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Judgment
ORDER
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: -
For the facts and Circumstances Stated in above, it is most respectfully prayed that their lordship of this Tribunal would be pleased to:
i)To quash the order no. Agri/DAJ/Estt-23/2022/6090-94 dated 12.01.2022 as same has been passed without application of mind.
ii) To command and direct the respondents to regularize the petitioners at par with 42 REZ for whom the slot were kept reserved in the phase II regularization list issued vide Agriculture Order no. AGR-54/E 2016 Dated 26-03-2016, on the same analogy of the judgement passed by the Hon’ble Court in the SWP Titled ‘Majid All and ors v/s State of J&K and ors dated 31-12-2014, by the issuance of writ, order or direction in the nature of mandamus.
iii) To command and direct the respondents to provide all the consequential service benefits including pay scale Seniority to the petitioners which has been granted to the 42 REZ who have regularized in phase II regularization list issued vide Agriculture order no. Agr-54/E 2016 Dated 26-03-2016.
The facts of the case as averred by the applicants in their pleadings, Central Administrative Tribunalare as follows: -
The brief facts, as projected by the applicants, are that Applicant No. 1, Reena Gupta, acquired B.Sc. (Agriculture) in the year 2002, M.Sc. (Agriculture) in 2004 and subsequently obtained a Ph.D. in the year 2008. Applicant No. 2, Poonam Sharma, acquired B.Sc. (Agriculture) in the year 2001, M.Sc. (Agriculture) in 2005 and Ph.D. in the year 2008.
On the basis of their qualifications and merit, Applicant No. 1 was engaged as Rehbar-e-Zirat (REZ) in the office of the Chief Agriculture Officer, Udhampur, whereas Applicant No. 2 was engaged as Rehbar-e-Zirat in the office of the Chief Agriculture Officer, Poonch, in the year 2008. Subsequently, their services were regularized as Village Agriculture Extension Assistants (VAEAs) in Phase-III with effect from 01.04.2016 vide Agriculture Order No. 102/E of 2016 dated 28.05.2016, wherein the applicants figured at Serial Nos. 1 and 2 respectively.
The applicants submit that the Government had formulated a policy for regularization of Rehbar-e-Zirats as Village Agriculture Extension Assistants in three phases commencing from 01.04.2014, 01.04.2015 and 01.04.2016. For carrying out the exercise of regularization, a Committee was also constituted vide Government Order No. 378-Agri of 2013 dated 28.11.2013. According to the applicants, they were sufficiently high in the relevant seniority/merit position and were entitled to appropriate consideration in accordance with the said policy.
The principal grievance of the applicants is that while issuing the Phase-II regularization order, i.e., Agriculture Order No. AGR-54/E of 2016 dated 26.03.2016, the respondents kept 42 slots reserved for certain Rehbar-e-Zirats who were involved in litigation. According to the applicants, despite being qualified and senior to several other Rehbar-e-Zirats, they were not extended similar treatment and were instead included amongst the REZs regularized in Phase-III with effect from 01.04.2016. Their claim, therefore, is that they ought to have been regularized in Phase-II with effect from 01.04.2015 and granted consequential service benefits accordingly.
Aggrieved by the aforesaid action, the applicants submitted representations before the competent authorities. As their grievance remained unredressed, they approached the Hon’ble High Court of Jammu and Kashmir by filing SWP No. 193/2018 titled Reena Gupta & Another v. State of J&K & Others. Upon transfer of the matter to this Tribunal, it was registered as T.A. No. 61/6933/2020. The Tribunal, vide order dated 03.12.2021, disposed of the Transfer Application with a direction to the respondents to treat the same as a representation on behalf of the applicants and to dispose of their claim by passing a reasoned and speaking order within four weeks.
Pursuant thereto, the respondents considered the claim of the applicants and rejected the same vide the impugned order dated 12.01.2022. Aggrieved by the rejection of their claim, the applicants have instituted the present Original Application seeking quashing of the impugned order and a direction to the respondents to regularize them at par with the 42 REZs for whom slots were reserved in Phase-II, along with consequential benefits including pay and seniority.
The respondents have filed their written statement wherein they have averred as follows: -
The respondents have contested the Original Application by filing their written statement. At the outset, they have raised preliminary objections regarding the maintainability of the Original Application and have contended that no fundamental, constitutional, statutory or other legal right of the applicants has been infringed. It is further pleaded that the applicants have not approached the Tribunal with clean hands and that the Original Application is liable to be dismissed.
On merits, the respondents do not dispute that the applicants were engaged as Rehbar-e-Zirats in the year 2008 and were subsequently regularized as Village Agriculture Extension Assistants in Phase-III with effect from 01.04.2016 vide Agriculture Order No. 102/E of 2016 dated 28.05.2016. The respondents, however, submit that the applicants cannot claim parity with the 42 REZs in respect of whom slots had been kept reserved in Phase-II.
The respondents explain that pursuant to the policy formulated for regularization of REZs, 2642 posts of Village Agriculture Extension Assistants in the pay band of Rs. 9300-34800 with Grade Pay of Rs. 4200 were created in three phases. Of these, 881 posts were earmarked for the first phase, 881 for the second phase and 880 for the third and final phase, with regularization to take effect from 01.04.2014, 01.04.2015 and 01.04.2016 respectively.
It is further submitted that Government Order No. 378-Agri of 2013 dated 28.11.2013 constituted a committee for finalizing the relevant lists. Such lists were required to be prepared on the basis of weightage assigned to the qualifications acquired on or before the cut-off date of 31.10.2006, on a pro-rata basis and in descending order of merit, subject to fulfillment of the prescribed requirement of continuous and satisfactory service.
According to the respondents, the merit list was accordingly prepared on the basis of the prescribed criteria and, on such consideration, the applicants legitimately fell within Phase-III. Consequently, their services were regularized as VAEAs with effect from 01.04.2016 and they were placed at Serial Nos. 1 and 2 in the Phase-III regularization order dated 28.05.2016. f) As regards the 42 REZs relied upon by the applicants, the respondents state that 399 REZs were regularized in Phase-II vide Agriculture Order No. 54/E of 2016 dated 26.03.2016. At that stage, 42 posts, corresponding to the number of candidates who were litigating before the Hon’ble High Court in different cases/LPAs, were kept reserved. Such reservation was specifically made because the disputes concerning those candidates were sub judice, and their appointments were to be notified only upon culmination of the legal proceedings and subject to the orders passed therein/approval of the Administrative Department.
The respondents have specifically pleaded that the present applicants were never amongst the aforesaid 42 litigating REZs and, therefore, could not claim the benefit of the slots kept reserved for those candidates. Their placement and regularization in Phase-III were determined independently in accordance with the applicable policy and merit criteria. The circumstance that 42 slots were kept reserved because of pending litigation, according to the respondents, does not confer any corresponding right upon the applicants to seek retrospective regularization in Phase-II.
The respondents have also raised the plea of delay and acquiescence. It is contended that the applicants accepted their regularization as Village Agriculture Extension Assistants in the year 2016 and approached the Court only subsequently. According to the respondents, the applicants did not challenge their placement at the relevant point of time and cannot subsequently claim the benefit secured or protected in respect of persons who had been pursuing their remedies through litigation since an earlier stage.
Lastly, the respondents submit that in compliance with the order dated 03.12.2021 passed by this Tribunal in the earlier Transfer Application, the claim of the applicants was duly considered on its merits and rejected by passing the impugned speaking order dated 12.01.2022. It is, therefore, their case that the applicants have failed to establish any legal right to regularization with effect from 01.04.2015 or to parity with the 42 REZs whose slots had been kept reserved on account of pending litigation. The respondents accordingly pray for dismissal of the Original Application.
Heard learned counsel for the parties and perused the pleadings made by them.
The short question which arises for consideration is whether the applicants, who were regularized in Phase-III with effect from 01.04.2016, have acquired a legally enforceable right to claim regularization in Phase-II with effect from 01.04.2015 merely because 42 slots were kept reserved in Phase-II in respect of REZs who were pursuing litigation.
From the material available on record, it emerges that regularization of REZs was undertaken under a specific policy and in three separate phases. The placement of eligible REZs was to be determined according to the prescribed criteria, including weightage of qualifications acquired on or before the cut-off date of 31.10.2006 and preparation of the list on a pro-rata basis in descending order of merit.
The applicants have already received the benefit of the said policy. They were placed at Serial Nos. 1 and 2 in the Phase-III regularization list and were regularized as VAEAs with effect from 01.04.2016. The material placed before us does not establish that, on application of the prescribed merit criteria, the applicants independently fell within the zone of Phase-II regularization.
The principal foundation of the applicants’ claim is the treatment accorded to the 42 REZs for whom slots were kept reserved in Phase-II. We are unable to accept the contention that the mere reservation of those slots creates a corresponding right in favour of the applicants.
The 42 slots were not kept vacant as part of the normal process of determining merit so as to confer a right upon other REZs to claim appointment against them. The respondents have specifically explained that those slots corresponded to candidates who were already litigating before the Hon’ble High Court in different cases/LPAs and whose claims were sub judice. The slots were thus protected to abide by the outcome of those proceedings. The applicants were admittedly not part of those 42 litigating candidates.
Therefore, the applicants and the aforesaid 42 REZs did not stand on an identical footing insofar as the reservation of the said slots was concerned. A benefit or protection arising out of pending judicial proceedings cannot, by itself, be treated as altering the general merit position under the regularization policy for all other candidates.
The plea of discrimination under Articles 14 and 16 of the Constitution of India is also not made out merely because the applicants were not extended the protection given to candidates whose matters were already pending before the Court. To establish discrimination, the applicants were required to demonstrate that despite satisfying the same relevant criteria and occupying the same position under the applicable regularization policy, they were arbitrarily excluded from Phase-II. No such foundation emerges from the pleadings before us.
There is another aspect of the matter. The applicants were regularized in Phase-III with effect from 01.04.2016 and accepted the said regularization. The respondents have specifically pleaded that the applicants did not challenge their placement at the relevant stage and approached the Court subsequently, whereas the 42 REZs with whom parity is sought had already been pursuing their remedies through litigation. The applicants cannot derive an independent cause of action merely from the fact that positions of those litigants had been protected pending adjudication of their cases.
The reliance placed by the applicants upon their higher qualifications or seniority also does not, by itself, establish an entitlement to Phase-II regularization. The respondents have specifically pleaded that the relevant merit was determined according to weightage attached to qualifications acquired on or before the prescribed cut-off date of 31.10.2006. Unless the applicants establish that the prescribed criteria were incorrectly applied to them or that persons below them under the applicable merit criteria were regularized in Phase-II while they were excluded, no direction for retrospective regularization can be issued merely on the basis of their general assertion of higher qualification or seniority.
We also find no merit in the contention that the earlier order dated 03.12.2021 passed by this Tribunal creates any substantive right in favour of the applicants. The Tribunal had not adjudicated their entitlement to Phase-II regularization on merits. The respondents were merely directed to treat the T.A. as a representation and decide the same by passing a reasoned and speaking order. The respondents thereafter considered the claim and rejected it by the impugned order.
Judicial review of such an administrative decision does not warrant substitution of the authority’s determination merely because another view may be possible. In the present case, the reason furnished by the respondents—that the 42 slots were reserved specifically on account of pending litigation and that the applicants were independently placed in Phase-III in accordance with the applicable criteria—is directly connected with the issue raised by the applicants. We, therefore, find no ground to interfere with the impugned order dated 12.01.2022.
In view of the foregoing discussion, we are of the considered opinion that the applicants have failed to establish any enforceable right to be regularized in Phase-II with effect from 01.04.2015 at par with the aforesaid 42 REZs. Their regularization in Phase-III with effect from 01.04.2016 cannot be disturbed merely on the ground that certain posts were kept reserved to protect the claims of candidates who were already pursuing litigation.
Accordingly, the Original Application is found to be devoid of merit and is dismissed. The impugned order dated 12.01.2022 is upheld. There shall be no order as to costs.