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2005 DIGILAW 232 (JK)

Mohd. Araf Qazi v. State Of J. &K.

2005-08-12

MANSOOR AHMAD MIR

body2005
1. The petitioners have averred in this petition that they were appointed on adhoc basis as Basic Health Worker in the year 1991 against clear vacancies in the pay scale of Rs.1200-2040 revised Rs.4000-6000 and were posted at Sub District Hospital, Tangdar. Further, it has been averred that petitioner no.1 came to be appointed as Class-IV employee vide order No. Est-II/2998-91 dated 01.08.1997. The copy of the order is annexed as annexure-A to the writ petition. And petitioner No.2 was also appointed as Class-IV employee. The petitioners requested respondent No.2 to issue orders and adjust the petitioners against the post of Basic Health Worker which are lying vacant in Sub District Hospital, Tangdar. The petitioners made representations for regularizing their services against the post of Basic Health Worker but their grievances have not been redressed so far. 2. The private respondents 4 and 5 had filed writ petition (SWP NO. 2473-74/97) titled Khazir Mohammad Shah and another Vs. State of J&K and their services have been regularized as Basic Health Worker. The petitioners have averred that they are similarly situated and have prayed that official respondents be directed to give them the same treatment as has been given to the private respondents and have further prayed that respondents be commanded to appoint the petitioners against the posts of Basic Health Worker and to give them the retrospective effect against the said post and also release the pay scale attached to the post of Basic Health Worker. 3. The respondents have filed reply. It is profitable to reproduce paras 1, 3 and 4 of the reply herein;- 1. That the writ petition is totally misconceived and misdirected inasmuch as the petitioner has no case at all. The petitioners were engaged against Class IV posts (Nursing Orderlies) in 1991. Petitioner No.1 was appointed as Class IV vide order No. Estt-II/2988-91 dated 01.08.1997 and was directed to draw his salary against the available post of Basic Health Worker as no Class IV post was available. Petitioner No.2 was also engaged and approval to his regularization was accorded by the competent authority vide order No. Est-I/1338-39 dt. 23.6.1999. As such the relief claimed in the writ petition is not at all available to the petitioners. 3. Petitioner No.2 was also engaged and approval to his regularization was accorded by the competent authority vide order No. Est-I/1338-39 dt. 23.6.1999. As such the relief claimed in the writ petition is not at all available to the petitioners. 3. That the petitioners were always working as Class IV employees and not as Basic Health Workers and as such they have been paid their wages as Class IV employees. They have never been appointed as Basic Health Workers. As such question of their claiming pay scale of the post of Basic Health Workers, does not arise at all. These post, it may be reiterated, are promotional posts and no recruitment against these posts is permissible under rules by direct appointment. On this count also, the claim putforth by the petitioners, does not hold good. 4. That in case petitioners were aggrieved of their appointment/ regularization against Class IV posts, they ought to have challenged the respective orders which they have not and as such are estopped from claiming their appointment against Basic Health Workers post nor they are entitled or eligible for claiming salary against these BHW posts. 4. It is profitable to reproduce relevant provisions of annexure-A of Jammu and Kashmir Health & Medical (Sub-Ordinate) Service Recruitment Rules 1992 (hereinafter referred to as Rules�) herein;- Class Category Desig-nation Grade Qualifi-cation Mode of recruitment V A Basic Health Worker 900-1830 Matric 100% by promotion from class VI category (a) having five years experience in that category VI A Basic Health Worker (All Discipline 800-1500 Matric 100% by promotion from class VIII categories (a) and (b) subject to having passed Matriculate examination. VIII A Field Worker 630-940 Middle 100% by direct recruitment B Arabic Teacher 630-940 Middle trained in line 100% by direct recruitment 5. It is also profitable to reproduce the pay scales provided by the Revised Pay Rules of 1992 and 1998 as under;- S.No. Pay Scale-1987 Revised Pay Scale-1992 Revised Pay Scale-1996 1. 630-940 750-12-870-EB-14-940 2550-55-2660-60-3200 2. 800-1500 950-20-1150-EB-25-1500 3050-75-3950-80-4910 (improvised) 3. 900-1830 1200-30-1560-EB-40-2040 4000-100-6000 6. Thus employees, who are holding the posts as Basic Health Workers (All discipline) in the revised grade of Rs.3050-4910 (Rs.800-1500) can be promoted as Basic Health Workers in the revised grade of Rs.4000-6000 (Rs.900-1830), as referred hereinabove. The petitioners herein are not falling in the said class and category. 800-1500 950-20-1150-EB-25-1500 3050-75-3950-80-4910 (improvised) 3. 900-1830 1200-30-1560-EB-40-2040 4000-100-6000 6. Thus employees, who are holding the posts as Basic Health Workers (All discipline) in the revised grade of Rs.3050-4910 (Rs.800-1500) can be promoted as Basic Health Workers in the revised grade of Rs.4000-6000 (Rs.900-1830), as referred hereinabove. The petitioners herein are not falling in the said class and category. The Class VIII is not a feeding cadre for promotion to the post of Basic Health Worker. 7. The Rules clearly provide that the recruitment to the post of Basic Health Worker is to be made 100% by promotion. The direct recruitment cannot be made against the said posts. Thus the petitioners cannot be appointed or their services cannot be regularized against the said post. 8. Another ground urged in the writ petition is that same treatment may be given to the petitioners as has been given to respondents 4 and 5. It is profitable to reproduce para-9 of the writ petition herein;- 9. That the private respondents filed writ petition bearing SWP No.2473-94/97 titled Khazir Mohd Shah and another Vs. State of J&K, before this Hon™ble court and the respondent No.2 vide his letter No;- Est/2511 dt. 11/8/97, directed CMO Kupwara that as the private respondents were initially appointed on adhoc basis as Class IVth but were allowed to work against the posts of Basic Health Workers against which they are continuing uptill now. In order to avoid any legal complicacy and keeping in view the principle of equal pay for equal work, gave the benefits of the posts of Basic Health Workers to the private respondents against which they are working from the dates of their initial appointment. The CMO Kupwara vide his no; Est-II/317, dt. 16/8/97, forwarded the same to the BMO Kralpora for implementation of the instructions of respondent No;- 2. A copy of the same is enclosed herewith this writ petition as Annexure-D for the kind perusal of this hon™ble court. 9. The record of writ petition bearing SWP No.2473-74/97, titled Khazir Mohd Shah and another Vs. State of J&K, was called for and sent back after perusal. Upon perusal of the said writ petition, it appears that this Court has passed interim direction vide order dated 27.05.97, operative portion of which reads as under;- Respondents-6 and 7, though junior to the petitioners, have been regularized by respondent-3, but the petitioners have been left out. State of J&K, was called for and sent back after perusal. Upon perusal of the said writ petition, it appears that this Court has passed interim direction vide order dated 27.05.97, operative portion of which reads as under;- Respondents-6 and 7, though junior to the petitioners, have been regularized by respondent-3, but the petitioners have been left out. I think, this appears to have been by way of mistake. Let respondent-3 (Chief Medical Officer, Kupwara) take up the case of petitioners as well and consider them for regularization, within a month from today against the posts they are holding in accordance with law.� 10. The said writ petition came to be dismissed by this court in terms of order dated 27.08.1999, which reads as under;- Office reports that despite notice to the petitioner™s counsel to make up the deficiency in postage, requirement has not been met. Petitioner™s non-appearance and non-fulfillment of the requirement indicate loss of interest in prosecuting the petition, which is accordingly dismissed along with connected CMPs. Interim direction, if any, also stands vacated.� 11. While going through the reply, the official respondents 1 to 3 have not made a whisper about the private respondents i.e. whether the respondents 4 and 5 have been appointed or regularized against the post of Basic Health Worker as is averred in the writ petition. 12. The question is that if the respondents 4 and 5 are similarly situated as the petitioners are then how they have been appointed against the post of Basic Health Worker. 13. The respondents 1 to 3 in their reply have also remained silent, to the effect, that whether respondents 4 and 5 were similarly situated with the petitioners and if it is so then how they have been appointed against the posts of Basic Health Workers. 14. In terms of the rules governing the subject, the petitioners are neither entitled to regularization of their services against the post of Basic Health Worker nor they are eligible to be promoted to the post of Basic Health Workers, as discussed, hereinabove. 15. Thus the petitioners have failed to carve out a case for admission. Hence, writ petition merits to be dismissed. 16. Keeping in view the above said facts, it appears that public money is being fritted away and wasted. 15. Thus the petitioners have failed to carve out a case for admission. Hence, writ petition merits to be dismissed. 16. Keeping in view the above said facts, it appears that public money is being fritted away and wasted. It is a question mark that how the private respondents have been promoted or their services have been regularized to the post of Basic Health Worker. It is an eye opener for the respondents. The Chief Secretary and Commissioner Secretary, Health Department must take notice of the above said facts and to see and ascertain how the Health Department is being manned. 17. Accordingly, the writ petition is dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated. 18. Registry is directed to send copy of this order to Chief Secretary and Commissioner Secretary, Health for information and necessary action.