Jammu & Kashmir High Court
State Of J&K; & Anr. vs Bhupinder Singh & Ors. on 8 December, 2017
Bench: Ramalingam Sudhakar, M.K Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No.143/2017
Date of order: 08.12.2017
State of J&K and anr. Versus Bhupinder Singh and ors.
Coram:
Hon'ble Mr Justice Ramalingam Sudhakar, Judge
Hon'ble Mr Justice M.K Hanjura, Judge
Appearance:
For the appellant (s): Mr W.S Nargal, Sr. AAG.
For the respondent(s) : Mr Rahul Pant, Advocate.
Whether approved for reporting? Yes/No. (Per Hanjura-J)
1. This Letters Patent Appeal arises out of the judgment and order dated 01.04.2016 passed in SWP No.814/2003 by a Single Bench of this Court whereby the writ petition of the petitioner (respondent No.1 in the LPA) has been allowed with a direction to the respondents (the appellants herein) to pay salary to the petitioner (respondent No.1 in the LPA) of the post of Director Police Telecommunication from 12.05.2006 till his retirement i.e. 30.11.2009 and refix the pension and other retiral benefits of the petitioner. The order further directs that necessary orders be passed by the first respondent on that count and the difference of arrears and salary of the petitioner shall be calculated and paid to him within a period of three months from the date of the receipt of the copy of the order.
2. Aggrieved by the order of writ court, the appellants have assailed the same in this LPA on the grounds inter alia, that the writ court has not appreciated the stand of the appellants as projected by them in the objections in the right perceptive. They have pleaded that their specific case was that the respondents cannot be considered for induction into IPS LPASW No.143/2017 Page 1 of 4 as per rules and was not eligible to the post of Director, Police Telecommunication for the reason that the post belonged to the IPS cadre and a non cadre officer cannot be promoted against a cadre post and that the competent authority has rightly rejected the claim of the respondent No.1vide orders dated 17.05.2000 and 04.12.2001.
3. Heard and considered.
4. In our considered opinion, the appeal appears to have been framed and presented before this Court without understanding the import of the order of the writ court. The writ court has no where stated in the order assailed in the appeal that the respondent No.1 be considered for induction into IPS as per rules or that he was at any point of time eligible to be appointed as Director Police Telecommunication. The status of the respondent No.1 was that of Incharge Police Telecommunication as directed vide order No.161(P) of 2006 dated 12.05.2006 w.e.f 01.01.2006 and he served on the said post upto 30.11.2009. The Court after putting reliance on the judgments of law reported in (1998) 4 SCC 291 (Selvaraj v. Lt. Governor of Island, Portblair and ors.) and in JT 2001(9) SC 646(2002) SCC 261 (Jaswant Singh v Punjab Poultry Field Staff Association and ors.), followed by a judgment of the Division Bench rendered by this court in LPASW No.91/2003 dated 09.04.2015 directed that since the petitioner served as Incharge Director Police Telecommunication on the strength of the aforesaid Government Order, therefore, he is entitled to the salary attached to the post from the date of his posting as Incharge Director Police Telecommunication and his pensionary benefits are required to be refixed based on the salary payable to the Director Police Telecommunication. This is a fundamental principle of law as enunciated by the Apex Court of the country in the case of Selvaraj v. Lt. Governor of Island, Portblair and ors., on which LPASW No.143/2017 Page 2 of 4 explicit reliance has been put by the writ court and in which it has been held as under:-
"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 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."
5. The writ court has also banked upon the law laid down in Jaswant Singh's case, para 11 of which has a directed bearing on the issue involved in this appeal and it is reproduced below verbatim:-
"The High Court's decision in Gobind Singh did not direct the promotion of Gobind Singh. What was directed was the payment and allowances of the post of Chick Sexer. Since Gobind Singh had been discharging the duties on that post. Therefore, while the appellant's promotion to the post of Chick Sexer cannot be upheld, given the fact that the appellant had discharged the duties LPASW No.143/2017 Page 3 of 4 of 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."
6. Applying the ratio of the law laid down above to the facts and circumstances of the instant case, there appears to be no illegality in the judgment and order of the writ court. The writ court has confined the relief to be granted in favour of the respondent No.1 to the extent as indicated above. The State misunderstood the scheme and the application of the judgment of the writ court. The reliefs claimed by the respondent No.1 in this appeal, before the writ court i.e., quashing the Government Order No. Home-490 (P) of 2001 dated 04.12.2001; commanding the respondents to consider his case for induction into Indian Police Service; quashing J&K Police (Gazetted Service Recruitment Rules) 2002 and commanding the respondents to consider and promote the petitioner to the next higher post of Director Telecommunication, have not been granted in favour of the petitioner. The base line of the judgment of the writ court is the relief claimed under the head, "any other relief as deemed appropriate be granted to the respondent No.1 herein". The writ court found favour with this and directed that the respondent No.1 herein is entitled to the salary attached to the post of Director Police Telecommunication (which he was holding for more than three years and six months) and his pensionary and retiral benefits be fixed accordingly. This is in complete consonance to the law cited above. Therefore, we see no reason to interfere with the judgment and the order under appeal as a consequence of which the appeal fails and is dismissed. The appellants in the LPA shall comply with the terms of order and judgment of the writ court within a period of six weeks from the date the copy of this order is served upon them.
Jammu (M.K Hanjura) (Ramalingam Sudhakar)
08.12.2017 Judge Judge
Surinder-II
LPASW No.143/2017 Page 4 of 4