Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 646 (JK)

State of Jammu & Kashmir v. Renu Mahajan

2022-11-18

TASHI RABSTAN, WASIM SADIQ NARGAL

body2022
JUDGMENT Tashi Rabstan, J. - These Letters Patent Appeal are directed against the common judgment and order dated 30.01.2018 passed by the learned Single Judge in SWP No. 1042/2014 and SWP No. 309/2016, whereby the learned Single Judge while allowing the writ petitions quashed the impugned seniority list issued vide Government Order No. 2129-LD (Estt) of 2015 dated 20.07.2015 to the extent of writ respondent-Nazir Ahmad Thakur and writ petitioner-Renu Mahajan, shown at seniority position No. 1 and No. 2 respectively in category-D (Legal Assistants); with a further direction to writ respondent No. 1 to redraw the seniority list by showing writ petitioner-Renu Mahajan at seniority position No. 1 and writ respondent-Nazir Ahmad Thakur at seniority position No. 2 in category-D (Legal Assistants). 2. Heard learned counsel appearing for the parties, considered their rival contentions and also perused the appeal files. 3. The bone of contention between appellant-Nazir Ahmed Thakur and respondent-Renu Mahajan is that as to who among them is senior in the category of Legal Assistant (earlier Public Law Officer) in the pay scale of Rs. 2000-3200. 4. Admittedly, respondent-Renu Mahajan was initially appointed as Public Law Officer in the pay grade of Rs. 2000-3200 in stop gap arrangement against an available vacancy vide Government Order No. 304-LD dated 29.01.1993 issued by the Law Department. Thereafter, vide Government Order No. 6401 LD (Estt) of 1999 dated 17.11.1999 she was regularized as Public Law Officer/Legal Assistant in the same pay scale with retrospective effect from 30.04.1993; meaning thereby respondent-Renu Mahajan came to be regularized as Legal Assistant (earlier Public Law Officer) with effect from 30.04.1993. 5. Whereas, as regards appellant-Nazir Ahmed Thakur, the admitted position is that he initially came to be appointed as Public Law Officer in stop gap arrangement in the lower pay scale of Rs. 1760-3200 vide Government Order No. LA (A) 16 of 1992 dated 13.05.1992 issued by the Ladakh Affairs Department and pursuant thereto he joined in the office of the District Development Commissioner, Leh on 18.05.1992. The services of appellant-Nazir Ahmed Thakur came to be regularized vide Government Order No. 1590-LD (Estt) of 1994 dated 28.09.1994 with retrospective effect, i.e., with effect from 18.05.1992 in the pay scale of Rs. 1760-3200, i.e., when he joined his duties as Public Law Officer on stop gap basis. 6. The services of appellant-Nazir Ahmed Thakur came to be regularized vide Government Order No. 1590-LD (Estt) of 1994 dated 28.09.1994 with retrospective effect, i.e., with effect from 18.05.1992 in the pay scale of Rs. 1760-3200, i.e., when he joined his duties as Public Law Officer on stop gap basis. 6. Thus, the admitted position is that respondent-Renu Mahajan came to be regularized with effect from 30.04.1993 on a higher pay grade of Rs. 2000-3200, whereas, appellant-Nazir Ahmed Thakur though came to be regularized with effect from 18.05.1992 earlier than respondent-Renu Mahajan, yet he was carrying lower pay grade of Rs. 1760-3200; meaning thereby respondent-Renu Mahajan being getting higher pay grade was certainly senior to appellant-Nazir Ahmed Thakur. 7. However, appellant-Nazir Ahmed Thakur claimed that the Government vide Order No. LD/Estab/1655 of 1994 dated 21.10.1994 read with Law Department's letter bearing No. LD(Estab) 5-94 dated 19.12.1994 granted the pay scale of Rs. 2000-3200 in his favour too with effect from 18.05.1992. Controverting the stand of appellant-Nazir Ahmed Thakur, learned counsel for respondent-Renu Mahajan argued that appellant-Nazir Ahmed Thakur was never accorded the pay scale of Rs. 2000-3200 with effect from 18.05.1992 nor any order to this effect has ever been issued by the Government. Thus, the date of appointment/regularization of private respondent in the pay scale of Rs. 2000-3200 is disputed. 8. Now the sole question for consideration is: as to when appellant-Nazir Ahmed Thakur was accorded the pay scale of Rs. 2000-3200, i.e., when he was initially appointed and joined as Public Law Officer on 18.05.1992 in the pay scale of Rs. 1760-3200, or, when he was transferred from the Office of the Deputy Commissioner, Leh and adjusted against available post of Law Officer in the pay scale of Rs. 2000-3200 in the Office of the Chief Engineer Electric, Maintenance and Rural Electrification Department, Kashmir vide Government Order No. LD(A) 1655 of 1994 dated 21.10.1994 issued by the Law Department. 9. Admittedly, appellant-Nazir Ahmed Thakur was appointed in the Office of Deputy Commissioner-cum-District Development Commissioner, Leh on 13.05.1992. In paragraph-5 of LPA No. 181/2018 filed by Nazir Ahmed Thakur, he has specifically averred that he was appointed as Public Law Officer/Legal Assistant on stop gap basis in the pay scale of 1760-3200 on 13.05.1992 and he joined on 18.05.1992. 9. Admittedly, appellant-Nazir Ahmed Thakur was appointed in the Office of Deputy Commissioner-cum-District Development Commissioner, Leh on 13.05.1992. In paragraph-5 of LPA No. 181/2018 filed by Nazir Ahmed Thakur, he has specifically averred that he was appointed as Public Law Officer/Legal Assistant on stop gap basis in the pay scale of 1760-3200 on 13.05.1992 and he joined on 18.05.1992. Appellant-Nazir Ahmed Thakur has based his claim on two things, i.e., (i) Government Order No. LD(Estb) 1655 of 1994 dated 21.10.1994 (Annexure 'G' to LPA No. 181/2018) issued by the Additional Secretary to Government, J&K Law Department, and, (ii) Government Communication vide Letter No. LD(Estb)92/5-94 dated 19.12.1994 (Annexure 'H' to LPA No. 181/2018) addressed by the Under Secretary to Government, Law Department to the Chief Engineer, Electric M&RE Wing, PDD, Kashmir. 10. Therefore, before proceeding further, it would be relevant to reproduce relevant portion of Government Order No. LD(Estb) 1655 of 1994 dated 21.10.1994 issued by the Additional Secretary to Government, J&K Law Department (supra): 'As agreed to by the Commissioner Power Development Department, J&K, Srinagar vide above cited communication sanction is accorded to the transfer and adjustment of Mr. Nazir Ahmed, Law Officer presently working in the office of Deputy Commissioner-cum-District Development Commissioner, Ladakh against the available post of Law Officer in the grade of Rs. 2000-3200 in the office of Chief Engineer, Electric Maintenance and Rural Electrification Department Kashmir. He will however, retain lien against one of the posts of Legal Assistant in the Law Department.' 11. Thus, vide the said order, appellant-Nazir Ahmed Thakur for the first time in October, 1994 was placed in the grade of Rs. 2000-3200 when he was transferred from the Office of Deputy Commissioner-cum-District Development Commissioner, Ladakh and adjusted as Law Officer in the office of Chief Engineer, Electric Maintenance and Rural Electrification Department Kashmir. In the said order, it was specifically provided that he will retain his lien against one of the posts of Legal Assistant in the Law Department. 12. However, in LPA No. 181/2018, appellant-Nazir Ahmed Thakur claimed that since in order dated 21.10.1994 (supra) there was ambiguity in the pay scale given to him (paragraph-5 of the appeal), as such a clarification was issued by the Government vide Letter No. LD(Estb)92/5-94 dated 19.12.1994 addressed by the Under Secretary to Government, Law Department to the Chief Engineer, Electric M&RE Wing, PDD, Kashmir, clarifying that the grade of Rs. 2000-3200 was the grade in which appellant-Nazir Ahmed Thakur was initially appointed on 18.05.1992, as claimed by appellant-Nazir Ahmed Thakur at page-21 of the appeal filed by him. As such, it would be appropriate to reproduce the relevant portion of communication dated 19.12.1994 (supra) hereunder: 'The undersigned is directed to invite your attention to the above cited communication and to clarify that since the officer has been transferred, adjusted and placed/promoted in the grade of Rs. 2000-3200 and posted in your Department with the prior agreement of Commissioner/Secy Power Development Department, his pay in the said grade may be drawn accordingly.' 13. A perusal of the above-quoted communication clearly reveals that it has simply been clarified by the Under Secretary to Government, Law Department that since appellant-Nazir Ahmed Thakur has been transferred, adjusted and placed/promoted in the grade of Rs. 2000-3200, as such his pay be drawn in the said grade. Nowhere in the said communication it has been stated or clarified that the grade of Rs. 2000-3200 has been accorded to appellant-Nazir Ahmed Thakur with effect from 18.05.1992. Even, appellant-Nazir Ahmed Thakur has failed to produce any authentic Government document showing that he was specifically accorded the grade of Rs. 2000-3200 or he was placed in the said grade with effect from 18.05.1992. Thus, it totally belies the claim of appellant-Nazir Ahmed Thakur that vide communication dated 19.12.1994 he was placed in the grade of 2000-3200 with effect from 18.05.1992, rather there was no specific order vide which appellant-Nazir Ahmed Thakur could be said to have been allowed the grade of Rs. 2000-3200 with effect from 21.10.1994 when he was transferred and adjusted against the available post of Law Officer in the grade of Rs. 2000-3200 in the office of Chief Engineer, Electric M&RE Department Kashmir with the condition that he would retain his lien against one of the posts of Legal Assistant in the Law Department, what to talk of allowing the said grade with effect from 18.05.1992. On the other hand, vide Government Order No. 6401 LD (Estt) of 1999 dated 17.11.1999, respondent-Renu Mahajan was specifically regularized as Public Law Officer/Legal Assistant in the grade of Rs. 2000-3200 with retrospective effect from 30.04.1993. Even a perusal of the judgment impugned reveals that the State, through Commissioner/Secretary, Law Department never took such a plea before the Writ Court as has been taken by the appellant-Nazir Ahmed Thakur. 2000-3200 with retrospective effect from 30.04.1993. Even a perusal of the judgment impugned reveals that the State, through Commissioner/Secretary, Law Department never took such a plea before the Writ Court as has been taken by the appellant-Nazir Ahmed Thakur. I am also in agreement with the learned Single Judge that the initial appointment of appellant-Nazir Ahmed Thakur on stop gap basis was made by the Ladhak Affairs Department in the pay scale of Rs. 1760-3200 and the pay scale could not have been upgraded without creation of a post in that grade with retrospective effect from the date of initial appointment. 14. Further, we are also in agreement with the learned Single Judge that although respondent-Renu Mahajan and appellant-Nazir Ahmed Thakur entered the Law Officer's Service simultaneously as both of them at the time of creation of service were in the pay scale of Rs. 2000-3200, yet respondent-Renu Mahajan ought to have been ranked higher than appellant-Nazir Ahmed Thakur in Category-D (Legal Assistants) on the ground that inter se seniority of the persons who enter a newly created service can be determined only with reference to their initial appointment to a particular post in a particular grade and not to the date of entering the newly created service, as the same principle as a matter of fact was adopted by the State, through Secretary to Government, Law Department in fixing the seniority of Legal Assistants in Category-D. 15. Now we come to the ground of delay of laches as argued by the learned counsel for appellants. 16. SWP 1042/2014 came to be filed by respondent-Renu Mahajan on 23.04.2014. Notice to State, through Secretary, Law Department and J&K Public Service Commission came to be issued on 24.04.2014 when it was directed to consider the claim of Renu Mahajan under rules during the notice period. Thereafter, petition came to be listed on so many occasions but the State through Law Department failed to file objections. On 26.09.2014, 04.09.2015 and 15.12.2015 official respondents were specifically directed to file objections. However, the objections came to be filed only on 01.02.2016 after last and final opportunity was granted to the official respondents to file objections, i.e., the Law Department took more than twenty one (21) months in filing objections. Thus, there was considerable delay on the part of official writ respondents in filing objections to SWP 1042/2014. However, the objections came to be filed only on 01.02.2016 after last and final opportunity was granted to the official respondents to file objections, i.e., the Law Department took more than twenty one (21) months in filing objections. Thus, there was considerable delay on the part of official writ respondents in filing objections to SWP 1042/2014. As such, it does not lie in the mouth of official respondents, particularly the Law Department, to raise objection that there was delay on the part of respondent-Renu Mahajan in approaching the Court seeking redressal of her grievances. Otherwise too, in the objections filed by the official writ respondents through Mrs. Seema Khajooria Shekher, the then Sr. AAG, they had not taken any plea or raised any objection with regard to delay and laches on the part of Renu Mahajan in approaching the Writ Court. It would be appropriate to reproduce the relevant portion of objections to SWP No. 1042/2014 hereunder: '1. It is respectfully submitted that the petitioner was initially appointed on stop-gap basis vide Government Order No. 304-LD(Estt) of 1993 dated 29.01.1993 against the post of Public Law Officer (re-designated as Legal Assistant) in the pay scale of Rs. 2000-3200 for a period of 89 days and the term of the appointment of the petitioner was extended by virtue of different Government orders issued from time to time dated 17.11.1999, where under the services of petitioner were regularized against the said post. 2. It is respectfully submitted that the petitioner was subsequently promoted vide Government Order No. 758-LD(Estt) of 2005 dated 04.04.2005 against the post of Law Officer, Grade II carrying the pay scale of Rs. 7500-12,000 (Gazetted), subject to the clearance by the Departmental Promotion Committee/PSC. The petitioner worked on the said post till another officiating promotion was accorded to her vide Government Order No. 2181-LD (Estt) of 2007 dated 03.09.2007 against the post of Senior Law Officer in the grade of Rs. 10,000-15,200 but in view of her non-confirmation by PSC, the petitioner continues to hold the post of Legal Assistant in substantive capacity. 3. It is respectfully submitted that vide Government Order No. 1845-LD(Estt) of 2013 dated 22.05.2013, the petitioner was again promoted on officiating basis against the post of Additional Secretary, subject to the clearance by PSC/DPC and posted as Director Litigation, Jammu. 4. 3. It is respectfully submitted that vide Government Order No. 1845-LD(Estt) of 2013 dated 22.05.2013, the petitioner was again promoted on officiating basis against the post of Additional Secretary, subject to the clearance by PSC/DPC and posted as Director Litigation, Jammu. 4. It is respectfully submitted that the regularization/clearance of the members of Legal (Gazetted) Service and Law Officers Service, including the petitioner, promoted from time to time in the Department was taken up with the J&K Public Service Commission, which is a mandatory requirement under and in terms of Section 133 of Constitution of J&K. 5. It is respectfully submitted that the J&K Public Service Commission cleared the cases of the members of Legal Gazetted Service, while as the left out cases including that of the petitioner were returned with certain observations/queries. Copy of the minutes of the meeting enclosed marked as Annexure R-1. 6. It is respectively submitted that vide Govt Order No. 2129-LD(Estt) of 2015 dated 20.07.2015 final seniority list came to be issued and the petitioner has been placed at an appropriate place and the matter will be taken up again with PSC for clearance as per the seniority list. The petitioner is junior to Sh Ali Mohamed Sofi (retired Additional Secretary) and Shri Nazir Ahmad Thakur of the Law Officers service to which she belongs. 7. It is respectfully submitted that during the pendency of the writ petition the Hon'ble Court passed an order dated 24.04.2014 directing to consider the claim of the petitioner under rules. The matter was considered and by virtue of the Govt. Order No. 91-LD(Lit) of 2016 dated 14.01.2016, the claim of the petitioner was found devoid of any merit, hence rejected.' 17. A perusal of the above-quoted objections filed in SWP No. 1042/2014 clearly reveals that the writ respondents had not taken any plea or raised any objection with regard to delay and laches on the part of Renu Mahajan in approaching the Writ Court. Same is the position as regards the objections filed by Nazir Ahmed Thakur to SWP No. 309/2016. As such, it is a well settled law, as held by the Apex Court in a catena of judgments that the pleas or pleadings, which are not taken in a writ petition or during the pendency of writ proceedings, cannot be allowed to be taken at a later stage or in the appeal. As such, it is a well settled law, as held by the Apex Court in a catena of judgments that the pleas or pleadings, which are not taken in a writ petition or during the pendency of writ proceedings, cannot be allowed to be taken at a later stage or in the appeal. Therefore, on this ground alone the appeals fail and deserve to be dismissed. 18. Further, the final seniority list came to be issued by the official writ respondents only on 20.07.2015 after Renu Mahajan filed SWP 1042/2014 praying for her promotions on regular basis and also for fixing her seniority. And, the Writ Court vide order dated 24.04.2014 had directed the official writ respondents to consider the claim of Renu Mahajan under rules during the notice period. 19. Since during the pendency of SWP No. 1042/2014 the official writ respondents had issued the final seniority list on 20.07.2015, as such feeling aggrieved, Renu Mahajan filed second writ petition, i.e., SWP No. 309/2016 on 20.02.2016 questioning the fixation of her seniority below appellant-Nazir Ahmed Thakur. As such both the writ petitions, i.e., SWP No. 1042/2014 and SWP No. 309/2016 came to be clubbed vide order of the Writ Court dated 02.03.2016. 20. Notice in SWP No. 309/2016 came to be issued on 24.02.2016. Dasti (private) service was also permitted for filing objections on behalf of official writ respondents as well as on behalf of Nazir Ahmed Thakur so as to avoid delay. 21. Both the writ petitions, thereafter, came to be listed on 02.03.2016, 18.03.2016 and 06.04.2016, but the official writ respondents including Nazir Ahmed Thakur failed to file objections to SWP No. 309/2016. On 04.05.2016, Mrs. Seema Khajooria Shekher, the then Sr. AAG, assured the Court that the objections in SWP No. 309/2016 would be filed by or before the next date of hearing. Ultimately, objections to SWP No. 309/2016 came to be filed on 13.05.2016. 22. In the preliminary objections to SWP No. 309/2016, Mrs. Seema Khajooria Shekher, the then Sr. AAG, for the first time had only averred that the writ petition was hit by delay and laches, but had failed to elaborate in the whole objections that how the petition was hit by delay and laches. We are saying so because in SWP No. 309/2016, Renu Mahajan, petitioner therein, had only questioned the final seniority list and fixation of her seniority in the list. We are saying so because in SWP No. 309/2016, Renu Mahajan, petitioner therein, had only questioned the final seniority list and fixation of her seniority in the list. As per own showing of official writ respondents in objections to SWP No. 1042/2014, filed on 01.02.2016, the final seniority list came to be issued on 20.07.2015. Renu Mahajan too came to know only on 01.02.2016 regarding issuance of final seniority list. Accordingly, she filed SWP No. 309/2016 on 20.02.2016 questioning the same. Then how the official writ respondents could claim that the writ petition was hit by delay and laches. Otherwise too, even from 20.07.2015, when the final seniority list came to be issued, till 20.02.2016, when SWP No. 309/2016 came to be filed, it cannot be said that there was considerable delay in challenging the same. Therefore, on this ground too, the appeals fail and deserve to be dismissed. 23. Further, SWP No. 1042/2014 and SWP No. 309/2016 came to be admitted to hearing on 09.03.2017, as such the writ respondents are debarred from taking the ground of delay and laches after both the petitions admitted to hearing in view of Division Bench judgment of this Court rendered in case, titled as, Bashir Ahmad Bhat vs State of J&K, bearing LPA Nos. 138/1999 and 168/1999 decided on 03.08.2004, in paragraph-3 whereof the Division Bench held as under: '... It is also the proposition of law that the delay and laches should be considered before admission of the writ petition. The petition has not been admitted subject to delay and laches, which were not pressed at the time of its admission. Therefore, the writ petition under such circumstances cannot be dismissed on account of delay and laches.' 24. Therefore, in view of what has been discussed above, we are not inclined to take a view other than the one taken by the learned Single Judge. Accordingly, the appeals filed by the State as well as Nazir Ahmed Thakur are dismissed and the judgment of the learned Single Judge is upheld. Connected CMs and IAs are, accordingly, stand disposed of. 25. Accordingly, the appeals filed by the State as well as Nazir Ahmed Thakur are dismissed and the judgment of the learned Single Judge is upheld. Connected CMs and IAs are, accordingly, stand disposed of. 25. However, before parting, we are constrained to observe here that Appellant-Nazir Ahmed Thakur, for obvious reasons, was always allowed to steal a march over and above respondent-Renu Mahajan without any basis, first by giving promotion on officiating basis as Law Officer, Grade-II, much before respondent Renu Mahajan, thereafter, again on officiating basis, pending clearance by the Departmental Promotion Committee (DPC), as Senior Law Officer and Additional Secretary thereby keeping Nazir Ahmed Thakur at Sr. No. 1 and Renu Mahajan at Sr. No. 2 without fixing their seniority in the basic category of Legal Assistants (earlier Public Law Officer) ignoring the fact that she was senior to appellant-Nazir Ahmed Thakur. It was not the case of official writ respondents that appellant-Nazir Ahmed Thakur was having better ACRs than that of respondent-Renu Mahajan or that respondent-Renu Mahajan was lacking in performing her official duties, rather we found that the whole approach of official respondents was wrong. It seems the official writ respondents as well as the entire Government machinery, particularly the Law Department was behind appellant-Nazir Ahmed Thakur to give him undue favour at the cost of respondent-Renu Mahajan right from the year 2001 and in the melee respondent-Renu Mahajan came to be retired from service during the period the judgment came to be reserved for pronouncement of judgment. In the given circumstances, we really do not appreciate the manner in which the official writ respondents with malafide intentions favoured appellant-Nazir Ahmed Thakur and rejected the case of respondent-Renu Mahajan without any basis proving the proverb might is right, or the one who has a power is always right.