Srinagar: The Jammu and Kashmir High court on Monday rejected a plea of Kashmir Administrative Service (KAS) officers challenging the policy decision of the government whereby Non-functional Monetary Scheme was notified dated 25 April, 2018, for administrative posts.
The petitioner, Itrat Hussain Rafiqi and others, had moved court stating that the seniority dispute has not been settled and questioning how the government could then issue such notification.
It was further stated in the petition that the beneficiaries of the Scheme and the petitioners, under law, constitute a single class as all KAS officers have faced stagnation due to the pending seniority dispute and, by giving effect to the Scheme from 1st of January, 2018, the petitioners have been subjected to invidious discrimination and excluded from the Scheme’s benefits, notwithstanding the fact that they are similarly situated with other KAS Officers.
Advocate Jahangir Iqbal representing the petitioners stated that the respondents 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 with effect from 1st of January, 2015. It was further stated by him that by notifying the effective date of application of the Scheme, the respondents have lost sight of the fact that the petitioners have also suffered on account of the dispute with regard to their seniority.
He further submitted that the petitioners have the eligibility, as prescribed in the Rules of 2008, yet they have not been placed in the Selection Grade, thereby violating the Constitution. It was also pleaded by the counsel that by fixing the cut-off date of 1st January, 2018, the officials who are junior to the petitioners have been found entitled to the release of grade and, on the contrary, the petitioners, despite being possessed of the eligibility and being senior, have been left out without any rhyme or reason.
On the other hand, Advocate General D C Raina stated that the implementation of the scheme will not depend upon the seniority position of the members of the Service as no functional promotion is being granted by the Scheme. He stated that 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 monetary/ financial upgradation.
Senior Counsel Mian Qayoom appearing for the interveners stated that the Scheme in question is transitory in nature, aimed at addressing the stagnation issue and has been made effective up to the year 2023 or till the resolution of the seniority dispute of KAS officers pending consideration before the Court.
After hearing, Justice Ali Mohammad Magrey said that “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”.
The court further said “the policy decisions are based on the proposition that the Jammu and Kashmir Administrative Service Rules, 2008, do not prescribe any qualifying service for promotion to the Selection Grade, Special Scale and Super Time Scale, but are only linked with the availability of the vacancies in these scales. Ordinarily, it takes an Officer of the feeding service around 8 to 10 years for induction to the Time Scale of the service, notwithstanding the prescribed qualifying service of four years. Likewise, the promotions to Selection Grade, Special Scale and Super Time Scale take 05 to 06 years at each level. Since these promotions have been stalled due to the seniority dispute among the KAS Officers of 1999 batch, therefore the Government has taken these policy decisions with a view to ensure the rise of job satisfaction among the concerned Officers, thereby infusing in the Officers new vigour, motivate them for more effective and efficient service delivery, which are imperative of good governance.”
“Viewed in the context of all that has been said and having regard to the well settled position of law on the subject, I am of the considered opinion that the challenge thrown to the policy decision of the Government, as notified vide SRO 198 of 2018 dated 25th of April, 2018, herein this petition, is untenable and, as such, liable to be rejected. Consequently, the petition of the petitioners is dismissed. Interim directions, if any, in force as on date, shall stand vacated,” Justice Magrey ordered.