Denial amounts to violation of Articles 14, 16 of Constitution
Quashes order passed by Director Handicrafts
Mohinder Verma
JAMMU, Nov 30: High Court of Jammu & Kashmir and Ladakh has held that all similarly situated persons should be treated similarly even if they don’t approach the court. However, this principle is subject to well recognized exceptions in the form of latches and delays as well as acquiescence.
The judgment has been delivered by Justice Wasim Sadiq Nargal in a petition titled Mehmooda and Others Versus Government of J&K through Commissioner Secretary, Industries and Commerce Department and Director Handicrafts Department.
The petitioners were initially appointed as Accountant-cum-Storekeeper in the Jammu and Kashmir Handicrafts Corporation in the Massive Carpet Scheme in the year 1982 and in the year 1988, the Government decided to transfer 35 Carpet Training Centers under Massive Carpet Training Scheme along with the staff from the Corporation to the Handicrafts Development Department.
The petitioners who were appointed in the Corporation in the year 1982 and 1984 were also the beneficiaries of the Government order. Pursuant thereto, a policy decision was taken by the Government in the year 2005 to absorb 468 employees of the erstwhile Massive Carpet Scheme of the Corporation who were transferred to the department as a separate scheme and accordingly, the pay scale in respect of various categories of services was also fixed.
The Government Vide Order No. 198/IND of 2008 dated 5th July 2008 accorded sanction to the revision of pay scale of the employees of erstwhile Massive Carpet Scheme who were permanently absorbed in the department and further sanction was accorded to the regularization of services rendered by the employees of Massive Carpet Scheme in Corporation from the date they joined in the Scheme on notional basis.
Though employees of erstwhile Massive Carpet Scheme of the Handicrafts Corporation were absorbed in the Department of Handicrafts in regular pay scale yet no promotion avenues were made available to them and feeling aggrieved of the same, some of the employees engaged as Accountant Cum Storekeepers approached High Court through the medium of SWP No. 1672/2009, seeking appropriate direction upon the respondents to consider the case of the petitioners by way of promotion to the next higher posts and also sought in situ promotion in terms of the Jammu and Kashmir Civil Service Higher Standard Pay Scale of 1996.
The High Court vide order dated 9th February 2012 decided the petition in the favour of petitioners. However, the Government preferred LPA before the Division Bench, which upheld the judgment of the Single Bench.
In the meanwhile, some other employees approached the High Court and claimed that they are similarly situated to the petitioners in the SWP No. 1672/2009 and the writ petition was allowed by Single Judge without inviting any objections and discussing the merits of the case. The High Court disposed of the petition with the direction to the respondents to determine the eligibility of the petitioners.
However, Directorate of Handicrafts rejected the case of the petitioners, who accordingly challenged the same through the medium of the instant writ petition.
After hearing Advocate Muzamil Jabeen for the petitioners and Senior Additional Advocate General Abdul Rashid Malik along with Advocate Younis Hafiz for the respondents, Justice Wasim Sadiq Nargal observed, “the question which has emerged for the consideration of this court is that whether the benefit which has been given to retired persons, can be given to the petitioners being similarly situated”.
“It is settled preposition of law that when a particular set of employees is given relief by the court, other identically situated persons shall be treated alike and not doing so would amount to discrimination and will be in violation of Article 14″, High Court said, adding “to deny similar benefits to the petitioners on the touchstone of what has already been granted to same set of employees and falling in the category of retired employees would tantamount to discrimination and violation of Articles 14 and 16 of the Constitution of India”.
“Thus, this court is of the view that once the benefit has been given to the retired persons, the same cannot be denied to the petitioners who are similarly situated and thus, the order impugned rejecting the claim of the petitioners cannot sustain the test of law and is liable to be rejected”, High Court said while referring several judgments of the Supreme Court.
About the question-whether the exception carved out by the Apex Court in Arvind Kumar Srivastavas case will apply to the facts and circumstances of the instant case, High Court said, “it can fairly be concluded that when a particular set of employees is given a relief by a particular court, all other identically situated persons needed to be treated alike by extending the same benefit”, adding “simply, because the petitioners did not come to the court when they were in active service cannot be deprived of their legitimate rights, particularly when the judgment passed by this court was conclusive not only against the parties but also against the whole world”.
“When the discriminatory clause was quashed while all the petitioners were in service, the benefit would automatically accrue to the petitioners in the instant petition”, High Court said, adding “the service jurisprudence which has been evolved by the Apex Court from time to time postulates that all similarly situated persons should be treated similarly. However, this principle is subject to well recognized exceptions in the form of latches and delays as well as acquiescence”.
Accordingly, High Court quashed the impugned Order No. 85-HD of 2018 dated 8th February 2018 passed by Director Handicrafts and directed the respondents to extend the similar benefits of judgment dated 09.02.2012 passed in SWP No. 1672/2009 in favour of the petitioners within a period of six weeks.
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