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2019 DIGILAW 91 (JK)

Union of India v. Syed Ashiq Hussain

2019-02-25

ALI MOHAMMAD MAGREY, SANJEEV KUMAR

body2019
Judgment Ali Mohammad Magrey, J.—This Letters Patent Appeal, filed by the Union of India, is directed against the judgment passed by the learned Writ Court dated 27th of October, 2017, in SWP No. 420/2016, whereby the petition of the Writ petitioner/ respondent No.1 herein was allowed. 02. The facts leading to the filing of the instant appeal, as these stem out from a study of the file under consideration, are that the Government Order No. Home-508 (P) of 2010 dated 29th of April, 2010, wherein the name of the writ petitioner/ respondent No.1 herein figured at S. No. 212 in the list of the Superintendents of Police, was challenged by the writ petitioner/ respondent No.1 herein before the learned Single Bench and in terms of judgement dated 4th of January, 2013, the learned Single Bench, while allowing the writ petition, accepted the claim of the Writ petitioner/ respondent No.1 and directed the respondents to fix and determine his seniority as Superintendent of Police from the date he joined as Incharge SP (Operations) in terms of PHQ Order No. 2002 of 1998 dated 24th of June, 1998. In compliance of the orders of the learned Single Bench, the respondents issued Government Order No. Home-378 of 2013 dated 5th of September, 2013, in terms whereof sanction was accorded to the promotion of the Writ petitioner/ respondent No.1 herein as Superintendent of Police w.e.f 24th of June, 1998 followed by another Order No. 379 of 2013 dated 5th of September, 2013, directing the placement of the Writ petitioner/ respondent No.1 herein at S. No. 1-A, i.e. below Shri Ghulam Hassan Bhat (S. No. 1) and above Shri Syed Kifayat Hyder (S.No.2) in the final seniority list as on 1st of January, 2010. Subsequent to the placement of the Writ petitioner/ respondent No.1 at the appropriate place, he was required to be inducted into Indian Police Service (IPS) in terms of IPS (Appointment by promotion) Regulation, 1955, for the allotment year 2006. It is pleaded that the judgement of the learned Single Bench was challenged before this Court by medium of a Letters Patent appeal, being LPA No. 156/2013, which was dismissed by this Court. It is pleaded that the judgement of the learned Single Bench was challenged before this Court by medium of a Letters Patent appeal, being LPA No. 156/2013, which was dismissed by this Court. Subsequently, as stated, the Supreme Court also upheld the judgement of the Single Bench, as a corollary to which the State of Jammu & Kashmir/ respondent No.2 herein recommended the case of the Writ petitioner/ respondent No.1 herein to the Government of India, Ministry of Home Affairs/appellant herein for induction into IPS for the allotment year 2006 in terms of communication No. Home/SWP/GAZ/22/2013 dated 19.9.2013. After laying their hands on all the requisite documents, the appellants issued another notification dated 20th of January, 2016, appointing the Writ petitioner/ respondent No.1 herein to the Indian Police Service on probation and allocating him to J&K Cadre under Sub-Rule (1) of Rule 5 of IPS (Cadre) Rules, 1954. The said notification was issued in continuation to the notification dated 18th of March, 2011, however, the Writ petitioner/ respondent No.1 was held entitled to all notional benefits with respect to that of his immediate junior. It is also stated that on the basis of his date of birth, the Writ petitioner/ respondent No.1 retired from service by the end of February, 2013, on attaining the age of 58 years. However, after his induction into IPS, the State of Jammu Kashmir/ respondent No.1 issued a series of Government Orders dated 26th February, 2016, vide which sanction was accorded to the placement of the Writ petitioner/ respondent No.1 herein in the Junior Administrative Grade of IPS, placement of the Writ petitioner/ respondent No.1 in the selection grade of IPS, promoting the Writ petitioner/ respondent No.1 to the rank of super time scale DIG and according sanction to the adjustment of the Writ petitioner/ respondent No.1 against the available vacancy of DIG (Administration) PHQ till his retirement on superannuation on 29th of February, 2016. Feeling aggrieved, the Writ petitioner/ respondent No.1 herein approached the Single Bench of this Court through the medium of writ petition registered as SWP No. 420/2016, stating therein that the treatment meted out to him was based on hostile discrimination inasmuch as the respondent Nos. Feeling aggrieved, the Writ petitioner/ respondent No.1 herein approached the Single Bench of this Court through the medium of writ petition registered as SWP No. 420/2016, stating therein that the treatment meted out to him was based on hostile discrimination inasmuch as the respondent Nos. 4 and 5 in the writ petition/ appellants herein, while dealing with a similar situation in the case of Shri Prabhat Singh, issued Government Order No. Home-101 (P) of 2013 dated 11th of March, 2013 and in terms of the said Government Order, the respondent No.4/ appellant herein ordered release of monetary benefits in favour of Shri Prabhat Singh after his retirement as were admissible to him by virtue of his induction into the IPS. The Writ petitioner/ respondent No.1 herein also pleaded that the said order was issued by the State of Jammu & Kashmir in partial modification of Government Order No. Home-43 (P) of 2013 dated 4th of February, 2013 in terms of the judgement dated 31st of May, 2011, passed by the Central Administrative Tribunal. On the above set of facts, the Writ petitioner/ respondent No.1 herein had averred that the treatment meted out to him was violative of Articles 14 and 16 of the Constitution of India. The learned Single Bench, after hearing the learned counsel for the parties and on consideration of the matter, vide judgment dated 27th of October, 2017, allowed the petition of the Writ petitioner/ respondent No.1 herein, operative portion whereof reads as under:— “21. The learned Single Bench, after hearing the learned counsel for the parties and on consideration of the matter, vide judgment dated 27th of October, 2017, allowed the petition of the Writ petitioner/ respondent No.1 herein, operative portion whereof reads as under:— “21. The cumulative effect of all that has been said and done above, is that the impugned notification dated 20.01.2016 (Annexure P10) issued by the respondents 4 and 5 to the extent of the grant of notional benefits with respect to that of his immediate junior officers Syed Kifayat Hyder, is quashed along with the Government Orders dated 26.02.2016 (Annexures P12 to P15) issued by respondent No. 1, so far as the same, order for the placement of the petitioner in various promotional grades with effect from 18.03.2011 till his joining on notional basis, as a consequence of which the respondents are commanded to release all the pay benefits as are admissible to the petitioner from 18.03.2011 upto the date of his retirement on 29.02.2016, in various grades in IPS pursuant to his induction into Indian Police Service by virtue of the notification Annexure-P10 and the Government Orders Annexures P12 to P15 and to determine, fix and release all retiral/pensionary benefits as admissible under rules in favour of the petitioner.” This judgment of the learned Single Judge has been assailed before this Court by the Union of India/ respondent Nos. 4 and 5 in the Writ petition. 03. We have heard the learned counsel for the parties, perused the record and considered the matter. 04. The main grouse of the appellants compelling them to file the instant appeal against the judgment impugned is that the same has conferred monetary benefits upon the Writ petitioner/ respondent No.1, notwithstanding the fact that he is not entitled for the said benefits on account of ‘No Work No Pay’. It is also contended that if the impugned judgment is implemented, same would open flood gates of litigation as other similarly placed persons may claim parity which would not only amount to unsettlement of settled things, but would also create an undue burden on the public exchequer without any entitlement of the said persons. 05. It is also contended that if the impugned judgment is implemented, same would open flood gates of litigation as other similarly placed persons may claim parity which would not only amount to unsettlement of settled things, but would also create an undue burden on the public exchequer without any entitlement of the said persons. 05. The issue relating to arrears of pay for the intervening period after an employee is granted notional promotion from the back deemed date, as is the subject matter of the instant appeal, is a perennial issue which, repeatedly, keeps cropping up before the Court(s). The contention of the concerned employee, in all such cases, is always that he/she was denied promotion to a higher post wrongly by the Department and, therefore, once the Department has realized its mistake and given the promotion from a back date which was legitimately due to him/her, the notional promotion would be no consolation and he/she cannot be denied the arrears of pay for the intervening period. On the other hand, the submission of the Department in such cases is that by giving notional promotion, the incumbent gets due seniority as well as proper pay fixation, but he/ she is not entitled to the arrears of pay from the deemed date of promotion to the date of his/ her posting in the promotional post, as he/ she has not worked during that period and, therefore, principle of ‘No Work No Pay’ would be applicable. Determination of the circumstances under which an employee should be given the arrears of pay and under what circumstances in which he/she can be denied this benefit is the task before us which we will endeavor to carry out relying upon the principles governing the field. 06. Law on the subject is no more res integra. The Hon’ble Apex Court as well as various High Courts of the country have decided a number of cases and in some cases, relief of arrears of pay is granted, while in some others, it is denied applying the doctrine of ‘No Work No Pay’. We need not reiterate those judgments. However, a closure scrutiny of the peculiar facts and circumstances in each case so decided would clearly reveal a discerning trend that there is no contradiction as far as the principle of law laid down in various judgments is concerned. We need not reiterate those judgments. However, a closure scrutiny of the peculiar facts and circumstances in each case so decided would clearly reveal a discerning trend that there is no contradiction as far as the principle of law laid down in various judgments is concerned. The principle which can be deduced is that if a promotion is denied to an employee because of the mistake on the part of the Administration/ Department and due to no fault of the concerned employee, then, in such eventuality, the authorities are bound to pay the arrears of salary etc. to the said employee, upon giving him/her the benefit of retrospective promotion after realizing that mistake. This principle would be extended even to those cases where due to sheer negligence, carelessness or on account of malafides, an employer denies the benefit of promotion to the employee at a proper time when it becomes due and gives him/ her afterwards, though retrospectively. On the other hand, where there is genuine dispute and the promotion was delayed because of the pendency of such a dispute and before the settlement of the dispute, the promotion could not have been granted, the salary for the past period can be denied even when promotion is given retrospectively after the resolution of the dispute(s). Further, the benefit of arrears of salary for past period can also be denied if it is found that it was not the fault or mistake of the Administration/ Department because of which the promotion was delayed. In those cases where concerned employees, senior as well as junior, are granted the benefit of promotion and the salary for the period in question, same should invariably be given to such an employee who is given belated promotion retrospectively, as non-grant of arrears of pay and allowances of the higher post for the relevant period, in such circumstances, would amount to hostile discrimination. 07. 07. Applying the principles which we have formulated above to the facts and circumstances of the case on hand, what becomes axiomatic is that by judgment dated 4th of January, 2013, rendered by the learned Single Bench in SWP No. 1907/2009, filed by the Writ petitioner/ respondent No.1, earlier in point of time, the concerned authorities were directed to reckon the seniority of the Writ petitioner/ respondent No.1 as Superintendent of Police from the date he joined as Incharge, Superintendent of Police (Operations) in compliance of PHQ Order No. 2002 of 1998 dated 24th of June, 1998 and, after computing the seniority of the Writ petitioner/ respondent No.1 herein, recommend him for consideration/ place his case before the Competent authority for induction in the Indian Police Service against the quota available in appropriate year, having regard to his seniority as Superintendent of Police in the grade of Rs. 10,000-15,000/- from the aforesaid date. Perusal of the pleadings on record also brings it to limelight that this judgment of the learned Single Bench was challenged by medium of a Letters Patent Appeal before this Court, which, on consideration, was dismissed. Thereafter, a Special Leave Petition came to be filed against the judgment aforesaid of the learned Single Bench, as upheld by this Court, which, too, came to be rejected by the Hon’ble Supreme Court. Consequent upon the confirmation of the judgment of the learned Single Bench of this Court by Hon’ble the Supreme Court, the Writ petitioner/ respondent No.1 herein was inducted into IPS, but only notionally and without monetary benefits, constraining the Writ petitioner/respondent No.1 herein to file another writ petition, being SWP No. 420/2016. This writ petition, on consideration, was allowed by the learned Single Bench and the Writ petitioner/respondent No.1 was held entitled to all monetary benefits from the date of his retrospective promotion. From the above factual discourse, it is clearly forthcoming that the Writ petitioner/ respondent No.1 herein was all along, ready and willing to render his duties in the Indian Police Service which he was not permitted to do for none of his faults or reasons attributed to him. From the above factual discourse, it is clearly forthcoming that the Writ petitioner/ respondent No.1 herein was all along, ready and willing to render his duties in the Indian Police Service which he was not permitted to do for none of his faults or reasons attributed to him. The denial of pay benefits, in such circumstances, amounts to subjecting the Writ petitioner/ respondent No.1 herein to discrimination and grant of only deemed promotion on the principle of ‘No Work No Pay’ may not be appropriate, moreso, when similar cases were dealt with by the appellants favourably in favour of the concerned. Admittedly, the juniors of the Writ petitioner/ respondent No.1 herein, who were granted the benefit of promotion received the salary and if the Writ petitioner/ respondent No.1 is deprived thereof, it would amount to hostile discrimination qua him. We are, therefore, of the opinion that the principle of ‘No Work No Pay’ cannot be made applicable in the instant case and the Writ petitioner/ respondent No.1 would be entitled to salary. If a civil servant is not offered the work to which he/she was legally entitled, he/she cannot be deprived of the wages for the post to which he/she subsequently is held entitled to. Permitting such a course to be adopted would be encouraging the imposition of double penalty, that is, firstly, by depriving the civil servant his/her right of promotion and, secondly, be depriving him/ her of the emoluments to which he/ she would have been entitled to upon promotion which, subsequently, is considered in his/her favour. Deprivation to work against the post to which a civil servant is entitled on promotion is always at the risk and responsibility of the State and cannot be made a basis for depriving such a civil servant of the emoluments to which he/she was entitled, had he/she been promoted in accordance with the rules at the time when he/she became eligible for such promotion. The Executive, once being satisfied that a civil servant was entitled to the promotion with retrospective effect, cannot deprive him/her of the benefits of salary accruing on account of such promotion from an early date without assigning valid, cogent and specific reasons. 08. The Executive, once being satisfied that a civil servant was entitled to the promotion with retrospective effect, cannot deprive him/her of the benefits of salary accruing on account of such promotion from an early date without assigning valid, cogent and specific reasons. 08. Coming to the argument of the learned Assistant Solicitor General of India, representing the appellants, that if such a view, as propounded by the learned Single Bench is allowed to be implemented insofar as it directed release of monetary benefits in favour of the Writ petitioner/ respondent No.1 herein retrospectively, other similarly placed persons may claim parity. We do not find any force in such an argument raised by the learned counsel for the appellants inasmuch as the Government, itself, in terms of Government order No. Home-101 (P) of 2013 dated 11th of March, 2013, have already accorded sanction to the release of monetary benefits in favour of Shri Prabhat Singh IPS (now retired) for the period w.e.f. 18th of March, 2011 (date of notional appointment to IPS) to 8th of September, 2000 (date of his joining IPS, Jammu & Kashmir Cadre). Furthermore, by notification dated 20th of February, 2015, issued by the appellants, M/s Vishm Kumar Gaur, Mahipal Singh and S.K. Khurana have been appointed to the State Police Service of Rajasthan (since retired to the Rajasthan Cadre of IPS) against the select list of 2007-08 with all consequential benefits. In that view of the matter, it shall not lie in the mouth of the appellants to state that the retrospective promotion, if granted in favour of the Writ petitioner/ respondent No.1 herein, will open flood gates of litigation as other similarly placed persons may claim parity. The action of the respondents, being the State functionaries, has to be transparent. The State cannot discriminate between similarly circumstanced persons. Ours is a welfare State which aims at the goal where everyone is/has to be, as far as possible, looked after. The case of the Writ petitioner/ respondent No.1 herein had to be considered on the same parameters and analogy as was evolved in the cases of the similarly situated persons. Justice is not only law and its administration, but is, in most cases, above law and is done to save the individual from whatever he/ she seeks protection. The case of the Writ petitioner/ respondent No.1 herein had to be considered on the same parameters and analogy as was evolved in the cases of the similarly situated persons. Justice is not only law and its administration, but is, in most cases, above law and is done to save the individual from whatever he/ she seeks protection. Our country, in particular, aims at the goal of achieving the welfare State where everyone is/ has to be, as far as possible, looked after. There can be no discrimination between two individuals who are equally placed. 09. For all that has been said and done above, we are of the view that the learned Single Bench has, on appreciation of the attending facts and circumstances of the case and after applying the relevant case law, rightly held the Writ petitioner/ respondent No.1 herein entitled to all pay benefits, as admissible to him from 18th of March, 2011 till the date of his retirement on 29th of February, 2016, in various grades in IPS pursuant to his induction into Indian Police Service, with a further stipulation to determine, fix and release all retiral/ pensionary benefits, as admissible under rules, in favour of the writ petitioner/ respondent No.1 herein. That being so, we do not find any illegality or perversity in the impugned judgment passed by the learned Single Bench, as a sequel thereto, the instant appeal shall stand dismissed, alongwith all connected IA(s). Interim directions, if any, in force as on date, shall stand vacated.