HC Division bench upholds Single Judge judgement; censures Law Deptt

 J&K High Court, Srinagar
J&K High Court, SrinagarMubashir Khan/GK File

Jammu: A Division Bench of High Court of Jammu & Kashmir and Ladakh at Jammu has censured Law Department while dismissing the appeals filed by the State of J&K against the judgement of the Single Judge in a case related to the seniority position of former Secretary J&K Legislative Assembly Renu Mahajan.

The Division Bench, comprising Justice Tashi Rabstan and Justice Wasim Sadiq Nargal, while deciding the Letters Patent Appeal (LPA) against the order of Single Judge by the State on November 18, held that it did not “appreciate the manner in which the official writ respondents (State of J&K) with malafide intentions favoured appellant Nazir Ahmed Thakur and rejected the case of respondent Renu Mahajan without any basis proving the proverb might is right, or the one who has a power is always right.”

“It seems the official writ respondents as well as the entire government machinery, particularly the Law Department was behind appellant-Nazir Ahmed Thakur to give him undue favour at the cost of respondent-Renu Mahajan right from the year 2001 and in the melee respondent (Renu Mahajan) retired from service during the period the judgment was reserved for pronouncement,” the Division Bench observed, while upholding the judgement of the Single Judge.

Single Judge, in his order passed on January 30, 2018, while allowing the writ petition of Mahajan, former Secretary J&K Legislative Assembly, had quashed the seniority list issued vide Government order No 2120-LD (Estt) of 2015 dated July 20, 2015 to the extent of writ respondent Nazir Ahmad Thakur and (writ petitioner) Mahajan shown at seniority position Number 1 and Number 2 respectively in category–D (Legal Assistants).

Single Judge had also directed the writ respondent Number 1 (State of J&K) to redraw the seniority list by showing writ petitioner Mahajan at seniority position Number 1 and writ respondent- Nazir Ahmad Thakur at seniority position Number 2 in category-D (Legal Assistants).  

The Division Bench, while dismissing the appeals filed by the State as well as Nazir Ahmed Thakur, agreed with the Single Judge that although respondent-Renu Mahajan and appellant-Nazir Ahmed Thakur “entered the Law Officer’s Service simultaneously as both of them at the time of creation of service were in the pay scale of Rs 2000-3200, yet respondent-Renu Mahajan ought to have been ranked higher than appellant-Nazir Ahmed Thakur in Category-D (Legal Assistants) on the ground that inter se seniority of the persons who enter a newly created service can be determined only with reference to their initial appointment to a particular post in a particular grade and not to the date of entering the newly created service, as the same principle as a matter of fact was adopted by the State, through Secretary to Government, Law Department in fixing the seniority of Legal Assistants in Category-D.”

“However, before parting, we are constrained to observe here that appellant-Nazir Ahmed Thakur, for obvious reasons, was always allowed to steal a march over and above respondent-Renu Mahajan without any basis, first by giving promotion on officiating basis as Law Officer, Grade-II, much before respondent Renu Mahajan, thereafter, again on officiating basis, pending clearance by the Departmental Promotion Committee (DPC), as Senior Law Officer and Additional Secretary thereby keeping Nazir Ahmed Thakur at Serial No1 and Renu Mahajan at Serial No 2 without fixing their seniority in the basic category of Legal Assistants (earlier Public Law Officer) ignoring the fact that she was senior to appellant-Nazir Ahmed Thakur,” the Division bench further observed.

“It was not the case of official writ respondents that appellant-Nazir Ahmed Thakur was having better ACRs than that of respondent-Renu Mahajan or that respondent-Renu Mahajan was lacking in performing her official duties, rather we found that the whole approach of official respondents was wrong,” the Division Bench added.

It (Division Bench) observed the objections filed in SWP No.1042/2014 clearly revealed that the “writ respondents had not taken any plea or raised any objection with regard to delay and laches on the part of Renu Mahajan in approaching the Writ Court.”

“Same is the position as regards the objections filed by Nazir Ahmed Thakur to SWP No.309/2016. As such, it is a well settled law, as held by the Apex Court in its judgments that the pleas or pleadings, which are not taken in a writ petition or during the pendency of writ proceedings, cannot be allowed to be taken at a later stage or in the appeal. Therefore, on this ground alone the appeals fail and deserve to be dismissed,” the court held.

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