1 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No. 865/2019 [WP(C) No. 1383/2019] CM No. 767/2021 Reserved on:15.05.2025 Pronounced on: 23.05.2025 Syed Meirajul Yasin (Age 48 Yrs.) S/o Syed Mohammad Yasin R/o Namlabal, Pampore-192121 At present Naseem Bagh, Habak Hazratbal, Srinagar. ……...Petitioner(s) Through: Mr. Z. A. Qureshi, Sr. Advocate with Ms. Rehana, Advocate Versus 1. Union of India through, Secretary Ayush, Ministry of Health, Government of India, Ayush Bhawan B-Block GPO Complex INA, New Delhi-110023. 2. Director General, Central Council for Research in Unani Medicine, Jawahar Lal Nehru Ayush Anusandhan Bhawan, 61-65 Institutional Area, Opp. D-Block, Janakpuri, New Delhi- 110058. 3. Assistant Director (Administration), Central Council for Research in Unani Medicine, Jawahar Lal Nehru Ayush Anusandhan Bhawan, 61-65 Institutional Area, Opp. D-Block 4. Assistant Director, I/c Regional Research Institute of Unani Medicine, University of Kashmir, Naseembagh, Habak, Hazratbal, Srinagar-190006 …..Respondent(s) Through: Mr. Nazir Ahmad Bhat, CGSC CORAM: HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR JUSTICE SANJAY PARIHAR, JUDGE JUDGMENT 01. By this petition, the petitioner invokes an extraordinary writ jurisdiction vested in this Court under Article 226 of Constitution of India to Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 2 throw challenge to an order and Judgment dated 17th of September, 2018 passed by the Central Administrative Tribunal, Chandigarh Bench [“the Tribunal”] in OA No. 62/9/2018, together with an order dated 03.12.2018, passed in review petition No. 62/00063/2018, both titled Syed Meirajul Yasin Vs. Union of India and Ors. Vide Judgment impugned dated 17th of September, 2018, the Tribunal has upheld the re-fixation of pay of the petitioner on withdrawal of benefit of first Assured Career Progression (ACP) Scheme, but provided that the amount, if any, received before re- fixation shall not be recovered. The review petition filed by the petitioner has been dismissed by the Tribunal vide its order dated 03.12.2018. 2002. Before we advert to the grounds of challenge, urged by Mr. Z. A. Qureshi, learned senior counsel appearing for the petitioner, we deem it appropriate to narrate few facts, which are relevant to the disposal of this petition. 03. The petitioner was initially appointed as General Duty Assistant (GDA) on 28.11.1987 on adhoc basis and was later confirmed and was appointed on permanent temporary basis on 28th of October, 1988. Vide order No. 12/1992 dated 09.06.1992, the petitioner was promoted to the post of Junior Stenographer and placed in the regular pay scale of the promoted post, i.e., 1200-2040, w.e.f. 01.06.1992. The petitioner was granted first financial upgradation under ACP Scheme w.e.f. 01.06.2004 and second financial upgradation vide order dated 10.07.2012. Later, on scrutiny, respondents found the first financial upgradation under ACP Scheme granted to the petitioner was erroneous, in that, the petitioner had got one regular Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 3 promotion to the post of Junior Stenographer. Vide Office Order No. 68/2017 dated 12.10.2017, the first financial upgradation granted earlier was withdrawn and the petitioner was granted the benefit of second financial upgradation under Modified Assured Career Progression (MACP), Scheme, w.e.f. 01.09.2008. The reason given for withdrawal was as under: - “ Since, Shri Meirajul Yasin UDC has already got one promotion w.e.f. 01.06.1992, he is not entitled to first financial upgradation under the ACP Scheme. The said upgradation earlier allowed to him inadvertently has thus been withdrawn.” 04. It is this order, the petitioner called in question by filing OA No. 62/9/2018 before the Tribunal. Before the Tribunal, it was contended by the petitioner that the withdrawal of benefit of first financial upgradation without notice was tantamount to reversion and reduction of rank and the same could not have been done without doing violence to Article 311 of the Constitution of India read with Section 126 of Constitution of J&K. 05. The OA was contested by the respondents and in their reply affidavit, a clear stand was taken that the petitioner, who was initially appointed as GDA was given regular promotion to the post of Junior Stenographer vide Office Order dated 09.06.1992, w.e.f. 01.06.1992. It was contended that an employee, who has got a promotion during 12 years of his service is not entitled to the financial upgradation. He would be entitled to second financial upgradation, if he stagnates on the promoted post for a period of 20 years. 06. The Tribunal having regard to the rival contentions and the material on record, came to the conclusion that the grant of first financial upgradation to Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 4 the petitioner, despite his promotion within the first 12 years under ACP Scheme was, on the face of it, erroneous and, therefore, the respondents were well within their right to correct their error. The challenge to the order dated 12th of October, 2017, directing re-fixation of the salary of the petitioner after necessary correction was thus rejected. The Tribunal, however, directed the respondents not to recover the amount, if any, received by the petitioner under erroneous fixation of his salary prior to issuance of the impugned order dated 12th of October, 2017. This is how the OA filed by the petitioner was disposed of. 07. Feeling dissatisfied with the Judgment dated 17th of September, 2018, the petitioner also moved a petition for seeking review, which too was, upon consideration by the Tribunal, dismissed. 08. Feeling aggrieved, the petitioner is before us invoking writ jurisdiction to set aside both the orders passed by the Tribunal. 09. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the impugned Judgment dated 17th of September, 2018, passed by the Tribunal is well reasoned and in conformity with legal and factual position obtaining in the case. It is not in dispute that the petitioner, who was appointed as GDA in the year 1988 was later on promoted to the post of Junior Stenographer vide order dated 09.06.1992, w.e.f. 01.06.1992. It is own case of the petitioner that he was not selected by way of direct recruitment to the post of Junior Stenographer, but was promoted. In paragraph 3 of the OA, the petitioner has very categorically submitted that, though the posts of Junior Stenographer, Record Clerk and Laboratory Attendant were direct recruitment posts, yet due to turbulence in the then State Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 5 of J&K in the wake of peak militancy, no regular recruitment process could be initiated by the respondents. It is in these circumstances; the petitioner and other persons were promoted against the posts meant for direct recruitment. In view of the clear position emerging from the own admission of the petitioner and substantiated by record of the respondents, it cannot be disputed that the petitioner got regular promotion to the post of Junior Stenographer within 12 years of his service. In terms of ACP Scheme, he was not entitled to first financial upgradation. Under the ACP Scheme, the first financial upgradation was available to an employee stagnating on the post for a period of 12 years and second financial upgradation after 24 years. This scheme was, however, modified and in terms of MACP, the first financial upgradation was available to the employees after 10 years, second after 20 years and third after 30 years of regular service, provided in between the employee has not got any regular promotion. 10. In the instant case, when the first financial upgradation was sanctioned in favour of the petitioner, the regular promotion of the petitioner to the post of Junior Stenographer had been overlooked. When this mistake was detected, the matter was placed before the Departmental Promotion Committee (DPC) to review the grant of financial upgradation in favour of the petitioner. Since the petitioner was not entitled to first financial upgradation, as such, under MACP he was held entitled to second financial upgradation, w.e.f. 01.09.2008, i.e., after he had to his credit 20 years regular service and third financial upgradation was indicated to become due on 1st of September, 2018. On the basis of recommendation of the DPC, Office Order dated 12th of October, 2017, came to be issued. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 6 11. It is true that ordinarily when a pay scale is granted to an employee though erroneously is required to be withdrawn, the affected employee should be provided an opportunity of being heard, however, the case of the petitioner was an open and shut case and no more opportunity of hearing given to the petitioner would have changed the position. Moreso, when the petitioner has himself admitted that his appointment against the post of Junior Stenographer was by way of promotion though made against a direct recruitment post. 12. Be that as it may, it cannot be said by the petitioner that the benefit of mistake or error committed by the respondents should be perpetuated and the respondents should be de-bared from correcting a bonafide error to set the record straight. 13. True it is that if the petitioner has got the benefit of financial benefit under the first financial upgradation under a mistake of fact and, which was later withdrawn, the same cannot be recovered from him. On this aspect, we adopt the reasoning given by the Tribunal which otherwise is in tune with law laid down by the Hon’ble Supreme Court in case of State of Punjab and Ors. Vs. Rafiq Masih (2014) 8 SCC 883 to support this conclusion. 14. For what has been stated and held above, we do not find any merit in this petition and the same is, accordingly, dismissed along with all connected CM(s). (SANJAY PARIHAR) (SANJEEV KUMAR) JUDGE JUDGE Srinagar 23.05.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document