HC upholds decision of State on monetary benefits

Major relief for KAS officers

Excelsior Correspondent

SRINAGAR, Sept 17: In a major relief to Kashmir Administrative Services (KAS) officers, High Court today upheld the policy decision of providing Non-Functional (Monetary) benefits under the Scheme to the officers and dismissed the plea challenging the policy.
Petitioners as appointed Kashmir Administrative Service (KAS) in 2005 and 2008 pleaded that the final seniority list of officers of the Jammu and Kashmir Administrative Service was notified on 24th of June, 2011 which became the subject matter of various writ petitions and is subjudice in the Court, the officers could not be placed in the special scale.
It is because of the non-settlement of the seniority dispute, the authorities took a policy decision and, thereto, have notified the Non-Functional (Monetary) Scheme in terms of notification bearing SRO 198 of 2018 dated 25th of April, 2015, to be operative w.e.f. 1st of January, 2015 which the petitioners challenged.
Keeping in view all facts and circumstances and having regard to the well settled position of law on the subject, Justice Ali Mohammad Magrey while considering the plea of the petitioners to challenge the policy decision of the Government, as notified vide SRO 198 of 2018 dated 25th of April, 2018, said to challenge the said policy is untenable and as such rejected the prayer.
“Consequently, the petition is dismissed. Interim directions, if any, in force as on date, shall stand vacated”, Court concluded and made it clear that the order, shall have no effect on the claim of the petitioners for their promotion pending before this Court.
Court said the cut-off date, in respect of a policy decision taken by the Government, is fixed by the executive Authority keeping in view the economic conditions, financial constraints and many other administrative/ other attending circumstances. The fixing of cut-off date is well within the domain of the Executive Authority and the Courts, ordinarily, do not interfere with the fixation of the cut-off date by the Executive Authority, unless such order appears to be, on the face of it, blatantly discriminatory and arbitrary.
Court further added that there may be various considerations in the mind of the Executive authorities due to which a particular cut-off date has been fixed. “The Court must exercise judicial restraint and must, ordinarily, leave it to the Executive authorities to fix the cut-off date. The Government must be left with some leeway and free play. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government”, read the judgment.
Senior advocate Jehangir Iqbal Gania submitted before the Court that by notifying the effective date of application of the Scheme, the State has lost sight of the fact that the petitioners have also suffered on account of the dispute with regard to their seniority.
He argued that the petitioners have proceeded to state that although, they have the eligibility, as prescribed in the Rules of 2008, yet, they have not been placed in the Selection Grade and the beneficiaries of the Scheme and the petitioners, under law, constitute a single class as all the KAS officers have faced stagnation due to the pending seniority dispute.
However, Advocate General defending on behalf of the State in the matter submitted before the Court that the State Government has notified the policy/ scheme, in respect of the Officers of the Jammu and Kashmir Administrative Service to address the de-motivation as well as the stagnation which has crept in the service at various levels due to inordinate delay in the promotions on account of seniority dispute which is pending adjudication before this Court.
He stated that the sole objective of the Scheme is to provide monitory benefit to the officers of the service so as to keep them energized, motivated and to boost their morale for better service delivery.
He informed the Court that the respondent-State, after deliberating on the issue, took a conscious decision to implement the Scheme with effect from 1st of January, 2018, which is neither arbitrary nor violative of any right of the petitioners. The Government, as AG stated, has fixed the date of operation of the Scheme by taking into account various factors, including the financial, administrative and other considerations.
“The respondent-State have proceeded to state that there has to be a cut-off date for every scheme and, in case the plea of the petitioners is accepted, it will open a flood gate of litigation and will be an unendingprocess. It is also contended that the fixation of cut-of date of the Scheme as 1st of January, 2018, is not violative of Articles 14 and 16 of the Constitution of India”, AG submitted.
The Court has been informed by Advocate General that the State Government has also formulated a similar scheme for three time bound grade promotions for the non-gazetted employees of the State, after completion of every nine years of service.
“Similarly, there is a scheme for time bound promotion for Veterinary Doctors, Doctors appointed in Health Services and also in SKIMS, a scheme for Engineering (G) service on similar lines has also been approved by the State Cabinet, a similar scheme for the General Executive Cadre of Jammu and Kashmir Police has already been implemented”, AG said.
This Scheme, AG said, has been implemented with a rider that the placements shall be subject to outcome of writ petitions pending before any Court or any review upon the finalization of seniority of the JKPS Officers.
The implementation of the Scheme, it has been submitted, will not depend upon the seniority position of the members of the Service as no functional promotion is being granted by the Scheme and the scheme is neither a functional promotion nor does it involve any change in the designation or the nature of duties, but is purely a monitory/ financial up-gradation, as such, a certain cut-off date was required to be fixed in this regard.
Court after applying the ratio of the law to the facts and circumstances of the instant case, said, the cut-off date has been fixed on a very valid ground, namely, that of the financial constraints. “It being so, the contention of the petitioners that fixing of the cut-off date was arbitrary, irrational or had no rational basis or that it offends Article 14, is liable to be rejected”, Court recorded.

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