Charanjeet Singh vs Union Territory Of Jammu And Kashmir & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking, inter alia, appointment/adjustment against a Class-III post with effect from the year 2002, alternatively promotion to the post of Salesman from the date he allegedly became eligible, fixation of consequential seniority, quashing of the order dated 19.08.2011 rejecting his claim for appointment against a higher post, and consideration for further advancement in the executive cadre including the post of Tehsil Supply Officer. The applicant has also questioned the action of the respondents in requiring him to undergo the typing test for promotion as Junior Assistant vide order dated 02.03.2021, contending that his claim lies in the executive cadre on account of the duties performed by him as In-charge Control Clerk/Salesman.

Briefly stated, the case of the applicant is that he was appointed on compassionate grounds under SRO 43 of 1994 as Weighman-cum-Chowkidar, a Class-IV post, in the pay scale of Rs.2550-3200 vide Directorate Order No.17-FSJ of 2002 dated 06.03.2002. At the relevant time, he was Matriculate. His principal grievance is that two other compassionate appointees, namely Ayaz Ahmed, respondent No.5 herein, and Mushtaq Ahmed, were appointed as Salesmen, Class-III, in the pay scale of Rs.3050-4590 vide orders dated 29.07.2002 and 03.08.2002 respectively. According to the applicant, respondent No.5 was also Matriculate and, therefore, there was no valid basis to offer a Class-IV post to the applicant while granting a Class-III appointment to respondent No.5.

The applicant challenged the aforesaid appointments before the Hon’ble High Court of J&K by filing SWP No.1678/2003. The learned Single Judge, vide judgment dated 01.04.2005, quashed the appointments of the private respondents while, insofar as the present applicant was concerned, permitting him to make a representation before the competent authority regarding his claim for appointment against a Class-III post. The affected appointees preferred LPA(SW) No.52/2005. The Division Bench, vide judgment dated 10.11.2009, upheld the competence of the Deputy Commissioner to make appointments under SRO 43 and set aside the judgment of the learned Single Judge to that extent. However, the part of the judgment permitting the present applicant to submit a representation for adjustment against a higher post was expressly maintained.

The applicant thereafter approached the Hon’ble Supreme Court by filing SLP (Civil) No.4501/2010 against the judgment of the Division Bench. The Special Leave Petition was dismissed on 08.03.2010. Thereafter, the applicant submitted a representation dated 05.06.2010 seeking appointment against a higher post. In the said representation, he also relied upon the fact that he had acquired the qualification of 10+2 in the year 2005.

The respondents initially dealt with his representation vide communication dated 08.09.2010 and ultimately rejected his claim for adjustment against the higher post vide order No.477/PF/IV/1145-46/G dated 19.08.2011. The principal basis of rejection was that on the date of his compassionate appointment in the year 2002, the applicant possessed only Matriculation qualification and was, therefore, not eligible for appointment as Junior Assistant.

The applicant thereafter initiated contempt proceedings alleging non-compliance with the directions issued in the earlier round of litigation. In CP(SW) No.130/2011, the Hon’ble High Court, vide order dated 28.05.2020, took note of the consideration accorded to the representation and left it open to the applicant to avail the appropriate remedy in law against the rejection order if he remained aggrieved. The applicant has, accordingly, assailed the said rejection in the present proceedings.

The applicant further pleads that although his substantive appointment continued to be against the Class-IV post of Weighman-cum-Chowkidar, he has been assigned the duties of In-charge Control Clerk/Salesman from the year 2012. According to him, he has thus gained considerable experience in the duties attached to the higher post, but his claim for regular progression in the appropriate cadre has not been considered. He is also aggrieved by order dated 02.03.2021 whereby he was included amongst Class-IV employees required to undergo a typing test for promotion as Junior Assistant, asserting that his claim is for progression in the executive cadre on the basis of the nature of duties performed by him.

The official respondents have resisted the O.A. by filing their written statement. They further contend that the applicant was appointed as Weighman-cum-Chowkidar on compassionate grounds under SRO 43 of 1994 and accepted the said appointment without protest.

The respondents place reliance upon Rule 3 of SRO 43 of 1994. According to them, the scheme contemplated appointment against the lowest rank of a non-gazetted service where the eligible family member possessed qualification above Matriculation, whereas a person qualified up to Matriculation could be appointed against a Class-IV post. Since the applicant admittedly possessed only Matriculation qualification at the time of his appointment on 06.03.2002, he was offered a Class-IV post. The respondents contend that he accepted and joined the said post without protest and, therefore, acquired no vested right to claim a higher post retrospectively.

The respondents do not dispute that respondent No.5 and another person were appointed as Salesmen in July/August 2002. They, however, rely upon the subsequent Division Bench judgment in LPA(SW) No.52/2005 to contend that the competence of the Deputy Commissioner to make such appointments stood upheld and that the appointments of those persons did not confer any corresponding enforceable right upon the applicant. The respondents further submit that though the applicant acquired the 10+2 qualification subsequently in the year 2005, such subsequently acquired qualification could not retrospectively alter the nature of his compassionate appointment made in 2002.

In the rejoinder, the applicant has reiterated that the essential issue is one of discriminatory treatment. According to him, both he and respondent No.5 were Matriculate at the relevant time, but respondent No.5 was granted a Class-III appointment as Salesman whereas the applicant was appointed against a Class-IV post meant for persons with a lower educational qualification. He contends that no valid explanation has been furnished for this disparity.

The applicant has further submitted that he cannot be non-suited merely on the ground that he accepted the Class-IV appointment, because he had continuously pursued his claim for a higher post through judicial proceedings. He points out that his right to seek consideration against a higher post was preserved by the Hon’ble High Court in the earlier round of litigation. He also relies upon his subsequent acquisition of the 10+2 qualification and his alleged continuous discharge of higher responsibilities.

The applicant has also placed reliance upon the J&K Food and Supplies (Subordinate) Service Recruitment Rules, 1972 to contend that Matriculation was prescribed as the minimum qualification for certain posts in the Executive/Ministerial Class-III cadre, whereas the post of Weighman/Chowkidar in Class-IV carried a lower educational requirement. According to him, this further demonstrates that his claim for progression to a higher post deserves consideration on its own merits.

We have heard learned counsel appearing for the parties and have carefully gone through the pleadings and the material available on record.

It is not in dispute that the applicant entered service through compassionate appointment under SRO 43 of 1994 on 06.03.2002 as Weighman-cum-Chowkidar, Class-IV. It is equally undisputed that at the time of such appointment he possessed Matriculation qualification. The respondents have specifically relied upon Rule 3 of SRO 43 to contend that a person possessing qualification only up to Matriculation could be offered a Class-IV appointment. The applicant, on the other hand, principally rests his claim upon the fact that respondent No.5, though similarly Matriculate, was appointed as a Salesman, Class-III.

In our considered opinion, the mere fact that respondent No.5 was granted appointment against a higher post cannot, by itself, create an indefeasible right in favour of the applicant to claim retrospective Class-III appointment from the year 2002. Service benefits have to flow from the applicable statutory rules and an employee cannot claim a particular appointment solely on the basis that another employee was granted such benefit. Even where there is an apparent disparity, the Tribunal cannot perpetuate an action contrary to the applicable recruitment provisions merely for the purpose of maintaining parity.

The earlier judicial history also assumes significance. The appointments of respondent No.5 and the other employee were subjected to challenge by the present applicant. The Division Bench, while interfering with the judgment of the learned Single Judge, upheld the competence of the Deputy Commissioner to make the appointments and observed that the appointment of those persons had not, by itself, affected any legal right of the present applicant. Significantly, however, the Division Bench preserved the direction permitting the applicant to make a representation for adjustment against a higher post. Thus, the right which survived in favour of the applicant was a right to fair and lawful consideration of his own claim, and not an automatic right to parity with respondent No.5.

We are, therefore, unable to accept the prayer of the applicant insofar as it seeks a direct declaration that he ought to have been appointed against a Class-III post with effect from 29.07.2002. Such a direction would amount to granting retrospective appointment dehors a proper determination of the eligibility criteria, vacancy position, recruitment quota and other conditions governing appointment to the relevant Class-III post.

However, the matter does not end there. The respondents have sought to defeat the applicant’s claim substantially on the ground that he had accepted the Class-IV compassionate appointment and joined without protest. Such a position, viewed in isolation from the subsequent events and litigation history, would not fully answer the applicant’s grievance.

The record shows that the applicant did not remain dormant for an indefinite period after his appointment. He approached the Hon’ble High Court in SWP No.1678/2003, raising his grievance regarding the higher post, and the matter thereafter travelled through the appellate proceedings. The ultimate Division Bench judgment specifically preserved his right to make a representation for adjustment against a higher post. Thereafter, his representation was considered and rejected. In such circumstances, the mere acceptance of the initial appointment cannot be treated as an absolute and perpetual bar against consideration of his claim for subsequent advancement under the service rules.

The rejoinder also refers to the judgment of the Hon’ble High Court of J&K and Ladakh in Irshad Rashid Shah v. UT of J&K & Ors., wherein reliance has been placed upon the circumstance that acceptance of a lower post would not necessarily extinguish the claim for a higher post where the employee had continuously pursued his grievance and had not abandoned the same. The principle relied upon by the applicant is relevant to the limited extent that acceptance of an appointment must be examined in the factual context and cannot mechanically be treated as waiver where the employee has consistently asserted his claim.

Another material circumstance is that the applicant acquired 10+2 qualification in the year 2005 while in service. The respondents are correct to the extent that such subsequently acquired qualification cannot relate back so as to automatically confer entitlement upon him to a higher compassionate appointment from 2002. Nevertheless, once he acquired the requisite educational qualification, his entitlement, if any, for promotion or adjustment in accordance with the normal recruitment rules thereafter had to be considered independently.

The applicant has further asserted that he has been discharging duties as In-charge Control Clerk/Salesman from the year 2012. Though mere assignment of duties on an officiating or in-charge basis does not, by itself, confer a right to substantive promotion, such experience cannot altogether be ignored when the competent authority examines his claim for progression under the applicable service rules, particularly where such rules provide an avenue of promotion from the feeder cadre.

The Recruitment Rules relied upon by the applicant also indicate that certain posts in the Executive/Ministerial cadre contemplated Matriculation as the minimum educational qualification and that there existed prescribed methods of recruitment including promotion from specified feeder categories and direct recruitment. Therefore, the applicant’s claim must ultimately be examined with reference to the exact cadre structure, feeder category, quota, seniority, eligibility conditions and vacancy position rather than merely with reference to his original compassionate appointment.

The impugned order dated 19.08.2011 appears to have concentrated principally on the applicant’s ineligibility for the post of Junior Assistant at the point of his initial appointment and upon his acceptance of the Class-IV post. Such consideration may be relevant insofar as his claim for retrospective Class-III compassionate appointment from the year 2002 is concerned. However, the order does not adequately address the broader surviving question of whether, after acquiring the requisite qualification and putting in the prescribed service, the applicant became eligible for promotion/adjustment against an appropriate higher post in terms of the applicable Recruitment Rules.

The applicant cannot claim that because respondent No.5 was subsequently promoted or posted as In-charge TSO, he must necessarily be granted the same benefit. Parity can be claimed only where the persons concerned are similarly situated in all legally material respects. Eligibility, source of recruitment, cadre position, seniority, vacancies and applicable quota are matters which would have to be examined by the competent authority.

At the same time, the respondents cannot indefinitely keep the applicant in the Class-IV cadre by relying solely upon the qualification possessed by him in March 2002 if, subsequently, he acquired the prescribed qualification and became eligible for advancement under the statutory service rules. The distinction between a claim for retrospective compassionate appointment and a claim for subsequent promotion in the normal course of service must be maintained.

We are thus of the considered view that the ends of justice would not be served either by directing retrospective Class-III appointment from 2002 or by dismissing the O.A. outright. The appropriate course would be to require the competent authority to undertake a fresh consideration of the applicant’s case for promotion/adjustment against the appropriate Class-III post in accordance with the governing Recruitment Rules, taking into account his subsequent qualification, seniority, length of service, experience, feeder-cadre position, availability of vacancies and the date from which he may have acquired eligibility for such consideration.

We also make it clear that while undertaking such consideration, the respondents shall examine whether any employee junior to the applicant in the relevant feeder cadre and similarly situated in terms of qualifications and eligibility has been promoted to the higher post. If such junior employee has been promoted and the applicant is otherwise found eligible under the applicable rules, his claim for notional promotion/seniority from the appropriate date shall be considered in accordance with law.

However, no direction can be issued at this stage granting automatic promotion to the post of TSO. Promotion to a still higher post necessarily depends upon fulfillment of the eligibility conditions prescribed for that post, availability of vacancy, seniority, requisite service in the feeder post and consideration by the competent Departmental Promotion Committee or other prescribed authority. Such a relief cannot be granted without the applicant first acquiring a substantive position in the relevant feeder cadre in accordance with law.

Similarly, insofar as the applicant’s grievance regarding the typing test for promotion to Junior Assistant under order dated 02.03.2021 is concerned, the same shall abide by the applicable recruitment rules and the cadre against which the applicant’s claim is ultimately considered. The Tribunal cannot exempt the applicant from a prescribed qualifying condition if such condition is statutorily applicable to the post in question.

For the foregoing reasons, the Original Application deserves to be partly allowed. Accordingly, the O.A. is partly allowed with the following directions:

It is expressly clarified that this order shall not be construed as a direction to grant the applicant retrospective compassionate appointment against a Class-III post with effect from the year 2002, nor as a direction granting automatic parity with respondent No.5 or automatic promotion to the post of TSO. All such questions shall depend upon the applicant satisfying the conditions prescribed under the applicable service rules.