Ghulam Mohi-Ud-Din Shah vs State & Ors on 26 August, 2010

Jammu High Court
Ghulam Mohi-Ud-Din Shah vs State & Ors on 26 August, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
OWP No. 943 OF 2008    
Ghulam Mohi-Ud-Din Shah.  
Petitioners
State & Ors 
Respondent  
!Mr. C. M. Koul, Advocate
^Mr. P. N Bhat, Advocate.

HONBLE MR. JUSTICE SUNIL HALI, JUDGE       
Date: 26.08.2010 
:J U D G M E N T :

Dispute in the present petition relates to House No. 199
situated at Jawahar Nagar, Srinagar, which the petitioner
claims to have purchased from respondent no.5 through
respondent nos. 4 and 6. Support is placed on an agreement
stated to have been executed by respondent nos. 4 and 6 for
sale of the aforesaid house for an amount of Rs. 7,50,000/-, out
of which an amount of Rs. 43000/- is stated to have been paid
in advance and subsequently vide demand drafty additional
amount of Rs. 80,000/- was also handed over to the aforesaid
respondent nos. 4 and 6. The remaining amount is stated to
have been offered to respondent no.5, who, according to the
petitioner, refused to accept the same. It is pertinent to mention
that on the date of execution of agreement to sell, petitioner is
stated to have taken over the possession of the property.
On coming to know about this fact, respondent no.5 has
shown his ignorance about any agreement having been
executed by respondent nos. 4 and 6 on his behalf. He clearly
stated that he does not know any of respondent nos. 4 and 6. In
nut shell he states that there is no document executed by him,
as such, the occupation of the property by the petitioner is unauthorized.
It is under these circumstances he filed an
application before the District Magistrate Srinagar for seeking
removal of the encroachment over his property under the
Jammu and Kashmir Migrants Property ) Preservation,
Protection and Restraint on Distress Sale) Act, 1997 (hereafter
to be referred as the Act. The District Magistrate, found that
petitioner did not produce any documentary evidence in the
shape of power of attorney or any sale deed or agreement
stated to have been executed by respondent no.5 with him and,
accordingly, held that occupation of the house by the petitioner
was un-authorized as he did not have any written consent or
document in his favour which could justify his occupation of the
house. As a result of which the Tehsildar Srinagar was directed
to restore the possession of the property in question to its
rightful owner as per records.

Aggrieved of this order of the District Magistrate, the
present petitioner filed an appeal under Section 7 of the Act
2
before the Financial Commissioner. The appeal remained
pending before the Financial Commissioner. A writ petition was
filed by respondent no.5 bearing OWP no. 364/2005 wherein a
direction was issued by this Court to Financial Commissioner to
dispose of the appeal on its merits. It seems that a preliminary
objection was raised before the Financial Commissioner that
any person aggrieved of an order under the Act can file an
appeal before the Financial Commissioner, however, no such
appeal would be entertained against the order of eviction
unless the possession of the property is surrendered to the
competent authority. The Financial Commissioner, taking note
of this fact, directed the appeal to surrender the possession of
house in question as required under Section 7 of the Act before
his appeal could be entertained. The petitioner is stated to have
withdrawn the appeal with permission to file the same after
handing over the possession of the property to the competent
authority.

Without surrendering the possession after withdrawing the
appeal, the petitioner has filed the present writ petition
questioning the orders of the District Magistrate and Financial
Commissioner.

The case of the petitioner is that an agreement was
executed by respondent nos. 4 and 6 for the sale of the house
in dispute for an amount of Rs. 7,50,000/-, for which an amount
3
of Rs. 1,23,000/- is stated to have been paid by the petitioner to
respondent nos. 4 and 6. He claims that he is in occupation of
the house on the basis of an agreement executed by
respondent nos. 4 and 6, as such, has the legal authority to
stay in the house aforesaid. The direction of the Financial
Commissioner to surrender the possession would arise only if
the petitioner is held to be an encroacher of the property. He
further claims that he has invested lot of money on the house
aforesaid on the basis of the agreement executed by
respondent nos. 4 and 6 with him. In nut shell his case is that
he has entered in to the house on the basis of an agreement
which gives him legal authority to remain in possession.
On the other hand, respondent no.5 states that reliance
placed by the petitioner on the agreement, which has been
executed by persons who are neither owners of the property
nor have been authorized by respondent no.5 in this behalf to
execute such an agreement. It is further contended that
respondent no.5 has not executed any power of attorney or
given any authorization to respondent nos. 4 and 6 to execute
any document on his behalf.

It is not being disputed by the petitioner that respondent
no. 5 is the owner of the property. It is contended that
occupation of the house by the petitioner is un-authorized as he
has neither any authority on behalf of respondent no.5 to hold
4
the property nor has he given any authority to any person to
execute any agreement on his behalf. The contention of the
petitioner that there is an agreement executed by respondent
nos. 4 and 6, is not an issue required to be determined in this
petition, as respondent nos. 4 and 6 have no locus in law to
execute such an agreement. The occupation of the petitioner is
un-authorized and he is an encroacher.

The other contention raised by respondent no.5 is that
after the order of dispossession was issued by the District
Magistrate, appeal was filed against the said order by the
petitioner, however, petitioner was required to surrender the
possession as required under Section 7 of the Act. He did not
comply with the requirement of Section 7 of the Act as a result
of which his appeal was dismissed as withdrawn. Instead of
surrendering the possession and filing a fresh appeal, he has
directly approached this Court, as such, without availing
alternative remedy, the writ petition of the petitioner is liable to
be dismissed.

I have heard the learned counsel for the parties.
The intended purpose of the Jammu and Kashmir
Migrants Property ) Preservation, Protection and Restraint on
Distress Sale) Act, 1997 is to safeguard the immovable property
left out by the migrants from being encroached upon. The word
un-authorized occupant has clearly been defined in Section 2
5
of the Act, which reads thus:-

Un-authorized Occupant means any
person who has encroached upon or taken
possession of any immovable property of a
migrant without his written consent and
authority of law.
A person would claim to be in authorized possession of
the property only when he produces a written consent from the
owner or is in possession of any document, authorizing him to
remain in possession of such possession. Even if any such
document had been executed it has still to be scrutinized by the
District Magistrate to ensure that the sale is not a distress sale.
A person gets right in the property only after permission is
obtained from the competent authority prescribed under the
rules. The idea is only to ensure that under no circumstances a
migrant is allowed to sell his property in distress.
In the present case what is clearly visible is that petitioner
has entered into the premises on the basis of an agreement
executed by respondent nos. 4 and 6 in his favour, who are
neither owners of the property nor have been authorized by the
owner of the property to execute such agreement. The
petitioner has no where in his petition stated that there is an
document executed by respondent no.5 in his favour or any
power of attorney executed by respondent no.5 in favour of
respondent nos. 4 and 6. He also no where mentions in his
6
petition that respondent nos. 4 and 6 are some how connected
with the property as owners or attorney holders.
It is not the case of the petitioner that any document has
been executed by respondent no.5 of on his behalf by
respondent nos. 4 and 6 in his favour. It may be noted that
petitioner admits that respondent no.5 is the owner of the
property in question. Faced with this situation, one fails to
understand as to what is the basis on which the petitioner could
claim authorized possession of the house in question. His
contention that the possession of the prospective Vendee under
an agreement to sell is permissive, is not only misconceived but
contrary to the facts also. A person cannot be put into the
possession of a property unless there is a valid agreement to
sell executed by the owner in his favour. On his own showing
the only document on which petitioner places reliance is an
agreement stated to have been executed by respondent nos. 4
and 6, whom petitioner admits not to be the owners of the
property.

From the aforesaid discussion what clearly emerges is
that petitioner is an un-authorized occupant of the property. He
has not been able to show any document before the District
Magistrate in support of his contention, which was the only
requirement to decide as to whether the petitioner was an unauthorized
occupant of the property or not. Having failed to
7
produce any valid document the District Magistrate has rightly
directed that petitioner is an encroacher and should be asked
to vacate the premises.

The other aspect of the matter is that appeal is stated to
have been filed by the petitioner against the order of District
Magistrate without surrendering the possession of the property,
as required under Section 7 of the Act, which clearly mentions
that before filing appeal, appellant is required to handover the
possession of the property to the competent authority. Section
7, for facility of reference, is reproduced as under:-
(1) Any person aggrieved of an order passed
under this Act, may file an appeal before the
Financial Commissioner, Revenue:-

Provided that no such appeal shall be
entertained against

(a) an interlocutory order;

(b) An order of eviction unless possession of
the property is surrendered to the competent
authority;

(c) ……………………
The petitioner, when confronted with this position,
withdrew his appeal with permission to file fresh appeal after
handing over the possession to the competent authority. He has
directly approached this Court under Article 226 of the
Constitution. The appeal preferred by the petitioner was not
competent as he has not complied with the requirement of
Section 7 of the Act. On this count alone the writ petition is
required to be dismissed as the petitioner has not availed the
8
alternate remedy available to him under law.
Therefore, I find no force in this writ petition, which is,
accordingly dismissed with costs of Rs. 10,000/-, to be paid by
the petitioner to respondent no.5. The District Magistrate is
directed to take over the possession of the property in terms of
order passed by him on 27.12.2003 within a period of two
months from the date a copy of this order is received by him.
Registry is directed to send a copy of this order to District
Magistrate Srinagar for compliance.

District Magistrate Srinagar shall inform this Court about
the steps taken by him in terms of this judgment, on or before
15th of October, 2010.

Index of this petition shall be listed on 15.10.2010 for
compliance purposes only.

(SUNIL HALI)
Judge
JAMMU:

26.08. 2010
Anil Raina, Secy.

9

Union Of India And Ors vs The Above Order Was Passed By The … on 19 August, 2010

Jammu High Court
Union Of India And Ors vs The Above Order Was Passed By The … on 19 August, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW no. 27 of 2006 AND LPASW  no. 347 of 2000 AND LPASW no. 348 of 2000        
Union of India and ors.
Petitioners
1)Amar Nath and ors. 
2)Mohan Lal Baya and ors 
3)Aya Singh and ors 
4)Ram Dass and ors.  
Respondent  
!Mr. Gagan Basotra, Advocate 
^M/s. Rakesh Sharma and Anil Mahajan,Advocates   

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Honble Mr. Justice Mohammad Yaqoob Mir, Judge   
Date:  19.08.2010
:J U D G M E N T :

1)LPASW no. 27 of 2006

2) LPASW no. 347 of 2000

3) LPASW no. 348 of 2000

4) LPASW no. 37 of 2001
Dr. Saikia, CJ:

Heard Mr. Gagan Basotra, learned counsel for the appellants as well as Mr. Rakesh Sharma and
Mr. Anil Mahajan, learned counsel appearing on behalf of the respondents.

This batch of Letters Patent Appeals being LPA nos. 347/2000, 348/2000, 37/2001 and
27/2006, wherein identical question of law has been raised, based on similar fact situation, has
been taken up for final disposal on being remitted by the Supreme Court by order dated
October 6, 2005 passed in Civil Appeal no. 5825 of 2000 (Union of India & ors. v. Amar Nath
and
ors) to this Court for fresh consideration on merits.

The order dated 6.10.2005 of the Supreme Court is extracted hereunder:-
Heard learned counsel for the parties.

In both these appeals, the basic issue is as to whether the judgment of this Court in Writ
Petition No. 40/91 which based its views on an earlier decision in Bhagwan Sahai Carpenter &
Ors Vs. Union of India & anr. AIR 1989 1215 applies or the one rendered in Civil Appeal Nos.
3999-4023/1998 and connected cases which were disposed of on 31st July, 1991. In Civil
Appeal No. 5825 of 2000, learned Single Judge had relied on a decision in SSR of Examiners
Muradnagar Ordinance Factory case (supra). In appeal, the Division Bench observed that first
the directions as contained in the learned Single Judges order were to be complied with before
the issue could be decided, in the background of the subsequent judgment of this Court and its
applicability to the facts of the present case. The course adopted by the Division Bench
certainly is not proper. On that ground alone, the impugned order of the High Court is set aside
and the matters are remitted to the High Court for fresh consideration on merits. In the
connected Civil Appeal no. 7512 of 2004, the High Court relied upon the decision in Bhagwan
Sahais case (supra) and the judgment of the Jammu & Kashmir High Court which is the subject
matter of the connected civil appeal. Above being the position, we remit the matter back to the
High Court for fresh consideration. The High Court will consider which of these judgments
applies to the facts of the case and take decision in accordance with law. The appeals are
accordingly disposed of. Since the matter is pending since long, we request the concerned
High Court to dispose of the matters as early as practicable preferably within four months from
the date of receipt of the order.

The above order was passed by the Apex Court while disposing of an appeal preferred by the
Union of India challenging the judgment and order dated 12.3.1999 passed by Division Bench
of this Court in LPA No. IA-1/97 affirming the judgment and order dated 12.3.1997 rendered
by the Writ Court in Writ Petition no. 1393/1994 preferred by one Amar Nath along with 34
others, respondent nos. 1 to 35, in LPASW no. 27/2006.

Initially Writ Petition being no. 1393/1994 was preferred by Amar Nath and 34 others being,
the semi-skilled grade employees of Military Engineering Service Department(for short MES),
and serving in the capacity of Valveman at different Stations of MES in the State of Jammu
and Kashmir since 1973, claiming that although they are placed on the category of semi-skilled
workers, since they are performing duties as are assigned to the skilled workers as Valveman,
they are entitled to get the benefit of grade of Rs. 260-400 payable to skilled category with
effect from October 16, 1981 instead of Rs. 210-290 in which grade presently they are made to
work. Accordingly, a writ in the nature of mandamus was sought commanding the respondents
to decorate the petitioners therein, now the respondents in LPASW no. 27/2006 with the grade
of Rs. 260-400 with effect from October 16, 1981 by treating them under the category of
skilled workers instead of semi-skilled one.

6. The Writ Court by its judgment and order dated March 12, 1997, after hearing the learned
counsel for the parties and relying upon a decision of the Apex Court rendered on July 31,
1991 in Writ Petition no. 40 of 1991, wherein the ratio of the decision in Bhagwan Sahai
Carpenter & ors v. Union of India & ors reported in AIR 1989 SC 1215 was applied to, granted
relief to all the 35 writ petitioners/respondents herein in LPASW no. 27/2006, directing the
respondents-Union of India & ors/appellants in LPA no. 27/2006 to place the said writ
petitioners in the grade of Rs. 260-400 with effect from October 16, 1981 within a period of
two months from the date of passing the judgment.

7. Being aggrieved by the above judgment and direction, the Union of India preferred a
Letters Patent Appeal before this Court being LPASW no. IA-1/1997. However, the Appellate
Court dismissed the appeal affirming the judgment and order dated March 3, 1997 passed by
the learned Single Judge was made in Writ Petition no. 1393/1994.

8. Immediately after the dismissal of the appeal preferred by the Union of India, as
mentioned above, a series of writ petitions have been filed before this Court by the employees
similarly situated seeking their upgradation from semi-skilled category of grade of Rs. 210-290
to the skilled category workers in the grade of Rs. 260-400 with effect from 16.10.1981.

Writ Petition being SWP no. 2758/1999 was preferred by one Mohan Lal Baya along with 10
others and the Writ Court by its order dated February 21, 2000, allowed the writ petition with a
direction that the writ petitioners therein were entitled to get the same relief as was granted by
this Court in writ petition, SWP no. 1393/1994 disposed of on March 12, 1997.
Order dated February 21, 2000 may be re-produced as under:-

On 27th of Dec1999, this petition was admitted for 8th of Feb 2000.
Respondents have not filed any counter.

The learned counsel for the petitioners submits that the petitioners are entitled to the same relief
as was granted by this Court in writ petition no. 1393/94. This was decided on 12th of
March 1997. It is further stated that this decision has since been upheld by a Division Bench of
this Court.

In view of the above, this petition is disposed of with a direction that the
respondents would take notice of the observations made by this Court in SWP no.
1393/1994 and shall take appropriate steps. A decision would be taken and communicated to
the petitioners within a period of three months from the date a copy of this order alongwith a
copy of order passed in the writ petition no. 1393/1994 is made available to the respondents.

Disposed of accordingly.

The above order passed by learned Single Judge in SWP no. 2758/1999 has been assailed in
LPASW no. 347/2000.

The other two writ petitions being SWP nos. 1351/1999 and 2272/1999 were preferred by Ram
Dass and 94 others and Aya Singh with 31 others respectively.

Both the writ petitions were disposed of by the Writ Court by its judgments and orders dated
23.7.1999 and 15.10.1999 respectively, granting the same relief as directed in SWP no.
1393/1994 disposed of on March 12, 1997.

Union of India and others, as appellant, have preferred Letters Patent Appeals before this
Court, against both the above judgments and orders through LPASW no. 37/2001 and LPASW
no. 348/2000 respectively.

All these Letters Patent Appeals raising exactly the same question of law, have been heard
analogously in terms of direction issued by the Supreme Court by its order dated October 6,
2005 and are being disposed of by this common judgement and order.

The short question involved in this bunch of Letters Patent Appeals is as to whether the
respondents in these appeals, being the semi-skilled employees under the MES, are entitled to
upgradation to the category of skilled employees of grade of Rs. 260-400 with effect from
October 16, 1981. Be it mention that in deciding the issue at hand, this Court requires to
consider, as per direction of the Supreme Court by its order dated 6.10.2005, as to which of the
judgments, i.e., Bhagwan Sahais Case (supra) or the judgment of the Apex Court in Writ
Petition no. 40 of 1991 disposed of on July 31, 1991, along with other connected cases, as
referred to in the order itself, would apply to the facts of the instant case.

17. A brief narration of the factual matrix of the case is necessary for adequate adjudication
of the issue raised in these appeals.

18. Under MES, initially, as has been stated, there were two grades of employees, namely,
skilled grade and unskilled grade and all the respondents in these appeals, being in unskilled
grade, along with other employees working in different trades under MES within the skilled
grade used to get the same scale of pay in the skilled grade continuously for years together
since the recommendation of 1st Pay Commission in 1949. Even, as per the recommendations of
Second and Third Pay Commission in 1973, the pay of both skilled and unskilled grade was
Rs. 210-290.

19. In order to remove the anomalies, an Expert Classification Committed was constituted
by the Government of India in terms of the report of Third Pay Commission and the following
five scales of pay were set out vide communication dated May 11, 1983 sent under the
signatures of Deputy Secretary to Government of India to the Chief of the Army Staff, New
Delhi, giving effect of the same from October 16, 1981. The relevant portion of the
communication dated May 11, 1983 may be quoted hereunder:-

No. 1 (2)/80/D/ IC
Government of India
Ministry of Defence
New Delhi, the 11th May, 83

The Chief of the Army Staff,
New Delhi.

Subject : FITMENT OF INDUSTRIAL WORKERS OF MES IN PAY SCALE
RECOMMEDED BY THE THIRD PAY COMMISSION.

Sir,

After careful consideration of the recommendations of the Expert Classification
Committee appointed in terms of para 19 of Chapter 19 of the report of the Third Pay
Commission and of the Committee on Common Category Jobs, I am directed to convey the
sanction of the President to the following:

Fitment of Industrial Workers in MES in the following five scales of pay as per details set out
in Annexure-1.

Category                                        Scale 

Unskilled            Rs. 196-3-220-EB-3-232
Semi-Skilled         Rs.210-4-226-EB-4-250-EB-5-290 
Skilled                  Rs.260-6-290-EB-6-326-8-366-
                             EB-8-390-10-400

Highly Skilled Grade II 330-8-370-10-400-EB-480
Highly Skilled Grade 1 380-12-500-EB-15-560 

Upgradation of posts from the Skilled grade/highly Skilled grade II to Highly Skilled Grade
II/I respectively in case of jobs enumerated in Annexure-II, in accordance with the following
formula:-

Strength of Workers No. of Posts to be in Highly Skilled grade II/I

1
2
3
4
5

And so on, i.e., one additional post in Highly Skilled Grade II or Grade I for every 10 posts in
the Skilled Grade or Highly Skilled Grade II, as the case may be.

        .       .       .       .       .       .       .       .       .       
        .       .       .       .       .       .       .       .       .               

6.This supersedes the Government orders issued under Ministry of Defence letter of even
number dated 16th October, 1981, as amended from time to time. This order will take effect
from 16th Oct 81.

7. . . . . . .

                     8. .       .       .       .       .       .       .       .       

                                                Yours faithfully,
                                                        Sd/-
                                                (RAMA KRISHNA)    
                DEPUTY SECRETARY TO THE GOVT OF INDIA          
                                                

It may be noticed from the above communication that the semi-skilled category and skilled
category of Industrial Workers of MES were given the scale of Rs. 210-290 and Rs. 260-400
respectively with effect from October 16, 1981.

21. The respondents, admittedly, being semi-skilled employees, are getting the grade of 210-
290 from 1973. Now they are claiming that though they are the semi-skilled employees, they
are basically working skilled job and hence they are entitled to get the skilled grade with pay
scale of Rs. 260-400 with effect from October 16, 1981, the date on which the order, as quoted
above, was given effect to.

22. The grievance of the respondents were vindicated initially by the Writ Court by its
judgement and order dated March 12, 1997 passed in SWP no. 1393/1994, which was later on
confirmed by the Appellate Court by its judgement and order dated March 12, 1999 in LPA no.
IA-1/1997, which was renumbered as LPASW no. 27/2006 on remand from the Supreme
Court. The respondents in other Letters Patent Appeals have also got the same relief.

23. Meanwhile, Union of India have taken the matter to the Supreme Court, assailing the
judgment and order dated March 12, 1999, passed by the Division Bench of this Court in
LPASW no. 1A-1/1997 (Union of India and ors. V. Amar Nath and ors) and the Supreme Court
disposed of the appeal by its order dated October 6, 2005 , as already reproduced hereinabove,
with a direction for fresh consideration of the entire matter on merits.

24. It was also observed by the Apex Court that this Court in deciding this issue relied
upon a decision of Apex Court in Bhagwan Sahais case (supra) and the decision rendered in
Writ Petition no. 40 of 1991 disposed of on July 31, 1991 and in view of the same, it was
directed, while remitting the matter to this Court for fresh consideration, to consider which of
judgments would apply to the facts of the case and take decision in accordance with law.

25. For the sake of convenience, it would be prudent to quote the initial judgement and
order dated March 12, 1997 passed by the Writ Court in SWP no. 1393/1994, being the
bedrock of the entire issue.

Heard learned counsel for the parties.

Shortly stated the claim of the petitioners is that they are working as Semi-skilled Employees
with the respondents from before October 16, 1981. They claim that they are entitled to
upgradation to the category of skilled employees with grade of Rs. 260-400 w.e.f. October 16,
1981. Except for stating that the matter is delayed the respondents have not stated much on
other points particularly the claim of the petitioners that they are in semi-skilled category
enjoying the grade of Rs. 210-290 from 1973.

It is not necessary to mention other facts contained in the petition and the reply since
the matter stands covered by the Apex Court order date July 31, 1991 in Writ Petition No. 40
of 1991. To understand the matter and give relief to the petitioners it is important to quote in
extense the decision of the Apex Court.

The learned counsel Mr. Hemant Sharma, appears on behalf of the respondents and
waives service of rule. We have heard counsel on both sides and have gone through the relevant
papers, the Anomalies Committee Report and the counter filed on behalf of the respondents.
We find from Chapter VIII of the Anomalies Committees Report that the Committee decided
that the existing incumbents in the semi-skilled category, who were in position as on 16th
October, 1981 in the grade of Rs. 210-290, may be upgraded to the skilled category Rs. 260-
400, commensurate with the point-score given by the Committee. So far as fresh induction to
the skilled category was concerned, the Committee formulated certain propositions which are
to be found in clauses a to c of clause(IV) of the reco-mmendations of the Anomalies
committee in Chapter X of the report. It is, therefore, obvious that those employees who belong
to the semi-skilled category and were in position on 16th October, 1981 in the grade of Rs. 210-
290 were to be upgraded to the skilled category carrying a scale of Rs. 260-400 commensurate
with the point-score given by the Committee.

This writ petition has been filed by the Association of Employees and the names
of the members on whose behalf it is filed have been set out in Annexure-B to the petition.
The total number of the number shown in Annexure B is 60. However, it is not known who
out of them were in position on 16th October 1981. We would, therefore, direct the respondents
to verify the service records of these employees and grant the benefit to those who were in
position on 16th October, 1981 in the grade of Rs. 210-290 by upgrading them to the skilled
category of Rs. 260-400 w.e.f. that date on the ratio of this Courts decision in Bhagwan Sahai
vs. Union of India (AIR
1989 SC 1215). Vide paragraph 11 of the judgment. Those who were
not in position as on 16th October, 1981 in the semi-skilled grade of Rs. 210-290 will be entitled
to placement in the skilled category or Rs. 260-400 if they satisfy the requirements of Clauses
a b and c of Clause (IV) in Chapter X of the Anomalies Committees report to the extent of
its acceptance, with or without modifications, by the Government of India. This should be
finalised not later than October 31, 1991. The rule is made absolute accordingly with no order
as to costs.

Admittedly, the above decision of the Apex Court applies to the petitioners as
well. Therefore, this Writ petition is allowed and respondents are directed to extend the same
relief by placing them under Skilled category in the grade of Rs. 260-400 from October 16,
1981 within two months from today. The Petition is disposed of accordingly in the aforesaid
terms leaving the parties to bear their own costs.

26. In the backdrop of this fact situation, as quoted hereinabove, Mr. Basotra, learned
counsel appearing for the Union of India has forcibly submitted that the respondents having
been working in the semi-skilled grade with scale of Rs.210-290 are not at all entitled to the
grade of Rs. 260-400 under the skilled category. According to him, Valvemen do not fall under
the category of skilled grade. To substantiate his argument, he relied on the decision of
Bhagwan Sahais case (supra). Our attention has been drawn specifically to paragraph 6 of the
decision wherein the Government of India recognized only twelve categories of jobs for
upgradation from Semi-skilled grade to skilled grade to the exclusion of Valveman. Paragraph 6
of Bhagwan Sahais Case (supra) reads as under:-

6. On October 15, 1984 a letter was sent to the Chief of the Army Staff, New Delhi
under the Signature of Deputy Secretary to the Government of India wherein it has been
mentioned that the President has accorded sanction to the upgradation of the following jobs
from semi-skilled grade (Rs. 210-290) to the skilled grade (Rs. 260-400):-

Sl. No.                  Job Title
Book Binder 
Saddler
Boot Maker 
Carpenter
Pipe Fitter
Plumber 
Mason  
Moulder 
Painter/Polisher
Sign Writer
Sawyer 
Upholsterer.   

27. That being the clear position, according to the learned counsel for Union of India, there
is no scope for the respondents for the entitlement to the skilled grade in the scale of Rs. 260-

400. Mr. Basotra has also put his strong reliance on the affidavit/objections filed in LPASW no.
27/2006 (Union of India and ors. V. Amar nath and ors.)

28. On the contrary, Mr. Sharma, learned counsel appearing for some of the respondents,
supporting the impugned judgments, has strongly argued that the respondents are entitled to
get the skilled grade (Rs. 260-400) in terms of Bhagwan Sahais case (supra) as well as the
decision of the Apex Court passed on July 31, 1991 in Writ Petition no. 40 of 1991, which was
reflected in the initial judgment and order dated March 12, 1997, passed by the Writ Court in
SWP no. 1393/1994, for the simple reason that the services of the respondents have been
exploited in the job meant for skilled category.

29. We have given our anxious consideration to the arguments canvassed on behalf of
learned counsel for the parties. Records made available have been thoroughly examined. We
have considered with due regard the decisions of the Supreme Court so referred to in support
of the issue raised herein.

In Bhagwan Sahais case (supra), the petitioners, admittedly, being grouped under the skilled
grade, were praying only for the skilled grade of Rs. 260-400 with effect from October 16,
1981 instead of October 15, 1984, the date on which a letter was sent to the Chief of the Army
Staff, New Delhi under the signatures of Deputy Secretary to Government of India, as
revealed from paragraph 6 of Bhagwan Sahais case, already quoted hereinabove.
Petitioners claim for granting them the skilled category of grade of Rs. 260-400 with effect
from October 16, 1981 in that case, was based on the report of Anomalies Committee, as noted
in paragraph 8 of Bhagwan Sahais case (supra), wherein it was mentioned as follows:

All the jobs studied by the Anomalies Committee, which are present in semi-skilled grade of
Rs. 210-290, may be upgraded to the skilled grade on Rs. 260-400. This may be given effect
from October 16, 1981.

32. The Apex Court, having considered the said aspect, as observed in paragraph 11 in the
above case, observed that it would per se be discriminated and violative of Articles 14 and 16
of the Constitution of India as well as the fundamental right of equal pay for equal work, if the
employees of different trades in the skilled category were treated differently, i.e., by allowing
the higher scale of pay to the employees of the some of the trades from an earlier date and
giving the same benefit to the members of the other trades from a later date. Accordingly, it
was held that the petitioners were entitled to the benefit of skilled grade of Rs. 260-400 from
October 16, 1981 instead of October 15, 1984.

33. In consideration of the above fact situation in Bhagwan Sahais case, it appears that the
ratio of case apparently is not attributable in the present case which is having slight different
factual position. In the case in hand, the cardinal question is as to whether the respondents,
being under the category of semi-skilled workers, are entitled to get skilled grade in the scale of
Rs. 260-400 with effect from October 16, 1981.

34. Now, coming to the Writ Petition no. 40 of 1991 before the Supreme Court, disposed of
on July 31, 1991, which was also quoted in the order dated March 12, 1997 rendered in SWP
no. 1393/1994, as already referred to above in paragraph 25 of this judgment, it is seen that the
question that arose therein was that as to whether the petitioners in the said writ petition, being
from semi-skilled category could be upgraded to the skilled category with grade of Rs. 260-400
with effect from October 16, 1981. Having considered Chapter VIII of the Anomalies
Committees Report to the effect that the existing incumbents in the semi-skilled category,
who were in position as on 16th October, 1981 in the grade of Rs. 210-290, may be upgraded to
the skilled category of Rs. 260-400, commensurate with the point-score given by the
Committee, it was held that the employees situated thus, would be entitled to for upgradation
and, accordingly, the official respondents were directed to verify the service records of these
employees and grant the benefit to those who were in position on 16th October, 1981 in the
grade of Rs. 210-290 by upgrading them to the skilled category of Rs. 260-400 with effect
from that date on the ratio of Bhagwan Sahais case (supra), with a further direction that who
were not in position as on October 16, 1981 in the semi-skilled grade of Rs 210-290 would be
entitled to placement in the skilled category of Rs. 260-400, if they could satisfy the
requirement of Clauses a, b and c of Clause IV of Chapter X of the Anomalies
Committees Report to the extent of any acceptance with or without modification by the
Government of India.

35. Having regard to the above decision, it can be said that keeping in view the fact
situation projected and the provisions of law laid down therein, this authority would support
the case at hand. According to the above decision, the employees, who are in position as on
October 16, 1981 in the semi-skilled grade of Rs. 210-290 will be entitled to placement in the
skilled category of Rs. 260-400 and employees, who are not in position on October 16, 1981 in
the semi-skilled grade of Rs. 210-290, they will be entitled to placement in the skilled category
of Rs. 260-400, if they satisfy the requirement of Clauses a, b & c of Clause IV of Chapter
X of the Anomalies Committees Report. In order to give such benefit, the authority has to
verify the service records of the employees.

36. Significantly, when this Court has pointedly enquired from the learned counsel
appearing for the Union of India about the said Clauses a, b and c of the Anomalies
Committees Report and the position of the respondents on October 16, 1981, he has
expressed his inability and helplessness to furnish any information in this regard. It is
submitted that despite best efforts, his office is yet to get the said report and other relevant
documents containing those clauses, as mentioned in the aforesaid judgement, including any
such related informations.

37. That being the position, this Court is detained from laying its hands on those relevant
informations prescribed in Clauses a, b and c of Clause (IV) of Chapter X of Anomalies
Committees Report.

38. Nonetheless, having scrutinized the facts and circumstances of the case in its totality,
we have no hesitation to hold that the ratio of decision in Writ Petition no. 40 of 1991 disposed
of on July 31, 1991, can be applied to in the instant case to grant the relief to the respondents
for their placement in the skilled grade category of Rs. 260-400 with effect from October 16,
1981.

39. At this stage, Mr. Sharma, has emphatically submitted that the Government of India has
already accorded sanction for implementation of the judgment in LPA no. IA-I/1997 in respect
of 35 petitioners (Amar Nath and others in Writ Petition no. 1393/1994) and they have currently
been enjoying the said grade. In support of his submissions, he has placed on record, by way of
an affidavit dated 19.8.2010, a communication dated 9.7.1998 sent to him under the
Signatures of Administrative Officer, Headquarters 138 Works Engineers C/o 56 APO.

40. Communication dated 9.7.1998 addressed to Mr. Sharma is reproduced herein below:
Shri Rakesh Sharma Advocate,
Lawyers Chambers
Mubarik Mandi, Jammu.

IMPLEMENTATION OF JUDGMENT IN CP NO. COA(SW) 178/97 IN SWP 1393/94
FILED BY SHRI AMAR NATH VALVEMAN AND OTHER V/S UOI.

D/Sir,

It is submitted that Honble High Court has decided writ petition in favour of petitioners and
issued judgement on 12 Mar 97 for implementation but deptt decided to file LPA No. 1A-1/97
against the said judgement. Subsequently, Honble High Court also decided LPA in favour of
35 petitioners and passed orders on 12 mar 99.

now, Govt. of India, Min of Def. has accorded sanction for implementation of judgment in
respect of 35 petitioners only and asked to place the petitioners in skilled grade of Rs. 260-400
w.e.f. 16.10./1981. Action towards implementation of judgement has been commenced but out
of 35 petitioners difficulty to establish the identify in respect of following 2 petitioners has
arisen which needs to be authenticated at your level by giving MES No. correct name with
parentage so that their case is also settled and legal complications are avoided.

Sr. No. of WP & Judgements Name of petitioners
Dt. 12 mar 97 & 12 mar 99

25._________________ Sh. Basin Dev

27. _________________ Neelam Singh

This office shall feel obliged for early cooperation in furnishing the detailed information.

Thanking you,
Yours Faithfully

(Rumal Singh)
Adm Offr.

Legal Cell

Mr. Sharma has also submitted that the cases of similar nature have been filed in different
High Courts and Tribunals across the country and the employees similarly situated with the
respondents herein have been granted the same benefits by the Government by implementing
those orders and judgments passed by different Courts and Tribunals. In this context, he has
relied on a communication dated 28.4.2008 issued by the Director (legal) IHQ, Ministry of
Defence (Army) Government of India, addressed to the Chief Engineer HQ Western
Command, Chandimandir, also being placed on record by the affidavit mentioned above,
wherein it was informed that by way of implementation of Honble Tribunals (PB), New
Delhis order dated 6.1.2006 in OA nos. 2304/2004, 2305/2004 and 2306/2004 filed by Shri
Devi Dutt and others, Shri Sohan Pal and others and Shri Kanwar Bhadur and others v. Union
of India and others
, the E-in-C accorded sanction to the grant of pay scales of Rs. 260-400
from October 16, 1981 to the post of Valveman.

Communication dated 28.4.2008 is reproduced herein below:

The Chief Engineer
HQ Western Command
Chandimandir-134107

IMPLEMENTATION OF HONBLE TRIBUNAL (PB) NEW DELHI ORDER DATED 06
JAN 2006 IN OA NO. 2304/2004, 2305/2004 AND 2306/2004 FILED BY SHRI DEVI
DUTT AND OTEHRS, SHRI SOHAN PAL AND OTHERS AND SHRI KANWAR
BAHADUR AND OTHERS V/S UOI AND OTHERS.

Sir,

Under the powers delegated to him vide GOI, MOD letter no MOD/ IC/ 1027/ 32/AS(J)/ 6864
/2006 dated 1st Sep 2006 the E-in-C has accorded sanction to grant the pay scale of Rs. 260-
400/950/1500 (revised) from 16 Oct. 1981 or the date of their initial appointment /promotion to
the post of valveman whichever is later with all consequential benefits in respect of the
individuals as per Appx A in compliance with Tribunal (PB) New Delhi order dated
06.01.2006 in OA No. 2304/2305/2306 of 2004. This will be subject to outcome of SLPs
already filed by UOI in case of Shri Gepa Ram and others and Shri Amar Nath and others.
The financial implication may be worked out and got verified by the audit authorities and the
details thereof furnished to this HQ for floating a separate sanction and noting the charged
expenditure by MOD/Fin (Budget) before payment.

This issues with the concurrence of IFA (Army) vide their U.O. No. 01/FA/ARMY-Q/E-IN-
C/COURT JUDGMENT/51/748 Dated 24 Apr 2008.

Yours faithfully,

(SC Sinha)
SE
Director (Legal)
IHQ, Min of Def(Army)
Government of India.

Copy to :

MOD/D(Works)
CGDA, West Block-V, RK Puram, New Delhi
PCDA Western Command Chandimandir
AGH ORG-45(Civ)(d)
IFA Army.

Since the Government itself has accorded sanction for implementation of judgments and
directions of the various Courts and Tribunals including this Court, as reflected in the above
communications, there shall be no impediment in upgradation of the respondents grade to
skilled category in the scale of Rs. 260-400, as prayed for.

In consideration of the above and having taken note of the facts and circumstances of the case
in its entirety, we are of the view that the respondents, who are undisputedly also performing
their duties as are assigned to the skilled workers, are entitled to skilled grade of Rs. 260-400
with effect from October 16, 1981, in the light of the principle of equal pay for equal work,
which itself is a concomitant of Article 14 of the Constitution of India.

In view of the above discussion and observations, these appeals are, accordingly, dismissed.

         (Mohammad Yaqoob Mir)              (Dr. Aftab H. Saikia)                               
Judge                                       Chief Justice
Jammu:  
19.08.2010 
Tilak, Secy.






Union Of India And Ors vs Vishnu Dutt Sharma & Ors on 19 August, 2010

Jammu High Court
Union Of India And Ors vs Vishnu Dutt Sharma & Ors on 19 August, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW No. 90 OF 2002    
Union of India and ors  
Petitioners
Vishnu Dutt Sharma & ors 
Respondent  
!Mr. Gagan Basotra, Advocate 
^Mr. D. C. Raina, Sr. Advocate with Mr. Anil Verma, Advocate.

Honble Mr. Justice Virender Singh, Judge
Honble Mr. Justice Mohammad Yaqoob Mir, Judge   
Date: 19.08.2010 
:J U D G M E N T: 

Per: Virender Singh-J
The respondents (for short to be referred to as petitioners),
in furtherance of a scheme called as Monthly Income Scheme
(MIS) announced by the appellants (respondents in the main
writ petition), opened four accounts with the Post Office Saving
Bank at Mubarak Mandi, Jammu. All these accounts were joint
accounts. As per the Scheme, interest at the rate of 13% per
annum, which was prevalent at the relevant time, started
accruing. For reference, the details of the interest accrued from
the date of opening of the accounts till their closure is as under:-
S.No. Account No. Date up to which interest
paid
Amount interest already
paid

1. 602052 28.02.2000 Rs.47,385.00

2. 602378 26.04.2000 Rs.46,410.00

3. 602379 26.04.2000 Rs.46,410.00

4. 602436 27.04.2000 Rs.22,100.00
Total : Rs.1,62,305.00/-

2

In fact, after the span of 2/3 years, vide communication
No.ICO-SB/1-7/2000-2001 dated 24.10.2000, the writ
petitioners were forced to close all the four accounts and a sum
of Rs.1,62,305/- which amount was already paid to the writ
petitioners by way of interest, was ordered to be deducted. In
addition to that, a sum of Rs.25,350/- as interest further
accrued on all the four accounts was also withheld. This gave a
cause of action to the writ petitioners to file the writ petition
(OWP No. 971/2000) seeking quashment of the communication
No.ICO-SB/1-7/2000-2001 dated 24.10.2000 with a further
prayer to refund Rs.1,62,305/- alongwith amount withheld to
the tune of Rs.25,350/-.

The stand taken by the appellants before the Writ Court
was that in an individual account the maximum amount, which
could be deposited was to the extent of Rs.2.04 lacs and in a
joint account, it was to the extent of Rs.4.08 lacs. Since the
petitioners had deposited Rs.10,80,000/-, which was in excess
of the permissible limit, they were not entitled to the interest
under the Scheme beyond the amount of Rs.4.08 lacs and, as
such, the aforesaid amount of Rs.1,62,305/- accrued as interest
was rightly ordered to be deducted while refunding the excess
amount. Since the petitioners were also not entitled to any
interest with regard to these four accounts, Rs.25,350/- was
also withheld. In fact, commission paid to the agent was also
deducted in this case.

The learned Single Judge did not agree with the stand
taken by the respondents and ultimately found it to be a case of
3
no fault from petitioners side as they had not concealed any fact
at the time of opening of the accounts. It was further observed
that if the agent of the Post Office had committed any fault, the
department was at liberty to recover the amount from the agent,
but action of deducting the aforesaid amount of Rs.1,62,305/-
from the principal amount of the petitioners was unjustified. On
the same analogy withholding of Rs.25,350/- was also held to be
bad. Even deduction of amount on the basis of commission paid
to the agent from the petitioners amount was also considered to
be wrong. Ultimately the petitioners were held entitled to the
entire amount alongwith interest @ 15 % P.A. Aggrieved of the
said order/judgment, the appellants are before us through the
instant Letters Patent Appeal.

Record reveals that the instant appeal is not formally
admitted as yet. We, thus, admit it and dispose of.
Heard Mr. Gagan Basotra, learned counsel appearing for
the appellants and Mr. D. C. Raina, learned Sr. Advocate
assisted by Mr. Anil Verma, Advocate appearing for the
respondents. Writ Court record also perused.
Admittedly, the total deposit of the petitioners under the
MIS is to the tune of Rs.10.80 lacs. But the main thrust of
argument of Mr. Basotra is that it is in contravention of
statutory rules known as Post Office (Monthly Income Account)
Rules, 1987 as there was a limit of the amount to be deposited
in single account as well as joint account. Since the accounts
opened by the petitioners had exceeded the prescribed limit of
deposit, therefore, they were treated as irregular accounts and
4
got closed in terms of Rule 14 of 1987 Rules. The petitioners,
thus, were not entitled to any interest accrued on the excess
amount. As it was already paid to them, therefore, deducted at
the time of refund of the actual amount exceeding the prescribed
limit of Rs.4.08 lacs. Mr. Basotra then submits that the
petitioners had, in fact, suppressed all the material facts at the
time of opening the accounts and the moment it came to the
notice of the Postal authorities, it swung into action. On the
same analogy, the amount of Rs.25,350/- ( amount of interest)
withheld was also justifiable action on behalf of the appellants
and even the agent commission has also been rightly deducted.
Per contra, Mr. Raina, learned Sr. Advocate, submits that
once the petitioners had not made any misrepresentation at the
time of opening the accounts, they cannot be put to any
disadvantageous position. According to him, the act done by the
agent of the Post Office would be deemed to be the act of
principal and once the respondents had allowed the petitioners
to continue with the deposit and used their money, they are
supposed to pay interest @ 13% P.A. upto the date of refund
atleast. According to Mr. Raina, even if the present case is
tested on the touchstone of equity, the petitioners are entitled to
the interest on their deposit. Mr. Raina then submits that it is
not only 13% P.A. interest to which the petitioners are entitled,
they are also entitled to interest upto date as the amount due to
them is lying with the appellants, may be on account of the stay
of the operation of the impugned judgment.

5

We are not at all convinced with the submissions
advanced by Mr. Basotra for a very simple reason that
admittedly the amount remained deposited with the Post Office
till the accounts were closed, may be beyond the prescribed limit
of Rs.4.08 lacs. The plea taken by Mr. Basotra about the fault of
the agent does not stand the test of reasoning as the agent was
engaged by the Postal authorities only and, therefore, all his
actions would be deemed to be an act of the principal. The
Postal authorities just cannot get out of it. In such a situation,
it is not understandable, how the agent commission is deducted
from the petitioners. This action, on the face of it, is not
sustainable.

In view of the aforesaid factual backdrop, we do not find
any difficulty in holding that the petitioners are entitled to the
interest accrued upon their deposit with the Post Office, may be
over and above the limit prescribed under the rules. So
deduction of entire interest amount at the rate of 13% per
annum from the principal amount, in our considered view, is
absolutely an unfair action, which can not stand the test of
reasoning.

What will then be the rate of interest, in fact, is the next
issue for consideration before us. It goes without saying that the
petitioners are entitled to 13% interest per annum on the
amount deposited by them within the limit prescribed by the
rules. This is even fairly admitted by Mr. Basotra before us.
However, in our view, they are not entitled to the same rate of
interest on the excess amount remained deposited with the Post
6
Office for about two years and more. The exact period is subject
to verification of record, which, admittedly, is in possession of
the appellants and, therefore, this exercise has to be carried out
by the appellants only. For determining the entitlement of the
rate of interest, we asked Mr. Basotra to apprise us about the
interest rate on saving bank account of post office in the year
when the petitioners had operated their accounts. He has
placed on record the photo-stat copy of the interest rate of
saving bank account for our perusal. For the year starting from
January, 1999 and ending 28.02.2001, the interest rate on
saving account is shown as 4.5% per annum and w.e.f.
01.03.2001 it is slashed down to 3.5% per annum. Mr. Raina
has also not controverted this fact. Keeping in view the interest
rate and the year in which the accounts of the petitioners were
closed, the appellants cannot just deny the entitlement of the
petitioners to the interest @ 4.5% per annum atleast, on the
excess amount remained deposited with them till all the four
accounts were finally closed. Therefore, the appellants can not
escape their liability from refunding the amount to the
petitioners as shall be due to them at the rate of 4.5% per
annum on the excess (limit) amount. We have arrived at this
conclusion presuming that the amount deposited by the
petitioners over and above the prescribed limit was an amount
deposited in saving bank account of post office fetching 4.5%
interest per annum, the interest rate prevalent at that point of
time. This approach of ours will keep the equitable balance
between the appellants and the depositors. The same rate of
7
interest is to be calculated with regard to Rs.25,350/-, the
amount of interest withheld by the appellants vis-`-vis all the
four accounts. Ordered accordingly.

The argument advanced by Mr. Raina asking for interest
over interest on the excess deposit right from the passing of the
impugned judgment, apparently did not attract us, but when
appreciated in its right perspective, we find substance in it. May
be the operation of the impugned judgment has been ordered to
be stayed by this Court vide order dated 10.04.2002 observing
that payment of interest on the excess payment shall remain
stayed, the fact remains that the amount is still lying with the
Postal authorities and generating interest. After all, it is
petitioners money only, on which, they are entitled to the
interest may be at the rate of saving bank account of Post Office.
From 01.03.2001 and onward, rate of interest on saving bank
account is 3.5 % per annum. This is the position even till date
as stated by Mr. Basotra and also admitted by Mr. Raina,
learned Senior Advocate. Therefore, in our considered view, the
petitioners are entitled to 3.5% interest Per Annum from
06.02.2002 on the amount actually falls due after calculating it
at the rate of 4.5% per annum till it is refunded within the
stipulated period to be mentioned hereinafter. Ordered
accordingly.

At the cost of repetition, we may observe here that the
petitioners are also entitled to refund of commission of the agent
deducted by the appellants.

8

The entire exercise of calculation and payment thereof to
the petitioners shall be completed within a period of four weeks
from the date, copy of the judgment/order is made available to
the concerned, in default thereof, the petitioners shall be entitled
to the interest at the rate of 7% per annum from the date of
lapse till payment is made.

As a sequel to the aforesaid discussion, the net result now
surfaces is that the appeal at hand is partly allowed in the
aforesaid terms by modifying the impugned judgment vis-`-vis
interest part only.

Connected CMP(s) also stands disposed of.

( Mohammad Yaqoob Mir ) ( Virender Singh )
Judge Judge
JAMMU
19.08.2010
Narinder

Shashi Pal vs Kamloo & Anr on 18 August, 2010

Jammu High Court
Shashi Pal vs Kamloo & Anr on 18 August, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW No. 29 OF 2001    
 Shashi Pal.
Petitioners
 Kamloo & anr 
Respondent  
! Mr. M. L. Sharma, Advocate
^None. 

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Honble Mr. Justice Mohammad Yaqoob Mir, Judge   
Date: 18.08.2010 
:J U D G M E N T :

Dr. Saikia, CJ:

Heard Mr. M. L. Sharma, learned counsel for the appellant.

None appears for the respondents despite notice.

By means of this Letters Patent Appeal, the appellant has challenged the judgment and order
dated November 30, 1999 passed by the Writ Court in OWP no. 138/1995 whereby the writ
petition preferred by respondent no. 1 herein as the writ petitioner was allowed by the Writ
Court holding that conferment of his proprietary right on the respondent no.1 was held to be in
accordance with law and resultantly the findings arrived at by the Jammu and Kashmir
Special Tribunal, Jammu rendered by its order on 2.9.1993 in file no. STJ/845/92-93 were
interfered with.

The basic facts needed to be noticed herein for proper resolution of the appeal are that
respondent no. 1 was cultivating, being in possession of the land in question as a tenant, before
and till Kharif 1971. Meanwhile, the said land was requisitioned by the Armed Forces with
effect from 1.4.1974. However, even after requisition, the respondent no.1 continued to be in
possession of the land with the Armed Forces.

It was not in dispute that the respondent no. 1 was in cultivating possession of the land up to
Kharif 1971 and till date of its requisition by the Armed Forces. Under such circumstances, it
was pleaded in the writ petition that she was entitled to get the benefit of Sections 4 and 8 of
the Jammu and Kashmir Agrarian Reforms Act, 1976 (hereinafter referred to as the Act).

Learned Single Judge accepted the submissions so made on behalf of respondent no. 1, and,
accordingly, granted the relief as already indicated above.

Impugning the judgement and order of the writ Court, Mr. Sharma has strenuously argued that
the benefit given to respondent no. 1 by the writ Court is not permissible under the law.
According to him, the Act is not applicable to the instant case so as to give the relief granted
under the Act to respondent no. 1. His basic contention is that the land being requisitioned by
the Army, it falls in the category of exception so contemplated under Section 3 of the Act. He
has drawn our attention to Section 3 (h) (i) in support of his submission.

For the sake of convenience, the relevant provisions of the Act, to be dealt with herein, may be
reproduced as under:-

3. Exception:

(h) Land:-

(i) requisitioned under any law for the time being in force; or
..

..

4. Vesting in the State of rights in land not held in personal cultivation
(1) Notwithstanding contained in any law for the time being in force, but subject to the
provisions of this Chapter, all rights, title and interest in land of any person, not cultivating it
personally in Kharief 1971, shall be deemed to have extinguished and vested in the State, from
encumbrances, with effect from the first day of May, 1973.

8. Vesting of ownership rights in land in
prospective owner

Notwithstanding contained in any law, for the time being in force, but subject to the provisions
of Sections 5 and 14, where an ex-landlord resumes land under Section 7, the tiller, from whom
land is so resumed, or his legal heirs shall be bested with ownership rights in land left with him
or his heirs, as the case may be, after resumption in the following manner, namely:-
Where the ex-landlord resumes the entire land permissible under clause (f) of sub-Section (2) of
Section 7, without payment of any levy and as soon as the ex-landlord is given possession of
resumed land; and
Where the ex-landlord does not resume the entire land permitted by clause (f) of sub-Section
(2) of Section 7 because of the provisions of sub-Section (3) of Section 7:-
after payment of such levy in such manner as is provided in Schedule III for the portion of such
land which, though resumable by such ex-landlord under clause (f) of sub-Section (2) of
Section 7; and
without payment of any levy and after the ex-landlord is given possession of the resumed land,
for the portion of such land left with such tiller other than that mentioned in sub-clause (i)
..

..

(4)Where such land as is mentioned in sub-Section (10) has been or is cleared for acquisition by
the Government under any law for the time being in force and the prospective owner thereof
has not acquired ownership rights until the date of such declaration, besting of ownership rights
in such land in such person shall not be effective and the instalments of levy, if any, paid shall
be refunded to such person in lump sum with interest at five per centum per annum.

Relying on the above provisions of law, Mr. Sharma has placed his limited argument that since
Section 3 (h) (i) has completely barred the benefit to the tiller, over his land on being
requisitioned the same under any law for the time being in force, the learned Writ Court
committed an error apparent on the face of record in granting relief to the respondent no.1 and,
as such, the impugned judgment and order deserves interference by this Court.

Due consideration was given to the extensive argument so canvassed by Mr. Sharma, learned
counsel for the appellant.

We have also closely perused the impugned judgment and order as well as the relevant laws so
reproduced hereinabove.

In the instant case, respondent no. 1, admittedly, was occupying the land since 1971 and till
date of requisition of the same by the Armed Forces on 1.4.174. On the other hand, Section 4
clearly and emphatically contemplates that the land shall be vested with the Government with
effect from May 1, 1973 if the land in question is not in cultivating possession by any person in
Kharif 1971. What transpires herein that respondent no. 1 was cultivating the land since 1971
and she continued to do so even after the requisition by the Armed Forces in the year 1974,
under the Armed Forces.

It is clear from the provisions of Section 4 that the effective date of extinguishing the right of
cultivation of a person and vesting the land with the Government is May 1, 1973. Be it
mentioned herein that the Act came into force with effect from 13.7.1978 providing the cut off
date of May 1, 1973, as clearly reflected under Section 4 of the Act.

Having considered the above mentioned factual position also upon hearing learned counsel for
the appellant, we are of the firm view that no illegality or irregularity having been committed by
the writ Court in arriving at a finding so recorded in the impugned judgment.

Consequently, we are of the view that this Letters Patent Appeal is bereft of any merit and,
accordingly, the same stands dismissed.

            (Mohammad Yaqoob Mir)         (Dr. Aftab H. Saikia)                                 
Judge                                    Chief Justice
Jammu:  
18.08.2010 
Tilak, Secy.





Director Ssb And Anr vs Bir Singh on 4 August, 2010

Jammu High Court
Director Ssb And Anr vs Bir Singh on 4 August, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 13 OF 2003    
Director SSB and anr 
Petitioners
Bir Singh
Respondent  
!Mr. Tashi Rabsta, CGSC  
^Mr. Anil Khajuria, Advocate    

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Honble Mr. Justice Hakim Imtiyaz Hussain, Judge 
Date: 04.08.2010 
:J U D G M E N T :

Dr. Saikia, CJ:

1. Heard Mr. Tashi Rabstan, learned counsel for the appellants and Mr. Anil Khajuria,
learned counsel for the respondent.

2. This letters patent appeal preferred at the behest of the official appellants, witnesses a
challenge to the judgement and order dated 11.7.2002, passed by Writ Court in SWP no.
1792/2002.

3. The sole respondent herein has initiated the instant writ proceedings only on the ground
that since one R. M. Atul, writ petitioner in SWP no. 870/2000, got the relief by way of
decision rendered in judgement and order dated 8.4.2002 passed by learned Single Judge while
disposing of the said writ petition, whereby his seniority was restored back to position at Serial
number. 12, primarily relying on a communication dated 9.3.1998/1.4.1998, he, being the
respondent herein (writ petitioner in the instant petition, SWP no. 1792/2002), claims that he
being senior to R. M. Atul, also should get the same benefit of the judgment referred to above.

4. On consideration of his such prayer, writ petition no. 1792/2002 was disposed of on
11.7.2002, extending the same benefit to the petitioner with a direction to the official
respondents, the appellants herein, to consider the claim of the petitioner as regards his seniority
and to take decision within a period of three months from the date copy of order received.

5. Judgement and order dated 8.4.2002 passed by the Writ Court in SWP no. 870/2000,
as mentioned above, has been assailed before this Court through LPA (S) no. 469/2002 by the
official respondents as the appellants. This Court vide order dated 4.8.2010, has allowed the
letters patent appeal and set aside the impugned judgement and order.

Since this appeal is an offshoot of the writ petition being SWP no. 870/2000 and relief was also
granted to the respondent herein in terms of the directions given in the said writ petition, i.e.,
SWP no. 870/2000, we find that impugned judgment and order deserves interference in the
light of the decision rendered in LPA(S) no. 469/2002 on 4.8.2010, and, accordingly, the appeal
stands allowed. Impugned judgment and order stands set aside.

                (Hakim Imtiyaz Hussain)                   (Dr. Aftab H. Saikia)
                      Judge                          Chief Justice
Jammu:  
04.08.2010 
Tilak, Secy.








U.O.I And Ors vs Narinder Pal Singh on 1 June, 2010

Jammu High Court
U.O.I And Ors vs Narinder Pal Singh on 1 June, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 246 of 2004   
U.O.I and Ors
Petitioners
Narinder Pal Singh
Respondent  
!Mr. K. K. Pangotra, ASGI.
^Mrs. Surinder Kour, Advocate.

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice,
Honble Mr. Justice Sunil Hali, Judge
Date: 01.06.2010 
:J U D G M E N T :

Per- Hali- J
This appeal has been preferred against the judgment of
learned Single Judge dated 22.03.2004 passed in SWP no.
897/2003. While disposing of the writ petition the learned Single
Judge directed the respondents to grant promotion to the writpetitioner
as Assistant Commandant with effect from
11.09.2001 when the private respondent was promoted.
In order to appreciate the controversy involved in the
present appeal, certain facts are required to be noticed.
The writ-petitioner-respondent was recruited as Sub
Inspector on 21.11.1984 and was promoted as Inspector on
25.09.1990. On the basis of his seniority, he became eligible for
2
promotion as Assistant Commandant in the year 1996. He was
not promoted and the reason indicated was that he had not
undergone the mandatory Platoon Weapon Course and
Company Commander course, which was essential condition
for making such promotion. Writ petitioner was sent on
deputation to Special protection Group, New Delhi and request
was made for relieving him for undergoing the said training
course, which was declined by the borrowing department.
Various Departmental Promotion Committees were constituted
but the petitioners case was not considered due to the fact that
he had not undergone the special training course. In the
meanwhile the private respondent R. S. Yadav, who was junior
to the petitioner, was promoted as Assistant Commandant on
11.09.2001. The writ petitioner was finally promoted as
Assistant Commandant on 28.06.2002.

The grievance set out by the writ petitioner was that
despite being eligible and senior he was not deputed for the
mandatory training course as a result of which he could not
attain the eligibility for being promoted to the higher post. The
fault lies with the respondents in this behalf as they were
required to depute him for undergoing the necessary training
course.

3

Writ petitioners further contention was that he had
undergone the mandatory training course from January 2001 to
April, 2001, but despite that he was not promoted by the
respondents when the DPC met in June, 2001.
The stand of the respondents before the writ Court was
that petitioner was not eligible for promotion as he had not
undergone the mandatory training course, which was the prerequisite
for such promotion. It is further contended by the
respondents that even though the writ petitioner underwent the
said training course from 29th of January, 2001 to 7th of April,
2001, but he could not be promoted by the Departmental
Promotion Committee constituted on 2nd of June, 2001, as
according to the instructions issued by DOP&T, New Delhi on
01.02.1999, the crucial date for determining the eligibility of
Subedars was 1st of January, 2001. The writ petitioner had not
obtained the eligibility as on 1st of January, 2001, which was the
date for determination of the eligibility for promotion to the post
of Assistant Commandant, as such, his case could not have
been considered for promotion.

We have heard the learned counsel for the parties.
The learned Single Judge has allowed the writ petition
solely on the ground that the writ petitioner was senior to the
private respondent and was required to be considered for
4
promotion to the post of Assistant Commandant with effect from
11.09.2001, when his junior was promoted.
There is no dispute that writ petitioner admittedly was
senior to the private respondent, which fact stands admitted by
the respondents also. The issue which was required to be
addressed by the learned Single Judge was as to whether the
writ petitioner was eligible for promotion on the crucial date.
Eligibility would determine his right of promotion to the higher
post. The stand of the respondents in this behalf was that the
crucial date for determining the eligibility was 1st of January,
2001, and, on that date the writ petitioner had not acquired the
eligibility for promotion. This aspect of the matter has not been
considered by the learned Single Judge. As a matter of fact,
this was the crucial issue which was required to be determined
by the learned Single Judge. Seniority may be one of the
criterions for promotion but the most important aspect was
acquiring the eligibility for such promotion. This issue has been
left un-settled by the learned Single Judge.
We, therefore, allow this appeal, set aside the impugned
judgment and remand the matter to the learned writ Court, with
a request to hear the parties afresh on the issue of eligibility. It
is expected that the matter will be disposed of by the learned
Single Judge within a period of two months.

5

Registry is directed to list the writ petition before the writ
Court in the first week of July, 2010.

(Sunil Hali) (Dr. Aftab H. Saikia)
Judge Chief Justice
JAMMU:

01.06.2010.

Anil Raina, Secy.

Pankaj Dutta vs Income Tax Officer & Anr on 1 June, 2010

Jammu High Court
Pankaj Dutta vs Income Tax Officer & Anr on 1 June, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW no. 53 of 2009    
Pankaj Dutta 
Petitioners
Income Tax Officer & anr
Respondent  
!Mr. Sachin Sharma, Advocate 
^ Mr. D. S. Thakur, Advocate

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Honble Mr. Justice J. P. Singh, Judge
Date:  01.06.2010
:J U D G M E N T :

Dr. Saikia, CJ:

Heard Mr. Sachin Sharma, learned counsel for the appellant as well as Mr. D. S. Thakur, learned
counsel for respondent no.1.

This Letters Patent Appeal has been preferred against the judgment and order dated 6.11.2009
passed by the Writ Court in OWP no. 338/2009 while disposing of OWP no. 259/2009 along
with other connected petitions by the aforesaid common judgment, holding that since the
appeal preferred by the appellant was pending before the Commissioner of Income Tax
(Appeals), Jammu and the appellant had also moved an application for stay of the demand
before the Income Tax Officer/respondent no. 1, due to availability of the efficacious remedy,
the writ jurisdiction could not be invoked.

The appellant herein is an assessee, and, being an individual Unit, has filed the return as regards
his income under the Income Tax Act (for short the Act). The return so submitted by the
appellant, was re-assessed by the Income Tax authorities, particularly respondent no. 1. Being
aggrieved by it, the appellant moved to the Commissioner of Income Tax, Appellate Authority
and, in the meantime, he also preferred an application under Section 220(6) of the Act for stay
of the assessment order before the Assessing Authority.

Having duly considered his application for stay, the Assessing Authority, without passing any
stay order as sought for, granted relief to the appellant by way of directing him to pay 50% of
the demand pending disposal of the appeal.

Being dissatisfied with the action of the respondent no. 1 not granting the stay of the demand,
the appellant initiated writ proceedings through OWP no. 338/2009.

The Writ Court, having heard learned counsel for the parties, including the Revenue, came to
the finding that, since the appellant had already preferred an appeal before the Appellate
Authority and also as the appellant was directed to pay 50% of the demand as an interim relief,
in the backdrop of the present facts and circumstances of the case, the invocation of extra
ordinary writ jurisdiction was not warranted and, accordingly, the writ petition was dismissed.
Hence, this LPA before this Court.

It will be apt and necessary for the sake of convenience and for disposal of this appeal to refer
to the provisions of Section 220(6) of the Income Tax Act, 1961.

220(6). Where as assessee has presented an appeal under section 246, the Assessing officer may,
in his discretion and subject to such conditions as he may think fit to impose in the
circumstances of the case, treat the assessee as not being in default in respect to the amount in
dispute in the appeal, even though the time for payment has expired, as long as such appeal
remains undisposed of.

A close reading of the above provision of law would clearly indicate that the assessing officer
in his discretion only can pass necessary orders till the disposal of the appeal. Since the power
to be exercised by the Assessing Authority is purely discretionary and admittedly the main
appeal is also pending before the Appellate Court for its disposal, we are of the considered
view that the discretion which was exercised by the Assessing Authority/respondent no.1 given
in the facts and circumstances of the case, was in accordance with the established principles of
law, equity and justice. According to us, it was not a fanciful or arbitrary exercise of discretion.

It is accepted that exercise of discretionary power can be interfered with by the High Court
only if the order passed is violative of some fundamental or basic principles of justice and fair
play or suffers from any patent or flagrant error.

In view of the facts situation so projected in this appeal, it may be safely held that refusal of
granting of stay order as sought for, did not infringe or contravene any legal right or, to say,
fundamental right enforceable by the appellant under Article 226 of the Constitution of India.

That being so, we do not find any merit in this appeal and the same stands dismissed.

No costs.

                      (J. P. Singh)                                              (Dr. Aftab H. Saikia)
                            Judge                                                     Chief Justice
Jammu:  
01.06.2010 
Tilak, Secy.




)Girdhari Lal And Ors vs Union Of India And Ors on 20 May, 2010

Jammu High Court
)Girdhari Lal And Ors vs Union Of India And Ors on 20 May, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 676 OF 2009 AND SWP No. 677 OF 2009        
1)Girdhari Lal and ors
2) Naresh Bharti and ors
Petitioners
Union of India and ors
Respondent  
!Mr. Navneet Dubey, Advocate 
^Mr. V.K.Magoo, Advocate. 

MR. JUSTICE J. P. SINGH, JUDGE.    
Date: 20.05.2010 
:J U D G M E N T :

Learned counsel for the parties were heard on the
maintainability of these Writ Petitions in this Court in view of the
applicability of the Administrative Tribunals Act, 1985 to Bharat
Sanchar Nigam Limited, the petitioners employer, vide S.O.(E)
dated the 31st October, 2008 issued by Government of India,
Ministry of Personnel Public Grievances and Pensions
(Department of Personnel and Training).

Petitioners have filed these Writ Petitions seeking, inter
alia, fixation of their seniority besides promotion to the post of
STS Group-A in the Cadre of STS- Group Service.
Learned counsel for Bharat Sanchar Nigam Limited has
opposed the maintainability of the petitioners Writ Petitions on
the ground that, with the issuance of Government of India,
Ministry of Personnel, Public Grievances and Pension
(Department of Personnel and Trainings) Notification S.O.(E)
dated the 31st October, 2008 applying the provisions of the
Administrative Tribunals Act, 1985 to the Bharat Sanchar Nigam
Limited, this Court may not have jurisdiction to entertain the Writ
Petitions because the dispute raised in these Writ Petitions was
cognizable by the Central Administrative Tribunal.
Petitioners learned counsel says that the Administrative
Tribunals Act, 1985 was not applicable to the employees of the
Bharat Sanchar Nigam Limited in view of the exception
appearing in Section 14(3)(b) of the Administrative Tribunals
Act, 1985 and these Writ Petitions were, thus, maintainable in
this Court notwithstanding the issuance of Notification S.O.(E) of
October 31, 2008 .

Per contra, Bharat Sanchar Nigam Limiteds learned
counsel submitted that Section 14(1)(b)(iii) referred to in Section
14(3)(b) would have no application to the employees of the
Bharat Sanchar Nigam Limited, in that, the word and appearing
before the expression pertaining to the service of such member
in Section 14(1)(b)(iii), relied upon by the petitioners counsel,
would not be read disjunctively, in that, such a course was
neither countenanced by the law makers nor was such
interpretation of the above referred provision, otherwise
permissible and in this view of the matter, the provisions of the
Administrative Tribunals Act, according to the learned counsel,
would apply to the Bharat Sanchar Nigam Limited.
Learned counsel for the parties were not, however, at
variance that in the event of the applicability of the Act to Bharat
Sanchar Nigam Limited, the dispute raised in both Writ Petitions
would be cognizable by the Central Administrative Tribunal.
I have considered the submissions of learned counsel for
the parties and gone through the provisions of Section 14(1) and
(3) of the Administrative Tribunals Act, 1985.
A plain reading of Section 14(1)(b)(iii), on which the
petitioners learned counsel lays great stress, demonstrates that
word and appearing in clause (iii) aforementioned is specifically
intended to apply to those Civilians, who were appointed to any
defence services or a post connected with defence, be they
under the control of the Government of India or any corporation
or society owned or controlled by the Government.
This clause, by no stretch of reasoning, can be said to
apply to the members of the Corporation for which the
Parliament, in its wisdom, has made specific provision under
Section 14(3) of the Act vesting the Central Administrative
Tribunals with all the jurisdiction, powers and authority
exercisable immediately before the notified date by all Courts
except the Supreme Court, in relation to recruitment and other
matters concerning recruitment, to any service or post in
connection with the affairs of such local or other authority or
corporation or society and all service matters concerning a
person appointed to any service or post in connection with the
affairs of such local or other authority or corporation or society
and pertaining to the service or such person in connection with
such affairs.

I, therefore, do not find any merit in the petitioners learned
counsels submission that the exception indicated in Section
14(3)(b) of the Administrative Tribunals Act,1985 was attracted
in case of the employees of the Corporation and in this view of
the matter, it is held that after coming into force of S.O.(E) dated
the 31st October, 2008 the provisions of Section 14(3) of the
Administrative Tribunals Act, 1985 would apply to Bharat
Sanchar Nigam Limited in relation to the disputes mentioned in
Section 14(3)(a) &(b) of the Act.

For all what has been said above, the dispute raised by
the petitioners in both the Writ Petitions being cognizable by the
Central Administrative Tribunal constituted under the provisions
of The Administrative Tribunals Act, 1985, this Court would have
no jurisdiction to entertain the petitioners Writ Petitions.
These Writ Petitions are, accordingly, dismissed as nonmaintainable,
leaving the petitioners free to approach the
Central Administrative Tribunal.

(J. P. Singh)
Judge
JAMMU
20.05.2010
Vinod.

)Girdhari Lal And Ors vs Union Of India And Ors on 20 May, 2010

Jammu High Court
)Girdhari Lal And Ors vs Union Of India And Ors on 20 May, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 676 OF 2009 AND SWP No. 677 OF 2009        
1)Girdhari Lal and ors
2) Naresh Bharti and ors
Petitioners
Union of India and ors
Respondent  
!Mr. Navneet Dubey, Advocate 
^Mr. V.K.Magoo, Advocate. 

MR. JUSTICE J. P. SINGH, JUDGE.    
Date: 20.05.2010 
:J U D G M E N T :

Learned counsel for the parties were heard on the
maintainability of these Writ Petitions in this Court in view of the
applicability of the Administrative Tribunals Act, 1985 to Bharat
Sanchar Nigam Limited, the petitioners employer, vide S.O.(E)
dated the 31st October, 2008 issued by Government of India,
Ministry of Personnel Public Grievances and Pensions
(Department of Personnel and Training).

Petitioners have filed these Writ Petitions seeking, inter
alia, fixation of their seniority besides promotion to the post of
STS Group-A in the Cadre of STS- Group Service.
Learned counsel for Bharat Sanchar Nigam Limited has
opposed the maintainability of the petitioners Writ Petitions on
the ground that, with the issuance of Government of India,
Ministry of Personnel, Public Grievances and Pension
(Department of Personnel and Trainings) Notification S.O.(E)
dated the 31st October, 2008 applying the provisions of the
Administrative Tribunals Act, 1985 to the Bharat Sanchar Nigam
Limited, this Court may not have jurisdiction to entertain the Writ
Petitions because the dispute raised in these Writ Petitions was
cognizable by the Central Administrative Tribunal.
Petitioners learned counsel says that the Administrative
Tribunals Act, 1985 was not applicable to the employees of the
Bharat Sanchar Nigam Limited in view of the exception
appearing in Section 14(3)(b) of the Administrative Tribunals
Act, 1985 and these Writ Petitions were, thus, maintainable in
this Court notwithstanding the issuance of Notification S.O.(E) of
October 31, 2008 .

Per contra, Bharat Sanchar Nigam Limiteds learned
counsel submitted that Section 14(1)(b)(iii) referred to in Section
14(3)(b) would have no application to the employees of the
Bharat Sanchar Nigam Limited, in that, the word and appearing
before the expression pertaining to the service of such member
in Section 14(1)(b)(iii), relied upon by the petitioners counsel,
would not be read disjunctively, in that, such a course was
neither countenanced by the law makers nor was such
interpretation of the above referred provision, otherwise
permissible and in this view of the matter, the provisions of the
Administrative Tribunals Act, according to the learned counsel,
would apply to the Bharat Sanchar Nigam Limited.
Learned counsel for the parties were not, however, at
variance that in the event of the applicability of the Act to Bharat
Sanchar Nigam Limited, the dispute raised in both Writ Petitions
would be cognizable by the Central Administrative Tribunal.
I have considered the submissions of learned counsel for
the parties and gone through the provisions of Section 14(1) and
(3) of the Administrative Tribunals Act, 1985.
A plain reading of Section 14(1)(b)(iii), on which the
petitioners learned counsel lays great stress, demonstrates that
word and appearing in clause (iii) aforementioned is specifically
intended to apply to those Civilians, who were appointed to any
defence services or a post connected with defence, be they
under the control of the Government of India or any corporation
or society owned or controlled by the Government.
This clause, by no stretch of reasoning, can be said to
apply to the members of the Corporation for which the
Parliament, in its wisdom, has made specific provision under
Section 14(3) of the Act vesting the Central Administrative
Tribunals with all the jurisdiction, powers and authority
exercisable immediately before the notified date by all Courts
except the Supreme Court, in relation to recruitment and other
matters concerning recruitment, to any service or post in
connection with the affairs of such local or other authority or
corporation or society and all service matters concerning a
person appointed to any service or post in connection with the
affairs of such local or other authority or corporation or society
and pertaining to the service or such person in connection with
such affairs.

I, therefore, do not find any merit in the petitioners learned
counsels submission that the exception indicated in Section
14(3)(b) of the Administrative Tribunals Act,1985 was attracted
in case of the employees of the Corporation and in this view of
the matter, it is held that after coming into force of S.O.(E) dated
the 31st October, 2008 the provisions of Section 14(3) of the
Administrative Tribunals Act, 1985 would apply to Bharat
Sanchar Nigam Limited in relation to the disputes mentioned in
Section 14(3)(a) &(b) of the Act.

For all what has been said above, the dispute raised by
the petitioners in both the Writ Petitions being cognizable by the
Central Administrative Tribunal constituted under the provisions
of The Administrative Tribunals Act, 1985, this Court would have
no jurisdiction to entertain the petitioners Writ Petitions.
These Writ Petitions are, accordingly, dismissed as nonmaintainable,
leaving the petitioners free to approach the
Central Administrative Tribunal.

(J. P. Singh)
Judge
JAMMU
20.05.2010
Vinod.

Mohd Iqbal vs State & Ors on 6 May, 2010

Jammu High Court
Mohd Iqbal vs State & Ors on 6 May, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 1336-S OF 2004    
Mohd Iqbal 
Petitioners
State & Ors 
Respondent  
!Mr. M.R.Qureshi, Advocate with Mr. Z.A.Mughal, Advocate 
^Mr. Jagdish Parihar, AAG 

Hon'ble Mr. Justice Mansoor Ahmad Mir, J 
Date: 06.05.2010 
: J U D G M E N T :

Precise question for consideration is whether promotion order can be revoked without hearing
an employee?

It appears that petitioner was working as Head Constable in the year 2002, came to be
promoted as Assistant Sub Inspector vide Government Order no. 844 of 2002 dated 16th of
July’ 2002. Thereafter, respondents at his back, passed an order No. 497 of 2004 dated 11th of
November’ 2004 whereby and where-under the said promotion order came to be recalled-
rescinded. Feeling aggrieved, petitioner questioned the same on the grounds taken in the writ
petition.

Respondents have filed reply. They have accepted it in para 2 of the reply, that nothing
adverse was reflected against the petitioner when his case was considered for promotion. Thus,
the promotion came to be granted after due deliberations and considerations. According to the
respondents, some departmental inquiry was pending against the petitioner and Departmental
Promotion Committee (for short D.P.C) has not made recommendation in his favour, which
made the respondents, after lapse of two years, to pass the impugned order.

It is beaten law of the land that right of consideration for promotion is a legal right, but
to claim promotion is not a right. But when promotion is granted, it creates a vested right and it
cannot be taken away without hearing an employee.

It would be apt to reproduce Regulation 396 of J&K Police Manual, which reads as
under:-

396. PROBATIONARY PERIOD OF PROMOTION:- All police officers promoted in
rank may be reverted within two years of promotion without departmental proceedings as in the
case of constables promoted to the rank of Head Constable Junior Grade. Reversion of an
Officer shall not be considered as reduction. Confirmation will be subject to a favourable report
rendered to the officer authorised to make promotion prior to the expiry of the period during
which reversion is possible.

In terms of Regulation 396 of J&K Police Manual, a promotion order can be
withdrawn, rescinded or cancelled during the period of probation without conducting
departmental proceedings-inquiry within two years from the date of issue of the order. If the
order is not passed within two years, then in terms of the said Regulation, departmental inquiry
was required.

While arguing, Mr. Qureshi, placed on record a photostat copy of communication No.
GB/Rep/5453-59 dated 03rd of May’ 2005, made by the Commandant I.R. III Battalion to
Additional Director General of Police, which provides that there was need to pass the
impugned order and the promotion was rightly granted. Mr. Qureshi, also stated at bar that the
petitioner is still holding the post of Assistant Sub Inspector as on today.

Keeping in view the discussions made herein above read with mandate of Regulation
396 of J&K Police Manual, the writ petition succeeds and same is allowed. Accordingly, the
impugned order is quashed.

Disposed of along with all CMPs, if any.

(MANSOOR AHMAD MIR)
Judge
Jammu:

06-05-2010
Sanjay