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2002 DIGILAW 193 (JK)

Haroon Rashid Lone v. State Of J. &K.

2002-06-05

V.K.JHANJI

body2002
In this writ petition, the petitioner is seeking a writ in the nature of certiorari for quashing communication No. OM No. A/29 (98)-233 dated 15.3.1999 addressed by Accounts Officer (Code), respondent No. 2, to Secretary to Government, Law Department, respondent No. 3, and letter No. LD (A) 95/100 dated 19.3,1999 addressed by Under Secretary to Government Law Department to the Registrar General, High Court of Jammu and Kashmir. The petitioner has further prayed for a writ in the nature of mandamus directing the respondents to place the petitioner in the higher grade of Rs. 2000-3400 (pre-revised) in terms of SRO 291 dated Ist June, 1978 with effect from Ist September, 1993 and to give him the monetary and other consequential benefits. 2. The case of the petitioner is that he passed B.Sc. (Final) Examination from the University of Kashmir in the year 1983. The petitioner has also obtained the Degree of Bachelor of Library and Information Science from the same University in the year 1984. He was appointed as Librarian in Jammu and Kashmir High Court vide order dated Ist September, 1988 in the grade of Rs. 1150-2050 (pre-revised). Further, according to him, by virtue of the Jammu and Kashmir (Revised Pay Fifty-Eighth Amendment Rules, 1978, promulgated vide SRO 291 dated 1.6.1978, it was provided that as and when a librarian improves his qualifications and fulfills other requirements of the rules, i.e., five years experience as librarian and the qualification of Diploma/Degree in Library Science and the basic academic qualification of BA/B.Sc/B.Com, he may be placed in the higher grade of Rs. 475-850 from the date he is declared fit for such placement by the Committee of Experts/Departmental Promotion Committee, as the case may be, and if the post held by him is in a lower grade, it should be deemed to have been upgraded to Rs. 475-850 from that date. It was further provided therein that the upgradation of the post will be personal to the librarian and, as soon as he vacates the post, it shall revert to its original grade unless it is occupied by a librarian of equivalent grade. Since the petitioner has the qualification of B.Sc. and has obtained a Degree of Bachelor of Library and Information Science, besides having completed five years experience long back, he became entitled to the grade of Rs. Since the petitioner has the qualification of B.Sc. and has obtained a Degree of Bachelor of Library and Information Science, besides having completed five years experience long back, he became entitled to the grade of Rs. 475-850 (pre-revised) provided under SRO 291 dated Ist June, 1978, but he was not placed in the said higher grade. According to the petitioner, he filed numerous representations for giving him the benefit of the higher grade and after a prolonged period of time, the Registrar General of this Court addressed letter No. 7847/NG dated 29th November, 1996 to the Secretary to Government, Law Department for, placing the petitioner in the higher grade of Rs. 2000-3400 (revised at the relevant time) in terms of SRO 291 dated Ist June, 1978. The Registrar General of this Court brought it to the notice of the Secretary to Government, Law Department, that in like conditions petitioners counterparts in other departments, viz, Education Department, Geology and Mining Department, Sheep and Husbandry Department etc. have been given this benefit in terms of the SRO, whereas the said benefit has been denied to the petitioner. It was therefore, requested that necessary sanction be accorded for placing the petitioner in the higher grade of Rs. 2000-3400 in terms of SRO 291 dated Ist June, 1978. The request made by the Registrar General was considered by the Finance Department of the State, but sanction was not accorded as, the Finance Department was of the view that upgradation of the Librarian was not provided under the rules. The Finance Department stated that the case was not justified for upgradation. The Government, on the basis of the opinion of the Finance Department, informed the Registrar General of this Court vide letter dated 19.3.1999 that since there is no specific rule, the-concurrence of the Finance Department is not justified for upgradation. The case of the petitioner is that the decision of the Government communicated to the Registrar General is totally illegal and arbitrary. 3. The case of the petitioner is that the decision of the Government communicated to the Registrar General is totally illegal and arbitrary. 3. It may be mentioned here that when the Registrar General of this Court made recommendations vide letter dated 29.11.1996 to the Secretary to Government, Law Department for placing the petitioner in the higher grade in terms of SRO 291 of 1978, the Government slept over the matter for quite long a time as a result the petitioner was compelled to file a writ petition, SWP No. 3071/98 seeking a writ in the nature of mandamus directing the respondents to place the petitioner in the higher grade in terms of the said SRO. This writ petition was disposed of by this Court on 29.6.1998 with the following direction : "Considering the matter on the strength of the pleadings of the petitioner coupled with the recommendation made, this writ petition is disposed of with the direction to respondent No. 3 to consider the claim of the petitioner in the light of recommendations made vide aforesaid communication of respondent No. 2 and pass appropriate orders within a period of three months." 4. It is after the aforesaid direction of the court that the respondents have declined to grant higher grade to the petitioner, saying that the upgradation is not justified since, according to them, there is no specific rule. 5. In this writ petition the petitioner has averred that the respondents have denied equal treatment and equal protection of law enshrined in Articles 14 and 16 of the Constitution to the petitioner in an illegal and improper manner. Whereas his counter-parts working in other departments have been given the benefit under SRO 291 of 1978, the said benefit has been denied to the petitioner though the duties performed by the petitioner are no less in magnitude or quality than his counter parts, nor does the petitioner lack in any qualification which are possessed by his counter-parts. 6. Upon notice of this petition, objections have been filed on behalf of respondents 1 and 2. 6. Upon notice of this petition, objections have been filed on behalf of respondents 1 and 2. The only ground taken is that earlier the petitioner had filed a writ petition for the same relief which was disposed of by this Court and it was directed that the case of the petitioner be considered and that, since his case has been considered and his claim has been rejected, the petitioner now cannot maintain the present writ petition. 7. Today, when the case was called for hearing, none has put in appearance on behalf of respondents 1 and 2. Mr. M. I. Qadiri, Senior Additional Advocate General, appearing on behalf of respondent No. 3, contended that the Registrar General, High Court of J&K, vide his letter dated 29.11.1996, addressed to the Secretary to Government, Law Department, has already recommended the case of the petitioner and has requested for according sanction to the placement of the petitioner in higher grade in terms of SRO 291 of 1978, but the sanction has not been accorded. According to the learned counsel, there is no justification for the Government for not granting upgradation of pay of the petitioner in light of the recommendations made by the High Court. 8. On going through the record of this case, I am of the view that the decision of the Government dated 19.3.1999 as conveyed to the Registrar General is not sustainable in law for the reason that the only requirement of SRO 291 of 1978 is to the following effects : "Five years experience as Librarian and the qualification of Diploma/Degree in Library Science and the basic academic qualification of BA/BSc/B.Com". 9. The petitioner possessed the requirement of qualification even before his appointment in the High Court on Ist September, 1988 and completed his experience of five years somewhere in the year 1993. Therefore, he fulfilled the requisite qualifications for higher grade as prescribed in SRO 291 of 1978. Therefore, it is not correct on the part of the Government to say that upgradation of the librarian is not provided under the rules or that there is no specific rule justifying the upgradation. 10. It has now been settled by the supreme Court that the principle of equal pay for equal work is not an abstract doctrine, but one of substance. 10. It has now been settled by the supreme Court that the principle of equal pay for equal work is not an abstract doctrine, but one of substance. In applying the principle, the Supreme Court has emphasised on the nature and quality of work rather than the status of the worker. Following the explanation of Kishori Mohanlal Bakshi v Union of India AIR 1962 SC 1139, their lordships of the Supreme Court in Randhir Singh v Union of India, AIR 1982 SC 879 applied the same principle to the Vaccinators working on daily wage basis under the Delhi Municipal Corporation when they were being paid at a lower rate than those who had been regularly employed but doing the same kind of work. The Gallery Assistants of Museum of New Delhi in National Museum Non-Gazetted Employees Association v Union of India, 1988 (supp) SCC 673 were held to be entitled to the same pay as Record Assistants in the National Archives having regard to the qualification, nature and condition of work in both the establishments. Again, in Frank Anthony Public School Employees Association v. Union of India (1986) 4 SCC 707, teachers and employees of a recognised un-aided private minority school were held to be entitled to parity in pay scale with those available to their counter-parts in Government Schools of Delhi. The Supreme Court in Doordarshan Cameramen Welfare Association v Union of India, AIR 1990 SC 1387, has directed parity in respect of Sound Recordist, cameramen etc. of Doordarshan with those of their counter-parts in the Films Division. The Supreme Court has maintained that the principle would apply so long as there is a reasonable similarity in nature of work, qualifications required, the quality of work performed and it is not necessary to demonstrate the similarity with mathematical accuracy. 11. In the present case, the petitioner has placed on record Government orders in the shape of annexures `L, `L1, `M, `N, `P to show that Government has placed number of persons in higher grade in various departments in terms of SRO 291 dated Ist June, 1978. Vide Government order dated 19.9.1989 one Mukhtar Ahmad, Junior Librarian working in the Sheep Husbandry Department has been placed in the higher grade in terms of the aforesaid SRO. Vide Government order dated 19.9.1989 one Mukhtar Ahmad, Junior Librarian working in the Sheep Husbandry Department has been placed in the higher grade in terms of the aforesaid SRO. Similarly, two Librarians, namely, D. K. Verma and Ishtiyaq Ahmad Sheikh working in the Directorate of Geology and Mining Department have been placed in the higher grade of Rs. 2000-3400 (pre-revised) vide order dated 18.1.1993. Vide order dated 6.1.1994 sanction has been accorded to the placement of one Shabir Ahmad War, Librarian, District Library, Baramulla, in the higher grade of Rs. 2000-3400 (pre-revised) in terms of SRO 291 of 1978. Again in terms of Government order No. 1596- LD(Estt) of 1994 dated 29.9.1994, issued by Commissioner-cum-Secretary to Government, Law Department, sanction has been accorded to the upgradation of the post of Junior Librarian as Librarian from Rs. 1200-2040 to Rs. 2000-3400 and one Shri Mohd Ashraf Wani, Junior Librarian has been adjusted against the said post from the date he completed five years service in the previous scale. In terms of Government order No. 1713-Edu of 1998 dated 18.12.1998, issued by Commissioner-cum-Secretary to Government, School Education Department, sanction has been accorded to the placement of 14 Librarians of School Education Department in the pre-revised scale Of Rs. 2000-3400, now revised to Rs. 6700-10700 with effect from Ist March, 1992. Again vide order dated 24.3.2001 eleven more persons have been placed in the higher grade retrospectively from the dates they had completed five years experience in terms of SRO 291 of Ist June, 1978. 12. All the aforesaid instances show that there is a specific rule providing for such upgradation subject, of course, to the conditions prescribed in the SRO. That apart, there is a reasonable similarity of nature of work, qualifications required, the quality of work performed between the petitioner and the persons who have been granted higher grade. In fact, the duties performed by the petitioner in the High Court are more onerous and demand high calibre and responsibility. Therefore, there was no reason for the respondents to deny the benefit of upgradation of pay to the petitioner that too on a flimsy ground that there are no rules for upgradation of pay to the Librarian of the High Court. Therefore, there was no reason for the respondents to deny the benefit of upgradation of pay to the petitioner that too on a flimsy ground that there are no rules for upgradation of pay to the Librarian of the High Court. It would be appropriate to quote hereunder the observations made by the Supreme Court in High Court of Judicature for Rajasthan v R.C.P. and Anor JT 1998 (2) SC 1 : "Since, under the Constitution, Chief Justice has also the power to make rules regulating the conditions of service of the officers and servants of the High Court, it is obvious that he can also prescribe the scale of salary payable for a particular post. This would also include the power to revise the scale of pay. Since such a rule would involve finances, it has been provided in the Constitution that it will require the approval of the Governor which, in other words, means the State Government. This Court in State of Andhra Pradesh and Anor. v. T. Gopalakrishnan Murthi and Ors, AIR 1976 SC 123 = 1976 (1) SCR 1008, had expressed the hope that one should expect in the fitness of things and in view of the spirit of Article 229 that the approval, ordinarily and generally, would be accorded. This was reiterated by this Court in Supreme Court Employees Welfare Association v. Union of India, JT 1989 (3) SC 188 = AIR 1990 SC 334 = 1989 (3) SCR 488 = (1989) 4 SCC 187. We again reiterate the hope and feel that once the Chief justice, in the interest of High court administration, has taken a progressive steps specially to ameliorate the service conditions of the officers and staff working under him, the State Government would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been revised." 13. In the present case, the recommendation was made by the High Court through its Registrar General, recommending the implementation of the SRO issued by the Government itself which has time and again been implemented by the Government with respect to its own employees. Therefore also, there was no justification for the Government to turn down the recommendation of the High Court. 14. Therefore also, there was no justification for the Government to turn down the recommendation of the High Court. 14. In view of the above, this petition is allowed. The impugned communications are quashed. Respondents 1 and 2 are directed to accord sanction to the placement of the petitioner in the higher grade retrospectively from Ist September, 1993, the date on which the petitioner completed five years experience. The petitioner shall also be entitled to all consequential benefits in the successive revised pay scales till date. The needful shall be done within a period of one month from the date of supply of a certified copy of this order to the concerned authority.