High Court Directs University To Grant Promotion Benefits From Date Of Acting Appointment After Finding Arbitrary Discrimination

A single‑judge bench of Justice Javed Iqbal Wani of the High Court of Jammu & Kashmir and Ladakh heard a writ petition challenging the University of Kashmir’s decision to give an employee temporary promotion with retrospective effect from 29.01.2009 instead of 14.12.2007 and sought direction for payment of arrears and consequential retiral benefits.

The Court allowed the petition and quashed the impugned portion of Order No. F(Promotion‑Dy. Reg) Gen‑Adm/KU/09 dated 29.01.2009 to the extent it fixed the petitioner’s promotion w.e.f. 29.01.2009. It directed the University to grant the pay and grade of Deputy Registrar/Deputy Controller of Examinations to the petitioner with effect from 14.12.2007, to release all arrears and to fix and draw retiral benefits accordingly. The Court found that the University had acted “unfairly, unreasonably and arbitrarily” in treating the petitioner differently from a co‑employee who had been given effect to promotion from 14.12.2007. The Court, in its reasoning, observed: “If the Society is an "authority" and therefore "State" within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. ... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non‑arbitrariness pervades Article 14 like a brooding omnipresence.” The Court further noted that the respondents “have acted in the matter unfairly, unreasonably and arbitrarily having subjected the petitioner to hostile discrimination vis a vis his above named co‑employee.”

Background

The petitioner, an Assistant Registrar in the University of Kashmir, was appointed on acting basis as Deputy Registrar/Deputy Controller of Examinations on 14.12.2007 and sought regular promotion with the corresponding pay scale of Rs.12,000–18,300 with effect from that date. The University issued an order dated 29.01.2009 granting temporary promotion w.e.f. 29.01.2009. A co‑employee who had been similarly appointed on 14.12.2007 was subsequently promoted and given effect to the promotion from 14.12.2007 after this Court quashed an order of recovery in SWP No.592/2011 and directed the University to release arrears in his favour w.e.f. 14.12.2007.

The petitioner had submitted representations both before his retirement (31.01.2009) and thereafter seeking parity with his co‑employee; the Controller of Examinations had recommended consideration of placement w.e.f. 14.12.2007 prior to the petitioner’s retirement. The University contended that the petitioner delayed his claim, that the co‑employee’s favourable order was in personam, and that the petition was barred by laches. The High Court rejected the plea of delay after noting the representations on record and the absence of any decision by the University, observed that Article 226 jurisdiction is discretionary but subject to recognized limits, and applied Article 14 jurisprudence (including Ajay Hasia and E.P. Royappa) to hold that discriminatory treatment was arbitrary.

The High Court allowed the writ petition, quashed the impugned portion of the 29.01.2009 order, and directed grant of promotion benefits w.e.f. 14.12.2007 along with arrears and appropriate fixation of retiral benefits. No interim directions other than the relief granted were recorded.

Case No.: WP(C) No. 1851/2020 Case Title: Saif‑ud‑Din Mir v. University of Kashmir & Ors. Appearances: For the Petitioner(s): Mr. Altaf Haqani, Sr. Advocate with Ms. Malika, Advocate For the Respondent(s): Tasaduq H. Khawaja, Advocate