Robkar vs Sanjeev Verma on 3 September, 2024

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Jammu & Kashmir High Court

Robkar vs Sanjeev Verma on 3 September, 2024

01. The record reveals that this Court vide order dated 06.08.2024 has directed learned counsel for the petitioner to file an affidavit within one week highlighting the consequential benefits, which till date have not been given to the petitioner in conformity with the order/judgment dated 07.02.2017 passed by the learned Single Judge in SWP No. 2140/2015, which has been upheld by the Apex Court. Subject to the filing of the said affidavit, learned counsel appearing on behalf of contemnor/respondent was directed to ensure the compliance of the same.

02. In compliance of the aforesaid order dated 06.08.2024, the affidavit has been filed by Mr. Z.A. Shah, learned Senior counsel for the petitioner on 08.08.2024, a perusal whereof, reveals that the following amount has been credited in the account of the deponent:-

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i) Rs. 41,24,214/- credited on 31/3/2024

ii) Rs. 60,41,299 credited on 30/07/2024

03. The affidavit further reveals that the said amount are the arrears against the post and grade of time scale, which the petitioner held before 30.06.2015. Consequent to the grant of promotion as per the affidavit, the petitioner is entitled to arrears of pay, as against the promoted post of Selection Scale and Special Scale. It has also been further pleaded that pursuant to the issuance of the final seniority list of the officers of Jammu and Kashmir Administrative Service appointed to the service between 2009-2011 vide Government Order No. 784-GAD of 2014 dated 18.07.2014, the petitioner was figuring at Serial No. 7 after Mushtaq Ahmed Wani and above Bashir Ahmed Lone.

04. It has been mentioned in the affidavit that the petitioner was removed from service on 30.06.2015 and the aforesaid final seniority list was already issued on 18.07.2014 i.e. prior to the removal of service of the petitioner. The affidavit further reveals that those persons who were inducted along with him in 2010, out of them, there were many officers, who are junior to the petitioner in the final seniority list and are presently holding the post of Special Secretaries in the Special Scale, the details of whom have been reflected in the affidavit.

05. The petitioner in the reply affidavit further claims that since his juniors have been promoted in the Special Scale, he too have a claim to be promoted firstly to Selection Scale w.e.f. 2018 when his juniors were placed in the Selection Scale and also to Special Scale from 2021, when his juniors were placed in the said Special Scale and the petitioner claims that he should be designated as Special Secretary.

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06. It has also been urged that after reinstatement of the petitioner, he should have figured at serial No. 1 as per the final seniority list issued vide Government Order No. 784-GAD of 2014 dated 18.07.2014 and all other persons from Rishpal Singh to serial No. 103 in the said final seniority list are juniors to the petitioner. The petitioner has given the details of the juniors in the said affidavit, who have already been promoted to the level of Special Secretaries/Special Scale in JKAS services in April, 2021. Since, the juniors of the petitioner have already been placed in Selection Scale in 2018 and in Special Scale in April, 2021, he has claimed the same benefit as a part of consequential benefits granted by this Court besides fixation of his seniority at serial no. 1 in the final seniority list mentioned (supra).

07. The petitioner further claims that he has not been issued even the identity card as has been provided to all government officials and even after his joining no order of posting has been issued in his favour and there is no place to sit. The affidavit further reveals that everyday petitioner used to go to General Administration Department and yet no work is assigned to the petitioner and the petitioner is not allowed to mark his attendance even on biometric system and the name of the petitioner is not mentioned in the list of JKAS officers, who are required to enter Civil Secretariat.

08. Per contra, reply has been filed on behalf of the contemnor/respondent to the affidavit filed by the petitioner. A copy of the same has been furnished to this Court, which has been taken on record. The respondent has taken a specific stand that promotion to Selection Grade and Super Time Scale and the Special Scale of JKAS can be made on the basis of the recommendations of selection committee in terms of Rule(s) 19 & 20 of Jammu and Kashmir Administrative 4 ROBSW No. 4/2024 IN CCP(S) No. 363/2022 Service Rules, 2008 which is self speaking regarding the criteria/procedure for consideration adopted. The said Rules are quoted hereunder for ready reference:-

19. Promotion to the selection grade:- Promotion from time scale members of the service to the selection grade shall be made by selection on the basis of merit and suitability from amongst the members who are in the time scale.

20. Promotion to the super time scale and the special scale:- (1) Promotion of members of the service to the super time scale and the special scale shall be made by selection on the basis of merit, suitability and service record from amongst the members holding the special scale and the selection grade respectively.

(2) The selection committee shall taken into consideration the following factors while considering promotions to the super time scale and the special scale:-

(a) that no criminal case is pending in any court of law nor any proposal is pending wherein launching of prosecution is contemplated against the officer;

(b) that no departmental enquiry is pending or contemplated against the officer;

(c) that clearance for such promotion has been obtained from the vigilance organization;

(d) if the vigilance organization has received any complaint against the officer, the gist and nature of such complaint shall be made available by the Vigilance Commissioner alongwith his comments to the General Administration Department for placement before the selection committee for taking a view;

(e) inputs obtained by the General Administration Department from State Department sources other than Vigilance Organization about the service record and integrity of the officer shall be placed before the selection committee for taking a view;

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(f) in case the officer has been acquitted in any criminal case, the selection committee shall examine the grounds of acquittal i.e. whether the acquittal is on technical grounds or on merits of the case. In case the officer has been acquitted on technical grounds, the committee shall make specific recommendations whether the officer deserves to be empanelled for promotion to the special scale/super time scale or not;

(g) the APRs of five years preceding the year of promotion, complete in all respects i.e. duly initiated, reviewed and accepted shall be placed before the selection committee for perusal and consideration. Where the APRs of any particular year are not available for reasons to be recorded, the APRs immediately preceding the five year period shall be considered for assessment purposes. There should be no un-expugned adverse entry in any of his previous APRs;

(h) the selection committee shall take into account the work done by the officer as reflected in the self assessment report in the APRs of the officer and critically examine the views of initiating authorities on such self assessment;

(i) the selection committee shall critically examine the grading assigned to the officer by the Initiating Authority, the Reviewing Authority and the Accepting Authority.

(3) The General Administration Department shall place the select list before the Cabinet for approval and thereafter operate the same as approved by the Cabinet, against the existing vacancies as well as the vacancies as may become available during the validity period of the select list.

09. The respondent while filing the reply has further pleaded that the grant of consequential benefits by this Court at the very best means right of consideration for placement to the Selection Grade and Special Scale of JKAS by the Establishment-cum-Selection Committee in the light of Rule(s) 19 and 20 of Jammu and Kashmir Administrative Services Rules, 2008. 6 ROBSW No. 4/2024 IN CCP(S) No. 363/2022

10. The respondent has further pleaded that in his administrative capacity, he has taken all the possible steps for implementation of the judgment by issuing the order of reinstatement and release of the salary arrears of the petitioner.

11. Heard Mr. Z.A. Shah, learned Senior counsel for the petitioner and Mrs. Monika Kohli for contemnor/respondent.

12. Mr. Z.A. Shah has also drawn the attention of this Court to the communication issued by DIG (Vigilance) on behalf of Commissioner of Vigilance, Jammu to the Transport Commissioner, Jammu dated 03.01.2006, a perusal whereof, reveals that a request has been made by the Vigilance Department to the Transport Commissioner that the disciplinary action may be taken against the 17 officials mentioned in the said communication, which includes the petitioner, under the service conduct rules by enclosing the draft articles of charges with the said communication. It has been alleged in the aforesaid communication that the State Vigilance Organization has been receiving number of complaints of various malpractices in functioning of the offices of RTOs in State of J&K. The complaints includes allegations of corrupt practices such as demand and acceptance of money for providing various services to common people such as issue of driving license, route permits, fitness certificate and renewals thereof by the officers of RTO, Jammu. In the aforesaid backdrop of the allegations, the said communication came to be issued.

13. Mr. Shah, learned Senior counsel for the petitioner submits that the proposal of the Vigilance Organization has yet to be accepted by the Government, which till date has not happened and in absence of any nod from 7 ROBSW No. 4/2024 IN CCP(S) No. 363/2022 the Government, the enquiry cannot be initiated on the basis of draft charges prepared by the Vigilance Organization.

14. Mr. Shah has drawn the attention of this Court to the reply on behalf of the petitioner to the statement of facts filed by the respondent on 04.06.2024. He further submits that Vigilance Organization has since filed its final report in FIR No. 13/2002 before the Court of learned Special Judge, Anti Corruption, Jammu and the said Court has accepted the report and directed the departmental action in FIR No. 13/2002. The Court vide its order dated 31.03.2005 has directed as follows:-

"The final report is disposed of with direction to initiate departmental action against the delinquent officials and conclude the same within three months. A copy of this order be sent to worthy DGP Transport J&K for appropriate action with the remarks that the action taken may be reported to this court after the expiry of stipulated time."

15. Based upon the directions of the Court, the petitioner has placed on record, a copy of the Article of charges, which was framed against Junior Assistant, Incharge Registration section and the record reveals that no Articles of charge were served or framed against the petitioner, which position has already been clarified by the Director General/Commissioner of Vigilance to the Chief Secretary J&K Government vide communication dated 04.06.2002. Thus, it is the specific stand of the petitioner that till date there is no enquiry pending against him either in any Court of law or before the Government in the Transport Department or in any other department in respect of the allegations leveled in FIR No. 13/2002.

16. Thus, the stand taken by the respondent in the compliance report that some kind of the enquiry is pending against the petitioner is factually incorrect and without any supporting material. In so far as FIR No. 20/2005 is concerned, 8 ROBSW No. 4/2024 IN CCP(S) No. 363/2022 the same stand closed as 'not proved' by CBI after investigation, which is evident from the relevant extract of the report of CBI/ACB. The relevant extract of the same is quoted below:-

"In view of the facts and circumstances of the case and evidence on record, the case of disproportionate assets is not made out against accused Shri Bhumesh Sharma, it is, therefore, prayed that the closure report may please be accepted and this case may be allowed to be closed..."

The record further reveals that the subject matter of the said FIR was also subject matter of OWP No. 177/2006 and this Court disposed of the said writ petition and observed as under:-

"CBI consequently registered the case and investigated the matter and has submitted the final report before the Court of complete jurisdiction. The said order (17.4.2006) stands complied with, therefore, no further proceedings are required to be taken in this case. The writ petition shall be consigned to records. The final report submitted by the CBI shall form part of the order dated 17.04.2006."

Based upon the report of CBI and this Court, Special Judge Anti-Corruption passed final order as follows:-

"For aforementioned reasons, I find no reason to differ with the findings and the conclusion recorded by the CBI. The final report, is, therefore, accepted. Record seized during the investigation, if any, be returned to the concerned after expiry of time provided for challenge to this order."

Thus, as per the stand of the petitioner, there is no enquiry pending against him arising out of FIR No. 13/2002. The record further reveals that in the minutes of meeting, a reference is also made to JSC No. JSC-SLK-58/2004 and the enquiry conducted in this behalf has also been closed, which is evident from the communication of State Vigilance Organization dated 18.02.2009.

17. Learned Senior counsel for the petitioner has also drawn the attention of the Court to another communication dated 15.04.2009 issued by Transport Commissioner to the Commissioner/Secretary Transport Department, which 9 ROBSW No. 4/2024 IN CCP(S) No. 363/2022 clarifies all the issues which have been mentioned in the minutes of the meeting dated 16.05.2024.

18. Mr. Shah has drawn the attention of this Court to yet another communication dated 26.05.2009 issued by the Transport Department in which it has been stated that the case of the petitioner stood closed with the approval of the then Chief Minister.

19. Thus, in light of the communications mentioned (supra), the reasons which have been spelt out by the respondent for non-implementation of the order are non-existent and contrary to record.

20. Thus, after examining the entire record and the stand of both the parties, this Court is of the view that once proceedings no longer are existing nor any administrative enquiry is pending, the ground which has been urged in the minutes of the meeting is nothing but to absolve from the consequence of the contempt proceedings initiated against the respondent by this Court.

21. Thus, the intention of the contemnor/respondent not to implement the order of this Court is writ large. Thus, from the record it can safely be concluded that from the date, the petitioner has been reinstated, he has not been suitably posted and the judgment to the extent of release of the consequential benefits has not been implemented in toto. Thus, the only reason which has been pleaded by the respondent in not releasing the consequential benefits in toto in favour of the petitioner, is that since a meeting was held under the Chairmanship of the respondent on 16.05.2024, which was attended by Transport Commissioner, Additional Secretary to Government, Transport Department and AIG, Anti- Corruption, Bureau as well and after thorough deliberations, the Transport Commissioner and the representative of the Transport Department were 10 ROBSW No. 4/2024 IN CCP(S) No. 363/2022 instructed to expedite the submission of action taken report for FIR No. 13/2002 and JKSC-SLK-58 of 2004, which in fact have already been closed.

22. Respondent in his compliance report dated 03.08.2024 has pleaded that in so far as the release of consequential benefits are concerned, the Division Bench has given liberty to go ahead with the enquiry and the respondent has already taken up the matter to find out the outcome of the enquiry pending against the petitioner and as per Article 108-B of JKCSR, consequential service benefits can be considered only after culmination of the pending enquiry.

23. This stand of the respondent has already been annulled by this Court in the series of orders passed in the instant contempt petition/Robkar whereby this Court is of the view that release of the consequential benefits is not subject to the outcome of the enquiry. By virtue of the judgment of the writ Court, the petitioner is entitled to grant of consequential service benefits, which would include his right of consideration for placement in the higher pay scale as well and also his entitlement to be promoted into Selection Scale with effect from the date when his juniors were placed in the said scale and subsequently in the Special Scale from the date his juniors were placed in the said Special Scale in case, petitioner is eligible and entitled under the relevant rules, if there is no other legal impediment.

24. This exercise till date has not been done by the contemnor/respondent in furtherance of the direction passed by the writ Court and the judgment directing releasing the consequential benefits have been implemented only to the extent of releasing monetary benefits in favour of the petitioner, which does not mean the full compliance of the judgment. The order passed by the learned Single Judge, which has been upheld by the Hon'ble Supreme Court has not 11 ROBSW No. 4/2024 IN CCP(S) No. 363/2022 been complied with in toto and it is only partial compliance, as the consequential benefits includes all service benefits as well which till date have not been released. Accordingly, this Court directs the contemnor/respondent to ensure full compliance of the order/judgment passed by this Court in its letter and spirit by releasing all the consequential benefits as directed by this Court.

25. The minimum, which was required on part of the contemnor/respondent was to have atleast placed the case of the petitioner before the Establishment-cum-Selection Committee in light of the Rules mentioned (supra) with a view to accord due consideration to his case for promotion in conformity with the aforesaid rules, subject to his eligibility/seniority on the same analogy, as it has been done to his counterpart/juniors, which exercise till date has not been done and thus, this Court is of the view that judgment has not been complied with in toto.

26. As and when the case of the petitioner is placed before the Establishment-cum-Selection Committee and due consideration is accorded to his case for promotion in conformity with rules in vogue and subject to his eligibility from the date, the said benefit has been accorded to his counterpart/juniors, then it will be full compliance of the order/judgment passed by the learned writ Court, which has been upheld by the Hon'ble Apex Court.

27. An assurance has been extended by the contemnor/respondent that he will comply the judgment in its letter and spirit by placing the case of the petitioner before the Establishment-cum-Selection Committee for according promotion in conformity with the rules in vogue. This Court deems it proper to defer the proceedings in the instant contempt petition/Robkar and grants two weeks' further time to the contemnor/respondent' by way of last and final 12 ROBSW No. 4/2024 IN CCP(S) No. 363/2022 opportunity' to comply the order/judgment dated 07.02.2017 in its letter and spirit by releasing all the consequential service benefits in favour of the petitioner, within a period of two week from today, which includes his posting as well, failing which, appropriate orders shall be passed on the next date of hearing in the instant Robkar.

28. List on 25.09.2024.

(Wasim Sadiq Nargal) Judge JAMMU 03.09.2024 Mihul

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