Jammu May-17-2023:- In a petition filed by Ram Paul seeking setting aside, impugned order No.621 dated 04.08.2017, passed by the respondent no. 2 and 3 in awarding penalty of withholding one annual increment with non-cumulative effect in favour of the petitioner on the ground that the same is perverse and not based on facts, being issued contrary to mandate of the J&K Civil Service (Classification, Control and Appeal) Rules, 1956 and also being totally, arbitrary, discriminatory and unsustainable in law, being in violation of the basic principles of natural justice, beside being illegal and non-estin law and also seeking direction to respondents to pass favorable effective orders for fixation of seniority of petitioner as Assistant Registrar-l immediately after the seniority position held by Sh. Bashir Ahmed Vaid, Assistant Registrar-I and also the benefits of promotion of petitioner as Section Officer w.e.f. 26.10.2008 and consequential promotion as Assistant Registrar-II w.e.f. 30.08.2011 & further as Assistant Registrar-I and other higher posts in line retrospectively along with all consequential benefits.
A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Tashi Rabstan and Justice Rajesh Sekhri after hearing both the sides the merits of the present case and legality or otherwise of the impugned order No. 621 dated 04.08.2017 passed by respondents No. 2 and 3, vide which, penalty of withholding one annual increment with non-cumulative was awarded against the petitioner, it is pertinent to note that petitioner, at the relevant point of time, was working as Head Assistant. It is an admitted position of fact on the record that Order No. 579 dated 24.10.2008 came to be issued in terms of rule 6 of the J&K High Court Staff (Condition of Service Rules) 1968, by virtue of which, the service conditions and partial avenues for the High Court Staff are provided. As per the said order, two years minimum experience, in each feeding cadre, is prescribed for promotion; from the post of Head Assistant to Section Officer, from Section Officer to Assistant Registrar-II, from Assistant Registrar-II to Assistant Registrar-I, from Assistant Registrar-I to Deputy Registrar and from Deputy Registrar to Joint Registrar. The obvious implication is that a total of eight years experience in all respective feeding cadres has been provided for promotion from Head Assistant to Joint Registrar. According to the petitioner, even if the impugned punishment/penalty of withholding one annual increment with non-cumulative effect is to be maintained, he having been initially appointed as Junior Assistant way back in the year 1988 could have retired as Joint Registrar in the year 2019. Allegation of the petitioner is that it is only due to unjustifiable and uncalled for delay of enquiry proceedings on the part of the respondents that he was retired as Assistant Registrar-II whereas his counterparts namely Sh. Bashir Ahmed Vaid and others superannuated on higher post than him. Further, grievance of the petitioner is that his promotion was deferred till conclusion of enquiry proceedings in view of Order No. 476 dated 30.08.2011 issued by Registrar General of this Court whereas his counterpart and similarly situated employee, namely, Sh. Bashir Ahmed Vaid was promoted as Assistant Registrar-II in terms of the same order. Further, the said order stipulated under Note-II that postponement of the consideration of the petitioner for promotion from Section Officer-I in OPG would not affect his seniority in case he was considered and appointed as Section Officer in future, however, said condition was never adhered to by the respondents and his seniority was not protected.
DB after carefully going through the record, whereby it is discerned that promotion of the petitioner as Section Officer was regularized by the respondents vide order dated 985/GS dated 29.10.2018 by providing that dates regarding the effect of promotion shall be notified separately. Record further reveals that when petitioner was promoted as Assistant Registrar-II in terms of Order No. 1279 dated 10.01.2019, seniority of the petitioner was never protected and date of his promotion was notified as 04.08.2018. It is a clear case of discrimination because the petitioner was entitled to be promoted as Section Officer w.e.f. 26.10.2008 with consequential promotion as Assistant Registrar-II w.e.f. 30.08.2011 on the principle of parity against his colleague, Sh. Bashir Ahmed Vaid. Instance quoted by the petitioner that Sh. Bharat Bhushan, Peon, who was held responsible for misconduct of all the charges in the enquiry proceedings, yet was promoted and regularized as Junior Assistant and subsequently promoted as Senior Assistant, is well founded. Petitioner has been treated differently and has been discriminated against by the respondents without any rhyme or reason.
DB further said that it is a fundamental right of an employee that disciplinary proceedings initiated against him are concluded without undue delay as, in such circumstances, he is made to undergo mental trauma and torture and suffer monetary loss without any fault on his part as held by Hon’ble Supreme Court in State of A.P. Vs. N. Radhakishan (Supra). True it is, that whether delay vitiates the disciplinary proceedings or not is to be considered depending upon the facts and circumstances of each case as also the nature of charges, however, inexplicable delay defeats justice and causes prejudice to the charged employee. There is no dispute that monetary benefits with respect to retrospective promotion depends upon facts and circumstances of each case.However, the principle of “no work no pay” cannot be accepted as a thumb rule as held by Hon’ble Supreme Court in Ramesh Kumar (Supra). Since in the present case, petitioner has been subjected to unwarranted and unjustifiable stagnation in service due to inaction on the part of the respondents in general and due to delay in concluding the enquiry proceedings against the petitioner in particular, therefore, he is held entitled to all the retrospective monetary benefits.
With these observations, Division Bench allowed the petition and quashed the impugned order No.621 dated 04.08.2017, passed by respondents 2 and 3,awarding penalty of withholding one annual increment and directed the respondents are directed to fix the seniority of the petitioner as Assistant Registrar-I immediately after the seniority position held by Sh. Bashir Ahmed Vaid, Assistant Registrar-I and also granted the benefit of promotion to the petitioner as Section Officer w.e.f. 26.10.2008 and consequential promotion as Assistant Registrar-II w.e.f. 30.08.2011 and further as Assistant Registrar-I and other higher posts in line retrospectively along with all consequential benefits and his pension be accordingly fixed. Let this exercise be completed within a period of two months from the date of copy of this order is made available. JNF