Jammu, March 13: In O.A. No. 1133/2024 titled Surinder Singh Jasrotia represented by Advocate Mr. F.A. Natnoo VERSUS 1. UT of J&K Through Principal Secretary to Government, Industries Department & ors CAT ordered as under:-
Per, Rajinder Singh Dogra, Judicial Member 1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
1. Allow this Original application of the applicant. П. Quash/Set aside the order impugned no. 118 DH&HJ of 2024 dated 06-07-2024 issued by respondent NO. 2 in so called compliance of order/judgment dated 13-12-2023 passed by this Hon'ble Tribunal. III. Direct the respondents to immediately release the monetary benefits/arrears of second time bound in-situ promotion in favour of the applicant from the date the applicant was due and entitled to for the same with interest at least @12% per annum from the date it is due to the applicant till its realization. IV. Any other relief which this Hon'ble Tribunal may deem just and proper in the given facts and circumstances of the case may also be passed in favour of the applicant and against the respondents.
2. The facts of the case as averred by the applicant in his pleadings, are as follows: -
a) The applicant, Surinder Singh Jasrotia, filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 challenging order No.118 DH&HJ of 2024 dated 06.07.2024 issued by respondent No.2 and seeking release of monetary benefits of the second time bound in-situ promotion along with arrears and interest. b) As pleaded by the applicant, he was appointed as Junior Assistant on 04.07.1987 after being selected through the Jammu and Kashmir Services Selection Recruitment Board. During the course of his service he was promoted as Accountant-cum-Store Keeper in the year 1988. Thereafter he was granted the benefit of first time bound promotion in the year 1998. The applicant continued to serve the department for more than thirty-five years and ultimately retired on attaining the age of superannuation on 31.08.2022. c) The applicant submits that the Government introduced the J&K Civil Services Higher Standard Pay Scale Scheme under SRO 14 dated 15.01.1996, which came into force with effect from 01.01.1995. The said scheme provided that a non-gazetted employee who had not received regular promotion during his service career would be entitled to higher standard pay scales on completion of the prescribed length of service. Under the scheme an employee could receive two in-situ promotions during his service tenure subject to fulfillment of eligibility conditions. d) According to the applicant, in terms of the said scheme he was granted the first time bound promotion in the pay scale of Rs.5150-150-8300 in the year 1998. As he did not receive any further functional promotion thereafter, he became entitled to the second in-situ promotion around the year 2006-2007.
However, despite becoming eligible, the benefit was not granted to him by the department. e) The applicant further submits that the service records and related documents of employees are normally maintained by the concerned Drawing and Disbursing Officer and it is the responsibility of the department to initiate the process for grant of in-situ promotion. In the present case, however, the authorities allegedly failed to take timely action. The matter was first formally recommended in the year 2012 when the Assistant Director, Handloom Development Department, Kathua forwarded the case of the applicant along with other employees to the higher authorities for consideration of second time bound promotion. f) Subsequently, the Deputy Director, Handloom Department, Jammu sought vigilance clearance and further recommended the case of the applicant for grant of the second in-situ promotion. Despite such recommendations, the matter remained pending for several years without any final decision.
Thereafter further communications were issued in the years 2019, 2020 and 2021 requesting the competent authority to process the case of the applicant. g) It is the case of the applicant that while his case remained pending, several similarly situated employees were granted the benefit of in-situ promotion with retrospective effect through various departmental orders issued between the years 2017 and 2019. The applicant alleges that despite being similarly situated he was denied similar treatment and his case remained undecided. h) The applicant further states that he continued to submit representations to the department seeking consideration of his claim, including representations made shortly before his retirement in August 2022. Since no decision was taken, he approached this Tribunal by filing OA No.1626/2023 seeking directions for release of the second time bound promotion.
The Tribunal disposed of the said OA on 13.12.2023 with a direction to the respondents to treat the OA as a representation and to consider the case of the applicant on the analogy of similarly situated persons within four weeks. i) The applicant submits that despite the said directions, the respondents did not take timely action, compelling him to file Contempt Petition No.46/2024 before this Tribunal.
During the course of the contempt proceedings, the respondents issued Order No.118 DH&HJ of 2024 dated 06.07.2024 granting the second in-situ promotion to the applicant notionally with effect from 01.03.2007. On the basis of this order the contempt proceedings were closed by the Tribunal on 12.09.2024 with liberty to the applicant to challenge the said order if he was still aggrieved. j) The grievance of the applicant in the present OA is that though the respondents have granted the second in-situ promotion notionally with effect from 01.03.2007, they have denied the monetary benefits arising from the said promotion.
According to the applicant, such denial is contrary to the scheme of SRO 14 of 1996 and amounts to discrimination, especially when similarly situated employees were granted full benefits from the date of entitlement. The applicant therefore seeks quashing of the impugned order dated 06.07.2024 to the extent it denies monetary benefits and seeks direction to the respondents to release all consequential benefits with interest. 3. The respondents have filed their written statement wherein they have averred as follows: - a) The respondents filed their written statement opposing the claim of the applicant and raised certain preliminary objections.
It is contended that the Original Application does not disclose violation of any fundamental, statutory or legal right of the applicant and therefore deserves to be dismissed. The respondents further submit that the applicant has no cause of action against them and that the present application has been filed without proper basis. It is also alleged that the applicant has not approached the Tribunal with clean hands and has attempted to misrepresent facts.
b) On merits, the respondents do not dispute that the applicant was appointed as Junior Assistant in the year 1987 and that he was granted the first time bound promotion on 01.03.1998. It is further admitted that the second time bound promotion has been granted to the applicant notionally with effect from 01.03.2007 through Order No.118 DH&HJ of 2024 dated 06.07.2024 issued by the Directorate of Handicrafts and Handloom, Jammu. c) The respondents explain that the case of the applicant was examined by the department and certain discrepancies were noticed. Consequently, an enquiry committee constituted under Order No.DHD/636 of 2019 sought clarification regarding the delay in submission of the case for second in-situ promotion. When the matter was placed before the committee in its meeting held on 24.02.2022, the case was deferred as the applicant had become eligible for promotion in the year 2007 but the proposal was forwarded much later. d) Thereafter the Assistant Director, Handloom Department, Kathua clarified that the case had earlier been recommended by the subordinate office through communications issued in the years 2012, 2019 and 2020.
After considering these clarifications, the matter was placed before the departmental screening committee along with similar cases of other employees. Upon examination of the record, the screening committee approved the in-situ promotion cases of eligible employees including the applicant and accordingly the Directorate issued Order No.118 DH&HJ of 2024 dated 06.07.2024 granting second in-situ promotion to the applicant notionally with effect from 01.03.2007. e) The respondents further submit that the delay in processing the case occurred because the applicant had submitted his claim only in the year 2012 whereas the promotion was due in the year 2007. Clarifications were therefore sought from the subordinate office regarding the delay in forwarding the proposal. It is also stated that as per the record available with the office of the Assistant Director, Handloom Department, Kathua, there was no correspondence relating to the case of the applicant during the period from 2007 to 2011. f) The respondents maintain that they have duly complied with the directions issued by this Tribunal in the earlier proceedings and have granted the second time bound promotion to the applicant notionally from the due date. However, according to the respondents, the grant of monetary benefits for such promotion is not permissible in view of Circular No.41-JK(GAD) of 2021 dated 06.10.2021 issued by the General Administration Department.
Therefore the claim of the applicant for release of arrears and other monetary benefits is not sustainable under the applicable rules. g) On these grounds, the respondents pray that the Original Application be dismissed with costs as the applicant has already been granted the benefit of second in-situ promotion notionally in compliance with the directions of the Tribunal.
4. In the rejoinder to the reply statement filed by the respondents, the applicant has averred as follows: - a) In response to the written statement filed by the respondents, the applicant has filed a rejoinder reiterating the averments made in the Original Application and disputing the objections raised by the respondents. The applicant submits that the impugned order dated 06.07.2024 has been challenged primarily on the ground that though the respondents have granted the second in-situ promotion notionally with effect from 01.03.2007, they have illegally denied the monetary benefits arising from such promotion. According to the applicant, the issues involved in the present matter are whether the applicant, who admittedly became entitled to the second in- situ promotion in the year 2007, can be deprived of the monetary benefits of such promotion, and whether delay on the part of the department in granting the benefit can be used as a ground to deny the applicant the consequential financial benefits. b) The applicant denies the preliminary objections raised by the respondents and submits that the present Original Application clearly discloses violation of his statutory and constitutional rights. It is contended that the denial of monetary benefits despite the applicant’s entitlement under SRO 14 of 1996 is illegal, arbitrary and contrary to law, and therefore the application is maintainable before this Tribunal. The applicant further submits that he has a valid cause of action to approach this Tribunal since the respondents have deprived him of the financial benefits of the second in-situ promotion despite admitting his entitlement to the same. c) The applicant also refutes the allegation of misrepresentation made by the respondents and asserts that he has approached the Tribunal with clean hands. It is submitted that the respondents have made vague allegations regarding concealment of facts without placing any material on record to substantiate such claims. The applicant therefore contends that the said allegations are baseless and deserve to be rejected. d) With regard to the merits of the case, the applicant reiterates that he became entitled to the second in-situ promotion with effect from 01.03.2007 in terms of the provisions of SRO 14 of 1996. The applicant submits that although the respondents have ultimately granted the promotion notionally from the said date, they have illegally withheld the monetary benefits which should naturally follow from the grant of promotion.
According to the applicant, such denial is contrary to the very object and scheme of the in-situ promotion rules. e) The applicant further submits that under the relevant rules it is the responsibility of the competent authorities to initiate and process cases relating to in-situ promotion of employees. The applicant therefore cannot be penalized for the delay caused by the department in processing his case. It is argued that the respondents themselves have admitted that the case of the applicant was due in the year 2007 and that the matter remained pending at different levels of the department for several years. In such circumstances, the applicant cannot be deprived of his legitimate monetary benefits merely because the department failed to process the case in time. f) The applicant also contends that the committee or screening mechanism referred to by the respondents cannot override the statutory provisions governing the grant of in-situ promotion. Once the applicant fulfills the eligibility criteria prescribed under SRO 14 of 1996, the benefit of promotion along with its consequential financial advantages must follow.
According to the applicant, the respondents have themselves admitted his entitlement to the promotion with effect from 01.03.2007, and therefore the denial of monetary benefits is unjustified. g) The applicant further submits that the respondents have attempted to justify their action by referring to the delay in submission of the case, but such delay occurred entirely due to administrative lapses within the department. The applicant emphasizes that the grant of in-situ promotion is within the exclusive domain of the employer and an employee has no role in initiating the process. Therefore, the applicant cannot be made to suffer for the failure of the authorities to process his case in time. h) The applicant therefore reiterates that the impugned order dated 06.07.2024 is liable to be set aside to the extent it denies monetary benefits of the second in-situ promotion. He prays that the respondents be directed to release all consequential monetary benefits arising from the promotion with effect from the date the same became due, along with interest, as the continued denial of such benefits is arbitrary and contrary to the statutory provisions governing the matter
5. Heard learned counsel for the parties and perused the pleadings made by them.
6. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking quashment of Order No.118 DH&HJ of 2024 dated 06.07.2024 to the extent it grants only notional benefit of the second time bound in-situ promotion without releasing the consequential monetary benefits. The applicant further seeks direction to the respondents to release the monetary benefits of the second in-situ promotion from the date it became due along with arrears and interest.
7. The applicant was appointed as Junior Assistant on 04.07.1987 after being selected through the J&K Services Selection Recruitment Board. During the course of service, he was promoted as Accountant- cum-Store Keeper in the year 1988. Thereafter he was granted the benefit of first-time bound promotion in the year 1998. The applicant continued in service and ultimately retired on attaining the age of superannuation on 31.08.2022 after rendering more than 35 years of service.
8. The Government had introduced the J&K Civil Services Higher Standard Pay Scale Scheme through SRO 14 dated 15.01.1996 which came into force with effect from 01.01.1995. The scheme provided for grant of higher standard pay scales to non-gazetted employees who had not received regular promotion during their service career. Under the scheme an employee could be granted two in-situ promotions during the course of service subject to completion of the prescribed years of service.
9. According to the applicant, after being granted the first-time bound promotion in 1998, he became entitled to the second in-situ promotion around the year 2006-2007. However, the department failed to process his case despite the fact that the benefit was due. The matter was eventually taken up by the Assistant Director Handloom Development Department, Kathua in the year 2012 when the case of the applicant along with other employees was forwarded to higher authorities for consideration of second time bound promotion.
10. The record further shows that thereafter several communications were exchanged between the departmental authorities recommending the case of the applicant for grant of the second in-situ promotion. Vigilance clearance was also sought and the case was examined by the competent authorities. Despite this, the matter remained pending for several years. The applicant continued submitting representations requesting consideration of his case.
11. Since no decision was taken by the respondents, the applicant earlier approached this Tribunal by filing OA No.1626/2023. The said OA was disposed of by this Tribunal on 13.12.2023 directing the respondents to treat the OA as a representation and to decide the claim of the applicant on the analogy of similarly situated persons within four weeks.
12. The applicant submits that even thereafter the respondents did not pass any effective order compelling him to file Contempt Petition No.46/2024. During the pendency of the contempt proceedings the respondents issued Order No.118 DH&HJ of 2024 dated 06.07.2024 granting the second in-situ promotion to the applicant notionally with effect from 01.03.2007. On the basis of the said order the contempt petition was closed with liberty to the applicant to challenge the order if still aggrieved.
13. The grievance of the applicant in the present OA is that though the respondents have admitted his entitlement and granted the second in- situ promotion notionally from the due date, they have denied the consequential monetary benefits. According to the applicant, such denial is contrary to the provisions of SRO 14 of 1996 and amounts to discrimination particularly when similarly situated employees were granted full benefits.
14. The respondents have contested the application and submitted that the applicant has already been granted the second time bound in-situ promotion notionally with effect from 01.03.2007 through order dated 06.07.2024.
According to the respondents, the case of the applicant was examined by a departmental committee and was approved accordingly.
15. It is further stated that the delay in processing the case occurred because the applicant submitted his claim only in the year 2012 whereas the benefit was due earlier. Clarifications were therefore sought from the subordinate office regarding the delay in submission of the case. After considering all aspects the screening committee approved the in-situ promotion case of the applicant along with other eligible employees.
16. The respondents however contend that the grant of monetary benefits is not permissible in view of Circular No.41-JK(GAD) of 2021 dated 06.10.2021 issued by the General Administration Department and therefore the applicant is not entitled to arrears of pay.
17. The applicant has filed a rejoinder denying the assertions made by the respondents. It is submitted that the respondents themselves have admitted that the applicant became entitled to the second in-situ promotion from 01.03.2007 and therefore the consequential monetary benefits cannot be denied. The applicant further submits that the delay in granting the promotion occurred due to administrative lapses on the part of the department and the applicant cannot be penalized for such delay.
18. The core issue which arises for consideration in the present case is whether the applicant, who has been granted the second in-situ promotion notionally from the due date, can be denied the consequential monetary benefits.
19. It is not disputed that the applicant was entitled to the second time bound in-situ promotion under SRO 14 of 1996.
The respondents themselves have admitted this position by issuing the order dated 06.07.2024 granting the said promotion notionally with effect from 01.03.2007.
20. Once the entitlement of the applicant has been admitted and the promotion has been granted from the due date, the consequential benefits normally follow unless there exists a clear legal prohibition. The respondents have not shown any statutory rule which authorizes denial of monetary benefits after acknowledging the promotion from the due date.
21. The explanation offered by the respondents regarding delay in processing the case cannot be accepted as a valid ground to deny financial benefits to the applicant. The processing of service benefits is the responsibility of the employer and an employee cannot be penalized for administrative delay.
22. The Hon’ble Supreme Court in Union of India vs K.V. Jankiraman (1991) 4 SCC 109 held that once an employee is found entitled to promotion, he cannot be denied the consequential benefits except in exceptional circumstances. Similarly, in State of Kerala vs E.K. Bhaskaran Pillai (2007) 6 SCC 524, the Supreme Court observed that where an employee is deprived of promotion due to no fault of his own, he is entitled to all consequential benefits.
23. Further, the principle that an employee should not suffer because of administrative lapses has been reiterated by the Supreme Court in Shiv Kumar Sharma vs Haryana State Electricity Board (1988 Supp SCC 669).
24. In the present case the respondents themselves admit that the benefit was due in the year 2007 but the matter remained pending in the department for years. The applicant cannot be deprived of the monetary benefits merely because the department failed to process the case in time.
25. The reliance placed by the respondents on the circular dated 06.10.2021 also does not justify denial of monetary benefits in the facts of the present case. Executive instructions cannot override statutory provisions or defeat the legitimate entitlement of an employee under the applicable rules.
26. Therefore, this Tribunal is of the considered view that once the applicant has been granted the second in-situ promotion with effect from 01.03.2007, he is also entitled to the consequential monetary benefits arising therefrom.
27. In view of the above discussion, the Original Application deserves to be allowed.
28. Accordingly, the present Original Application is allowed with the following directions:
a) The impugned Order No.118 DH&HJ of 2024 dated 06.07.2024 is set aside to the extent it denies monetary benefits of the second in-situ promotion to the applicant.
b) The respondents are directed to grant the applicant all consequential monetary benefits of the second in-situ promotion with effect from 01.03.2007, the date from which the promotion has been granted.
c) The respondents shall calculate and release the arrears arising from the said promotion within a period of three months from the date of receipt of a copy of this order.
d) The arrears shall also be taken into account for the purpose of refixation of pension and other retiral benefits of the applicant.
29. No order as to costs.
(RAJINDER SINGH DOGRA) Judicial Member
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