Jammu, Apr 20: In Transfer Application No. 3610/2020 titled Vinay Bala Versus 1. State of J&K Through Commissioner/Secretary to Government Labour and Employment Department Civil Secretariat, Jammu/Srinagar & ors after hearing CAT ordered as under:-
(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J) 1. The instant Transfer Application has been filed by the applicant originally before the Hon’ble High Court as SWP No. 562/2017 and now transferred to this Tribunal seeking for the following relief:- i. Allow this Writ Petition of the petitioner. ii. Issue a writ in the nature of certiorari; quashing the impugned seniority list no. Addl./PFC/2292- 97 dated 25-01-2017 by virtue of which the petitioner has been shown at Sr. No. 3 in the cadre of Senior Assistant and her juniors have been shown senior to her and even her service colleague have been shown in the cadre of Head Assistant though the petitioner being appointee of the year 1985 and deem to be in continuous service from her initial date of joining in service in light of order passed in compliance of the judgment passes by this Hon’ble Court in LPA No. 97/1993 dated 09-09-1999. iii.Issue a writ in the nature of Certiorari; Quashing the order no. PFC/03 of 2017 dated 17-01-2017 by virtue of which the objections filed by the petitioner to the tentative seniority list dated 24- 11-2016 have been rejected. iv. Issue a writ in the nature of mandamus; commanding the respondents to reframe the seniority list and placed the petitioner at appropriate place over and above her junior colleagues and at par with her service colleagues in the cadre of Senior and on her further promotion as per the entitlement in the cadre of Head Assistant. v. Issue a writ in the nature of mandamus; commanding the respondents to allow the consideration of the petitioner for promotion to the post of Head Assistant from the date the petitioner is entitled to which entitled to and over and above her junior service colleagues. vi.Issue a writ in the nature of mandamus; commanding the respondents to complete the service book of the petitioner and also to allow periodical increments as well as benefits of in-situ promotion to the petitioner. vii. Issue a writ in the nature of prohibition ; restraining the respondents from acting upon the impugned seniority list and giving any consequential benefits on the basis of this impugned seniority list to the private respondents. viii. Any other writ , order, command or directions which this Hon’ble Court may deem just and proper in the given facts and circumstances of the case may also be passed in favour of petitioner and against the respondents.
2. At the outset Sh. F A Natnoo Ld. Counsel for the applicant stated that since the applicant is at the verge of retirement and as per the instructions imparted to him by the applicant , he may be permitted to withdraw relief no. II, III, IV, VII & VIII (above), which request of the applicant has been considered and prayer allowed. Now it is only with respect of relief no. (VI above), we shall proceed to dispose of the aforesaid TA of the applicant.
3. The brief facts as stated in the instant TA are that the applicant came to be appointed as Junior Assistant in the department of Employees Provident Funds Organization in the year 1985. However due to unavoidable circumstances and her ill health the applicant could not attend the services from 01-12-1990 and vide Order No. 34-PFC of 1992 dated 07-02-1992, the services of the applicant were dispensed with.
The aforesaid order of dispensing with the services of the applicant was challenged by the applicant before Hon’ble High Court and finally vide judgment dated 09-09-1999 passed by Hon’ble Division Bench in LPA No. 97/1993 it was observed/held as under :-
““ The appeal is accordingly disposed of with a direction that order of termination shall stand quashed. Appellant shall stand reinstated . She shall start getting wages with effect from the date she produces copy of order passed by this court before the authority who passed order of termination. The aforementioned authority would be at liberty to hold fresh enquiry. In case it is decided to hold fresh enquiry then charge sheet would be served on the appellant and enquiry officer would also be appointed.”
4. That although the applicant in compliance of the aforesaid judgment dated 09-09-1999 was allowed to join back her duties however the respondents have failed to take any decision regarding the absent period till 2010 when vide order No. PFC/GPF/128/186-89 dated 12-05-2010 issued by the respondent no.2 the applicant was directed deemed to be in continuous service from her initial date of joining in the service and the period from 16-11-1990 to 29-09-1992 was settled as on medical grounds under the provisions of JKCSR and period from 30-09-1992 to 30-09-1999 was settled as leave without allowances without postponing for increment for that period.
5. That the applicant further contends that she was allowed one functional promotion as Senior Assistant in the year 2013 and thereafter neither any functional nor the in-situ promotion to which the applicant was entitled to have been allowed and even the routine increments which were even protected vide aforesaid order No. PFC/17 of 2010 dated 11-05-2010 for the period from 1992 to 1999 were not been allowed and even the service book of the applicant was also not been maintained for these years.
6. Ld. Counsel for the applicant Mr. F A Natnoo has further drawn intention of this Hon’ble Tribunal towards interim order dated 27-03-2018 passed by the Hon’ble High Court whereby the respondents were directed to maintain the service book of the applicant under rules.
7. In the reply filed by the respondents , though the respondents have specifically resisted the claim of the applicant regarding her promotion , however the respondents have not clarified the position viz-a-viz the benefit of increments as well as in- situ promotions if any allowed to the applicant.
8. Heard Learned counsels for the parties and perused the record of TA.
9. At the outset , it may be stated that it is not disputed that in compliance to directions passed by the Hon’ble Division Bench , the applicant was reinstated in service and even vide order dated 11-05-2010 the period of absence from 16-11- 1990 to 29-09-1992 was directed to be settled on medical grounds, further period for 30-09-1992 to 30-09-1999 was settled as leave without allowance, without postponing increments for that period. Further the applicant by virtue of the said order has been deemed to be continuing in service from her initial date of employment in J&K Employee Provident Funds Organization.
10. The necessary fall out of the aforesaid order dated 11- 05-2010 is that the applicant is entitled at-least for the purposes of increments and in-situ promotion for which she cannot be deprived by taking her in continuing service from the initial date of joining.
11. In view of the above we allow the TA to the above extent only by directing the respondents to complete the service book of the applicant who is stated to be at the verge of retirement, by allowing all increments including in-situ promotions to which the applicant will be found entitled to in light of order no. PFC/17 of 2010 dated 11-05-2010 whereby her period of absence has been settled besides allowing her to be continuing in service from her initial date of joining.
12. No order as to costs.
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