petition. We have also gone through the judgments cited by the parties in support of their respective submissions. 24. 23. We have given our thoughtful consideration to the rival submissions of the learned counsel for the parties having reference to the claim made in the writ petition. We have also gone through the judgments cited by the parties in support of their respective submissions. 24. We are not inclined to accept the submissions of learned counsel for the petitioner for the relief claim on twofold reasons; 1) that the petitioner’s adjustment in the high court is made on his own request in the year 1993 and 2) that he continued with such adjustment till the time he claimed fixation of his seniority in the High Court with effect from the date he was adjusted with consequential benefits and based on such claim he was permanently adjusted in the high court, his seniority was fixed and the benefits that had fallen due on such adjustment and fixation of seniority were released in his favour in the year 2007. Petitioner accepted the settlement of his claim with reference to his adjustment in the High Court as also fixation of his seniority, therefore, he remained contended and satisfied with his entitlement till he retired on reaching the age of superannuation in the year 2016. Petitioner only turned around in the year 2017 after his retirement and made the claim initially by filing a writ petition, SWP no. 672/2017, which was disposed of and which disposal resulted in rejection of his claim and subsequently by the present writ petition. 25. Admittedly the petitioner’s seniority in the class of Junior Assistants has been rightly fixed from the date of his adjustment in the High Court qua the application of Rule 27 of the Civil Services (Classification, Control and Appeal) Rules, 1956. Respondent, while considering his claim for fixation of his seniority from the date of appointment as Junior Assistant in the subordinate court, has rejected the same on the strength of application of the principle laid down in the K. P. Sudhakaran and anr. v. State of Kerala and ors., reported as AIR 2003 Supreme Court 2138. 26. We feel that the claim of the petitioner has rightly been turned down with the application of judgment as the adjustment of the petitioner in the High Court is made pursuant to his own request. v. State of Kerala and ors., reported as AIR 2003 Supreme Court 2138. 26. We feel that the claim of the petitioner has rightly been turned down with the application of judgment as the adjustment of the petitioner in the High Court is made pursuant to his own request. The submission of the learned counsel for the petitioner that the judgment which is relied upon in support of the impugned order by the respondent is not applicable to the case as the same was based on the application of particular Rule is not correct as the said judgment has laid a principle required to be followed for application of the Rule of the seniority to an employee whose adjustment in different service is made on his request. We are turning down the submission further for the reason that if such a submission is accepted it will unsettle the settled things in the High Court and resultantly will also disturb the seniority and promotion of all those officers/ officials whose seniority has been fixed over and above the petitioner. 27. The other submission of the learned counsel for the petitioner that the respondents have extended such treatment to few employees of the High court is also turned down as the wrong, if any, having been done in the past, cannot be perpetuated. 28. We are of the view that all the issues related with the service of the petitioner vis-à-vis his entitlement to the service benefits have been taken care of in the year 2007 and there is no scope left for any further advancement in the matter. It stands closed in all respects and we treat it as such. 29. It is further emphasized that the case of the petitioner would certainly have been on different footing if his transfer and later adjustment would have been for the same service and initiated by the respondent in the interest of administration in absence of the request of the petitioner. In that case, he had the claim for the past service rendered. But, here the case is different, the petitioner’s first appointment and later adjustment is for two different services, having two different cadres and categories, one is the subordinate service and the other is a higher service. Therefore, in that view of the matter also the petitioner’s claim does not find favour and is accordingly rejected. 30. But, here the case is different, the petitioner’s first appointment and later adjustment is for two different services, having two different cadres and categories, one is the subordinate service and the other is a higher service. Therefore, in that view of the matter also the petitioner’s claim does not find favour and is accordingly rejected. 30. For all what has been said hereinbefore We dismiss the writ petition and upheld the impugned order.