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2005 DIGILAW 111 (JK)

Nirmal Singh v. State Of J. &K.

2005-04-16

MANSOOR AHMAD MIR

body2005
1. The petitioner was initially appointed as Khidmatgar on 12th October, 1964 in the Health Department. The petitioner was latter on designated as Dental Boy in the pay scale of Rs. 775-1025 vide order No. Estt/IV/1997-2010 dated 20th May, 1974. The date of birth of the petitioner is 20th March, 1943. The petitioner has to retire at the age of 60 years.The petitioner continued in service beyond 58 years of age. The petitioner has not been paid the salary from April, 2001 in terms of the communication addressed by respondent No. 5 to respondent No. 4 bearing No. Est-III/1753 dated 15th June, 2001 with the information that the petitioner was to retire at the age of 58 years. The respondents allowed similarly placed employees, namely, Habib-Ullah Wani and Ghulam Hassan Shah to continue in the service up to the age of 60 years and paid all the benefits to the said employee. Thus there is no justification in denying the same treatment to the petitioner. 2. Heard. Considered. In identical writ petitions No. 300/1986 and 1309/99 the point which arose for consideration was, whether a Dental Boy falls withing the same clause and category as are included in the Schedule to Civil Service Regulations as inferior service. It is pertinent to mention, herein, that in both the said petitions, the petitioners were initially appointed as Chowkidar and latter on were designated as Dental Boys. 3. In SWP No. 300/1986, Syed Hussain v. State of J&K and others, reported in SLJ 1989 page 17, this Court observed as under:- "In these circumstances of the case, I hold that the petitioner as a Dental Boy belong to the same group of employees as that of X-Ray Boy or Theatre Boy, and they are to be treated as equals for all intents and purposes of their Service Conditions and its benefits. If the X-Ray Boy or the Theatre Boy has been treated an inferior Government servant, the Dental Boy also is to be treated equally as such. That being so, they are entitled to equal protection of law under Article 20-C of the Regulations Whether the category of the Dental Boy is or is not shown in Schedule II, but once he is held to be inferior-Government servant, he is entitled to all the benefits as such. That being so, they are entitled to equal protection of law under Article 20-C of the Regulations Whether the category of the Dental Boy is or is not shown in Schedule II, but once he is held to be inferior-Government servant, he is entitled to all the benefits as such. This confronts me here with the injustice being meted out to other class IV employees of various Government departments who have not been included in the Schedule as inferiour Government servants thus depriving them of its benefits. This is definitely against the mandate of Rule of Law and a violation of the Regulations. The Government is, therefore, advised to look into this problem at its right earnest and include all class IV employees of all the Government department in the said Schedule." 4. In Habib Ullah Wani v. State and Others (SWP No. 1399/1999) this Court observed as under:- "I find myself in complete agreement with learned brother, Justice S.M.Rizvi on this point and hold that the petitioner who belonged to the inferior category of the employees is entitled to the benefit of Schedule II of the Civil Service Regulations which provides that such type of employees shall retire/superannuate at the age of 60 years. The Accountant General has to be informed that the benefit of the Schedule II of the CSR has to go to the petitioner who is entitled to that benefit under the Rules. Having held as above that the petitioner was to superannuate at the age of 60 years, direction shall therefore, go to the respondents to speed up the settlement of the post-retiremental benefits, including pension in favour of the petitioner. The necessary assessment, calculation and payment order shall be made within a period of three months from the date, copy of this order is delivered under proper receipt to respondent No. 4." 5. An employee though not included in Schedule-II but of status equivalent to those included therein also belong to inferior class within the meaning of Article 20-C. Thus the age of retirement for such an employee is 60 years. 6. The relevant point of time, when a government employee should be in an inferior class as given in Schedule-II, is the date on which order of superannuation is passed and such an employee must have joined in inferior service on 18th October, 1966 or prior to that date. 7. 6. The relevant point of time, when a government employee should be in an inferior class as given in Schedule-II, is the date on which order of superannuation is passed and such an employee must have joined in inferior service on 18th October, 1966 or prior to that date. 7. Applying the test, the case of the petitioner squarely falls within the scope of Article 20-C of the Civil Services Regulations. 8. The case of the petitioner and the petitioners in SWP Nos. 1399/99 and 300/1986 are identical and similar. Thus the petitioner is also entitled to the same benefit. Having glance of the aforesaid discussion, the petitioner is an employee falling under the category of the employees as are included in the Schedule-II of Civil Service Regulations as inferior service. The superannuation/retirement age of the said employees is 60 years. 9. The High Court has the powers to direct the competent authority to include the class of employees in the said schedule as inferior servant who has not been included in the Schedule. In Karim Bibi and Barkat Bibi v. State of J&K and Anr., 1985 SLJ page 116, this Court observed as under:- "10. Analysing this Article it is clear that the ordinary date of retirement is 55 years of age for the officer employed under the State, but the State is competent to retain an office sic (Officer) in service up to the age of 60 years in very special circumstances after recording reasons therefor. But in respect of inferior servants of the State who were appointed on 18-10-1966 or prior to it are to be retired on attaining the age 60 years. State has no option in the matter of retirement in respect of such inferior servants and they are to be retired on attaining the age of 60 years. State has no option in the matter of retirement in respect of such inferior servants and they are to be retired on attaining the age of 60 years. But a list of inferior servants in terms of Art, 20-C is to be prepared by the State. Surprisingly enough in schedule II of the Regulations list of appointment specially classed as inferior is given in respect of Medical and Public Health departments, Safaiwalas or sweepers do not figure in the said list. In respect of various other departments, sweepers as also safaiwalas do figure as inferior servants. Surprisingly enough in schedule II of the Regulations list of appointment specially classed as inferior is given in respect of Medical and Public Health departments, Safaiwalas or sweepers do not figure in the said list. In respect of various other departments, sweepers as also safaiwalas do figure as inferior servants. In case of various other departments such as Geology and Mining. Trade agencies Tawaza department, Police sweepers are shown as inferior servants. Even after issuance of revised pay rules of 1982 which classifies safaiwalas and sweepers along with many other groups of employees as inferior employees. Schedule-II to the civil Service Regulations has not been amended and corrected. In the department of Medical Education under the revised pay rules sweepers are shown as belonging to inferior class and their pay is upgraded from 170-230 to 345-435. The petitioners also being to Medical education department. All these persons in various other government departments in terms of Schedule-II of the revised pay rules whose pay scale was 170-230 now revised to 345-435 are treated as Class-IV employees i.e. belonging to inferior class. Schedule-II of the Jammu and Kashmir Civil Services Regulations even then remains static and unchanged. The confusion created by schedule II to the civil service regulations should have been cleared after the issuance of revised pay rules of 1982." 10. The competent authority ought to have take note of the judgments quoted hereinabove and should have redressed the grievances of the Dental boys. Had the competent authority taken note of the said judgments, the poor employees would not have been forced again to knock the doors of this court. 11. In the given circumstances the petitioner was entitled to remain in service up to the age of 60 years but during the pendency of the writ petition, the petitioner has completed the said age on 31.03.2003. Thus the petitioner is deemed to have retired from the service on 31.03.2003. 12. Accordingly, the writ petitions are allowed and the impugned order in SWP No. 182/2002 bearing No. Est-III/6234-35 dated 19th December, 2001 is hereby quashed with the command to the respondent, that the petitioner is deemed to have retired from service on 31.03.2003 and, to release all the service benefits including pension in favour of the petitioner. 12. Accordingly, the writ petitions are allowed and the impugned order in SWP No. 182/2002 bearing No. Est-III/6234-35 dated 19th December, 2001 is hereby quashed with the command to the respondent, that the petitioner is deemed to have retired from service on 31.03.2003 and, to release all the service benefits including pension in favour of the petitioner. The respondents are also commanded to settle the case of the petitioner within three months from the date the copy of this order is delivered to competent authority i.e. respondents 3 & 5. 13. In the given circumstances of the case, it is proper to take a lenient view and drop the contempt proceedings.