Jammu, Jan 21: A bench of HON’BLE DR. BHAGWAN SAHAI, MEMBER (A) HON’BLE MR. RAKESH SAGAR JAIN, MEMBER (J) after hearing in case titled Jai Singh Chouhan Versus State of Jammu and Kashmir & others ordered as:-
Hon’ble Mr. Rakesh Sagar Jain, Member (J)
1. Applicant Jai Singh Chouhan in the present petition seeks the following reliefs:-
“i) Writ, order of direction in the nature of Writ of Certiorari quashing Government Order No. 357-Accts of 2015 dated 09.09.2015 to the extent it grants 1st, 2nd and 3rd in-situ promotions in favour of the petitioner notionally w.e.f., 01.01.1995, 01.01.1995 and 01.09.1997. With a further writ, order or direction in the nature of Writ of Mandamus commanding the respondents to grant full monetary benefits to the petitioner for the 1st, 2nd and 3rd insitu promotions w.e.f. 01.01.1995, 01.01.1995 and 01.09.1997 respectively.
ii) Writ, order of direction in the nature of Writ of Mandamus commanding the respondents to grant the arrears of pay after computing the salary with financial benefits w.e.f, the dates petitioner has been granted notional in-situ promotions and the petitioner be paid the same along with interest @ 12 % per annum after computing the same from the dates of in-situ promotions due to the petitioner;
iii) Any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, may also be granted in favour of the petitioner and against the respondents along with cost.”
2. The limited dispute in the present case is that the applicant is aggrieved of the impugned order No. 357-Actts of 2015 dated 09.09.2015 to the extent it grants 1st, 2nd and 3rd in-situ promotion to applicant notionally w.e.f. 01.01.1995, 01.01.1995 and 01.09.1997. In other words, the only benefit i.e. of higher pay scale which was the entitlement of the petitioner on grant of in-situ promotions was not granted to the applicant with effect from the date of his entitlement to but was granted only notionally in the year 2015 with effect from the date of his entitlement as detailed above.
3. Learned counsel for applicant contended that the aforementioned action of the respondents was legally unsustainable. On the other hand, learned counsel for the respondents states that the three in-situ promotions were not granted due to misplacement of service book of applicant in the office and that applicant had not applied for in-situ promotions and his case was received in department in 2014 after a gap of 14 years and had the applicant approached in, the benefit would have been given with effect from the due date.
4. We have considered the submissions made by learned counsel for the parties and are of the considered view that there is merit in the submissions of learned counsel for the applicant. In-situ promotions are to be granted to an employee who does not get regular promotion in due course of time and the only benefit which accrues to an employee on account of in-situ promotion is higher pay scale with effect from the date of grant of the in-situ promotions. The employee concerned continues to discharge duties on the substantive post.
\The employee concerned is not promoted to a next higher post but gets benefit of scale only. 5. It is not the case of the respondents that the applicant was not entitled to in-situ promotions with effect from 01.01.1995. It is only that the service book of applicant was misplaced in the Government office. The fact remains that respondents are under an obligation to grant in-situ promotions to its employees in time, therefore, the objections raised do not merit acceptance particularly in view of the fact that in the year 1995, the respondents found the applicant entitled to the grant of 1st insitu promotion effect from 01.01.1995.
If that be so, then there is no reason as to why the applicant be not granted financial benefits in respect thereto with effect from the date, the applicant was granted 1st in-situ promotion.
At this stage, learned counsel for the respondents contends that the claim was rejected in terms of Rule 2- 41 and 2-43 of the Jammu and Kashmir Financial Code Vol-I which reads as under:- “All petty claims of Government servants more than three years old other than those affecting his pension and all such claims for whose delayed submission an adequate explanation is not forthcoming should be rejected forthwith. 2-43. The re-opening of old cases should be deprecated as a fundamental principle.
Where, however, such cases are opened as a special case as for instance in relation to the refixation of initial pay in time-scale, the arrears should not be allowed.”
7. A perusal thereof reveals that all petty claims of Government servants more than three years old other than those affecting his pension and all such claims for whose delayed submission an adequate explanation is not forthcoming should be rejected forthwith and further that the reopening of old cases should be deprecated as a fundamental principle but where such cases are opened as a special case, then arrears are not to be paid.
8. The fact remains that grant of financial benefits accruing on account of in-situ promotions since 1995 cannot be said to be petty claim for the applicant and who by no stretch of imagination can be said to be a person enjoying a high status. In the circumstances, even a meagre financial benefit would not tantamount to a petty claim.
The respondents were under duty to take action in accordance with the rules and in case of any short coming, it was binding upon the respondents to get formalities completed particularly when the documentation required is not one which is not available with the respondents.
Moreover, the respondents having realizing the implications of in-action on their part, granted the in-situ promotions to the applicant in the year 2015with effect from the date of his entitlement i.e., 01.01.1995. 9.
It is the obligatory upon the respondents to ensure that admissible benefits are given to employees as per their entitlement. Rule 2-41 and 2-43 could have been relied upon only where the respondents had not been complacent and had processed the claim as per official record and therefore, cannot rely upon their inaction to deny the benefits legally due to the applicant.
10. Accordingly, the T.A. is allowed with the direction to the respondents to release the arrears on account of entitlement to the financial benefits w.e.f. 01.01.1995 in favour of the applicant within a period of three months from receipt of a certified copy of this order.
In case, the payment is not released within the stipulated period of three months, then the same shall be payable along with interest at the rate of 6% per annum w.e.f the date of entitlement till date of payment.
No orders as to costs
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