Shyam Bijyal vs Union Territory Of J&K & 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 instituted by the applicant, Shri Shyam Bijyal, primarily assailing Government Order No. 1199-JK(GAD) of 2021 dated 12.11.2021, whereby his claim for retrospective induction into the Jammu and Kashmir Administrative Central Administrative Tribunal^{Service and consequential benefits has been rejected on the ground of} limitation, delay and laches. The applicant has also questioned Government Order No. 591-JK(GAD) of 2021 dated 07.07.2021 to the extent that Selection Grade of JKAS has been released in his favour only with effect from 16.10.2008 instead of from the date from which the corresponding benefit was extended to his junior, Shri Mushtaq Ahmad Shah.

The material facts necessary for adjudication are that the applicant was a direct recruit of the 1984 batch and was appointed as Information Officer vide Government Order No. 333-GD of 1984 dated 21.02.1984. A seniority list was thereafter issued by the Information Department vide Order No. 41-ID of 1995 dated 03.11.1995. The applicant questioned his placement therein and asserted that he was entitled to a higher position in seniority.

The record further shows that the General Administration Department, as far back as 21.08.1998, had sought the seniority position and relevant service record of the applicant as well as Shri Mushtaq Ahmad Shah for consideration of their cases for induction into KAS. Thus, the applicant’s grievance regarding his induction was not an altogether new claim raised for the first time after decades; the issue had remained under consideration at the departmental level.

Shri Mushtaq Ahmad Shah, another direct recruit of the same batch, approached the Hon’ble High Court by filing SWP No. 1921-A/1998, challenging his placement in the seniority list of 1995. The said writ petition was allowed. Pursuant to the directions of the Hon’ble High Court, the Information Department subsequently revised the seniority position.

Consequent upon the aforesaid litigation, the Information Department issued Government Order No. 06-ID of 2010 dated 04.02.2010, revising the seniority of officers of the department. Significantly, in the revised seniority list, the applicant was placed at Serial No. 15 and Shri Mushtaq Ahmad Shah at Serial No. 16, both above Shri G.M. Banday and Shri Mohammad Amin. Therefore, the seniority of the applicant over Shri Mushtaq Ahmad Shah is not merely a disputed assertion of the applicant but stands reflected in the seniority position determined by the respondents themselves.

Shri Mushtaq Ahmad Shah thereafter sought consequential benefits on the basis of the corrected seniority. The respondents themselves admit that after the decision of the Hon’ble High Court and examination of the matter at different levels, Shri Mushtaq Ahmad Shah was inducted into JKAS retrospectively with effect from 1997 and was granted further higher grades from anterior dates vide Government Order No. 537-GAD of 2018 dated 28.03.2018.

Government Order No. 537-GAD of 2018 dated 28.03.2018 granted Shri Mushtaq Ahmad Shah Time Scale of KAS with effect from 23.09.1997 to 30.07.2002 on regular basis, Selection Grade with effect from 31.07.2002 to 26.10.2007 on notional basis and thereafter benefits in the Special Scale and Super Time Scale from the dates mentioned therein.

The applicant, who admittedly stands senior to Shri Mushtaq Ahmad Shah in the revised seniority list, sought corresponding treatment. When his claim was not decided, he approached this Tribunal in O.A. No. 61/296/2021. Vide order dated 22.02.2021, this Tribunal directed the respondents to decide his representation by passing a reasoned and speaking order and to keep in view the decision taken by the Government in similar cases.

The respondents thereafter rejected the applicant’s claim vide Government Order No. 1199-JK(GAD) of 2021 dated 12.11.2021 essentially on the ground of limitation, delay and laches. Their further stand is that reopening the date of induction into JKAS, when inductions had taken place in 1997 and 2005, may unsettle settled positions and may prejudice third parties. The respondents state that the matter had been examined in consultation with the Finance Department and the Department of Law, Justice and Parliamentary Affairs.

We have heard learned counsel for the parties and have carefully examined the pleadings and material placed on record.

The short question which arises for consideration is whether an employee, whose seniority has subsequently been corrected and who stands senior to another officer who has already been granted retrospective induction and consequential promotional benefits pursuant to judicial proceedings, can be denied corresponding notional benefits merely on the ground of delay and laches.

It is an admitted position emerging from the pleadings of the parties that the applicant stands above Shri Mushtaq Ahmad Shah in the final revised seniority list issued vide Government Order No. 06-ID of 2010 dated 04.02.2010. The respondents themselves state that the order of seniority after revision was Sheikh Nazir Ahmad, Shri Shyam Bijyal and thereafter Shri Mushtaq Ahmad Shah.

This circumstance assumes considerable significance because the relief claimed by the applicant is substantially founded upon the very correction of seniority which led to grant of retrospective benefits to Shri Mushtaq Ahmad Shah.

Once Shri Mushtaq Ahmad Shah, who is junior to the applicant in the corrected seniority list, was given retrospective induction into JKAS with effect from 1997 pursuant to the judgment rendered in the proceedings arising from SWP No. 1921-A/1998, denial of corresponding consideration to the applicant, who is admittedly senior to him, would result in an anomalous situation whereby a junior would enjoy the benefit of induction and higher scales from dates anterior to those applicable to his senior.

Seniority, once finally determined and acted upon by the employer, cannot ordinarily be rendered meaningless while granting consequential service benefits. If a junior has received advancement solely on the strength of the revised seniority position, the claim of a senior standing above him necessarily requires consideration on the same principle, subject, of course, to fulfillment of the prescribed eligibility conditions.

The applicant’s case is further strengthened by the fact that his claim cannot properly be characterized as that of a complete fence-sitter. The record demonstrates that the General Administration Department itself had, vide O.M. dated 21.08.1998, referred to the cases of the applicant as well as Shri Mushtaq Ahmad Shah for induction into KAS and had called for the relevant service particulars. There was also a subsequent departmental communication dated 19.01.2004 concerning induction of officers of the Information Department, including the applicant.

More importantly, the respondents themselves revised the seniority only in the year 2010, and Shri Mushtaq Ahmad Shah ultimately received consequential benefits vide Government Order dated 28.03.2018. The applicant thereafter served a legal notice dated 19.10.2020 seeking similar treatment and approached this Tribunal when the claim was not decided. In such circumstances, rejection of the entire claim merely by referring to the original dates of induction of 1997 and 2005 overlooks the subsequent developments which furnished the applicant an enforceable basis for seeking parity.

We are also unable to accept the apprehension of the respondents that grant of relief would necessarily unsettle the settled rights of third parties. The applicant has already retired from service on 31.03.2010. The relief can appropriately be moulded so as not to disturb the seniority, promotion, appointment or service position of any third party. The applicant can be granted notional induction, notional promotions/increments, re-fixation of pay and consequential re-fixation of pension, without reverting or displacing any person presently holding any post.

At the same time, the passage of time cannot be entirely ignored while granting monetary relief. There is a distinction between recognizing the correct notional service position of an employee and directing payment of unrestricted arrears over a very long period. The equities can, therefore, be appropriately balanced by granting the applicant the notional benefits flowing from the corrected seniority, while restricting actual financial arrears to a reasonable period preceding the institution of the present Original Application.

In our considered view, such a course would achieve substantial justice. It would remove the continuing anomaly in the applicant’s pay and pension vis-à-vis his admitted junior without disturbing settled third-party rights, while at the same time taking care of the respondents’ objection regarding belated monetary claims.

The impugned Government Order No. 1199-JK(GAD) of 2021 dated 12.11.2021, insofar as it rejects the claim of the applicant altogether on the ground of limitation, delay and laches, therefore, cannot be sustained. The competent authority was required to examine the substantive claim of parity arising from the revised seniority position and the benefit already extended to the applicant’s junior pursuant to the judicial proceedings. The earlier direction of this Tribunal itself required the respondents to keep in view the decision taken by the Government in similarly situated cases.

Accordingly, the Original Application is allowed and disposed of with the following directions:

It is clarified that the relief granted herein is personal to the applicant and is intended to restore the service and pensionary position legitimately flowing from his revised seniority. It shall not entail reversion of any officer, cancellation of any appointment/promotion, or reopening of the settled seniority of third parties.

The Original Application is, accordingly, allowed in the above terms. Pending M.A(s), if any, shall also stand disposed of. No order as to costs.