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2005 DIGILAW 196 (JK)

Farooq Ahmad Kuchay v. State Of J. &K.

2005-07-25

MANSOOR AHMAD MIR

body2005
1. The petitioner has prayed for the following relief;- Mandamus, commanding the respondents to release the grade of salary attached to the post of Works Supervisor i.e. 775-1025 (pre-revised) in favour of the petitioner retrospectively from the date of the petitioner was regularized as helper in the year 1995. i.e. From the date he has been re-designated as Works Supervisor vide Order 1273 dt. 15.11.95.� 2. The petitioner has sought indulgence of this Court on the grounds taken in the writ petition, which can be aptly and precisely summarized as under;- 3. The petitioner was engaged as daily-wager by the respondents on 1st June, 1979 and the petitioner worked for more than 16 years as Works Supervisor in the department. The respondents regularized the services of the petitioner as Helper and not as Works Supervisor vide Government Order No. 167-PWI/95 dated 28.03.1995. 4. The petitioner made representation and projected his grievances and accordingly, the petitioner was re-designated as Works Supervisor but was directed to work in his own pay and grade. It is profitable to reproduce order contained in annexure-B herein;- In the interest of administration Sh. Farooq Ahmad Kuchay Helper (C ) working in the pay scale of Rs.750-940 is hereby re-designated as Works Supervisor in his own pay and grade this order shall have an immediate effect.� 5. The other departments have issued the said grade in favour of similarly situated employees in terms of annexure-F, but the same has not been granted to the petitioner. The two employees who are similarly and equally situated with the petitioner were re-designated as Works Supervisors, where as the petitioner was discriminated. The petitioner has been regularized on the post which is lower than the post which the petitioner was holding as daily-wager. 6. The respondents have filed reply. It is profitable to reproduce para 4, 5 and 8 of the reply herein;- 4. The contents of para 4 are denied. It is submitted that the petitioner was working as daily wager and stands converted into regular- temporary establishment as helper ˜c™ in the pay scale of 750-940 pre revised vide Govt. order No.167 pw of 1995 dated 28.03.1995 w.e.f 01.04.1994. It is denied that petitioner was working as works supervisor on daily wage basis and was entitled to be regularized as works supervisor. 5. The contents of para 5 are denied. order No.167 pw of 1995 dated 28.03.1995 w.e.f 01.04.1994. It is denied that petitioner was working as works supervisor on daily wage basis and was entitled to be regularized as works supervisor. 5. The contents of para 5 are denied. It is submitted that the petitioner has managed an order re-designating the petitioner as works supervisor in his own pay and grade from executive engineer irrigation division Tral. It is submitted that the executive engineer, is not competent to make such redesignation and this the re-designation is void abinitio. It is further submitted that the petitioner has also managed to enter the re-designation order inhis service book. It is submitted that since the order is by an incompetent officer the same can™t be given effect or taken into consideration u/r. 8. The contents of para 8 are denied. It is submitted that the petitioner was not working as works supervision on daily wage basis and was not entitled to be regularized as works supervisor. It is submitted that the order of re-designation dated 15.11.1995 was by an authority incompetent to issue such order and thus is non-est in the eye of law. 7. Heard. Admit. With the consensus of learned counsel for the parties, the petition is taken up for final disposal. 8. The question is whether the order contained in Annexure-B can give a cause to the petitioner to claim the relief? The said order categorically contains the condition that petitioner shall work in his own pay and grade and thus, the petitioner cannot claim the relief in terms of annexure-B. 9. SRO 64 of 1994 deals with daily rated workers/ work charge employees (Regularization Rules 1994). It is profitable to reproduce Rule-3 and Rule 5 of the said SRO herein;- 3. Creation of the posts: 1. The committee may from time to time on receipt of proposal from any administrative department approve the creation of posts for the purpose of regularization of daily Rated workers or work charged employees. 2. After the approval under sub-rule (1) above is conveyed to the administrative department, the administrative department concerned shall issue the orders of creation of the posts. The committee may from time to time on receipt of proposal from any administrative department approve the creation of posts for the purpose of regularization of daily Rated workers or work charged employees. 2. After the approval under sub-rule (1) above is conveyed to the administrative department, the administrative department concerned shall issue the orders of creation of the posts. The posts so created shall be:- a. Born on the plan or non-plan establishment as the classification of the scheme or work may be on which such eligible person are deployed, and b. In conformity with the existing sanctioned designation in the pay scale of Rs.750-940. 5. Regularisation of daily rated workers: All the daily rated workers who on 31-3-1994, are eligible under rule 4 for regularization shall with effect from 1-4-1994, be appointed on the regular pay scale of class iv category of posts in the scale of Rs.750-940; Provided that if any of the categories have higher pay scale of Rs.775-1025, such employee(s) shall be placed 2 years of service in the scale of Rs.750-940.� 10. If a daily rated worker was engaged prior to 31.03.1994 and is working continuously to the satisfaction of the employer for period of seven years to 31st March, 1994, can be appointed in pay scale of Rs.750-940 after posts are created. 11. Accordingly, in terms of these Rules, the services of the petitioner have been regularized and accordingly appointed as Helper (C ) w.e.f. Ist April, 1994 vide Government Order No. 167-PWI/95 dated 28th March, 1995. The petitioner has accepted the said Government order and has not challenged the said order till filing of the writ petition. The petitioner has come to the court that higher grade be given to the petitioner from the date his services were regularized after lapse of eight years. 12. In terms of Rule-5, referred hereinabove, it is provided that if any daily rated worker was working in higher pay scale of Rs. 775-1025 then the said employee is to be placed in the said scale after lapse of two years. The petitioner, as discussed above, has accepted the order at that time and has now after lapse of eight years come to the court. 13. The petitioner has prayed that he stands re-designated thus, is entitled to the grade attached to the post of Works Supervisor. 14. The petitioner, as discussed above, has accepted the order at that time and has now after lapse of eight years come to the court. 13. The petitioner has prayed that he stands re-designated thus, is entitled to the grade attached to the post of Works Supervisor. 14. The Executive Engineer, Irrigation Division, Tral has no powers to re-designate the petitioner. However, the said re-designation does not confer any right upon the petitioner because he has been asked to work in his own pay and grade, as discussed above. 15. It is not the case of the petitioner that his services were regularized and he was appointed in the pay scale of Rs.750-940/- and after two years he was to be placed under the pay scale of Rs.775-1025, but the positive case of the petitioner is that Executive Engineer, Irrigation Division, Tral, re-deisgnated the petitioner as Works Supervisor, so grade attached to the post of Works Supervisor be released in his favour. 16. In the given circumstances, the relief, as prayed for, cannot be granted. However, the petitioner is at liberty to make representation and the respondents shall accord consideration as per Rules applicable. 17. Accordingly, the writ petition along with all connected CMP(s) is disposed of. Interim direction, if any, shall stand vacated.