Jammu & Kashmir High Court - Srinagar Bench
Ut Of Jammu And Kashmir And Ors vs . Javid Hussain Dar And Others on 30 August, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C ) No.208/2025
WP(C ) No.226/2025
Reserved on: 30.07.2025
Pronounced on: 30.08.2025
WP(C ) No. 208/2025
UT of Jammu and Kashmir and ors vs. Javid Hussain Dar and others
WP(C ) No. 226/2025
UT of J&K and ors vs. Mohd. Amin Reshi and ors
Mr. Mohsin Qadri Sr. AAG for the petitioners.
Mr. Lone Altaf Advocate for the respondents.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR,JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR JUDGE
JUDGMENT
Sanjeev Kumar J 1 Union Territory of Jammu and Kashmir and others [„petitioners herein‟] are aggrieved of, and have challenged, judgment and order dated 22.02.2023 passed by the Central Administrative Tribunal, Srinagar Bench, Srinagar [„Tribunal‟] in T.A. No. 1623/2021 (SWP No. 1080/2018 titled „Mohammad Amin Reshi and others v. State and others') and T.A. No. 8613/2020 (SWP No. 1934/2017 titled „Javid Hussain Dar and others v. State of J&K and others'), whereby the Tribunal has, while allowing the petitions filed by the respondents herein, held that since the respondents were not at fault for the delay in their formal joining, they could not be discriminated against vis-à-vis their counterparts who had joined prior to 01.01.2010. Accordingly, the Tribunal directed the petitioners herein to regulate the service 2 conditions of the respondents under the Pension Rules applicable in the year 2009 and to pass necessary consequential orders within a period of three months from the date of the judgment.
2 The impugned judgment is assailed by the petitioners on multiple grounds. However, before adverting to the grounds of challenge urged by Mr. Mohsin Qadri, learned Senior AAG appearing for the petitioners, we deem it appropriate to briefly notice few background facts leading to the present litigation. 3 PHQ J&K, vide Advertisement Notification dated 07.02.2009, invited applications for the posts of Constables in five Battalions of IRP, namely 16th, 17th, 18th, 19th and 20th. Upon completion of the recruitment process pursuant to the aforesaid notification, a select list comprising 4482 candidates, including the respondents herein, was issued by the Police Headquarters vide different orders on various dates i.e., 03.07.2009, 29.07.2009, 29.09.2009, 30.09.2009, 06.10.2009, and 12.11.2009. Out of the said 4482 selected candidates, 1884 candidates, upon completion of the requisite formalities by the competent authorities, were formally appointed up to 31.12.2009. The remaining 2307 candidates, including the respondents herein, though selected in the same recruitment process, came to be appointed only after 01.01.2010 due to procedural requirements such as verification of documents and character antecedents.
4 The candidates numbering 1884 were governed by the Pension Rules as were applicable to the Government employees prior to 01.01.2010, whereas 2307 candidates including the respondents 3 herein having been appointed after 01.01.2010 were admitted to New Pension Scheme in terms of SRO 400 of 2009 dated 24.12.2009. Some of the candidates similarly placed with the respondents earlier approached this Court by way of two writ petitions, i.e., SWP No. 210/2016 titled Neelofar Mehraj v. State and others and SWP No. 1712/2017 titled Sajad Ahmad Lone v. State and others. The respondents herein also approached this Court by way of SWP No. 1934/2017 and SWP No. 1080/2018, which, upon transfer to the Tribunal after enactment of the J&K Reorganisation Act, 2019 and constitution of the Tribunal, came to be registered as T.A. No. 8613/2020 and TA No. 1623/2021 and the same have been disposed of by the Tribunal vide the judgment impugned in these petitions.
5 In the backdrop of the aforementioned factual matrix, the petitioners seek to challenge the impugned judgment on the ground that the Tribunal has not appreciated the legal and factual aspects of the case in their right perspective. It is submitted that the respondents were brought under the New Pension Scheme, along with other similarly situated candidates, solely for the reason that the their appointments to Government service were made after 01.01.2010. It is argued that the Tribunal conveniently ignored the mandate of SRO 400 of 2009, whereby Article 167 of the J&K CSR was amended to unequivocally provide that the existing Pension Rules (the Old Defined Pension Scheme) would not be applicable to Government employees appointed or brought on regular establishment on or after 01.01.2010. 4 6 Mr Mohsin Qadri, learned Sr. AAG appearing for the petitioners would further argue that the Tribunal has also failed to appreciate that mere inclusion of a candidate‟s name in the provisional selection list does not confer any vested right to appointment from the date of such selection and that an appointment becomes effective only upon issuance of a formal order of appointment by the competent authority after completion of all the requisite formalities. Learned counsel appearing for the petitioners also refuted the observation of the Tribunal that the delay in issuance of formal appointment orders was attributable to the petitioners, thereby pushing the appointments of the respondents beyond 01.01.2010.
7 Per contra, leaned counsel appearing for the respondents would submit that the judgment passed by the Tribunal is both legally and factually correct. The Tribunal has taken note of the fact that many candidates selected pursuant to the same Advertisement notification dated 07.02.2009 were appointed prior to 01.01.2010, and it was only in the case of some, including the respondents, that the issuance of appointments orders was delayed due to administrative laxity or indolence on the part of the petitioners. He would, therefore, argue that, on the analogy of similarly situated persons, and keeping in view that the respondents cannot be penalized for the delay in their appointments caused by the petitioners, the respondents are entitled to the parity of treatment and to the benefit of the Old Pension Scheme, treating them as having been appointed prior to 01.01.2010 8 Having heard learned counsel for the parties and perused the material on record, it is necessary to first set out the relevant 5 amendment carried in Article 167 of the J&K CSR in terms of SRO 400 of 2009, which reads as under:
i) In Article 167 dealing with Pension Rules under the caption 'SECTION I - EXTENT OF APPLICATION' after exception 5, the following shall be added as exception (6):-
(6)(i) "The State Government Employees appointed on or after 01.01.2010 shall be governed by "New Pension Scheme"
as per Article 249-M(B) added after 249-M(A) and accordingly, the existing Pension Rules shall not be applicable to Government Employees appointed or brought on regular establishment on, or after, 01.01.2010".
(ii)................
(iii).................."
09 From a perusal of Clause 6 reproduced hereinabove, it is evident that the State Government employees appointed on or after 01.01.2010 shall be governed by the "New Pension Scheme" as per Article 249-M(B), added after 249-M(A) and, accordingly, the existing pension rules shall not be applicable to Government employees appointed or brought on regular establishment on or after 01.01.2010. The language of exception (6) appended to Article 167 of J&K CSR is quite clear, unequivocal and does not admit of two interpretations. All the Government employees who are either appointed or brought on regular establishment on or after 01.01.2010 would be governed by the "New Pension Scheme".
10 There is no dispute with regard to the fact that though the selection process for appointment of Constables in the instant case was initiated vide Advertisement Notification dated 07.02.2009 and even the selection process culminated into issuance of provisional select lists on 03.07.2009, 29.07.2009, 29.09.2009, 30.09.2009, 06.10.2009 and 6 12.11.2009, yet the formal orders of appointment on completion of mandatory formalities were issued in favour of the respondents after 01.01.2010, to be exact on 06.01.2010. Going by the plain language of SRO 400 of 2009 dated 24.12.2009, which was of course not the subject matter of challenge in the petitions filed before the Tribunal, the respondents would be governed by the New Pension Scheme. However the grievance of the respondents as was projected by them in their petitions, is that the inordinate delay committed by the petitioners in issuing the formal orders of appointment in their favour in terms of the selection process initiated on 07.02.2009 cannot inure to the benefit of the petitioners and work to their prejudice. It has also been fairly conceded by the petitioners that some of the candidates, in terms of the same Advertisement notification dated 07.02.2009, were fortunate enough to get the appointment before 01.01.2010, for the reason that the petitioners were quick to ensure the completion of requisite formalities. The petitioners also do not deny that completion of requisite formalities, including the verification of documents and the character antecedents of the selected candidates including the respondents, was purely within the domain of the petitioners and the administrative delay, if any, caused was not attributable to the respondents.
11 There is no dispute with regard to the fact that the benefit of Old Pension Scheme is available only to the Government employees who are appointed to the service before 01.01.2010. However, as is concluded by the Tribunal and also having regard to the fact that pension is a welfare measure for the benefit of an employee and that the 7 Old Pension Scheme is admittedly to his advantage, the appointment of the respondents should be treated to have been made before 01.01.2010 for the following reasons:
(i) That the process of selection initiated vide Advertisement notification dated 07.02.2009 ought to have been completed and taken to its logical end within a reasonable period. The time taken by the petitioners to conclude the selection process cannot, by any stretch of reasoning, be treated as reasonable.
Had the petitioners proceeded with the selection process with requisite promptitude, there was every possibility of all the respondents having been appointed much before 01.01.2010;
(ii) That the delay in completing the selection process within a reasonable time and issuance of formal orders of appointment after completing requisite formalities like verification of documents and character antecedents is wholly and entirely attributable to the petitioners and therefore cannot work to the prejudice and disadvantage of the respondent;
(iii) That many candidates selected pursuant to the process of selection initiated vide advertisement notification dated 07.02.2009 were fortunate enough to get the formal orders of their appointment before 01.01.2010 for the reason that the petitioners were prompt enough to complete the formalities like verification of documents and character antecedents in time. The respondents herein and such candidates who got appointment orders before 01.01.2010, for the aforesaid reasons, cannot be treated differently, more particularly when both sets of employees were the beneficiaries of the same selection process. Such position, if allowed to persist, would be arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India; and,
(iii) That the pension schemes are in the nature of welfare measures adopted by the Government to the advantage of its employees. Indisputably, the Old Pension Scheme is more beneficial than the New Pension Scheme and, therefore, depriving the respondents of the benefit of the Old Pension Scheme is to their prejudice. In such situation, the Courts ought to adopt a liberal approach and lean in favour of the employees seeking the benefit of a particular pension scheme beneficial to them;
812 There is no dispute with regard to the proposition that a candidate figuring in a select list, provisional or otherwise, is not entitled to selection and appointment as a matter of right. The Government or the employer, as the case may be, is well within its power not to act upon the selection and issue appointment orders if it has good and justifiable reasons to do so. In the instant case, the selection has been acted upon and the formal orders of appointment have been issued. The only grievance of the respondents is that they ought to have been appointed along with their similarly situated colleagues selected under the same Advertisement notification i.e prior to 01.01.2010 so as to enable them to seek the benefit of Old Defined Pension Scheme.
13 The Tribunal has, on facts, found that the formal orders of appointment in case of the respondents were delayed because of administrative reasons etc., which the respondents were neither responsible nor accountable for. We concur with the aforesaid finding of fact returned by the Tribunal.
14 In the present case, the provisional selection lists were issued on 03.07.2009, 29.07.2009, 29.09.2009, 30.09.2009, 06.10.2009 and 12.11.2009, pursuant whereto 4482 candidates were selected. Out of them, 1884 candidates were formally appointed up to 31.12.2009, whereas 2307 candidates, including the respondents herein, though selected in the same recruitment process, came to be formally appointed after 01.01.2010 due to the requirement of verification of their documents and character antecedents. It is pertinent to note that the provisional selection lists issued on the aforesaid dates were not to 9 be superseded by any further final select list, rather, they were to be treated as final in respect of the enlisted candidates, subject only to verification of their qualifications and character antecedents of such candidates.
15 At this stage, we deem it appropriate to deal with the plea raised by the petitioners that the writ petitions filed by the respondents were barred by delay and laches. The said plea cannot be accepted. The right to seek pension constitutes a recurring cause of action, which, in the present case, would, in fact, accrue only upon the retirement of the respondents. Apart from this, when similarly situated persons, who were fortunate enough to have been appointed prior to 01.01.2010 though selected in the same selection process, are enjoying the benefit of the Old Pension Scheme, denial of the same benefit to the respondents, who are identically placed, amounts to discrimination. Thus, any delay in approaching the Court by the respondents is inconsequential and deserves to be ignored. In a nutshell, we are of the considered opinion that in the instant case the cause of action to approach the Court is a recurring one, accruing to the respondents each day they find themselves discriminated against vis-à-vis their similarly situated counterparts in the matter of entitlement to be governed by the Old Pension Scheme.
16 In the view which we have taken, we are supported by the Division Bench judgment of the Delhi High Court in Inspector Rajendra Singh and others v. Union of India & Others (W.P.(C)) No. 2810 of 2016, decided on 27.03.2017). Paragraphs (31), (37), (38) and (39), being relevant to the context, are reproduced hereunder: 10
"31. In our considered opinion, there can also be no discrimination between batchmates, only because some were, at the time of appointment, informed that the New Pension Scheme would apply, while others were not.
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37. In H.D Vora v. State of Maharashtra & Ors. reported in (1984) 2 SCC 337, the Supreme Court condoned delay of 30 years in approaching the court where it found violation of substantive legal rights of the applicant in that case.
38. In this case, the petitioners have not retired from service. After persons similarly circumstanced, if not identically circumstanced, as the petitioners were, given the benefit of the Old Pension Scheme, may be, pursuant to orders of this Court, the petitioners approached this Court for relief. Rejection of the writ petition only on the ground of delay, would perpetrate discrimination between persons similarly circumstanced.
39. It is well settled that relief under Article 226 of the Constitution of India is discretionary. When there is acquiescence and laches and delay in approaching this Court, discretionary relief might be declined. However, delay is no bar to entertaining a writ petition. If entertaining a delayed writ petition entails the consequence of unsettling things already settled, relief may be declined. However, flagrant discrimination cannot be allowed to continue, only because of delay. Illegality must be redressed. In this case grant of relief would not result in unsettling things already settled. We are not inclined to reject the writ petition on the ground of delay".
17 The aforesaid judgment of the Delhi High Court is fully attracted to the facts of the present case, leaving no scope for further debate on the issue. The Hon‟ble Supreme Court in State of Uttar Pradesh v. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347, after surveying the case law on the subject, has held that those persons who did not challenge the wrongful action in their cases and 11 acquiesced into the same, and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in point of time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence- sitters and laches or delays and/or the acquiescence would be valid grounds to dismiss their claim. However, this exception may not apply in those cases where the judgment pronounced by the Court was a judgment in rem with the intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement, the obligation is cast upon the authorities to extend the benefit thereof to all similarly situated persons. Such a situation can arise when the subject matter of the decision touches upon policy matters, like a scheme of regularisation or the like. 18 The aforesaid dictum of the Supreme Court, when read with the Delhi High Court judgment in the case of Inspector Rajendra Singh (supra), strengthens the position that the plea of delay and laches cannot stand in the way of the respondents, who are similarly situated to their counterparts already receiving the benefit of the Old Pension Scheme.
19 Viewed from any angle, and in particular for the reasons stated above, we are on all fours with the Tribunal that the respondents too should be treated to have been appointed prior to 01.012010 and held entitled to the benefit of the Pension Rules as were applicable prior to 01.01.2010.
12
20 For all these reasons, these petitions are disposed of by providing as under:
(i) The respondents herein shall be deemed to have been appointed as Constables in IRP prior to 01.01.2010 and, therefore, they shall be held entitled to the benefit of the Pension Rules as were existing and applicable to the Government employees prior to 01.01.2010;
(ii) The date of appointment of the respondents is preponed only for enabling them to take the benefit of Old Pension Scheme and for no other purpose; and,
(iii) The requisite steps for complying with this judgment and setting the record straight by issuing formal orders shall be taken by the petitioners within a period of three months from the date of the judgment.
21 Accordingly, the judgment of the Tribunal impugned in these petitions is modified to the aforesaid extent.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
30.08.2025
Sanjeev
Whether the order is speaking: Yes/No
Whether the order is reportable:Yes/No
Sanjeev Kumar
2025.09.01 12:26
I attest to the accuracy and
integrity of this document