Zeenat Hussain Shah & Ors. vs U.T Of Jammu And Kashmir & Anr.

Sh. Diwakar Singh, Judicial Member

This is an Original Application filed by the applicants under Section-19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

The applicants have challenged Order No. DSEJ/Legal/4949-53 dated 01.03.2024 passed by respondent No.2 whereby the claim of the applicants for grant of retrospective effect to their appointments from 06.07.2005, together with consequential benefits including coverage under the Old Pension Scheme, has been rejected.

The applicants seek quashment of the impugned order and a direction to the respondents to treat their appointments as having been effected notionally with effect from 06.07.2005, on the same terms and conditions as have been extended to similarly situated employees pursuant to the judgment of the Hon'ble High Court of Jammu & Kashmir in Bharat Bhushan & another v. State of J&K & others (LPA No.54/2019 and connected matters) decided on 20.03.2019.

The case projected by the applicants, as emerging from the Original Application, is that in the year 1997, the Government issued Government Order No.1706-GAD of 1997 dated 11.11.1997 authorising the concerned Heads of Departments to undertake recruitment to Class-IV posts in accordance with the prescribed rules. Consequent thereto, respondent No.2 issued Advertisement Notice No.1 of 1998 dated 21.04.1998 inviting applications for various Class-IV posts including Library Bearer, Laboratory Bearer, Gasman, Orderly, Safaiwala and Peon throughout Jammu Division. The applicants applied pursuant to the said advertisement and participated in the interview process conducted by the duly constituted Selection Committee.

It is pleaded that instead of forwarding the recommendations to the Director School Education for approval as required under the recruitment procedure, several Chief Education Officers illegally issued appointment orders directly in favour of certain candidates. Upon discovery of these irregularities, the Director School Education cancelled such appointments vide Order dated 28.06.1999. The cancellation order ultimately came to be upheld by the Government vide Government Order No.309-Edu of 2000 dated 24.04.2000.

Large numbers of writ petitions thereafter came to be filed before the Hon'ble High Court. The leading judgment in Satya Devi v. State & Ors. in SWP No. 2668/1999 directed the respondents to redraw the merit list on the basis of interviews already conducted instead of making arbitrary appointments.

According to the applicants, instead of complying with the judicial directions, the respondents issued a fresh Advertisement Notice No.1 of 2000. Even that selection process was never concluded. Subsequently, vide Government Order No.556-Edu of 2002 dated 11.04.2002, the Government decided to accommodate the earlier ousted appointees on consolidated salary, and thereafter, by Government Order No.383-Edu of 2003 dated 04.04.2003, their services were regularised.

The applicants contend that these Government Orders conferred benefits upon persons whose appointments had already been found illegal while ignoring candidates who had participated in the valid recruitment process pursuant to Advertisement Notice No.1 of 1998. This action led to another round of litigation. Certain writ petitions including Basharat Hussain & others (SWP No. 1476/2003) challenged these Government Orders before the Hon’ble High Court. During pendency of those petitions, the Government offered appointments to nineteen petitioners and approval for such appointments was conveyed on 06.07.2005.

According to the applicants, this date of 06.07.2005 has acquired legal significance because it became the benchmark date adopted by the Hon'ble High Court for extending parity to all similarly situated candidates. Thereafter, numerous writ petitions came to be decided by the learned Single Judge on 31.12.2007 in Adil Akhter Shah & others v. State in SWP No. 961/2003, wherein the Hon’ble High Court found the Government's action to be improper but, instead of disturbing the already appointed employees, directed the Government to consider appointment of the petitioners on parity with the petitioners in Basharat Hussain's case. The State preferred LPASW No.49/2008, which came to be disposed of on 30.07.2009. The Division Bench of the Hon’ble High Court substantially upheld the directions of the learned Single Judge and directed the Government to accommodate all the writ petitioners.

Pursuant thereto, Government Order No.440-Edu of 2010 dated 13.05.2010 came to be issued whereby sanction was accorded to the appointment of 243 candidates, including the present applicants. However, according to the applicants, while appointments were granted, they were made effective only prospectively from the date of issuance of the Government Order instead of from 06.07.2005 when the petitioners in Basharat Hussain's case had been appointed.

The applicants assert that this differential treatment constituted hostile discrimination since all these candidates formed one homogeneous class arising out of the same recruitment process. The applicants further submit that they immediately challenged the denial of retrospective benefits by filing SWP No.31/2011 titled Rayaz Ahmed & others v. State, which was disposed of on 09.03.2018 directing the respondents to consider their claim in light of benefits already granted to similarly situated persons.

Meanwhile, another batch of writ petitions filed by similarly situated appointees culminated in the judgment of the Division Bench of the Hon’ble High Court, dated 20.03.2019 in Bharat Bhushan & another v. State of J&K & others, whereby the earlier judgment restricting retrospective appointment was set aside. The Division Bench directed the respondents to treat the appointments of the appellants as having been made with effect from 06.07.2005 on notional basis for purposes of qualifying service, pay fixation and pension, while denying actual back wages. The applicants emphasise that the said judgment attained finality after dismissal of the Special Leave Petition preferred by the Government before the Hon'ble Supreme Court. In implementation of the aforesaid judgment, respondent No.2 issued Order No. DSEJ/Legal/50017-24 dated 12.03.2022 granting notional appointment from 06.07.2005 together with consequential service benefits to the appellants in the case of Bharat Bhushan and connected matters.

Since the applicants were not granted identical benefits despite being appointed under the same Government Order dated 13.05.2010, they approached this Tribunal in OA No.652/2022. This Tribunal disposed of the said OA on 07.07.2023 directing the respondents to consider the applicants' claim in the light of the judgment in Bharat Bhushan’s case. The Chief Education Officer, Poonch thereafter recommended the applicants' case. However, respondent No.2 rejected the claim vide impugned order dated 01.03.2024.

The applicants contend that the rejection is arbitrary, contrary to the earlier order of this Tribunal and violative of Articles 14 and 16 of the Constitution since identically situated employees have already been granted the benefit.

The respondents have resisted the Original Application by filing a detailed written statement. It is pleaded that appointments ordinarily take effect only from the date specified in the appointment order and no employee can claim appointment from a date when he had not actually entered service.

According to the respondents, although the applicants were appointed pursuant to Government Order No.440-Edu of 2010, they were never parties to LPA No.54/2019 or the connected appeals decided on 20.03.2019. The respondents submit that the directions issued in Bharat Bhushan’s case were confined to the appellants before the Division Bench and could not automatically be extended to other employees. It is further pleaded that, in compliance with the earlier order dated 07.07.2023 passed by this Tribunal, respondent No.2 sought clarification from the Administrative Department.

The Administrative Department, vide communication dated 13.02.2024, instructed respondent No.2 to reject the applicants' claim. Accordingly, a speaking order dated 01.03.2024 came to be passed. The respondents have further relied upon the decisions of the Hon'ble Supreme Court in Uttaranchal Forest Rangers' Association v. State of U.P. and K.C. Joshi v. Union of India to contend that retrospective seniority or appointment cannot ordinarily be granted from a date when an employee was not borne on the cadre. It is therefore submitted that the applicants are not entitled to retrospective appointment merely because certain appellants in another litigation were granted such relief.

In their rejoinder, the applicants have traversed the stand taken in the written statement. The applicants reiterate that they are part of the same recruitment process initiated by Advertisement Notice No.1 of 1998 and were appointed under the same Government Order No.440-Edu of 2010. They deny the respondents' assertion that they approached the Tribunal only after coming to know of the order dated 12.03.2022. On the contrary, they point out that they had been litigating continuously since 2011 by filing SWP No.31/2011, much prior to the decision in Bharat Bhushan’s case. The applicants further contend that the only distinction sought to be made by the respondents is that they were not formal appellants in LPA No.54/2019.

According to the applicants, such distinction is legally unsustainable because the Division Bench judgment is one rendered in respect of the very same recruitment process and determines the rights of an entire class of employees. The applicants further point out that the respondents themselves have extended the benefit of the Division Bench judgment to other candidates, including Hazoor Fatima and Kulsoom Fatima, who were not appellants in Bharat Bhushan’s case but had merely obtained consideration orders from the Hon’ble High Court. This, according to the applicants, completely demolishes the stand now taken by the respondents and establishes hostile discrimination. The rejoinder further states that the reliance placed upon the judgments in Uttaranchal Forest Rangers' Association and K.C. Joshi is wholly misplaced because the present controversy does not concern grant of retrospective seniority under service rules but enforcement of binding judicial directions arising from the same selection process and the same Government Order. The applicants accordingly submit that the impugned order dated 01.03.2024 is arbitrary, discriminatory, contrary to the binding judgment of the Division Bench, contrary to the earlier directions of this Tribunal and liable to be quashed.

Heard learned counsel for the parties and perused the material available on record.

The controversy involved in the present Original Application lies within a narrow compass. The issue is not whether the applicants are entitled to appointment against Class-IV posts, as that question already stands concluded by virtue of Government Order No.440-Edu of 2010 dated 13.05.2010 whereby the applicants, along with 243 other candidates, were appointed in compliance with the judgments rendered by the Hon'ble High Court. The only issue requiring adjudication is whether the respondents were justified in denying to the applicants the same notional date of appointment, namely 06.07.2005, together with the consequential benefits of qualifying service, pay fixation and coverage under the Old Pension Scheme, despite having extended identical benefits to other candidates who admittedly originated from the very same selection process.

It is equally significant that this Tribunal, while disposing of OA No.652/2022 on 07.07.2023, had not directed the respondents to mechanically reject or accept the claim of the applicants. The respondents were specifically directed to consider the claim of the applicants in terms of the judgment rendered by the Hon'ble High Court in Bharat Bhushan’s case. Therefore, the legality of the impugned order dated 01.03.2024 has to be tested on the touchstone of faithful compliance with the aforesaid judicial direction.

The foundation of the impugned order is that the applicants were not parties to LPA No.54/2019 titled Bharat Bhushan & another versus State of J&K & others and, therefore, cannot claim the benefit flowing therefrom.

The aforesaid reasoning deserves close scrutiny.

The pleadings of both the parties unmistakably establish the following undisputed facts:

The respondents have nowhere pleaded that the applicants belong to a different selection process or that they were appointed under any different Government Order. Neither has it been pleaded that the applicants possess different qualifications, occupy different posts or were governed by different recruitment rules. On the contrary, the written statement itself narrates the entire history of litigation commencing from Advertisement Notice No.1 of 1998 and candidly admits that the applicants were among the 243 candidates appointed pursuant to Government Order No.440-Edu of 2010. Thus, the identity of the applicants with the appellants in Bharat Bhushan’s case is admitted on record. The only distinguishing feature sought to be projected by the respondents is that the applicants were not formal appellants before the Division Bench. The question, therefore, is whether such distinction has any legal significance In the considered opinion of this Tribunal, the answer has to be in the negative.

A judgment determining the rights of an identifiable class of employees arising from one and the same recruitment process cannot be confined only to the names appearing in the cause title when the factual and legal foundation of the claim is identical. The constitutional mandate under Articles 14 and 16 obligates the State to treat equals equally. Once it stands admitted that the applicants belong to the very same class as the appellants in Bharat Bhushan’s case, denial of identical treatment merely because they were not arrayed as parties in that particular appeal amounts to introducing a classification which has no rational nexus with the object sought to be achieved. Such classification is manifestly arbitrary.

The Division Bench while deciding LPA No.54/2019 and connected appeals did not merely direct the Government to consider the claim of the appellants. Rather, after noticing the prolonged history of litigation extending over nearly two decades and recording serious dissatisfaction regarding the repeated attempts of the Government to circumvent earlier judicial directions, the Division Bench consciously chose not to remit the matter back to the Government. The Hon’ble High Court observed that any further direction for consideration would only prolong the agony of the employees. Consequently, the Division Bench itself granted the substantive relief by directing the respondents to issue orders treating the appointments of the appellants as having been effected from 06.07.2005. The Hon’ble Court further directed that such appointments shall be treated on notional basis without monetary arrears but that the period shall count for qualifying service, pay fixation and pension.

The language employed by the Division Bench leaves no scope for ambiguity. The relief was not founded upon any personal or individual circumstance peculiar to the appellants. Rather, the relief was founded upon the historical illegality committed by the Government in delaying appointments of candidates who were entitled to parity with the petitioners in Basharat Hussain’s case. Therefore, the date 06.07.2005 was not chosen because the appellants happened to be litigants before the Court. It was chosen because that was the date on which the Government itself had extended appointment to another set of similarly situated candidates, namely the petitioners in Basharat Hussain’s case. The respondents have not pointed out any observation in the judgment restricting its applicability only to the named appellants. Nor have they demonstrated any distinguishing factual feature disentitling the applicants from claiming parity.

An equally important aspect cannot be overlooked. The judgment dated 20.03.2019 passed by the Division Bench was challenged by the respondents before the Hon'ble Supreme Court by filing a Special Leave Petition came to be dismissed. The consequence of dismissal of the SLP is that the judgment of the Division Bench attained finality and became binding upon the respondents. The Administrative Department itself accepted the binding nature of the judgment by issuing communication dated 07.03.2022 directing implementation thereof. Pursuant thereto, respondent No.2 issued Order No.DSEJ/Legal/50017-24 dated 12.03.2022 granting notional appointment from 06.07.2005 together with qualifying service, pay fixation and pensionary benefits. Thus, the respondents themselves accepted that the judgment represented the correct legal position. Once the Government has accepted a judicial pronouncement and implemented it, the State cannot subsequently adopt a contrary stand while dealing with another set of identically situated employees. It cannot pick and choose beneficiaries of a judicial declaration depending upon whether an employee's name appeared in a particular cause title.

This Tribunal, while disposing of OA No.652/2022 on 07.07.2023, directed the respondents to consider the applicants' claim in terms of the judgment rendered in Bharat Bhushan’s case. This obligated the authority to examine whether the applicants satisfy the parameters laid down in the precedent and whether parity exists. The respondents, however, have not undertaken such exercise. Instead, the record reveals that respondent No.2 sought instructions from the Administrative Department. The Administrative Department merely directed respondent No.2 to reject the claim since the applicants were not parties before the Division Bench. Respondent No.2 faithfully reproduced the said opinion and rejected the claim. The impugned order nowhere examines:

Having bestowed anxious consideration to the rival submissions advanced by learned counsel for the parties this Tribunal is satisfied that the applicants have established that they are identically situated to the appellants in Bharat Bhushan’s case, and that the judgment rendered by the Division Bench governs their case in all material particulars, that the respondents have failed to demonstrate any legally sustainable distinction and that the impugned order dated 01.03.2024 is arbitrary, discriminatory, contrary to the binding judicial precedents. The impugned order also suffers from non-application of mind and failure to comply with the earlier order of this Tribunal dated 07.07.2023.

Accordingly, the Original Application deserves to succeed.

For the foregoing reasons, the Original Application is allowed in the following terms: