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Judgment
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: -
a)An appropriate order or direction for quashing Government Order 221-Home of 2024 dated 20.05.2024 issued by respondent no.1 by which he has rejected the case of applicant for release of monetary benefits of his promotion as Dy.S.P. Selection Grade w.e.f. 01.08.2006 and Selection Grade-II (Non-Functional) in pay scale of Rs. 15600/- to 39100/- with grade pay of Rs. 7600 w.e.f. 01.07.2013 and Selection Grade-I (Non-Functional) in pay scale of Rs. 37400 to Rs. 67000 with grade pay of Rs. 8700 w.e.f. 01.07.2017 as per the provisions of SRO-215 dated 18th May, 2018;
b)Issue a direction to respondents to grant him monetary benefits of his promotion as Dy.S.P. Selection Grade w.e.f. 01.08.2006 and Selection Grade-II (Non-Functional) in pay scale of Rs. 15600/- to 39100/- with grade pay of Rs. 7600 w.e.f. 01.07.2013 and Selection Grade-I (Non-Functional) in pay scale of Rs. 37400 to Rs. 67000 with grade pay of Rs. 8700 w.e.f. 01.07.2017 as per the provisions of SRO-215 dated 18th May, 2018;
c)Any other relief which this Hon'ble Tribunal may deem fit in the facts and circumstances of the case.
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The applicant initially served in the Central Reserve Police Force (CRPF) and was deputed to the Jammu and Kashmir Police in May, 1990. During his deputation, he was promoted as Inspector in his parent department with effect from 01.03.1992. Subsequently, pursuant to a proposal initiated by the Police Department, he was permanently absorbed in the Jammu and Kashmir Police. Although his services were regularized for the purpose of salary, his seniority was not initially refixed from the date of his promotion in the parent department.
Aggrieved by the denial of consequential seniority, the applicant submitted representations before the departmental authorities. As no decision was taken, he approached the Hon'ble High Court of Jammu and Kashmir, which directed the respondents to re-fix his seniority. In compliance with the said directions, his seniority as Inspector was revised with effect from 01.03.1992.
Thereafter, the respondents issued a tentative seniority list of Deputy Superintendents of Police (Executive) vide Government Order No. 997-Home of 2019 dated 01.10.2019, wherein the applicant's name was reflected at Serial No. 58. Consequent upon the revision of seniority, he was accorded promotion as Deputy Superintendent of Police with effect from 01.08.2001. Subsequently, vide Government Order No. 195-Home of 2020 dated 22.09.2020, his placement in the Selection Grade of Deputy Superintendent of Police was pre-dated to 01.08.2006 instead of 18.03.2013. His promotion as Incharge Superintendent of Police was also revised, granting him notional promotion with effect from 04.02.2009 and regular promotion from 04.07.2013.
The applicant submits that the Government notified the Non-Functional (Monetary) Scheme (NFS) vide SRO-215 dated 18.05.2018 for members of the General Executive Cadre of the Jammu and Kashmir Police (Gazetted) Service. According to the scheme, an officer becomes eligible for placement in the Time Scale, Selection Grade-II (Non-Functional) and Selection Grade-I (Non-Functional) on completion of the prescribed qualifying service. The applicant contends that having been placed in the Selection Grade of Deputy Superintendent of Police with effect from 01.08.2006 and thereafter in the Time Scale, he became entitled to Selection Grade-II (Non-Functional) with effect from 01.07.2013 and Selection Grade-I (Non-Functional) with effect from 01.07.2017. However, despite the revision of his seniority and promotions, the corresponding monetary benefits were not released in his favour.
The applicant further submits that Government Order No. 1034-Home of 2018 extended retrospective benefits under the Non-Functional Scheme to similarly situated officers, whereas the same treatment was denied to him. According to him, Government Order No. 37-Home of 2020 granted him Selection Grade-I only with effect from 01.01.2020, whereas he was entitled to the said benefit from 01.07.2017. He accordingly submitted representations seeking revision of his pay and grant of benefits in terms of SRO-215 dated 18.05.2018.
It is further pleaded that several officers belonging to the same cadre and similarly situated were granted retrospective monetary benefits under subsequent Government Orders, including Government Order No. 284 of 2021 dated 01.11.2021 and Government Order No. 191-Home of 2022 dated 25.06.2022, whereas his claim alone was denied. According to the applicant, his case is identical to those officers who were granted retrospective placement in Selection Grade-II and Selection Grade-I under the Non-Functional Scheme.
Earlier, the applicant had approached this Tribunal by filing O.A. No. 1762/2022 seeking grant of the aforesaid benefits. The said Original Application was disposed of on 20.03.2024 with a direction to the respondents to consider his representation by passing a reasoned and speaking order. Pursuant thereto, the respondents considered the matter but rejected his claim vide Government Order No. 221-Home of 2024 dated 20.05.2024.
The applicant challenges the aforesaid order principally on the ground that the respondents have proceeded on an erroneous factual premise by treating his placement in the Time Scale as 01.01.2012 instead of 04.02.2009, resulting in denial of Selection Grade-II and Selection Grade-I from their due dates. It is further contended that similarly situated officers have been granted retrospective monetary benefits whereas the applicant has been subjected to hostile discrimination, thereby violating Articles 14 and 16 of the Constitution of India.
The respondents have filed their written statement wherein they have averred as follows: -
The respondents have resisted the Original Application by raising preliminary objections regarding its maintainability. It is pleaded that the applicant has not approached the Tribunal with clean hands, has concealed material facts and has raised disputed questions of fact. It is further contended that the applicant has an alternative remedy and, therefore, the Original Application deserves dismissal.
On merits, the respondents submit that the applicant was promoted as Deputy Superintendent of Police with effect from 27.05.2003 and was initially granted Selection Grade with effect from 18.03.2013. Following settlement of the seniority dispute, his promotion as Deputy Superintendent of Police was revised retrospectively to 01.08.2001 and, consequently, his placement in the Selection Grade was also revised to 01.08.2006 vide Government Order No. 195-Home of 2020 dated 22.09.2020.
It is stated that Government Order No. 195-Home of 2020 specifically provides that wherever promotions or placements are pre-dated, such revision shall be purely on notional basis without payment of arrears. Only pay fixation as on the relevant date and consequential revision of pensionary benefits are permissible. Accordingly, though the applicant's placement was revised retrospectively, he is not entitled to claim arrears of salary or other monetary benefits for the earlier period.
The respondents further submit that under SRO-215 dated 18.05.2018, the Non-Functional (Monetary) Scheme was introduced for members of the General Executive Cadre of the Jammu and Kashmir Police. Initially, the applicant was granted the benefit of Time Scale and thereafter Selection Grade-II and Selection Grade-I in accordance with the prevailing interpretation of the Scheme. Subsequently, vide Government Order Nos. 36-Home and 37-Home of 2020, the applicant's placement in the Time Scale was revised as 01.01.2012 and, on that basis, Selection Grade-II and Selection Grade-I were granted notionally and regularly from the dates prescribed therein.
The respondents further state that, following receipt of representations from several officers, the Government sought clarification regarding interpretation of SRO-572 of 2018, which inserted an explanation permitting reckoning of eligibility from the date of grant of Time Scale on substantive or non-functional basis. The matter was examined by the General Administration Department, the Establishment-cum-Selection Committee headed by the Chief Secretary and thereafter by the Finance Department. Acting upon their recommendations, Government Order No. 414-Home of 2023 dated 26.08.2023 was issued revising the benefit of Selection Grade-II and Selection Grade-I for eligible officers.
It is pleaded that, in compliance with the directions issued by this Tribunal in O.A. No. 1762/2022, the applicant's representations dated 08.06.2021 and 05.07.2022 were duly examined. After considering the applicable Government Orders, the recommendations of the competent authorities and the provisions governing the Non-Functional Scheme, the Government found the applicant's claim devoid of merit and rejected the same by passing Government Order No. 221-Home of 2024 dated 20.05.2024.
The respondents maintain that the impugned order is legal, reasoned and in accordance with the applicable Government Orders and policy. They deny that the applicant has been subjected to any discrimination or that he is entitled to retrospective monetary benefits contrary to the express stipulations contained in Government Order No. 195-Home of 2020. The respondents accordingly pray for dismissal of the Original Application with costs.
Heard learned counsel for the parties and perused the pleadings made by them.
The applicant has assailed Government Order No. 221-Home of 2024 dated 20.05.2024 whereby his claim for release of monetary benefits of Selection Grade of Deputy Superintendent of Police with effect from 01.08.2006, Selection Grade-II (Non-Functional) with effect from 01.07.2013 and Selection Grade-I (Non-Functional) with effect from 01.07.2017 has been rejected.
The undisputed factual position emerging from the record is that the applicant was initially serving in the CRPF and was subsequently absorbed in the Jammu and Kashmir Police. Pursuant to the directions issued by the Hon'ble High Court, his seniority as Inspector came to be revised retrospectively. Consequentially, his promotion as Deputy Superintendent of Police was also revised retrospectively with effect from 01.08.2001 and his placement in the Selection Grade of Deputy Superintendent of Police was pre-dated to 01.08.2006 vide Government Order No.195-Home of 2020 dated 22.09.2020. Likewise, his promotion as Superintendent of Police was also granted retrospectively on notional basis. These facts are not in dispute.
The grievance of the applicant is that once his service career has been retrospectively regularized and his promotions have been advanced, the respondents could not have denied him the consequential monetary benefits under the Non-Functional (Monetary) Scheme notified vide SRO-215 dated 18.05.2018 by reckoning his eligibility from an incorrect date. According to the applicant, his placement in the Time Scale stood advanced to the year 2009 and, therefore, Selection Grade-II and Selection Grade-I ought to have been granted after completion of the prescribed qualifying service therefrom.
The respondents, on the other hand, have justified the impugned order by relying upon Government Order No.195-Home of 2020, which stipulates that wherever promotions are pre-dated, the same shall be on notional basis without payment of arrears. They have further contended that the applicant has already been granted Selection Grade-II and Selection Grade-I in accordance with the Government Orders governing the Non-Functional Scheme and that the competent authority, after considering his representation in compliance with the earlier directions of this Tribunal, rightly rejected his claim.
It is evident that the respondents themselves have accepted and implemented the retrospective revision of the applicant's seniority and promotions. The applicant has not obtained such benefits by way of concession but pursuant to judicial orders and consequential Government Orders. Once the respondents accepted that the applicant was entitled to be placed in the Selection Grade of Deputy Superintendent of Police with effect from 01.08.2006 and granted him consequential notional promotions, the subsequent stages under the Non-Functional Scheme necessarily required consideration on the basis of the revised service profile unless specifically prohibited by the Scheme itself.
Secondly, the impugned order proceeds on the assumption that the applicant entered the Time Scale only with effect from 01.01.2012. However, the applicant has consistently asserted that his placement in the Time Scale stood advanced by virtue of retrospective revision of his service career and that similarly situated officers were granted the corresponding benefits after reckoning the qualifying service from their revised dates. The impugned order does not undertake any meaningful examination of this contention nor does it reconcile the various Government Orders revising the applicant's seniority and promotions. The rejection, therefore, proceeds on an incomplete appreciation of the record.
Thirdly, the record reveals that after issuance of SRO-572 of 2018, the Government itself reconsidered the interpretation of the Non-Functional Scheme. The matter was examined by the Establishment-cum-Selection Committee as well as the Finance Department, culminating in Government Order No.414-Home of 2023 whereby the benefit of Selection Grade-II and Selection Grade-I was revised for eligible officers by reckoning service in the Time Scale on substantive as well as non-functional basis. Thus, the Government itself accepted a broader interpretation of the Scheme. Once such benefit has been extended to similarly situated officers, denial of identical treatment to the applicant without assigning any distinguishing feature is arbitrary and violative of the equality clause enshrined under Articles 14 and 16 of the Constitution.
Fourthly, the respondents have relied upon the stipulation contained in Government Order No.195-Home of 2020 that predating of promotions would be on notional basis without arrears. This condition, however, cannot be construed to deny consideration of the applicant's eligibility under the Non-Functional Scheme itself. The distinction between notional fixation for a past period and determination of eligibility for subsequent higher grades cannot be ignored. The Government Order restricting arrears cannot obliterate the applicant's qualifying service which stood retrospectively recognized by the respondents themselves.
The Tribunal is also of the considered opinion that once the applicant's seniority and promotional hierarchy have attained finality and have been implemented by the respondents, all consequential service benefits flowing therefrom are required to be examined in a fair, uniform and non-discriminatory manner. Administrative authorities cannot selectively grant retrospective benefits for one purpose while refusing to reckon the very same service for subsequent career progression.
Accordingly, Government Order No.221-Home of 2024 dated 20.05.2024, rejecting the claim of the applicant, is liable to be interfered with.
Accordingly, the Original Application is allowed with the following directions:
Government Order No.221-Home of 2024 dated 20.05.2024 is hereby quashed and set aside.
The respondents shall re-examine the claim of the applicant for grant of Selection Grade-II (Non-Functional) and Selection Grade-I (Non-Functional) by reckoning his eligibility on the basis of the revised seniority and retrospective placement already granted to him through Government Orders issued after settlement of his seniority dispute and in the light of SRO-215 dated 18.05.2018, SRO-572 dated 13.12.2018 and Government Order No.414-Home of 2023.
If, upon such exercise, the applicant is found eligible, the respondents shall grant him Selection Grade-II (Non-Functional) and Selection Grade-I (Non-Functional) from the dates on which he became entitled in accordance with the Scheme and shall re-fix his pay and pension accordingly.
Since the retrospective promotions and placements granted to the applicant were expressly made on notional basis, the applicant shall not be entitled to arrears of salary for the period prior to his actual assumption of the higher posts, unless otherwise admissible under the applicable rules or specific Government Orders. However, the respondents shall grant all consequential monetary benefits arising prospectively, together with revision of retiral and pensionary benefits, and release all consequential arrears of pension and other retiral dues resulting from such re-fixation.
The entire exercise shall be completed within three months from the date of receipt of a certified copy of this order. The consequential monetary and pensionary benefits, if found due, shall be released within one month thereafter.
In the event the aforesaid directions are not complied with within the stipulated period, the amount found payable shall carry interest @ 6% per annum from the date it became due till the date of actual payment.
There shall be no order as to costs.