Employee Not Approaching Court During Active Service Can't Be A Premise To Treat Similarly Situated Employees Differently, Deny Promotion: J&K High Court

In dismissing an intra-court appeal against a judgment whereby the plea of an employee for his retrospective promotion had been allowed Chief Justice N Kotiswar Singh and Justice wasim Sadiq Nargal observed,

“By applying different yardstick and treating him stepmotherly, merely on the ground that the respondent herein did not approach this Court, when he was in active service, cannot be deprived of the fruits of the said judgment, wherein, benefit was extended to a similarly situated employee by accepting and implementing the said judgment, more particularly when the respondent has filed representation(s) prior to his retirement and his case was recommended by the University authorities as well”.

Background

The case involved an Assistant Registrar, Saif-Ud-Din Mir, who along with his colleague Mohammad Yasin Malik, were appointed as acting Deputy Registrars. Both received promotions based on a University order. However, while Mir's promotion was made permanent later, Malik's promotion was made retrospective with effect from the date he began acting as Deputy Registrar on the back of a writ petition he had filed in 2011.

After repeatedly representing before the University authorities for seeking a similar treatment Mir challenged this discrepancy before a single judge, arguing that he too deserved the benefit of retrospective promotion. The University contested this claim, citing delay on Mir's part and stating that his promotion was temporary with charge allowance, unlike Malik's substantive promotion.

However, the Single bench allowed his plea and directed the appellant-University to grant the benefits of pay and grade attached to the post of Deputy Registrar to the petitioner retrospectively.

Observations: 

The University, in its Letter Patent Appeal (LPA), argued that Mir's case was not identical to Malik's, and the delay in filing the writ petition should disbar him from receiving the benefit. The Court, however, firmly rejected these arguments.

The Court observed that Mir had actively pursued his claim for promotion through representations filed well before his retirement and the University's inaction on these representations could not be used against Mir.

“It is not the case of the Appellant-University that it was only after judgment was passed in favour of a co-employee that the respondent/writ petitioner projected his case for grant of similar relief but on the other hand, the petitioner has filed a detailed representation well in time, when he was in active service but due to inaction on part of the Appellant-University to take a decision on the said representation inspite of the recommendation, cannot be a stumbling block for according similar relief to the writ petitioner on the touchstone of equality clause”, observed Justice Nargal writing for the bench.

Furthermore, the Court emphasized that once a benefit is accorded to a similarly situated employee, denying the same benefit to another based on technicalities like temporary promotions or charge allowances cannot be justified as this would violate the fundamental right to equality enshrined in the Constitution.

“Once, the said benefit of retrospective promotion has been accorded to a co-employee who was similarly situated, then the ground urged by the appellants that since the placement of the respondent was not substantive and by way of charge allowance, loses its significance and the respondent herein by no stretch of imagination could be discriminated”, the bench recorded.

Citing State of Karnataka v. C. Lalitha (2006) and State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others (2015) to support its reasoning the bench reiterated that service matters require similar treatment for similarly situated employees.

While delays and acquiescence can be exceptions, they were not applicable in this case due to Mir's timely representations, the court said while adding,

“The petitioner was alive to his denial of promotion and this was precisely the reason that he filed detailed representations before the Appellant-University well within time, when he was in active service and recommendation was also made in his favour prior to his retirement”.

Based on these considerations the bench dismissed the appeal.

Case Title: University of Kashmir Vs Saif-Ud-Din Mir

Citation: 2024 LiveLaw (JKL) 61

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