Jammu & Kashmir High Court
Joginder Singh vs State Of Jammu And Kashmir on 7 April, 2015
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 479 OF 2001 AND LPASW No. 232 OF 2002 1. Joginder Singh 2. Anil Raina Petitioners 1. State of Jammu and Kashmir Through Chief Secretary, Government of J&K, Civil Secretariat Srinagar. 2. Commissioner-cum-Secretary to Government, Housing and Urban Development Department, Civil Sectt. Srinagar. 3. Bodh Raj S/O Late Sh. Mool Raj R/O Lane No. 4, Opposite Agriculture Workshop, Talab Tillo, Jammu. Respondent !Mrs. Seema Shekhar, AAG in LPASW 232/2002.Mr. Rajiv Gorka, Advocate in LPASW 479/2001 ^None Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Dhiraj Singh Thakur, Judge Date: 07.04.2015 :J U D G M E N T :LPASW No. 479/2001
1. Joginder Singh S/O Sh. Isher Singh R/O 118-A, Sector 13, Nanak Nagar, Jammu, aged 40n years.
2. Anil Raina S/O Sh. Bansi Lal Raina R/O 929 Subash Nagar, Jammu, aged 38 years.
Appellants..
Vs.
1. State of Jammu and Kashmir Through Chief Secretary, Government of J&K, Civil Secretariat Srinagar.
2. Commissioner-cum-Secretary to Government, Housing and Urban Development Department, Civil Sectt. Srinagar.
3. Bodh Raj S/O Late Sh. Mool Raj R/O Lane No. 4, Opposite Agriculture Workshop, Talab Tillo, Jammu.
Respondents..
LPASW No. 232/2002State of Jammu and Kashmir through Commissioner/ Secretary to Government, Housing and Urban Development Department, Jammu.
Appellant.
Vs. Bodh Raj S/O Late Sh. Mool Raj R/O Lane No. 4, Opposite Agriculture Workshop, Talab Tillo, Jammu.
Respondent.
N. Paul Vasanthakumar, CJ
1. These writ appeals are filed against order dated 29.06.2001 made in SWP no. 1031/1999 by the aggrieved persons after getting leave to appeal from this Court and by the Government.
22. The case of the respondent- writ petitioner before the learned Single Judge was that he was appointed as Planning Assistant on 26.05.1980 and later on he was called upon to perform the duties of Assistant Town Planner from 24.04.1981 initially for six months and thereafter by order dated 02.12.1981 he was asked to continue the duties of Assistant Town Planner. The said arrangement was again continued by order dated 25.10.1983.
3. The grievance of the writ petitioner was that even though he was continuing in the said Assistant Town Planners post for over 11 years, he was not given regular promotion and only on 18.03.1993 regular promotion to the post of Assistant Town Planner was given to the writ petitioner. Hence the writ petitioner prayed for a direction that he may be deemed to have been appointed as Assistant Town Planner with effect from 26.05.1983 with all monitory benefits. The learned Single Judge, taking note of the fact that a Government servant cannot be called upon to perform the duties on a higher post on adhoc basis indefinitely and if a person has served on a higher post for more than 15 years, he acquires right to hold that post, allowed the writ petition restricting the monetary benefits to three years prior to filing of the writ petition (1996) and the said monetary benefits were directed to be calculated and paid to 3 the writ petitioner within a period of three months from the date copy of the order was served upon them.
4. The State has preferred the appeal by stating that the writ petitioner-respondent was allowed to hold the charge of the planery responsibilities attached to the post of Assistant Town Planner in his own pay and grade and charge allowance was paid in terms of Article 87(b) of the Jammu and Kashmir Civil Service Regulations. The writ petitioner was granted regular promotion by order dated 17.01.1994 as Assistant Town Planner with effect from 18.03.1993 on the basis of the recommendations of the DPC/PSC. In the year 1991 the DPC/PSC cleared only three persons as Assistant Town Planners and the writ petitioner was not cleared and the said action was not challenged by the writ petitioner and the DPC/PSC thereafter considered the promotion claim of five persons, including the writ petitioner and he was given promotion and the writ petitioner, having received the charge allowance, is not entitled to get regularization of his promotion from 1983.
5. When the writ petition was filed in the year 1999, the writ petitioner was aged 47 years and by now his age would be 63 years and he is no longer in service. The only issue now to be considered is as to whether the writ petitioner- respondent is 4 entitled to get his promotion regularized from 1983 or from 1993.
6. It is not in dispute that the writ petitioner has not underwent the process of promotion through DPC/PSC. He was asked to look after the duties and responsibilities of Assistant Town Planner, therefore, he is not entitled to seek his temporary promotion as regular promotion. Insofar as the payment of charge allowance is concerned, the same is not disputed. However, the writ petitioner having discharged the higher duties and responsibilities attached to the post of Assistant Town Planner from 1983 to 1993 is entitled to get full salary attached to the post of Assistant Town Planner by applying the principle of equal pay for equal work. The said issue was considered by Honble the Supreme Court in the decision reported in (1998) 4 SCC 291 ( Selvaraj v. Lt. Governor of Island, Portblair and ors) In paragraph no. 3 it is held thus:-
3. It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn against the post of Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident Commissioner, Andaman & Nicobar Administration that the appellant was regularly posted in the pay scale of Rs 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the 5 appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground. In (2001) 8 SCC 322 ( Dwarika Prasad Tiwari v. M. P. State Road Transport Corporation and another) Honble the Supreme Court held that period for which the appellants discharged the duties or discharging the duties attached to a higher post, they should be paid emoluments as attached to that post.
In JT 2001 (9) SC 646 = (2002) 1 SCC 261 ( Jaswant Singh v. Punjab Poultry Field Staff Association and ors), in paragraph nos. 11 and 12, Honble the Supreme Court held thus:-
11. The High Courts decision in Gobind Singhs case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of chick-sexer since Gobind Singh had been discharging the duties of that post.
Therefore, while the appellants promotion to the post of chick-sexer cannot be upheld, given the fact that the appellant had discharged the duties of a chick -sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.
12. We accordingly allow the appeal in part. While upholding the order of the High Court, setting aside the order of the appellants promotion, we direct the respondent authorities to pay the appellant for the period he rendered service as a chick-sexer at the 6 scales of pay together with all allowances to which chick-sexers were entitled at the relevant time In AIR 2015 SC 696 ( State of Punjab and ors v. Rafiq Masih) Honble the Supreme Court set aside the recovery order by applying the principle that a person having been allowed to serve in a higher post is entitled to get salary for that post. In paragraph 11 it is held thus:-
11. that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.
7. Thus the writ petitioner- respondent is entitled to get the salary attached to the post of Assistant Town Planner from 26.05.1983 till his regular promotion on 18.03.1993 after deducting the charge allowance along with his salary attached to the lower post for the said period. The said exercise is directed to be completed by the official respondents and the arrears of salary payable shall be calculated and paid to the writ petitioner-
respondent within a period of three months. The writ petitioner is not entitled to get interest as his right to get difference in salary is decided only now. However, it is made clear that if the official respondents are delaying the payment of arrears of salary, as ordered above, the writ petitioner will be entitled to get interest at the rate of 9% per annum from the 7 date of this order till the amount is paid. The entire exercise is directed to be completed by the official respondents within three months from the date a copy of this order is received by them.
8. In fine the order of the learned Single Judge is modified as stated supra and the writ appeals are partly allowed.
9. No costs.
(Dhiraj Singh Thakur) (N. Paul Vasanthakumar)
Judge Chief Justice
Jammu,
07.04.2015
Anil Raina, Secy