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J&K High Court · body

2001 DIGILAW 24 (JK)

Bashir Ahmad Malla v. J&K Cements Ltd.

2001-02-07

O.P.SHARMA

body2001
Following facts are admitted by the parties. The petitioner as well as respondent No.2 and 3 were appointed as Assistant Burners Vide order dated 27.12.1980 issued by respondent No. 1. Both the respondents No.2 and 3 admittedly left the job in the year 1983. Subsequently, both of them were appointed on the post of Burner vide order dated 12.5.1984 in the pay scale of Rs.400-900 (un-revised), but their initial basic pay was fixed at Rs. 1200/- per month. They were also entitled to cost of living allowance (COLA). The petitioner felt aggrieved and submitted representation against the appointment of the respondent No.2 and 3 as Burners ignoring their seniority. Respondents No. 1 promoted both the petitioners as Burners to the pay scale of Rs.470-900 with effect from 13.3.1984 vide order dated 7.1.1985. Para-4 of this order provided that seniority of the Burners shall remain as it existed before 1983. 2. The grievance of the petitioners is that although they have been promoted as Burners, but while the basic pay of respondents No.2 and 3 who are junior to them had been fixed at Rs. 12007- the same is denied to them. They therefore, seek a direction to pay them Rs. 1200/- with effect from 13.3.1984 and also fix their seniority above the respondents No.2 and 3. 3. The stand of the official respondent is that the basic pay of private respondents has been fixed at Rs. 1200/- taking into account their efficiency and experience. It has however, justified denial of same treatment to the petitioners even though they were promoted retrospectively. The stand of the private respondents is that although they left the service, but they were persuaded by the management to re-join on the terms and conditions stipulated in the appointment order to which they agreed. 4. The contention of Mr. Hussain is that the official respondent cannot discriminate between the similarly situated persons by giving higher start to the private respondents and denying the same to them. He further argued that private respondents could not be given the seniority over them because there is a break in their service. Mr. Lone tried to justify the order fixing higher pay on the ground that private respondents were persuaded to join services because the Corporation required their services. Mr. He further argued that private respondents could not be given the seniority over them because there is a break in their service. Mr. Lone tried to justify the order fixing higher pay on the ground that private respondents were persuaded to join services because the Corporation required their services. Mr. Aijaz has on the other hand argued that they are entitled to seniority because they are getting higher basic pay as compared to the petitioners. Although claim of the petitioner is virtually admitted yet what is intriguing is para-1(iii) of the preliminary objections raised in the counter affidavit filed on behalf of respondent-1 which reads : (iii) That the petitioners were placed in the pay scale of 460-860, w.e.f. 27.7.1983 the sanctioned pay scale of Asstt. Burners are given below : Asstt. Burners Burners Rs.450-750 470-900 (un-revised).� What was the object of taking this plea is not clear because it is not the grade of Assistant Burners which is relevant, but the grade of Burner and the date from which the petitioner have been promoted. As noticed above, the claim of the petitioners is virtually admitted as is evident form the following: 1. The following Assistant Burners in the pay scale of Rs. 460-860 (un-revised), are promoted to the post of Burners in the pay scale of Rs.470-20-670-KB-25-900 (un-revised), with effect from 13.3.1984(AN): 1. Shri Bashir Ahmad Malla, 2. Sh Nazir Ahmad Munshi.� So both the petitioners were promoted as Burners with effect from 13.3.1984 in the pay scale of 470-900. While the private respondents were appointed Burners in the same pay scale vide order dated 12.5.1984, the petitioners are therefore, senior to them because they were promoted to the same category of service prior to the appointment of respondents. Mr. Lone as well as Mr. Moulvi Aijaz, however, argued that since the appointment of private respondents was on substantive basis while the petitioners were on probation for one year, therefore, the respondents are senior in service. The factual postition is not disputed because in terms of para-3 of order dated 7.1.1985, the petitioners were to be on probation for one year. This para reads as under: 3. The promotees shall however, be on probation for a period of one year in their new scale." 5. However, there is no provision to extend the probation period. The factual postition is not disputed because in terms of para-3 of order dated 7.1.1985, the petitioners were to be on probation for one year. This para reads as under: 3. The promotees shall however, be on probation for a period of one year in their new scale." 5. However, there is no provision to extend the probation period. It is also not the case of the respondents that their performance was not satisfactory, the only purpose for keeping a promotee on probation. But there is no such provision that there will be deemed confirmation, in view of the law laid down in Wasim Beg v. State of U.P. (1998) SCC 321. It reads : 15. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh AIR 1968 SC 1210, M.K.Agarwal vs. Gurgaon Gramin Bank 1987 Supp SCC 643, Om Prakash Maura Vs U. P. Co-op. Sugar Factories Federation 1986 Supp SCC 95, State of Gujarat vs. Akhilesh C. Bhargav (1987) 4 SCC 482. 16. However, even when the Rules prescribe a maximum period of probation if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. 16. However, even when the Rules prescribe a maximum period of probation if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases, we can place Samsher Singh vs. State of Punjab (1974) 2 SCC 831 which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the court, this court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corpn. Vs Ashok Kumar Misra (1991) 3 SCC 325. In Satya Narayan Athya vs. High Court of M. P. (1996) 1 SCC 560 although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld." As noticed above, there being no provision to extend the period of probation, the petitioners are deemed to have been confirmed from the date they were appointed. This takes us to para-4 of the order dated 7.1.1985 which reads as under: 4. The seniority of the Burners will remain the same as it existed prior to 1983, when they were Assistant Burners later promoted as Burners in 1983, except Sh. Ab. Majid, who had left the organisation.� 6. The only purpose of this para appears to relate the seniority to their initial appointment as Assistant Burners before the private respondents had left the service. However, this para cannot help the respondents because having appointed the petitioners with effect from 13.8.1984, its consequence cannot be prevented. Since the petitioners have been appointed as Burners before the private respondents were appointed, they are entitled to the seniority because they are deemed to have been confirmed from the date they were appointed after completion of one-year probation period. Moreover, seniority has to be determined with reference to the date of appointment and not the initial basic pay. 7. The next question is whether the petitioners are also entitled to higher initial pay as allowed to the private respondents. Moreover, seniority has to be determined with reference to the date of appointment and not the initial basic pay. 7. The next question is whether the petitioners are also entitled to higher initial pay as allowed to the private respondents. The argument of Mr. Lone that private respondents were persuaded to join the organisation by granting them higher pay is not borne out by the record. It is also not the case pleaded in the counter filed on behalf of the Company. On the contrary the order of appointment dated 12.5.1984 indicated that they had requested the company for their appointment. Since the petitioners were also promoted as Burners, therefore, they should have been similarly treated. Since the official respondent promoted the petitioners retrospectively, therefore, they were also entitled to the same treatment as the private respondents in the matter of higher pay. The principle of equal pay and equal wages is squarely applicable because either the order of appointment dated 12.5.1984 fixing initial pay in favour of the private respondents is arbitrary or the denial of the same benefit to the petitioner is arbitrary because all of them are possessing same qualification, holding the same post in the same organisation. So two different yardsticks cannot be applied to the same set of employees in the matter of fixation of pay. This is apart from the fact that petitioners are senior to the private respondents as noticed above because they were promoted earlier to the date of appointment of respondents. 8. In view of the above this petition is allowed and respondent No. 1 is directed to pay the petitioners arrears of the pay @ Rs. 1200/- per month alongwith costing of living allowance (COLA) from the date it was paid to respondent No.2 and 3 after making adjustment with the amount already received by them within a period of four months. Costs shall follow the result.