Jammu & Kashmir High Court
Provincial Power Employees Union Of ... vs State Of J&K And Ors. A/W Connected ... on 8 May, 2017
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 809 OF 2001 AND SWP No. 1061 OF 2015 AND SWP No. 1078 OF 2004 Provincial Power Employees Union of India Petitioners State of J&K and ors Respondent !Mr. Abhinav Sharma, Advocate Ms. Veenu Gupta, Advocate ^Mr. Ahtsham Bhat, Govt. Advocate Hon'ble Mr. Justice Alok Aradhe, Judge Hon'ble Mr. Justice Janak Raj Kotwal, Judge Date: 08.05.2017 :J U D G M E N T :SWP 809/2001 a/w connected matters Page 1 of 16
AT JAMMU SWP No. 809/2001, MP Nos. 1963/2001, 819/2001 c/w SWP No. 1061/2015, MP No. 1356/2015 SWP No. 415/2007, MP Nos. 1574/2010, 544/2007 and 01/2016 SWP No. 874/2006 MP Nos. 1635/2007, 1113/2006, 481/2007, 2185/2006 and 1906/2007 SWP No. 1078/2004 SWP No. 2051/2009, MP No. 2719/2009 SWP No. 2167/2013, MP No. 3190/2013 SWP No. 2295/2013, MP No. 3367/2013 SWP No. 724/2014, MP No. 1011/2014 SWP No. 1549/2014, MP No. 2059/2014 SWP No. 990/2015, MP No. 1257/2015 SWP No. 1691/2006, MP No. 2116/2006 SWP No. 992/2006, MP Nos. 3502/2014, 1253/2006 and 2943/2013 SWP No. 3564/2014, MP No. 4858/2014 Date of Order: 08.05.2017 ________________________________________________________________ Provincial Power Employees Union of India vs. State of J&K and ors. a/w connected matters Coram: Hon'ble Mr. Justice Alok Aradhe, Judge Hon'ble Mr. Justice Janak Raj Kotwal, Judge Appearing counsel: For Petitioner/appellant(s) : Mr. Abhinav Sharma, Advocate Ms. Veenu Gupta, Advocate Mr. D. C. Raina, Sr. Adv. with Mr. Vikas Mangotra, Advocate Mr. Anil Verma, Advocate Mr. Sachin Sharma, Advocate Mr. Anil Khajuria, Advocate Mr. K. Nirmal Kotwal, Advocate For Respondent(s) : Mr. Ahtsham Bhat, Govt. Advocate i/ Whether to be reported in : Yes Press/Media ii/ Whether to be reported in : Yes Digest/Journal Per Alok Aradhe-J In this bunch of writ petitions since common questions of law and fact arise for consideration, they were heard analogously and are being decided SWP 809/2001 a/w connected matters Page 2 of 16 by this common order. For the facility of reference, facts from SWP No. 874/2006 are being referred to.
2. The petitioners in this petition, inter alia seek quashment of order dated 12.05.2006, passed by the respondents No. 2 as well as a direction to respondents to continue to make payment of salary to the petitioners in the pay scale of Rs. 5000-8000/- in terms of SRO 149 of 1973 dated 07.04.1973. In order to appreciate the petitioners grievance few facts need mention, which are stated infra.
3. The petitioners were initially appointed on Daily Wage basis in the Power Development Department. Admittedly, the petitioners are matriculate and hold ITI certificate/diploma in Electrician Trade. The State Government in exercise of powers under Section 124 of the Constitution of Jammu and Kashmir has framed the rules, namely, the Jammu and Kashmir Civil Services (Revised Pay) Rules, 1973 vide SRO 149 dated 07.04.1973 (hereinafter referred as 1973 Rules). Schedule C appended to the aforesaid rules contains the list of common posts of technical skilled, semi skilled, unskilled posts trades in various departments which include Power Development Department. The petitioners fall in the category-A of Schedule C, which provides for direct recruitment from ITI certificate holder in different trades and the academic qualification for SWP 809/2001 a/w connected matters Page 3 of 16 entry is ITI with matriculation.
4. Thereafter, the State Government framed the Jammu and Kashmir Civil Services (Revised Pay) rules, 1982 vide SRO 91 dated 22.03.1982 and the pay scale of technical, skilled, semi-skilled and unskilled employees were revised from Rs. 280-520 to Rs. 600-925/- Since no recruitment rules were framed so far as non-gazetted post in Power Development Department were concerned, the State Government for the first time framed the recruitment rules, namely, the Jammu and Kashmir Power Development Department (Subordinate) Service Recruitment Rules, 1981. Rule 10 of the aforesaid Rules provides for residuary matters, whereas Rule 12 deals with repeal and savings. In the Recruitment Rules of 1981 only three posts out of 19 trades/posts contained in the category A of Schedule C were mentioned, namely, Meter Inspector, Mechanic and Welder Electrician, which were to be filled up by promotion.
5. Thereafter, the pay scale of the employees was further revised by the State Government by enacting the Jammu and Kashmir Civil Service (revised pay) Rules, 1987 vide SRO 370 dated 17.07.1987 and the pay scale of technical, semi-skilled, employees was revised from Rs. 600-925 to Rs. 1150-2050. Again in the year, 1982, the State Government enacted J&K Civil Services (Revised SWP 809/2001 a/w connected matters Page 4 of 16 Pay) Rules, 1992, by which the pay scale of Technical Skilled, Semi-skilled employees was revised from Rs. 1150-2050 to Rs. 1400-2600. Finally in the year 1998, the State Government again enacted J&K Civil Services (Revised Pay) Rules, 1998, by which the pay scales were further revised from Rs. 1400-2600 to Rs. 5000-8000/-
6. It is the case of the petitioners that their services were regularized in view of SRO 1964 of 1994 as Helpers between the years, 1990 to 1996. The employees of the Home Department submitted a representation for grant of benefit under SRO 149 of 1973. The aforesaid employees eventually filed a writ petition, namely, SWP No. 60/1990, in which vide order dated 18.04.1996, the employees of the Home Department were held entitled to benefit of SRO 149 of 1973. Against the aforesaid order, the respondents preferred Letters Patent Appeal, which was dismissed vide order dated 04.12.1997 and the order of the Division Bench was also affirmed by the Supreme Court vide order dated 21.04.1998. Thereafter, by order dated 29.07.1998, the benefit of SRO 149 of 1973 was extended to the employees of the Home Department. Similar benefit was also extended to the employees of the Medical Education Department vide order dated 27.01.2006. The State Government decided to extend the benefit of SRO 143 of 1973 to the employees of the Power Development Department vide order dated SWP 809/2001 a/w connected matters Page 5 of 16 08.11.1990. However, subsequently, by an order dated 14.11.1990, the aforesaid order dated 08.11.1990 was kept in abeyance. The aforesaid order was challenged by the aggrieved employees in a batch of writ petitions, lead case being SWP No. 894/1990, which was allowed vide order dated 04.06.1993. Being aggrieved by order passed in the aforesaid writ petition, Letters Patent Appeal was filed, which was disposed of vide order dated 31.01.1995 with a direction to the respondents to make a representation to the State Government for grant of benefit of SRO 143 of 1973.
7. However, it is the case of the petitioners that the finding recorded by the learned Single Judge was not disturbed by the Division Bench. Thereafter, by an order dated 30.08.1995, the benefit of SRO 149 of 1973 was extended to the employees who were in service as on 08.11.1990. Subsequently, the order dated 30.08.1995 was rescinded by an order dated 19.01.1996. The aforesaid order was challenged in both the wings of this Court. The Jammu Wing of this Court dismissed the writ petition, whereas the Srinagar wing of this Court allowed the writ petition. Being aggrieved the employees of the Jammu Wing, preferred Letters Patent Appeal. The State Government during the pendency of the LPA passed an order dated 03.04.2001, by which benefit of SRO 149 of 1973 was extended to the matriculate employees and the persons who were SWP 809/2001 a/w connected matters Page 6 of 16 holding ITI Diplomas. The requirement of being in service as on 08.11.1990 for availing the benefit the benefit of the SRO 149 of 1973 was dispensed with. However, the aforesaid order was made subject to withdrawal of the LPA, Thereupon, the employees of the Jammu Wing withdrew the LPA vide order dated 12.04.2001.
8. The petitioners submitted a representation to the State Government for grant of benefit of SRO 149 of 1973. The benefit of the aforesaid SRO was extended to the petitioner with effect from 01.04.2000 on notional basis. The designation of the petitioners was also changed as Meter Inspectors, Electrician and Meter Readers etc. The aforesaid benefit was also reflected in the service books of the petitioners. However, subsequently, vide order dated 12.05.2006, the aforesaid order was kept in abeyance on the ground that the persons senior to the petitioners have been left out. In the aforesaid factual background, the petitioners have approached this Court.
9. Learned counsel for the petitioners submitted that the impugned order dated 12.05.2006 has been passed without affording any opportunity of hearing to the petitioners and the same has been withdrawn only on the ground that the persons senior to the petitioners have not been granted the aforesaid benefit. It is submitted that the SWP 809/2001 a/w connected matters Page 7 of 16 petitioners have no objection, if the persons senior to the petitioners were also granted the said benefits. It is also submitted that the order passed by Division Bench in LPA No. 379/1999 dated 19.12.2003 is per in curium inasmuch as it has not taken into account recruitment rules as also judgment rendered by the Single Judge in SWP No. 894/1990 decided on 04.06.1993 as well as Government order dated 30.04.2001. It is further submitted that since interim order was granted in that writ petition, which was duly confirmed, some of the writ petitioners during the pendency of the writ petitions, have already been superannuated and are being paid pension, therefore, in view of the law laid down in State of Punjab and ors. vs. Rafiq Masih, (2015) 4 SCC 334, no recovery in any case can be made against them, even assuming the writ petition may be dismissed. It is also submitted that the four petitioners have expired.
10. Mr. D. C. Raina, learned Senior Counsel for the petitioners in SWP No. 992/2006, SWP No. 874/2006 and SWP No. 415/2007 submits that the petitioners in the aforesaid writ petitions are admittedly senior to the petitioners in SWP No. 874/2006, therefore they are entitled to the benefit of SRO 149 of 1973, as has been granted to the petitioners of SWP No. 874/2006. It is also submitted that in SWP No. 415/2007, the benefit have already been granted to the petitioners, which SWP 809/2001 a/w connected matters Page 8 of 16 has been withdrawn, which is not permissible in law.
11. Learned counsel for the petitioners in SWP No. 2295/2013, SWP No. 724/2014, SWP No. 3564/2014, SWP No. 2167/2013, SWP No. 1549/2014, SWP No. 1691/2006 and SWP No. 2051/2009 submitted that the petitioners are entitled to benefit of SRO 149 of 1973. The petitioners in SWP No. 1078/2004 submitted that the benefit which has been granted to the petitioners has wrongly been withdrawn which is not permissible in law. It is further submitted that the petitioners in the aforesaid writ petition was appointed on 27.8.1974 and the services of the petitioners were regularized on 02.08.1983.
12. Learned counsel for the petitioners in SWP No. 724/2014, SWP No. 3564/2014 and SWP No. 2167/2013 submitted that the petitioners were directly appointed on the post of Electrician being matriculate and ITI. Learned counsel for the petitioners in SWP No. 1061/2016 and SWPNo. 990/2015 submits that the petitioner in the aforesaid writ petitions have not been granted benefit of SRO 149/1973.
13. On the other hand, Mr. Ahatsham Bhat, learned Government Advocate, submitted that the SRO 149 of 1973 has been repealed with effect from 26.08.1981 and in its place SRO 381 of 1991 has SWP 809/2001 a/w connected matters Page 9 of 16 been enacted. It is further submitted that the petitioners services are governed by the recruitment rules in which method of recruitment and channel of promotion is provided. It is also submitted that the services of the some of the petitioners have been regularized after 1994, after completion of seven years of service. It is further submitted that the petitioners have accepted the benefit of subsequent pay revision without any protest, therefore, now they cannot be permitted to complain, The order dated 30.08.1995 was granted as one time exception which has been withdrawn vide order dated 19.01.1996. It also urged that the grades are attached to the posts and in fact order of recovery has been passed on 31.07.2013 in respect of the employees of Jammu as the benefit of SRO 143 of 1973 was wrongly granted. It is also submitted that the employer has the authority to decide the pay scale of an employee. It is also urged that issue involved is squarely covered by decision of the Division Bench in the case of Kartar Nath rendered in LPASW No. 379 of 1999, decided on 19.12.2003. In support of his submissions, learned Government Advocate place reliance on the decisions of the Supreme Court in the cases of Union of India v. Makhan Chandra Roy, AIR 1997 SC 2391, State of Orissa v. Joginder Patjoshi, AIR 2004 SC 1039 and Union of India vs. R. K. Chopra, AIR 2010 SC 649.
SWP 809/2001 a/w connected matters Page 10 of 1614. We have considered the submissions made by the learned counsel for the parties and have perused the record. The State of Jammu and Kashmir has framed the 1973 Rules. Rule 2 of the Rules provides that save as otherwise provided the rules shall apply to the persons appointed to Civil Service Posts in connection with affairs of the State including those paid from contingencies or charged to the works whose pay is dubitable to consolidated funds of the State. Rule 2 (iii) prescribes the persons to whom the aforesaid rules do not apply. The aforesaid rules are applicable to the Government servants of the category defined in Rule 2 (i) of the Rules and were enacted with an object to provide for revision of pay. Admittedly, there were no recruitment rules for the employees of the Power Development department. The Recruitment Rules in the year 1981 were enacted. At this stage, it is apposite to take note of Rules 10 and 12 of the Rules, which reads as under:
10 Residuary Matters: - In regard to matter not specially covered by these rules, the members of the service shall be governed by the rules, regulations and orders applicable to the State Civil Services in general. 12. Repeal and savings all rules corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed.
(2) Notwithstanding such repeal any appointment order, made or action taken under the provisions of the rules to repealed shall be deemed to have been made or taken under the SWP 809/2001 a/w connected matters Page 11 of 16 corresponding provisions of these rules.
15. It is well-settled rule of statutory interpretation that a prior general law may be affected by a subsequent special or a particular law if the subject matter of the special law prior to its enforcement was being governed by the general provisions of the earlier Act. See Damji vs. LIC, AIR 1996 SC 135 and Suresh Nanda Vs. Central bureau of Investigation AIR 2008 SC 1414. In the backdrop of the aforesaid well settled legal position, it is evident that the matter pertaining to grant of pay scale which is a special law enacted in earlier point of time was not governed by general provisions enacted later in point of time, namely, the Recruitment Rules, 1981. Both the aforesaid rules operate in different spheres. Therefore, the question of repeal of SRO 149 of 1973 as well as subsequent Rules, by which pay of the employees was revised from time to time, with the enactment of Recruitment Rules,1981 does not arise. Similar view has been taken by the learned Single Judge vide judgment dated 4.6.1993 in bunch of writ petitions, lead case being SWP No. 894/1992. The Recruitment Rules do not prevent the respondents from making any provision for conferring higher pay scale to the employees.
16. Now we may advert to the validity of the order dated 12.5.2006. It is well settled in law that validity of an order has to be adjudged on the SWP 809/2001 a/w connected matters Page 12 of 16 grounds on which it has been passed. See Mohinder Singh Gill and anr. vs. the Chief Election Commission, New Delhi, AIR 1978 SC 851. The impugned order withdrawing the benefit of SRO 149 of 1973 has been passed on the ground that employees senior to the petitioners have not been granted the benefit of the aforesaid SRO. It has not been passed on the ground that the petitioners are not entitled to the benefit of SRO 149 of 1973. The impugned order also deserves to be quashed on yet another ground as the same has been passed in flagrant violation of the principles of natural justice as much as neither any notice nor any opportunity of hearing was afforded to the petitioners.
17. It is also pertinent to mention here that the judgment by the Srinagar Wing of the High Court, the respondents themselves passed an order on 03.04.2001, by which benefit of SRO 149 of 1973 was extended to the employees, who were having Matriculate and having ITI certificate/diploma. The relevant extract of the order reads:
Whereas representations from both the Provinces have been received with regard to Government Order No. 28-PDD of 1996 dated 19.10.1996. The representation were duly considered and in order to watch the interest of the employees of both the Divisions who look the benefit of SRO 149 of 1973 as one time exception, it is decided that the said benefit be given to these employees who are having matriculation and ITI (electric)trained.SWP 809/2001 a/w connected matters Page 13 of 16
Now, therefore, Government Order No. 28-PDD of 1996 dated 19.01.1996 is hereby withdrawn. The implementation of this order will however, be subject to the withdrawal of the case in the Honble High Court by the employees of Jammu region who were earlier drawing the benefit under Government Order No. 309-PDD of 1995 dated 30.08.1995. By order of the Government of Jammu and Kashmir.
18. It is also pertinent to note that in pursuance of order dated 02.12.2008 passed in SWP No. 874 of 2006, the respondents have filed an affidavit before this Court, in which it is stated that after enactment of the recruitment rules, benefit to 233 employees has been granted. Admittedly, benefit of SRO 149 of 1973 as well as subsequent pay revisions has been extended to the employees of Police Department as well as Geology and Mining Department. Admittedly, the benefit of the aforesaid SRO granted to employees of the said department has been upheld by the Division Benches of this Court in Letters Patent Appeals, namely, LPASW No. 224/2012 and LPASW No. 370/2002. Thus, the respondents are estopped from their conduct from taking a different stand now.
19. It is also pertinent to mention here that the learned Single Judge of this Court in bunch of writ petitions being lead case namely WP No. 894/1990 held the employees to be entitled to the benefit of SRO 149 of 1973. Against the aforesaid order, Letters Patent Appeal was filed by the State which SWP 809/2001 a/w connected matters Page 14 of 16 was disposed of with the liberty to submit representation to the State Government. However, it is pertinent to note that Division Bench made it clear that it has not expressed any opinion about the findings of the learned Single on the questions of law.
20. Learned Government Advocate has placed reliance on decision in the case of Kartar Nath rendered in LPASW No. 379 of 1999 decided on 19.12.2003 in support of the contention that the pay scale of the petitioners should be fixed in accordance with the recruitment rules. We have no hesitation in holding that the aforesaid decision is per in curium as the said decision does not take note the order passed by the State Government on 30.4.2001 by which benefit of SRO 149 of 1973 was extended to all the employees who were matriculate and held ITI Diploma/Certificate. The State Government in all fairness ought to have brought to the notice of the Division Bench the order dated 30.4.2001. We have no manner of doubt that incase aforesaid order would have been brought to the notice of the Division Bench, there was no occasion to deal with the issue on merits as the State Government had already taken a decision to extend the benefit of SRO 149 of 1973.
21. Besides that, it is pertinent to mention that in SWP No. 874/2006, petitioner No. 3, 11,13, 24, 33 and SWP 809/2001 a/w connected matters Page 15 of 16 34 have expired, whereas petitioners No. 2, 3, 4, 8, 15, 21, 25, 27, 35, 37 and 38 have superannuated. In view of law laid down by the Supreme Court in the case of Rafiq Masih (Supra), no recovery can be made of an amount from a Class-III employee or an employee who has superannuated. On this analogy also, no recovery from the employees who are either holding Class-III or have superannuated can be made. It is also noteworthy that benefit of SRO 149 of 1973 as well as subsequent pay revisions has been extended to employees of several departments like Geology and Mining and Police Department etc. who are matriculate and have ITI diploma. If the petitioners are deprived of such a benefit, the same would be irrational arbitrary and would be violative of Article 14 of Constitution of India. For yet another reason the petitioners are entitled to the benefit of higher pay scale as the Supreme Court in in the case of Chaman Lal vs. State of Harayana, (1987) 3 SCC 113 has held that it is permissible to link the pay scale with the qualification.
22. In view of the preceding analysis, the writ petitions are disposed of with the following directions:
(i) The impugned order dated 12.05.2016 is hereby quashed.
(ii) The respondents are directed to continue to make payment of salary to the petitioners in the pay scale of Rs. 5000-8000/-, to whom the SWP 809/2001 a/w connected matters Page 16 of 16 aforesaid benefit has already been extended.
(iii) The respondents shall extend the benefit of revised pay scales to such of the petitioners to whom the aforesaid benefit has not been extended within a period of four months from today with effect from the date when the same becomes due to them.
23. With the aforesaid directions, the writ petitions are disposed of.
(Janak Raj Kotwal) (Alok Aradhe) Judge Judge Jammu, 08.05.2017 Karam Chand