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Jammu & Kashmir High Court - Srinagar Bench

Mohammad Shafi Lone And Others vs State Of J&K; And Others on 28 September, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

            HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR
     SWP No. 36/2018
                                                               Date of Order: 28.09.2018
                              Mohammad Shafi Lone and Others
                                             Vs.
                                  State of J&K and Others
     Coram:
                  Hon'ble Mr Justice M. K. Hanjura, Judge
     Appearance:

     For petitioner(s):   Mr Shuja-ul-Haq, Advocate
     For respondent(s):   Mr B. A. Dar, Sr. AAG.

     i/     Whether to be reported in                 Yes/No
            Press/Media?
     ii/    Whether to be reported in                 Yes/No
            Digest/Journal?

1. The petitioners, by the medium of this petition, seeks a writ of Mandamus, commanding the respondents to remove the disparity in the pay scale of SG Fireman of the Fire and Emergency Service and release the same pay grade/scale (10910+2800 GP) unto the petitioners w.e.f. 01/09.2016 as has been sanctioned and released vide Order No. 578 DG&ES of 2016 dated 20.10.2016 issued by the respondent No. 2 and Government Order No. 207 of 2017 dated 13.03.2017 issued by the respondent No. 1 in favour of the similarly situated SG Fireman of the Department. A writ of mandamus is also sought for commanding the respondents to accord similar treatment unto the petitioners as has been accorded to SG Fireman Kaisar Ahmad Bhat SGFM 1354, SG Fireman namely, Sh. Manzoor Ahmad Wani SGFM 1414, and SG Fireman Manzoor Ahmad Parray SGFM 1458 and scores of other SG Fireman and grant 2nd insitu promotion to the petitioners and release the pay grade of 10910+2800 GP w.e.f. 01.09.2016 in favour of the petitioners.

2. The facts culled out from the petition of the petitioners is that the petitioners have been working in the respondent department for the last nearly two decades.

They have been appointed in the respondent department as Fireman in the years 1997 and 1998. After having worked on the post of Fireman, all the petitioners have been promoted on the post of Selection Grade Fireman in the years 2012 and 2013. It is submitted that some of the petitioners came to be promoted on the post of SG Fireman in the years 2009 and 2010 on in-charge arrangement and were subsequently confirmed on the said posts of Selection Grade Fireman in the years 2012 and 2013. The Respondent Department has been maintaining the seniority of the petitioners in the category of SG Fireman and in this regard a tentative seniority list as on 01-01-2015 had been issued by the Respondent Department wherein all the petitioners figure at different serial numbers and their date of appointment as well as the date of promotion has been reflected by the respondent Department. The seniority of the petitioners as well as other persons working as SG Firemen in the Respondent Department has remained unaltered for the last more than three years ever since the issuance of seniority list in the year 2015, therefore, the seniority list issued by the Respondent Department in the year 2015 reflecting the seniority position of SG Firemen officers has attained finality and the said seniority list has also been acted upon by the Respondent Department from time to time. The petitioners found that they are getting less pay than that of their counter parts, despite the fact that they were/are in same cadre and rank. They approached the respondents for stepping up of their pay, but the respondents adopted pick and choose policy in a most arbitrary and unjustified manner. They left the petitioners and stepped up the pay and granted 2nd insitu promotion to the junior counter parts of the petitioners w.e.f 01-09-2016 vide order No. 578 DG&ES of 2016 dated 20-10- 2016 and Govt. Order No. 207 of 2017 dated 13-03-2017 whereby their pay band of the junior counterparts of the petitioners has been stepped up from (10520+GP 2400) to 10910+GP 2800). Consequent thereupon, the petitioners again approached the respondents and requested them to step up the pay of the petitioners on the analogy of the junior counterparts who are similarly situated SWP No. 36/2018 Page 2 of 7 and equally circumstanced with that of the petitioners in terms of Art. 77-B off J&K CSR Vol-I read with SRO 14 of 1996, SRO 225 of 1997 dated 23-12-1997 and Rule 2.43 of J&K financial Cole Vol-I, but the petitioners were fed with hollow promises only were made to run from the pillar to the post. On the series of representations made by the petitioners, the Respondent No. 2 submitted a proposal for stepping up of the pay of the petitioners from (10520+GP 2400) to 10910+GP 2800) before the Respondent No. 1, but the proposal has been returned back vide communication dated 07-09-2017 issued by Respondent No. 3 to Respondent No. 2 on the lame excuse that the final seniority list of the officers "SG Fireman" has not been made available.

3. It is also stated that the communication dated 07-09-2017 issued by Respondent No. 3 is illegal unjustified and unreasonable on the ground that on the basis of same seniority list of 2015 the Govt. Order No. 207 of 2017 dated 13-03-2017 has been issued by Respondent No. 1 whereby the pay band of the junior counterparts of the petitioners namely SG Firemen Kaisar Ahmad Bhat SGFM 1354, SG Firemen namely Sh. Manzoor Ahmad Wani SGFM 1414, and SG Firemen Manzoor Ahmad Parray SGFM 1458 and scores of other SG Firemen has been stepped up from (10520 + GP 2400) to (10910 + GP 2800) w.e.f 01- 09-2016. The act of respondents in applying double standards via-a-vis the same set of employees is not only unconstitutional, but also illegal and unjustified. Such an action violates Articles 14 and 16 of the Constitution of India. Vide Govt. Order No. HOME 66 of 2017 dated 3-3-2017, the Respondent No. 1 has issued the order of stepping up of pay/ pay band in respect of two Leading Firemen and Five Senior Grade Firemen. One of the Leading Fireman namely Sameer-ul-Hamid and SG Fireman Ab. Rehman Rather have been granted the benefit of stepping up of pay/pay band irrespective of the fact that Sameer-ul- Hamid and Ab. Rehman Rather are figuring as Respondent No. 12 and 15 in the writ petition S.W.P No. 1474/2015 titled Farooq Ahmad Beigh and Ors. V/s State of J&K. Owing to the discriminatory treatment meted out to the SWP No. 36/2018 Page 3 of 7 petitioners, the petitioner continue to draw their salary in the grade of (10520 + GP 2400) while as their other junior counterparts have been drawing the salary in the grade of (10910+ GP 2800) which is much higher than that of petitioners. The petitioners have been made to suffer for none of their fault and because of the official apathy and nepotism/favouritism, the benefit of grade (10910 + GP 2800) has not been given to the petitioners so far. It is further contended that equal pay for equal work has been recognized as a fundamental right and as such enforceable under law. The petitioners' area also entitled to the stepping up of their pay in terms of Art. 77-B off J&K CSR Vol-

I read with SRO 14 of 1996, SRO 225 of 1997 dated 23-12-1997 and Rule 2.43 of J&K financial Cole Vol-I.

4. In their objections, the respondents have stated that the pleadings in the writ petition are admitted to the extent that the seniority list of all the categories is issued regularly by the respondent department. It is also submitted that the department has lastly issued a tentative seniority lists on 01-01-2015 in respect of all the Non-Gazetted categories including SG Fireman and it will be pertinent to mention here that the said tentative seniority list could not be finalized in view of the status quo issued by the Hon'ble High Court in a writ petition bearing SWP No. 1474/2015 titled Farooq Ahmad Beigh Vs. State of J&K and Ors. The 2nd Insitu promotion to the eligible SG Fireman has been granted strictly in terms of SRO-14 of 1996 after considering regular satisfactory service of 18 years. The present petitioners also working as SG Fireman in terms of the relevant rules are not eligible for 2 nd Insitu promotion as on date. With regard to stepping up of the pay in respect of these petitioners, it is submitted that the competent authority after considering their cases returned the same with the advice that these cases cannot be considered on the basis of tentative seniority list, and therefore, all such proposals be submitted along with the final seniority list. The seniority list could not be finalized in view of the status quo order issued in SWP No. SWP No. 36/2018 Page 4 of 7 1474/2015 by the Hon'ble High Court. As and when the final seniority list is issued by the department, the cases of the step up of Pay/ Pay Band will be submitted to the Administrative Department for accord of administrative sanction in terms of Article 77-B of J&K CSRs Vol-I. The order No. 578 (DGF&ES) of 2016 dated 20-10-2016 was issued by respondent no. 02 (Directorate General, Fire & Emergency Services, J&K), which only pertains to grant of Insitu promotions, but does not relate to the stepping up of the pay. However, it is submitted that the order bearing No. 207 of 2017 dated 13-03- 2017, issued by the respondent No. 1 pertains to stepping up of pay/pay band in respect of (02) SG Fireman namely Kaisar Ahmad Bhat and Manzoor Ahmad Wani.

5. It is submitted that the Insitu promotion, as contended by the petitioners has been granted in favour of Fireman, who have completed regular satisfactory service of 09/18 years vide order No. 578 of 2016 dated 20-10-2016. They are not the counter parts of the petitioners of the instant writ petition. The 2nd Insitu promotion has not been withheld in respect of the petitioners but in fact these petitioners will become eligible for the same w.e.f 01-06-2021 onwards as reflected in Annexure-R-1 to these objections. The petitioners have neither been treated differently nor has any discrimination been meted out to them for the reason that they are being paid for the work strictly as per the pay band attached to the post of SG Fireman. However, the stepping up of pay and bringing the petitioners on par with the pay of their junior counterparts is to be considered on the basis of final seniority list which could not be finalized in view of the status quo as discussed in above Para's. In the end, it has been stated that the present writ petition is devoid of merit and the answering respondents have not committed any illegality or arbitrariness. The petitioners have no ground to challenge the action taken by the answering respondent. The writ petition is without any merit and deserves to be dismissed at the very outset.

6. Heard and considered.

7. The respondents have in essence admitted the case of the petitioners but have raised a plea that the stepping up of the pay of petitioners could not be granted on the basis of the tentative seniority list and the final seniority list could not be drawn on the face of an order of status quo passed in SWP No. 1474/2015.

8. Government Order No. HOME 166 of 2017 dated 03-03-2017, demonstrates that the respondents have issued the order of stepping up of the pay of the Leading Firemen as well as Senior Grade Firemen so as to bring them at par with their junior counterparts irrespective of the pendency of the writ petition bearing S.W.P No. 1474/2015 and on the basis of the tentative Seniority list. The respondents have on their own admitted that the order No. 207/2017 dated 13.03.2017, issued by the respondent No. 1 pertains to stepping up of pay of SG Fireman namely, Kaiser Ahmad Bhat and Manzoor Ahmad Wani.

9. The respondents cannot take refuge under the plea that the case of the petitioners cannot be considered till such time that the final seniority list is in place when on the basis of the tentative seniority list, the case of the aforesaid persons for stepping up of their pay has been considered. As for as the grant of 2nd Insitu promotion in favour of the petitioners is concerned they are not eligible for the same as is brought to the fore from the perusal of Annexure R1 attached to the objections.

10. These cases have been cited as an example and the whole picture was before the respondents while passing the order in two similarly situated cases of Shri Kaiser Ahmad and Shri Manzoor Ahmad Bhat. The action of the state has to be transparent. The state cannot discriminate between similarly circumstanced persons. Ours is a welfare state which aims at the goal where everyone is/has to be as far as possible looked after. The cases of the petitioners could have been considered on the same parameters and analogy as has been evolved in the cases of the above named persons. The respondents have treated the cases of the petitioners as sui generis cases.

11. In view of the preceding analysis, the petition of the petitioners is allowed to the extent of stepping up of pay of the petitioners and accordingly, the respondents are directed to accord consideration to the claim of the petitioners on the same analogy as has been evolved in the cases of the similarly situated persons as detailed herein before.

(M. K. Hanjura) Judge Srinagar 28.09.2018 "Manzoor"