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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)Allow the instant OA of the applicants with cost.
b)Quash the Government Order No.126-JK (Edu) of 2023 dated 16.05.2023 by virtue of which representation of the applicants dated 15.10.2020 stands rejected.
c)Direct the respondents to grant promotion to the applicants as Lecturer in Mathematics in School Education Department notionally w-e- f 08-07-2005 and on regular basis w-e-f 18- 07-2008 as has been granted to respondent no. 4 who is admittedly junior to the applicants.
d)Direct the respondents to release all the consequential benefit in favour of the applicants including the re-fixation of pension after granting the notional promotion to the applicants w-e-f 08-07-2005.
e)Any other relief which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted in favour of the applicant and against the respondents..
The facts of the case as averred by the applicants in their pleadings, are as follows: -
The brief facts, as projected by the applicants, are that the applicants were initially appointed as Teachers in the School Education Department on 14.09.1984. In the course of their service, they came to be promoted as Masters vide Order No. DSEJ/ANG/Prom/3316-22 dated 11.08.2003. In the said promotion order, the applicants figured at the respective serial numbers indicated therein. Respondent No. 4, namely Harbans Lal, was subsequently promoted as Master vide Order No. DSEJ/ANG/Prom/3445-48 dated 23.08.2003. According to the applicants, since respondent No. 4 was promoted as Master subsequent to them, he was admittedly junior to them in the cadre of Masters.
It is further pleaded that the applicants as well as respondent No. 4 were subsequently placed as In-charge Lecturers in the discipline of Mathematics vide Government Order No. 367-Edu of 2008 dated 18.07.2008. In the said order, applicant Nos. 1, 2 and 3 figured at Serial Nos. 29, 25 and 24 respectively, whereas respondent No. 4 figured at Serial No. 7. The applicants contend that notwithstanding such placement in the order, respondent No. 4 continued to be junior to them in the cadre of Masters, having been promoted as Master only on 23.08.2003, as against the applicants’ promotion on 11.08.2003.
Thereafter, the services of the applicants as well as respondent No. 4 as Lecturers in Mathematics were regularized vide Government Order No. 236-Edu of 2013 dated 07.03.2013. The grievance of the applicants arises essentially from the manner in which the benefit of regularization was accorded under the said order. While respondent No. 4 was granted notional regularization/promotion as Lecturer with effect from 08.07.2005 and regular promotion with effect from 18.07.2008, the applicants were regularized only with effect from 18.07.2008 and were not extended the corresponding notional benefit from 08.07.2005.
The applicants assert that such differential treatment is arbitrary, particularly when respondent No. 4 is junior to them in the feeder cadre of Masters. According to them, once the benefit of notional promotion as Lecturer from 08.07.2005 had been extended to their junior, they could not have been denied similar treatment without any legally sustainable justification. They accordingly claim entitlement to notional promotion as Lecturers in Mathematics with effect from 08.07.2005, followed by regular promotion with effect from 18.07.2008, together with consequential service and pensionary benefits.
The applicants have also relied upon the case of another allegedly similarly situated employee, Subash Chander, who had approached the Hon’ble High Court of Jammu & Kashmir in SWP No. 1662/2015 titled Subash Chander v. State of J&K and others. It is pleaded that vide judgment/order dated 25.02.2020, the Hon’ble High Court directed the authorities to treat the petitioner therein as having been promoted as Lecturer in Mathematics notionally with effect from 08.07.2005 and to accord him the corresponding benefit on the basis of the treatment extended to his junior. The applicants contend that the said decision squarely supports their claim, as respondent No. 4 herein was also junior to them.
Seeking similar treatment, the applicants submitted a representation dated 15.10.2020 before the competent authority, requesting that they be granted notional promotion as Lecturers in Mathematics with effect from 08.07.2005 and regular promotion with effect from 18.07.2008, on parity with respondent No. 4 and in the light of the aforesaid judgment of the Hon’ble High Court. As no decision was taken on their representation, the applicants approached this Tribunal by filing OA No. 1280/2020.
The said OA was disposed of by this Tribunal vide order dated 21.12.2020, at the admission stage itself, with a direction to the respondents to consider and decide the applicants’ representation dated 15.10.2020 by passing a reasoned and speaking order, in accordance with the applicable rules, within the stipulated period. According to the applicants, despite supplying a copy of the Tribunal’s order to the authorities, their representation remained undecided for a considerable period.
On account of the alleged non-compliance with the aforesaid directions, the applicants instituted Contempt Petition No. 78/2023 before this Tribunal. During the pendency of the contempt proceedings, respondent No. 1 passed Government Order No. 126-JK (Edu) of 2023 dated 16.05.2023, whereby the representation dated 15.10.2020 was rejected. Consequently, vide order dated 11.10.2023, the contempt proceedings were dropped, leaving it open to the applicants to assail the rejection order by availing an appropriate remedy.
The applicants are aggrieved by Government Order No. 126-JK (Edu) of 2023 dated 16.05.2023 primarily on the ground that, according to the impugned order itself, respondent No. 4 had been extended the benefit of notional promotion from 08.07.2005 on account of his placement in the seniority position with an allegedly incorrect date of promotion as Master. The applicants contend that once the respondents themselves noticed such an irregularity, their claim could not have been rejected without properly examining whether seniors to respondent No. 4 were entitled to corresponding treatment. They further contend that the impugned order does not adequately deal with the judgment dated 25.02.2020 rendered by the Hon’ble High Court in SWP No. 1662/2015, upon which they had specifically relied in their representation.
It is in these circumstances that the applicants have filed the present Original Application seeking, inter alia, quashing of Government Order No. 126-JK (Edu) of 2023 dated 16.05.2023 and a direction to the respondents to accord them notional promotion as Lecturers in Mathematics with effect from 08.07.2005 and regular promotion with effect from 18.07.2008, as allegedly granted to their junior, respondent No. 4. They have also sought all consequential benefits arising therefrom, including appropriate re-fixation of their pensionary benefits.
The respondents have filed their written statement wherein they have averred as follows: -
On merits, the School Education Department submits that vide Government Order No. 162-Edu of 2011 dated 04.03.2011, an updated/final seniority list of PG Masters/Teachers in the discipline of Mathematics was issued, which formed the basis for consideration by the Departmental Promotion Committee for regularization/promotion as Lecturers. As per the relevant service particulars, applicant Gandhrab Singh figured at Seniority No. 134, Farooq Ahmed at Seniority No. 138 and Devinder Kumar at Seniority No. 142. All three applicants had been promoted as Masters on 11.08.2003. Respondent No. 4, Harbans Lal, whose actual date of promotion as Master was 23.08.2003, figured at Seniority No. 143 and was, therefore, junior to all the applicants.
Significantly, the respondents admit that the name of respondent No. 4, Harbans Lal, had also been incorporated at Seniority No. 93 in the relevant seniority record with an incorrect date of promotion as Master shown as 23.08.2002 instead of the actual date of 23.08.2003. According to the respondents, it is not known whether the incorrect entry occurred deliberately or inadvertently. Thus, as per the correct seniority position, respondent No. 4 was junior to the applicants.
The respondents further submit that when the DPC for the discipline of Mathematics was convened on 06.02.2013, the case of respondent No. 4 for regularization as Lecturer was considered on the basis of the aforesaid incorrect entry showing him at Seniority No. 93 instead of his actual Seniority No. 143. His correct seniority position was omitted from the eligibility list placed before the DPC. Consequently, respondent No. 4 obtained the benefit of earlier regularization/promotion as Lecturer and, in the process, crossed a number of officials senior to him.
The official respondents have acknowledged that the grievance raised by the applicants is genuine to the extent that their junior, respondent No. 4, was granted notional promotion/regularization as Lecturer with effect from 08.07.2005, whereas the applicants themselves were regularized with effect from 18.07.2008. However, the Department maintains that the benefit granted to respondent No. 4 was itself founded upon an erroneous seniority entry and was, therefore, wrongly extended to him.
It is the specific stand of the respondents that the applicants cannot claim notional regularization/promotion as Lecturers with effect from 08.07.2005 merely on the ground that such benefit was erroneously granted to respondent No. 4. According to the respondents, granting the same benefit to the applicants would amount to perpetuating an earlier mistake, and one wrong decision cannot furnish a legal basis for committing another wrong. On this premise, the Department submits that the applicants’ claim for notional promotion from 08.07.2005 is not sustainable.
The respondents further state that respondent No. 4, Harbans Lal, has already retired from service as Senior Lecturer upon attaining the age of superannuation on 31.08.2020. Nevertheless, after noticing the erroneous benefit granted to him, the Department initiated action in the matter. A notice dated 19.08.2024, followed by a reminder dated 11.11.2024, was issued to respondent No. 4 calling upon him to submit his reply/written defence regarding the erroneous grant of promotion/regularization as Lecturer in Mathematics, particularly in view of the fact that he was junior to the applicants.
Respondent No. 3, i.e. the Accountant General (A&E), J&K, has filed a separate counter affidavit. Besides raising objections regarding suppression of material facts and maintainability of the OA, respondent No. 3 submits that the pensionary benefits of all the three applicants have already been authorized by its office under their respective Pension Payment Orders. It is stated that the question whether the applicants are entitled to promotion as Lecturers in Mathematics notionally with effect from 08.07.2005 and on regular basis with effect from 18.07.2008 is essentially an administrative matter falling within the domain of the School Education Department. Respondent No. 3 has no role in determining such entitlement at this stage and would act upon the decision/order of the competent administrative authority in accordance with law.
On the aforesaid grounds, the respondents maintain that although respondent No. 4 was junior to the applicants and had received the benefit of notional promotion from 08.07.2005, such benefit flowed from an erroneous seniority entry and cannot, according to them, constitute a precedent for extending identical relief to the applicants. The respondents have, accordingly, prayed for dismissal of the Original Application.
Heard learned counsel for the parties and perused the pleadings made by them.
There is no serious controversy regarding the fact that the applicants were senior to respondent No. 4 in the cadre of Masters. Equally, however, the material placed before us demonstrates that the benefit of notional promotion/regularization granted to respondent No. 4 with effect from 08.07.2005 did not flow from his correct seniority position. Rather, it resulted from his erroneous placement at Seniority No. 93 on account of his date of promotion as Master having been incorrectly recorded as 23.08.2002 instead of 23.08.2003.
The applicants’ principal claim is founded upon the proposition that since their junior was extended notional promotion from 08.07.2005, they, being seniors, must necessarily receive the same benefit. We are unable to accept such proposition in the peculiar facts of the present case. The principle of equality cannot be invoked for perpetuating an illegality or administrative mistake. Article 14 of the Constitution guarantees equality before law and equal protection of laws; it does not envisage negative equality, whereby an erroneous or impermissible benefit granted in one case is required to be repeated in other cases.
Merely because respondent No. 4 obtained an advantage on account of an incorrect seniority entry cannot convert that error into a source of right in favour of the applicants. For claiming retrospective promotion from a particular date, the applicants must establish an independent right under the applicable recruitment/service rules, the relevant seniority position, eligibility conditions and availability of promotional vacancies. Such entitlement cannot arise solely because another employee was wrongly granted a benefit.
There is a material distinction between discrimination amongst similarly situated employees who are otherwise legally entitled to a particular benefit and a case where parity is claimed with an employee who received the benefit because of a demonstrated administrative error. The former may attract the principle of equality; the latter does not. If an erroneous action of the administration were treated as a precedent requiring identical treatment in every subsequent case, one administrative mistake would become the foundation for an indefinite chain of similar mistakes, which cannot be countenanced in law.
The admission of the respondents that the applicants were senior to respondent No. 4 does not alter this position. The same admission has to be read along with their further categorical assertion, supported by the seniority particulars, that respondent No. 4 received the benefit only because his date of promotion was incorrectly entered and he was consequently shown at Seniority No. 93 instead of his actual Seniority No. 143. The applicants cannot selectively rely upon the first part of the respondents’ stand while ignoring the very circumstance explaining how the benefit came to be conferred upon respondent No. 4.
Much emphasis has also been placed upon the judgment dated 25.02.2020 passed in SWP No. 1662/2015, Subash Chander v. State of J&K and others. A judgment can be applied as a precedent only where the material facts and the legal foundation governing the claim are comparable. The applicants cannot derive an automatic right to retrospective promotion merely by pointing to relief granted in another case, particularly when the record in the present OA establishes that the very benefit forming the foundation of their parity claim originated from an erroneous seniority entry. In the absence of an independently established statutory entitlement to promotion from 08.07.2005, the said judgment cannot be read as requiring the respondents to replicate an admitted mistake.
We also find significance in the subsequent action of the Department. Upon noticing the erroneous benefit granted to respondent No. 4, the Department has not sought to treat such benefit as a lawful precedent. Rather, notice dated 19.08.2024 followed by reminder dated 11.11.2024 has been issued to respondent No. 4 calling upon him to explain the benefit erroneously extended to him. Thus, this is not a case where the administration admits the legality of the benefit granted to the junior but nevertheless seeks to deny the same to the seniors. Its consistent stand before this Tribunal is that the benefit itself was wrongly conferred.
The Court/Tribunal exercising judicial review is required to enforce legal rights and correct unlawful administrative action; it cannot issue a direction compelling the administration to repeat an error merely to achieve factual parity. Equality has to be equality in accordance with law and not equality in illegality. Once the very foundation upon which respondent No. 4 obtained the benefit is shown to be erroneous, the applicants cannot successfully invoke parity with him.
As regards the challenge to Government Order No. 126-JK (Edu) of 2023 dated 16.05.2023, we find that the essential reason for declining the applicants’ claim is legally sustainable. The fact that respondent No. 4 had been granted an erroneous benefit could not compel the competent authority to extend the same benefit to the applicants. No enforceable right of the applicants to notional promotion as Lecturer specifically from 08.07.2005 has otherwise been demonstrated merely on the basis of the benefit wrongly extended to respondent No. 4.
We may, however, clarify that our conclusion is confined to the claim raised in the present OA for parity with respondent No. 4 on the basis of the benefit granted to him from 08.07.2005. Nothing contained in this order shall prevent the competent authority from taking the proceedings already initiated in respect of the erroneous benefit granted to respondent No. 4 to their logical conclusion, strictly in accordance with law and after following the principles of natural justice. Likewise, this order shall not be construed as disturbing any pensionary benefits of the applicants otherwise lawfully admissible to them.
In view of the foregoing discussion, we find no ground warranting interference with Government Order No. 126-JK (Edu) of 2023 dated 16.05.2023. The applicants cannot claim notional promotion/regularization with effect from 08.07.2005 merely on the basis of an erroneous benefit extended to respondent No. 4. The Original Application is, accordingly, dismissed.
Pending MAs, if any, shall also stand disposed of. There shall be no order as to costs.