Jammu & Kashmir High Court - Srinagar Bench
Syed Ashiq Hussain Bukhari vs State Of J&K; And Others on 27 October, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
Serial No. 24
Regular list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 420/2016
Date of Order: 27.10.2017
Syed Ashiq Hussain Bukhari
Vs.
State of J&K and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Altaf Haqani, Advocate
Mr Shakir Haqani, Advocate
For respondent(s): Mr B. A. Dar, Sr. AAG
Mr Sheik Hilal, Advocate vice Mr T. M. Shamsi, ASGI.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. Aggrieved by the notification No. I-14013/74/2013-IPS.I dated 20.01.2016 issued by the Government of India/Bharat Sarkar, Ministry of Home Affairs/Grih Mantralaya, the Government Order Nos. 104-Home of 2016, 105- Home of 2016 of 2016, 106-Home of 2016 and 107-Home of 2016, dated 26.02.2016, insofar as these denied the benefits of pay to the petitioner pursuant to his induction in the cadre of the Indian Police Service and consequential promotions to the higher grades, the petitioner has assailed the same in the instant petition and has craved the indulgence of this Court in granting him the following reliefs:
(i) A Writ, order or direction including one in the nature of certiorari quashing the impugned notification dated 20.01.2016 (Annexure P10) issued by the respondents 4 and 5 so far as the same orders for entitlement of the petitioner to notional benefits with respect to that of his immediate junior officer Syed Kifayat Hyder.
(ii) A Writ, order or direction including one in the nature of Mandamus commanding upon the respondents to release all the pay benefits as are admissible to the SWP No. 420/2016 Page 1 of 12 petitioner from 18.03.2011 upto the date of his retirement on 29.02.2016 in various grades in IPS pursuant to his induction to Indian Police Service by virtue of the Notification Annexure P 10 and the Govt, orders Annexures P12 to P15 along with interest at the prevailing bank rate with a further command upon the respondents to determine and fix and release all retiral/pensionary benefits ad admissible under rules in favour o the petitioner accordingly.
(iii) Any other writ, order or direction which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents."
2. Shorn of the details, the case of the petitioner is that the Government Order No. Home-508 (P) of 2010 dated 29.04.2010, indicating his name at S. No. 212 in the list of the Superintendents of Police, was challenged by him before this Court and in terms of the Judgement dated 4th of January, 2013, his claim was accepted and the respondents were directed to fix and determine his seniority as Superintendent of Police from the date he joined as Incharge SP (Operations) in terms of PHQ Order No. 2002 of 1998 dated 24.06.1998.
3. It is submitted in the writ petition that in compliance with the orders of this Court, the respondents issued Government Order No. Home-378 of 2013 dated 5.9.2013, by which sanction was accorded to the promotion of the petitioner as Superintendent of Police w.e.f 24.06.1998 followed by another Order No. 379 of 2013 dated 5.9.2013, directing the placement of the petitioner at S. No. 1-A i.e. below Shri Ghulam Hassan Bhat (S. No. 1) and above Shri Syed Kifayat Hyder (S.No.2) in the final seniority list as on 01.01.2010. Subsequent to the placement of the petitioner at the appropriate place, he was required to be inducted into Indian Police Service (IPS) in terms of IPS (Appointment by promotion) Regulation, 1955, for the allotment year 2006.
4. It is further pleaded that the Judgement of the Single Bench was challenged before the Division Bench of this Court in terms of LPA No. 156/2013, which was dismissed by the Court. Subsequently, the Supreme Court also upheld the judgement of this Court as a corollary to which the respondent No.1 recommended the case of the petitioner to the respondent No.5 for induction into IPS for the allotment year 2006 in terms of communication No. Home/SWP/GAZ/22/2013 dated 19.9.2013. After laying their hands on all the SWP No. 420/2016 Page 2 of 12 requisite documents, the respondent Nos. 4 and 5 issued another notification dated 20.1.2016, appointing the petitioner to the Indian Police Service on probation and allocating him to J&K Cadre under Sub-Rule (1) of Rule 5 of IPS (Cadre) Rules, 1954. The said notification was issued in continuation to the notification dated 18.03.2011. However, the petitioner was held entitled to all notional benefits with respect to that of his immedate junior.
5. It is also stated that on the basis of his date of birth, the petitioner retired from service by the end of February, 2013, on attaining the age of 58 years. However, after his induction into IPS, the respondent No.1 issued a series of Government Orders dated 26th February, 2016, vide which sanction was accorded to the placement of the petitioner in the Junior Administrative Grade of IPS, placement of the petitioner in the selection grade of IPS, promoting the petitioner to the rank of super time scale DIG and according sanction to the adjustment of the petitioner against the available vacancy of DIG (Administration) PHQ till his retirement on Superannuation on 29.02.2016.
6. It is also pleaded that the treatment meted out to petitioner is based on hostile discrimination inasmuch as the respondents 4 and 5 while dealing with a similar situation in the case of Shri Prabhat Singh issued Government Order No. Home- 101 (P) of 2013 dated 11.03.2013 and in terms of the said Government Order, the respondent No.4 ordered release of monetary benefits in favour of Shri Prabhat Singh after his retirement as were admissible to him by virtue of his induction into the IPS. It is further stated that the said order was issued by respondent No.1 in partial modification of Government Order No. Home-43 (P) of 2013 dated 04.02.2013 in terms of the judgement dated 31.05.2011, passed by the Central Administrative Tribunal. It is pleaded that the treatment meted out to petitioner is violative of Article 14 and 16 of the Constitution of India.
7. The respondent Nos. 1 to 3 have pleaded in their objections that pursuant to the Government of India, Ministry of Home Affairs Notification dated 20 th January 2016, petitioner joined the Police Headquarters on 22nd of January 2016, (FN).
SWP No. 420/2016 Page 3 of 12DGP, J&K forwarded the joining report of the officer to the Home Department with the request that his case be processed for grant of retrospective promotion under rules vis-à-vis his junior, namely Syed Kifayat Hyder. Syed Kifayat Hyder, IPS (JK:2000) (Date of retirement: 31.03.2016), the immediate Junior of the petitioner has been appointed to IPS from the Select List of 2006-A vide Government of India, Ministry of Home Affairs notification dated 18.03.2011. He was placed in the Junior Administrative Grade of IPS w.e.f 18.03.2011 vide Government Order No. Home-674 (P) of 2012 dated 02.08.2012 and in the Selection Grade w.e.f 01.01.2013 vide Government Order NO. Home-118 of 2013 dated 15.03.20913. He was promoted to the rank and grade of DIG w.e.f 01.01.2014 vide Government Order No. Home-74 of 2014 dated 08.02.2014. The screening Committee in its meeting held on 06.02.2016 under the Chairmanship of Chief Secretary, considered the case of Syed Ashiq Hussain Bukhari and noted that he has been held entitled in IPS to all benefits notionally vis-à-vis his immediate junior by the Government of India, Ministry of Home Affairs, vide notification dated 20.01.2016. Therefore, he is required to be considered for placement in the Junior Administrative Grade of IPS notionally w.e.f 18.03.2011. Since Junior Administrative Grade is a non-functional grade, the same is to be processed by the Home Department. The officer is required to be considered for placement in the Selection Grade of IPS w.e.f 01.01.2013 on notional basis without payment of any arrears. He is required to be considered for promotion as DIG w.e.f 01.01.2014 on notional basis and regularly w.e.f 22.01.2016 i.e, from the date he joined in IPS.
8. In their reply affidavit the respondent Nos. 4 & 5 have pleaded that the authorized strength of Indian Police Service of any state comprises of two components, namely direct Quota and Promotion Quota. Direct recruit IPS officers come through Civil Services Exam, whereas, State Police Service Officer are inducted into IPS against the Promotion Quota. The subject matter of the instant OA relates to the IPS Officers recruited against the promotion SWP No. 420/2016 Page 4 of 12 quota of J&K State wherein their inter-se-seniority has been disputed by the petitioner. The recruitment against the promotion quota is a little lengthy in which three stake holders play their role to complete this process. These stake holders are the State Government concerned, the Union Public Service Commission and the Central Government. The process starts from the determination of the vacancies by the Central Government against the promotion quota of ay state for a particular calendar year. The state government concerned forwards a proposal to the UPSC containing the details/records of the State Police Service Officer in order of seniority. Thereafter the selection committee recommends a panel of officers as per the grading starting from 'outstanding' up till 'Good'. The officers graded as "outstanding' are placed on top followed by the officers graded as "Very Good' and finally the officers graded as 'Good' and considered in this Select List depending upon the size of the select list. The Committee records the recommendations in the shape of 'Minutes' which in turn are sent to the State Government concerned and the State Government forwards the same to the Central Government. Finally these are placed before the Commission and the Commission conveys its approval to the Central Government. Thereafter, the Central Government appoints these officers into Indian Police Service.
9. The respondent Nos. 4 and 5 have pleaded that a Review Selection Meeting was convened by the UPSC on 26.11.2015. The name of petitioner was included at S. No. 1A below the name of Shri Ghulam Hassan Bhat (S. No. 1) and the name of Syed Kifayat Hyder (S. No. 2) in the eligibility list of 2006-A for promotion to the Jammu and Kashmir Cadre of IPS. The petition was appointed as IPS by promotion from the select list of 2006-A vide Notification No. I- 14013/74/2013-IPS.I dated 2001.2016 on notional basis with respect to his immediate junior officer, namely, Shri Syed Kifayat Haider. The petitioner was retired from the State Police Service on 28.02.2014. The petitioner is no more a member of State Police Service of J&K and there were no compelling directions SWP No. 420/2016 Page 5 of 12 in the order dated 04.01.2013 of the Court passed in SWP No. 1907/2009 titled "Syed Ashiq Hussain Bukhari v. UOI and Others" that his retirement from State Police Service shall not come in the way of his appointment to IPS. In terms of SWP No. 1907/2007 dated 04.01.2013, the name of the petitioner was included in the select list in terms of Regulation 7(3) of the IPS (Appointment by Promotion). However, he was not inducted into IPS in term of Regulation 9(1) of the IPS (Appointment by Promotion) Regulations, 1955.
10.The respondent Nos. 4 &5 further pleaded that Shri Prabhat Singh was appointed by promotion to the J&K Cadre of IPS on probation after his retirement from State Police Service, in compliance with the order dated 31.05.2011, of the Central Administrative Tribunal Hon'ble CAT, Chandigarh Bench, passed in QA No. 317/JK/2011. There are instances in which retired State Police Officers were appointed to the IPS but only on the basis of directions from the Court. Therefore, the petitioner's allegation that hostile treatment has been meted out to him is without any logic and substance.
11.The respondent Nos. 4 & 5 have further pleaded that the petitioner was entitled to the notional benefits only with respect to that of his immediate junior officer namely, Shri Syed Kifayat Haider. Actual benefits accrued only w.e.f. the date of his actual appointment in the IPS. The question of payment of arrears has been denied to him on the principle of 'no work no pay'.
12.The petitioner has pleaded in his rejoinder that the respondents Nos. 1 to 3 have denied the benefits of pay to him for the period commencing from 18.03.2011 upto 22.01.2016, arbitrarily, irrationally and without any justification. He has reiterated that on the face of the orders passed by this Court allowing the writ petition bearing SWP No. 1907/2009, coupled with the orders passed by the respondent No. 1 in implementing the said judgment. The petitioner was all along ready and willing to render his duties in the Indian Police Service, which he was not permitted to do for none for his faults or reasons attributed to him. The denial of pay benefits smacks of subjecting him to discrimination SWP No. 420/2016 Page 6 of 12 particularly when similar cases favoring others were dealt with by the respondents favorably in favour of concerned.
13.Heard and considered.
14.The petitioner is a malcontent person whose legal right has been infringed by order dated 20.01.2016, holding him entitled to the notional benefits and order dated 26.02.2016, extending the benefits of induction in his favour notionally. These are pleaded to have been issued in utter disregard of the mandate of the judgement of this Court upheld by the Division Bench as also by the Hon'ble Supreme Court.
15.By the import and intendment of the judgment of this Court delivered in SWP No. 1907/2009 dated 04.01.2013, the Government of Jammu and Kashmir Home Department passed an order bearing No. Home-1378 of 2013 dated 05.09.2013. The petitioner was promoted as SP w.e.f. 24.06.1998, vide Government Order No. Home-379 of 2013 dated 05.09.2013, of the Government of Jammu and Kashmir Home Department. This order directed that the petitioner shall figure at S. N. 1-A, i.e. below Shri Ghulam Hassan Bhat, S. No. 1 and above Shri Kifayat Hyder, S. No. 2, in the final seniority list of SP's as on 01.01.2010. The judgment dated 04.01.2013, was assailed in an LPA fled before Division Bench of the High Court and the Court directed that the appeal is feeble and as such entails dismissal and it was, accordingly, dismissed. The order of the Division Bench was challenged before the Supreme Court in a SLP and the same was dismissed. Thereafter, the Government of Jammu and Kashmir addressed a communication to the Secretary to the Public Service Commission, Dholpur House, Shahjahan Road, New Dehli bearing No. Home- SWP/Gaz/22/2013 dated 19.09.2013, for the induction of the petitioner into IPS cadre of the Jammu and Kashmir. Vide notification dated 02.01.2016, issued by Government of India, Ministry of Home Affairs, the petitioner was appointed to the Indian Police Service on probation and he was allocated the Jammu and Kashmir cadre under Sub Rule 1 of the Rule 5 of the Indian Service Cadre SWP No. 420/2016 Page 7 of 12 Rules 1954. The petitioner submitted his joining report on 22.01.2016, where after by letter No. P-Case-S-41/SSP Part file dated 23.01.2016, of the Police Headquarter Jammu and Kashmir, addressed to the Principal Secretary to Home Department, J &K, Jammu, it was recommended that the case of the petitioner be processed for grant of retrospective promotions under rules and orders issued at the earliest. By notification No. 104-Home of 2016 dated 26.02.2016, sanction was accorded to the placement of the petitioner IPS in the Junior Administrative Grade (Pay Band-3 Rs. 15,600-39-100/- with Grade of Pay of Rs. 7600/-) of IPS notionally w.e.f. 18.03.2011, i.e. the date his immediate junior was placed in the said Grade. By order No. 105-Home of 2016 dated 26.02.2016, sanction was accorded to the placement of petitioner IPA in the Selection Grade of IPS (Pay band-4 Rs, 37400-67000-Grade Pay of Rs, 87- notionally w.e.f. 01.01.2013, i.e. the date from which it has been granted to his immediate junior. By another Government Order No. 106-Home of 2016 dated 26.02.2016, sanction was accorded to the promotion of the petitioner to the Super Time Scale-(1)-DIG (Pay Band-04, Rs. 37400-6200+Grade Pay of Rs. 8900 notionally w.e.f. 01.04.2014, i.e. the date from which it was granted to his increment junior and regularly w.e.f. 22.01.2016, i.e. joining of IPS. By Government Order No. 107-Home of 2016 dated 26.02.2016, the petitioner IPS DIG, awaiting orders of adjustment in the Police Headquarters was posted as DIG (Admn) PHQ against an available vacancy till his retirement on superannuation on 29.02.2016 (AN).
16.The pith and core of the petition of the petitioner is that his case has been treated as a sui-generis case and he has been discriminated invidiously by holding him entitled to notional benefits with respect to that of his immediate junior officer, Shri Syed Kifayat Hyder. The petitioner has placed Government Order bearing No. 101 of 2013 dated 11.03.2013 and notification dated 20.02.2015, issued by the Government of India, Ministry of Home Affairs on record. By Government order No. Home-101 (P) of 2013 dated 11.03.2013, SWP No. 420/2016 Page 8 of 12 sanction has been accorded to the release of monetary benefits in favour of Shri Prabhat Singh IPS (now retired) for the period w.e.f. 18.03.2011 (date of notional appointment to IPS) dated 08.09.2011 (date of his joining IPS, Jammu and Kashmir, Cadre). By notification New Delhi dated 20.02.2015, issued by the Government of India, Ministry of Home Affairs, the President has been pleased to notify the appointment of S/Sh. Vishm Kumar Gaur, Mahipal Singh and S. K. Khurana, to the State Police Service of Rajisthan (since retired to the Rajisthan Cadre of IPS) against the select list 2007-08, with all consequential benefits. The case of the petitioner has been treated and considered on a different pedestal, although his cause had also to be considered on the same parameters as were evolved in the case of the officers named above.
17.The law is that the fundamental right of equality means that the persons in like situation under like circumstances are entitled to be treated alike. The Constitution Code of equality and equal opportunity as a charter for equals. So long as employees similarly circumstanced in the same class of service are treated alike, the question of hostile discrimination does not arise. The equality of opportunity for purpose of seniority, and like matters of employment is available only to persons who fall substantially within the same class or unit of service. The guarantee of equality is not applicable as between the members of distinct and different classes of service. The Constitution does not command that in all matters of employment absolute symmetry be maintained. A wooden equality as between all classes of employees regardless of qualification, kind of jobs, nature of responsibility and performance of the employees is not intended, nor is it practicable if the administration is to run. Indeed the maintenance of such a classless and undiscerning equality, in reality, glaring inequalities and intelligible differentia exist, will deprive where the guarantee of its practical content. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible. That is to say, reasonable classification according SWP No. 420/2016 Page 9 of 12 to some principle to recognize intelligible inequalities or to avoid or correct inequalities is allowed, but not mini classification which creates inequalities among the similarly circumstanced members of the same class or group.
18.The petitioner in a like situation and in a like circumstances as these surfaced in the case of the class of the officers detailed above was entitled to be treated alike. The right to equality is a fundamental right. The petitioner being a member of the same class of service had to be treated on the same standards as were evolved in the cases of officers named above but to the dismay of the petitioner, it was not done. The case of the petitioner could not be considered by applying a different yard stick. It sounds strange to hear the respondents say that the case of Sh. Prabhat Singh was considered on a different footing on the orders of the tribunal. Perhaps it connotes that it is only after a person knocks the doors of the Court that his/her case can be settled on the right footing. William Hazlitt (1778-1830) said and I Quote, "what makes it so difficult to do justice to others is, that we are hardly sensible of merits unless it falls in with our own views and line of pursuit; and where this is the case, it interferes with our own pretensions.
19.The contention of the respondents that the petitioner has not worked during the period for which he seeks redressal does not hold any water in view of the fact that there was no fault on the part of the petitioner. In fact the respondents delay dallied the matter by taking umbrage under one or the other pretext. They did not take timely action in processing his case for induction into IPS and for promoting him to different ranks in the hierarchy. Elaborating this principle, the Supreme Court of India in the case of "Jasmer Singh v. State of Haryana and Another" reported in (2015) 4 Supreme Court Cases 458, held as under:
"22 The relevant paragraph of the decision is extracted hereunder (Deepali Gundu case, SCC P. 344, para 22) "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury SWP No. 420/2016 Page 10 of 12 suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
20.Risking repetition, it is stated that the petitioner did not contribute to any delay. In fact he was forced and coerced to seek the refuge of the Court to claim his legitimate rights and it was only on the orders of the Court that his rights were recognized. His fate was kept like that of a "Trishunka". Had the respondents taken a swift action to settle the claim of the petitioner at the opportune time he would not have retired at the age of 58 years and additionally the supporting structure of his claim is based on the orders cited above passed in the cases of similarly circumstanced officers which have been considered on different indicators.
21.The cumulative effect of all that has been said and done above, is that the impugned notification dated 20.01.2016 (Annexure P10) issued by the respondents 4 and 5 to the extent of the grant of notional benefits with respect to that of his immediate junior officers Syed Kifayat Hyder, is quashed along with the Government Orders dated 26.02.2016 (Annexures P12 to P15) issued by respondent No. 1, so far as the same, order for the placement of the petitioner in SWP No. 420/2016 Page 11 of 12 various promotional grades with effect from 18.03.2011 till his joining on notional basis, as a consequence of which the respondents are commanded to release all the pay benefits as are admissible to the petitioner from 18.03.2011 upto the date of his retirement on 29.02.2016, in various grades in IPS pursuant to his induction into Indian Police Service by virtue of the notification Annexure-P10 and the Government Orders Annexures P12 to P15 and to determine, fix and release all retiral/pensionary benefits as admissible under rules in favour of the petitioner.
(M. K. Hanjura) Judge Srinagar 27.10.2017 "Manzoor"
SWP No. 420/2016 Page 12 of 12