Union Territory of J&K vs Gurmeet Kour

Sindhu Sharma, J

The present writ petition has been filed by the writ petitioners under Article 226 of the Constitution of India, challenging the order dated 02.05.2023, passed by the Central Administrative Tribunal, Jammu Bench (hereinafter referred to as the "learned CAT") in T.A. No. 8789/2020 (SWP No. 1264/2013), titled Gurmeet Kour vs. Union Territory of J&K and another, whereby the petitioners have been directed to grant the benefit of notional seniority to the respondent-Gurmeet Kour, with effect from the date on which other candidates, who responded to the advertisement notice issued in the year 1996, were accorded seniority.

The facts as these emerge from the record on file are that in response to Advertisement Notice No. 03 of 1996 dated 24.12.1996 by the Jammu and Kashmir Service Selection Recruitment Board (JKSSRB) for teacher posts in Jammu District, the respondent, Gurmeet Kour, applied. The minimum qualification required was 10+2, but she held B.Ed and M.Ed degrees. JKSSRB gave 50% weightage to marks obtained in the 12th class. Despite being more qualified, Gurmeet Kour was not selected. Similarly, others like Balwinder Kour, Harjeet Kour, Purnima Koul, and Sushma Sharma were also not selected and filed writ petitions (SWP Nos. 1625/1998 and 2264/1999). Gurmeet Kour also challenged her non-selection through writ petition SWP No. 1141/1998.

While earlier writ petitions were still pending, more teacher posts were advertised through Notification No. 01 of 1999 dated 09.03.1999. Balwinder Kour's writ petition (SWP No. 1615/1998) was dismissed on 15.05.1999, but she challenged this in LPA No. 364/1999. The appeal was allowed on 18.10.1999, with the Court finding the criteria that favored candidates who passed 10th under the system as unfair. The SSRB challenged this in the Supreme Court, but their appeal was dismissed. Following this, in another case (SWP No. 1141/1998), this Court relied on the judgment dated 18.10.1999 and directed the SSRB to revise the selection criteria. However, while revising the merit list based on the 1999 advertisement, the SSRB wrongly applied it to candidates like the respondent who had applied under the 1996 advertisement (Notice No. 03/1996). As a result, the respondent and others were not selected. Several affected candidates filed fresh writ petitions, including SWP No. 2052/2004 (Harjeet Kour), SWP No. 578/2004 (Balwinder Kour), and SWP No. 542/2005 (respondent). The leading case, Harjeet Kour, was decided on 31.12.2007, directing the authorities to reconsider these cases based on the earlier judgment dated 22.10.1999.

The Jammu and Kashmir Services Selection Recruitment Board (SSRB), being aggrieved by the judgment dated 31.12.2007 rendered in the aforementioned writ petitions, preferred Letters Patent Appeals (LPA Nos. 75/2008, 54/2008, 51/2008, and 71/2008). However, the Division

Bench of this Hon’ble Court dismissed the said appeals vide judgment dated 10.12.2010. The SSRB subsequently assailed the common judgment before the Hon’ble Supreme Court, but the appeal was also dismissed. Thereafter, in SWP No. 542/2005 filed by the respondent, this Court, by its judgment dated 28.02.2012, directed the petitioners to consider the respondent’s case for selection to the post of Teacher in accordance with the applicable rules and the earlier judgment dated 31.12.2007 passed in Harjeet Kour v. State of J&K & Ors. Pursuant to these directions, the respondent’s candidature was reconsidered in the context of Advertisement Notice No. 03 of 1996, and she was, accordingly, appointed as a Teacher. However, despite being similarly situated, the respondent was not granted notional seniority and consequential promotion, unlike other candidates such as Harjeet Kour, Balwinder Kour, Purnima Koul, and Sushma Sharma.

Aggrieved by the inaction of the writ petitioners in not granting her the notional benefits of seniority and promotion, the respondent instituted

SWP No. 1264/2013 before this Hon’ble Court, which was subsequently transferred to the learned Central Administrative Tribunal. In the said petition, the respondent sought a direction to the competent authorities to confer upon her all consequential service benefits, including seniority, promotion to the post of Headmaster, and the monetary emoluments attached to the post of General Line Teacher, with retrospective effect from the year 1998 up to 19.12.2012 and thereafter.

The learned Tribunal CAT vide order dated 02.05.2023, while noting that this High Court had already granted notional benefits of appointment to other candidates who were selected under Advertisement No. 3 of 1996, and that decision is now final. Based on this, the learned CAT directed the petitioners to give similar notional seniority to the respondent-Gurmeet Kour, starting from the date when the other candidates from the advertisement of 1996 were given seniority. It was also directed that this notional seniority should be considered for calculating her pay and for giving her the benefits of promotion.

The impugned order dated 02.05.2023 passed by the learned CAT is being assailed by the petitioners on the ground that the original writ petition filed by the respondent, being SWP No. 1264/2013 (subsequently transferred to the learned CAT), is barred by the principles of res judicata. It is contended that in the earlier writ petition, SWP No. 542/2005, the respondent had only sought relief pertaining to her appointment and had not raised any claim with respect to seniority. The subsequent claim for notional service benefits, as raised in the later proceedings, was not part of the original cause of action and appears to be an afterthought. It is further submitted that in compliance with the judgment dated 28.02.2012, J&K Services Selection Recruitment Board (SSRB) recommended her case on 11.09.2012. As such, her claim for benefits prior to the said date is untenable and devoid of legal merit.

The respondent has filed objections, asserting that her case is covered by the judgments already rendered by this Court, which have attained finality before the Hon’ble Supreme Court. She seeks parity in treatment by grant of notional seniority for fixation of pay and promotion, as extended to similarly situated teachers, including Harjeet Kour, Sushma Sharma, and Purnima Koul, who were notionally promoted as Masters. The respondent further contends that the issue is no longer res integra and stands settled by this Court in SWP Nos. 2011/2013, 319/2014, and 624/2013. Pursuant to these judgments, the petitioners granted similar benefits to the aforesaid counterparts vide Government Order No. 288-DSEJ of 2020 dated 16.07.2020, by granting notional promotion w.e.f. 23.04.2013 and denial of similar relief to the respondent constitutes unequal treatment. She further submits that the right to equality under Part III of the Constitution cannot be defeated by the application of the principle of res judicata under general law. Being similarly situated, she is entitled to the same relief already upheld by the Apex Court.

Heard learned counsel for the parties and perused the material on record.

The present case concerns the selection of teachers in Jammu Division pursuant to Advertisement Notice No. 3 of 1996. The respondent also applied, but was not selected due to a selection criterion that gave additional weightage to candidates who passed 12th grade under the 10+2 system. This criterion was challenged by the respondent and others, including Harjeet Kour. Meanwhile, another Advertisement Notice No. 01/1999 was issued. The High Court, by order dated 18.10.1999, held the earlier selection criteria to be unreasonable. This decision was upheld by the Supreme Court. As a result, the selection process was revised, and the respondent and similarly placed candidates were eventually selected. However, their merit was determined with reference to the 1999 advertisement, not the 1996 one under which they had originally applied. This led to further litigation. In Harjeet Kour’s case (SWP No. 2052/2004), the Court on 31.12.2007 directed reconsideration of her case. The respondent’s case (SWP No. 542/2005) was also decided on 28.02.2012 with a similar direction. Based on these directions, the respondent was appointed as a teacher.

In the current litigation, the respondent seeks retrospective service benefits, including seniority, promotion to Headmaster, and monetary benefits from 1998 to 19.12.2012. A similar issue was decided by this Court in SWP No. 211/2013 on 09.12.2016, where notional seniority from 1996 was granted to similarly situated candidates, along with pay fixation and promotion benefits. The decision was upheld by the Supreme Court, and benefits were implemented vide order dated 16.07.2020. Likewise, in SWP No. 319/2014, Harjeet Kour was granted similar relief on 27.12.2016. Another candidate, Purnima Koul, also received the same benefits in SWP No. 624/2013 via order dated 20.12.2017.

The respondent, Gurmeet Kour, along with Harjeet Kour, was appointed as a Teacher pursuant to Advertisement Notice No. 03 of 1996. It is admitted that Harjeet Kour was granted notional seniority and promotion pursuant to a court order. Further, by order dated 16.07.2020, similarly situated individuals, including Harjeet Kour, were promoted to the post of Master with notional effect from 23.04.2013 and given monetary benefits from the date of actual assumption. This benefit was also extended to Sushma Sharma and Purnima Koul pursuant to judicial directions. Denial of the same benefit to the respondent, who is similarly situated, amounts to discrimination. Equal treatment must be afforded to persons similarly placed.

The Hon’ble Supreme Court in case titled as State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others reported as (2015) 1 SCC 347, has observed that when relief is granted by the Court to a particular set of employees, all other identically situated persons need to be treated alike by extending that benefit.

“22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well recognized exceptions in the form of latches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said SWP 2126/2018 11 judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”

The submissions of the learned counsel for the petitioners that the original writ petition filed by the respondent (SWP No. 1264/2013, later transferred to the learned CAT) is barred by the principle of res judicata, it is important to note that the respondent had applied in response to the Advertisement Notification issued in 1996, but was not selected. Later, the Division Bench of this Court, in its order dated 18.10.1999 passed in LPA No. 364/1999, directed the SSRB to revise the criteria for evaluating candidates and then make appointments accordingly. It is undisputed that based on this judgment, three individuals, Harjeet Kour, Sushma Sharma, and Purnima Koul filed writ petitions, which were decided in line with the Division Bench's ruling. These individuals were promoted to the post of Master, with notional effect from 23.04.2013, by order dated 16.07.2013. However, the respondent was unfairly denied the same benefit despite being in a similar situation for no fault of her own. Once such benefit has been granted to others similarly placed based on a judicial decision, different standard cannot be applied to the respondent. Therefore, the principle of res judicata does not apply in this case.

The Supreme Court in case titled Amrit Lal Berry vs. Collector of Central Excise, New Delhi and Others, (1975) 4 SCC 714, has held that that where a citizen aggrieved by an action of the government department has approached the Court and obtained a declaration of law in his/her favour, others similarly situated ought to be extended the benefit without the need for them to go to Court. There is no doubt that persons similarly situated to the respondent were granted notional seniority and promotion by this Court. Once such a benefit is granted through judicial pronouncement, other employees in identical circumstances are entitled to the same relief. This follows from the constitutional guarantee of equality under Articles 14 and 16 of the Constitution of India. Denying such benefit to similarly placed employees would amount to discrimination and violate the principle of equal treatment under law.

For the foregoing reasons, we find no infirmity or illegality in the impugned order dated 02.05.2023 passed by the Central Administrative Tribunal, Jammu Bench. Consequently, the present petition, being devoid of merit, is hereby dismissed.