Mushtaq Ahmed Lone vs Law Department on 31 December 2024

1. Mushtaq Ahmed Lone, Age 39 years, S/o Kh. Mohd Ismail Lone, R/o Honipura, Chati, Nehama, Pulwama presently at Govt. Quarter No.130, Block-6, Sarwal, Jammu.

2. Fulail Chand, Age 37 years, S/o Sh. Jabbar, R/o Jhat, Gail (Haillar), Tehsil and District Ramban. …Applicants (Advocate: - Mr. Faheem Shokat Butt) Versus

1. State of J&K through Chief Secretary, Civil Secretariat, Jammu.

2. Commissioner/Secretary to Govt., Law Department, Civil Secretariat, Jammu.

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3. Special Secretary to Govt., Law Department, Civil Secretariat, Jammu.

4. Mohd. Yaseen Bhat, S/o Abdul Gani Bhat, R/o Bran Manzgam Srinagar, presently at Govt. Quarter No.32, Block- E, Amar Hata, Jammu.

5. Dev Raj, (Head Assistant), J&K Human Right Commission, Camp Office, Near Shakuntla Theater, Jammu.

6. Bashir Ahmed Bhat, S/o Late Sh. Mohd. Mustaffa, R/o Bargee, Harwan, Srinagar, Kashmir, at present Block 8, Govt. Quarter No.153, 36 J, Tangwali Gali, C/o Law Department, Civil Secretariat, Jammu.

7. Bansi Lal Pandita, S/o Kashi Nath Pandita, R/o Paral Pulwama, Srinagar C/o Law Dept, Civil Secretariat, Jammu.

8. Abdul Qayom Lone, S/o Gh. Hassan Lone, R/o Lalob Kupulara, presently posted at Chairman Human Rights Commission, Srinagar, Hotel Dawn Dalgate, Srinagar. …Respondents (Advocate:- Mr. Sudesh Magotra, AAG)

O R D E R ( FINAL)

(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)

1. The applicants had initially approached the Hon’ble High Court of Jammu & Kashmir at Jammu through the medium of writ

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petition bearing SWP No.181/2008. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of Notification No.G.S.R. 267(E) dated 29.04.2020 read with Notification No.G.S.R. 317(E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of U.T of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of aforesaid writ petition was ordered to be transferred by the Hon’ble High Court to this Tribunal on 11.02.2021 and upon receiving the record the said writ petition is re-numbered as Transferred Application No.4088/2021.

2. The facts leading to filing of the aforesaid Transferred Application are summarized as under: -

i) By virtue of order No.644-LD (A) of 1990 dated 29.08.1990 issued by Secretary to Govt. of J&K, Law Department (respondent No.1), the applicant No.1 has been appointed as Orderly in the Tribunal under the J&K Criminal Law (Amendment) Act, 1983. Vide order No.620-LD(A) of 1990 dated 30.11.1990 issued by respondent No.1, the applicant No.2 was appointed as Orderly in the office of Public Prosecutor, Jammu.

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ii) Vide order No.10-11/AD/TADA dated 19.03.1991 issued by Additional Judge, TADA Court, Srinagar, respondent No.4 (Mohd Yaseen Bhat) was appointed as Orderly on adhoc basis. Vide order No.119-LD-Estt of 1992 dated 28.05.1992, respondent No.5 (Dev Raj) was appointed as Orderly in the Law Department on temporary basis. Respondent No.6 (Bashir Ahmed Bhat) was appointed as Orderly in the Law Department vide Govt. Order No.491- GAD of 1992 dated 11.06.1992 issued by Under Secretary to Govt. General Administration Department. Respondent No.7 (Bansi Lal Pandita) was appointed as Orderly in the Law Department vide Order No.258-LD-Estt of 1994 dated 06.09.1994. Respondent No.8 (Abdul Qayoom) was appointed as Orderly in the Law Department vide Order dated 19.12.1997.

iii) Vide Govt. Order No.230-LD (Estt) of 1998 dated 28.12.1998 issued by Law Department, respondent No.4 (Mohd. Yasin Bhat) was promoted from Orderly to the post of Junior Assistant. Vide Govt. Order No.1997-LD (Estt) of 1997 dated 24.11.1997 issued by Law Department, respondent No.5 (Dev Raj) was promoted from Orderly to the post of Junior Assistant.

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Vide Govt. Order No.237-LD (Estt) of 2006 dated 13.12.2006 issued by Law Department, respondent No.6 (Bashir Ahmad Bhat) was promoted from Orderly to the post of Junior Assistant. Vide Govt. Order No.141-LD (Estt) of 1996 dated 07.08.1996, respondent No.7 (Bansi Lal Pandita) was promoted from Orderly to the post of Junior Assistant. Vide Govt. Order No.1002-LD (Estt) of 2002 dated 13.03.2002 issued by respondent No.1, respondent No.8 (Abdul Qayoom) who was working as Orderly in the State Human Rights Commission was promoted to the post of Junior Assistant.

iv) Vide Govt. Order No.44-LD (Estt) of 2006 dated 06.01.2006 issued by respondent No.1, pending clearance by DPC, respondent No.4, 5 and 7 were further promoted as Senior Assistant in the pay scale of 4000-6000. Vide Govt. Order No.221-LD (Estt) of 2009 dated 09.10.2009 issued by respondent No.1, pending clearance by DPC, respondent No.7 and 8 were promoted as Junior Legal Assistant in the pay scale of 4000-6000.

v) Vide Govt. Order No.2211-LD (Estt) of 2009 dated 09.10.2009 issued by respondent No.1, pending clearance by DPC respondent No.4 and 7 were promoted as Junior Legal Assistant in the pay scale of Rs.9300-34800.

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Vide Govt. Order No.2212-LD (Estt) of 2009 dated 09.10.2009 issued by respondent No.1, pending clearance by DPC respondent No.5 was promoted as Head Assistant in the pay scale of Rs.9300-34800 against the post available in the State Human Rights Commission. Vide Govt. Order No.2214-LD (Estt) of 2009 dated 09.10.2009 issued by respondent No.1, pending clearance by the DPC respondent No.6 & 8 were promoted as Senior Assistant in the pay scale of Rs.5200-20200.

vi) Aggrieved of the action of official respondents in promoting the junior of petitioners to the post of Junior Assistant and Senior Assistant, initially the applicant filed writ petition bearing SWP No.181/2008 before the High Court of Jammu & Kashmir whereby they sought direction upon official respondents to promote them also to the post of Junior Assistant w.e.f. 24.11.1997 and Senior Assistant w.e.f. 06.01.2006 and also to pay them the salary of Junior Assistant w.e.f. 24.11.1997 till 06.01.2006 and thereafter the salary of Senior Assistant alongwith interest @18% per annum.

vii) The respondents filed their objections against the aforesaid writ petition wherein primarily they take following stand: -

a. The writ petition is not maintainable as the same is barred by delay and latches because the applicants are approaching the Court for granting benefits from 1997 and have

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approached the Court after considerable long period of time.

b. The appointment order of private respondents who were appointed after the applicants and have been promoted by ignoring them, has not been challenged, as such no relief can be granted to them.

c. The applicant No.2 is a Member of Law Officers Subordinate Service and has been appointed as Orderly in the Office of Public Prosecutor, Jammu and his services are governed by the Jammu and Kashmir Law Officers (Subordinate Services) Recruitment Rules, 1990 and his claim for fixation of seniority has been taken up with Learned Advocate General Office vide letter No.LD(A)90/ PPJ dated 18.01.2008 as the said service is under the Administrative Control of Learned Advocate General, as such his seniority has to be fixed in that service alongwith other Orderlies working in the office of Public Prosecutors of State by the Learned Advocate General Office, thus he cannot claim promotion in other service.

d. The promotion of private respondents is subject to clearance by DPC and as and when the same is convened, the applicant No.1 will also be considered under Rules.

e. No seniority list of orderlies has been finalized.

viii) In view of reply of respondents, the applicants filed an Miscellaneous Application bearing CMA No.3655/2012

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seeking amendment of writ petition to the extent of incorporating the following two prayers in the prayer part of the writ petition: - “(i) Writ of mandamus commanding the respondent 1 to 3 to produce/place on record the seniority list of the orderlies since year 1990.

(ii) Writ of certiorari quashing the order No.230-LD (Estt) of 1998 dated 28-12-1998, Order No.1997-LD (Estt) of 1997 dated 24-11-1997, Order No.237-LD (Estt) of 2006 dated 13-12-2006, Order No.141-LD (Estt) of 1996 dated 07-08-1996 by virtue of which respondents 4 to 8 has been promoted as Junior Assistant and further order No.44-LD (Estt) of 2006 dated 06-01- 2006 whereby the private respondents No.4, 5 and 7 have been promoted as Senior Assistant and further order No.2214-LD (Estt) of 2009 dated 09-10-2009 whereby respondent No.6 and 8 have been promoted as Senior Assistant. Further quashing order No.2211-LD (Estt) of 2009 dated 09-10-2009 whereby the respondent No.4 and 7 have been promoted as Junior Legal Assistant in the pay scale of 9300-34800 and order dated 2212-LD (Estt) of 2009 dated 09-10-2009 whereby respondent No.5 has been promoted as Head Assistant in the pay scale of 9300-34800.”

ix) The applicants further sought indulgence of the Hon’ble High Court to incorporate the facts stated in CMP No.498/2010 in the writ petition, as the private respondent No.4, 5 and 7 were further promoted during the pendency of writ petition to the post of Junior Legal Assistant/Head Assistant and the said

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CMP No.498/2010 was already allowed by the Hon’ble High Court vide its order dated 16.04.2010 and the documents were taken on record.

x) The application for amending the writ petition was allowed by the Hon’ble High Court vide its order dated 07.12.2012 and the amended petition was taken on record. Vide order dated 29.07.2013 the Hon’ble High Court on consideration of the matter find a case for admission and thus formally admitted the writ petition for hearing and post admission notices were waived by the counsels appearing for the respondents. The reply already filed by the respondents, at request is treated as counter affidavit.

xi) The applicants submitted their rejoinder to the reply filed by the respondents and after completion of pleadings the matter has been taken for final consideration.

3. Heard the learned counsels appearing for the parties, perused the documents and pleadings on record minutely.

4. The learned counsel appearing for the applicants Mr. Faheem Shokat Butt submitted that admittedly the applicants are senior to private respondents in the Transferred Application and this aspect of the matter has not been denied by the other side. The learned counsel argued that since the matter has already been admitted by the Hon’ble High Court vide its order dated 29.07.2013, as such now there arises no question of delay and

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latches. It is settled provision of law that once the matter is admitted the question of delay and latches does not arise and Courts cannot dismiss the petition on the ground of delay and latches once the matter is admitted to hearing. Reliance in this regard has been placed upon the Judgment of the Hon’ble High Court of J&K titled Habibullah Dar Vs. Chairman & Ors, 2006

(1) JKJ 205 and Bashir Ahmed Bhat Vs. State, 2004 (3) JKJ 189 (DB) wherein it is held that the question of delay and latches has to be considered prior to admission of petition and once the matter is admitted without reserving the rights to take the ground of delay and latches at the time of final arguments, the question of delay and latches does not arise and Courts cannot dismiss the petition on the ground of delay and latches. The learned counsel further argued that at the time of admission of the writ petition vide order dated 29.07.2013 the respondents have not reserved their right to agitate the ground of delay and latches at the time of final arguments, as such they are barred from taking this plea now at the time of final arguments. The Reliance is further placed upon Judgment of the Hon’ble Supreme Court titled A. Sagayanathan & Ors V/s Divisional Personnel Officer, reported as 1992 SUPP (2) SCC 172. In that case the juniors were promoted over the seniors and the Tribunal refuses to decide the matter on merits solely on the

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ground of delay. The Hon’ble Supreme Court held that despite delay matter required investigation and disposal on merit afresh.

5. The learned counsel appearing for applicants invited our attention to the promotion orders of private respondents and para 20 of amended writ petition which would show the status of applicants and private respondents which would reveal that the applicants were appointed as Orderly on 29.08.1990 and 30.11.1990, whereas private respondents were appointed as Orderly in the year 1991 to 1997 and have been promoted as Junior Assistant, Senior Assistant, Junior Legal Assistant/Head Assistant and Legal Assistant. During the pendency of the instant Transferred Application, the applicants were promoted on Incharge basis on their own pay and grade with charge allowance as Junior Assistants vide Govt. Order No.2825-LD (Estt) of 2012 dated 28.08.2012 and I/c Senior Assistants on their own pay and grade with charge allowance vide Govt. Order No.6150-LD (Estt) of 2017 dated 28.12.2017 issued by Commissioner/Secretary to Govt., Law Department. By virtue of Govt. Order No.6148-LD (Estt) of 2017 dated 28.12.2017 private respondent No.6 has been further promoted to the post of I/c Legal Assistant in the Department of Law, Justice and Parliamentary Affairs on his own pay and grade with charge allowance.

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6. By virtue of rejoinder filed by the applicants it is also brought to our notice that vide Govt. Order No.2841-LD (Estt) of 2015 dated 18.09.2015 issued by Secretary to Govt. of J&K, Law Justice and Parliamentary Affairs Department, the applicants are promoted on substantive basis as Junior Assistants w.e.f. 28.05.2012 and their names figured at S.No.5 and 6 of the said order, whereas in the same order private respondent No.8 Sh. Abdul Qayoom Lone and one Sh. Shakti Saroop have also been promoted on regular basis as Junior Assistant w.e.f. 13.03.2002 and 28.05.2002. Vide Govt. Order No.2251-JK (LD) of 2020 dated 20.05.2020 issued by Secretary to Govt. of J&K, Law Justice and Parliamentary Affairs Department, the applicants are further promoted on substantive basis as Senior Assistants w.e.f. 30.12.2017 and their names figured at S.No.9 and 10 of the said order.

7. The learned counsel appearing for applicants further argued that the official respondents in their reply have not disputed the seniority of applicants particularly applicant No.1 and stated that the promotion of all the private respondents is subject to clearance by Departmental Promotion Committee and as and when the DPC is convened, applicant No.1 will also be considered under Rules. Thus, in other words they have admitted the claim of applicant No.1. However, when the DPC

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is convened the applicant has not been given effect of such regularization to the post of Junior Assistant, Senior Assistant and further higher ranks from the date private respondents have been so promoted. It is settled position of law that even if the promotions are to be made on temporary basis even in that case the seniors cannot be ignored.

8. So far the assertion of respondents that the claim of applicant No.2 cannot be considered in view of the fact that he is Member of Law Officers Subordinate Service and has been appointed as Orderly in the office of Public Prosecutors and his claim of re- fixation of seniority has been taken up with Learned Advocate General Office vide letter No.LD (A) 90/PPJ dated 18.01.2008 as the said service is under the administrative control of Learned Advocate General, as such his seniority has to be fixed in that service alongwith other orderlies working in the office of Public Prosecutors of the State by the Learned Advocate General Office, thus he cannot claim promotion in other service. To counter this submission of respondents, the learned counsel appearing for the applicants submitted that the applicant No.2 alongwith applicant No.1 have been substantively promoted by Secretary to Govt., Department of Law (respondent No.1) vide Govt. Order No.2841-LD (Estt) of 2015 dated 18.09.2015 and Govt. Order No.2251-JK (LD) of 2020 dated 20.05.2020 and

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private respondents were promoted to the post of Junior Assistant, Senior Assistant, Head Assistant and Junior Legal Assistant by the same Administrative Secretary of Law Department, as such there is no force in the submission of respondents that the applicant No.2 cannot claim his promotion in other service. The learned counsel further submitted that both the applicants as well as the private respondents are part and parcel of same service i.e. Jammu and Kashmir Legal (Subordinate) Service and their seniority is also fixed in the same service by virtue of Govt. Order No.2785-LD (Estt) of 2019 dated 22.04.2019 issued by Secretary to Govt. Department of Law, Justice and Parliamentary Affairs whereby tentative seniority list of Members of Jammu and Kashmir Legal (Subordinate) Service has been issued and the applicants as well as private respondents were figuring in the said tentative seniority list. Our attention is also invited to the latest seniority list of Members of Jammu and Kashmir Legal (Subordinate) Service issued by Administrative Secretary of the Department by virtue of Circular No.02-JK (LD) of 2024 dated 11.01.2024 which goes to show that the applicants as well as private respondents are borne in the cadre of same service i.e. Jammu and Kashmir Legal (Subordinate) Service.

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9. The learned counsel further invited our attention to Govt. Order No.2769-LD (Estt) of 2016 dated 17.10.2016 issued by respondent No.1 which reveals that in the same circumstance one Shakti Saroop who was also Orderly vide Order No.1999- LD (Estt) of 1997 dated 24.11.1997 has approached the Hon’ble High Court of Jammu and Kashmir through the medium of SWP No.364/2012 wherein he claimed that private respondent No.8 in the instant Transferred Application (Abdul Qayoom) has been appointed as Orderly in the Human Rights Commission vide order dated 19.12.1997 and he has been further promoted as Junior Assistant and Senior Assistant by ignoring the said Shakti Saroop. The Hon’ble High Court vide its order dated 10.12.2012 disposed of the said writ petition with direction to consider the case of Shakti Saroop for granting similar benefit and in compliance to said directions vide aforesaid Govt. Order dated 17.10.2016 the said Shakti Saroop is deemed to have been promoted to Junior Assistant from 13.03.2002, Senior Assistant from 09.10.2009 and Head Assistant from 25.09.2013 i.e. the dates from which Sh. Abdul Qayoom was so promoted.

10. Per-contra, learned counsel for the respondents reiterated the contents of the objections in order to oppose the arguments of learned counsel of applicants.

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11. The applicants are admittedly seniors to private respondents and they have been denied the promotion to the next higher ranks. Thus, the applicants prayed for quashing the promotion orders of private respondents. Since the private respondents are working against the said promotional posts from quite long time and it is not appropriate at this stage to disturb their promotions and instead directions can be given to grant similar benefit to applicants also. The Hon’ble Supreme Court of India in case titled Tridip Kumar Dingal & Ors V/s State of West Bengal & Ors 2009 (1) SCC 768 considered the matter of equitable relief in view of passage of long time and instead disturbing the appointed candidates who have acquired experience, directions were issued for appointment of appellants in that case also

12. On a pointed query to the counsel appearing for respondents that how can the respondents justify the promotion of private respondents over and above the applicants who are admittedly seniors to them, there is no satisfactory reply except reiterating the plea of delay and latches which is already settled by the Judgments titled Habibullah Dar Vs. Chairman & Ors, 2006

(1) JKJ 205, Bashir Ahmed Bhat Vs. State, 2004 (3) JKJ 189 (DB) and Hon’ble Apex Court

Judgment

titled A. Sagayanathan & Ors V/s Divisional Personnel Officer, 1992 SUPP (2) SCC 172. The learned counsel appearing for the

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respondents also have no answer to the query that when the applicants as well as private respondents have been appointed and promoted by the respondent No.1 and their seniority is also maintained in the seniority list of Members of the Jammu and Kashmir Legal (Subordinate) Service, as such how the applicants particularly applicant No.2 is not entitled for the promotion over and above the private respondents in the same service. In the objections filed by the official respondents they have taken the stand that at the time of convening of the DPC the claim of applicant No.1 will be considered and so far applicant No.2 is concerned his seniority is to be fixed along with other orderlies working in the office of Advocate General and he cannot claim promotion in other service. From the perusal of the promotion orders of applicants and private respondents and also the seniority list issued by the Department and the latest seniority list is issued on 11.01.2024 would show that the applicant No.2 is part and parcel of Jammu and Kashmir Legal (Subordinate) Service, as such he cannot be denied the benefits in the said service. We are of the considered view that the private respondents have been illegally and arbitrarily promoted at different levels over and above private respondents

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but since they are working against the promotional posts of Junior Assistant, Senior Assistant, Head Assistant and Junior Legal Assistant from long time, as such we did not feel it appropriate to quash their promotions and instead, we are inclined to direct the respondents to confer the said promotions to applicants also.

13. For what has been observed, considered and analyzed hereinabove and the foregoing reasons, the aforesaid Transferred Application succeeds and is thus allowed in following terms: - i) Respondents are directed to promote applicants to the post of Junior Assistant, Senior Assistant and Head Assistant w.e.f. the date the private respondents were so promoted. ii) The applicants are held entitled to all the consequential benefits which would flow to them in consequence of the promotions to the post of Junior Assistant, Senior Assistant and Head Assistant.

14. The entire exercise is directed to be undertaken within a period of eight weeks from the date of receipt of certified copy of the

Judgment.

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15. No Order as to cost.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) MEMBER (A) MEMBER (J)

AK/PS/PK/RP/VS/