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J&K High Court · body

2007 DIGILAW 203 (JK)

Mohd. Shafi v. State

2007-09-26

NIRMAL SINGH

body2007
1. Petitioner who was initially appointed as Teacher in the Education department in the year 1984 in the grade of Rs. 950-1830, was selected as Supervisor in the Cooperative department in the year 1990 for which post he had applied through proper channel. As the pay scale attached to the post of Supervisor was Rs. 800-1500/- and the petitioner was initially in a higher grade in a different service, he represented before the authority concerned for protection of his pay in terms of Article 77 of the Civil Service Regulations. Accordingly, respondent No.4 Registrar, Cooperative Societies. J&K Srinagar, who was the competent authority, vide its order dated 19th of Jan 91, protected the pay of the petitioner and this was fixed at Rs. 1050/- w.e.f. the date of his joining the new assignment. The petitioner thereafter was promoted to the post of Senior Supervisor in the grade of Rs. 4000-6000/-. Respondent No.4, however, vide his letter dated 28th of Feb 02 (Annexure D), sought consideration of the matter for grant of ex-post facto sanction of benefit of pay protection of the petitioner from respondent No.3 in relaxation of rules. The matter was thereafter referred to the Finance Department but the case of the petitioner for ex-post facto sanction of pay protection was rejected which was communicated to the respondent No.4 vide letter dt. 4th of June 04, passed by Under Secretary to Government. Cooperative Department. The respondent No.4 accordingly issued order dt. 22nd of July `04 (annexure J), vide which appropriate action has been directed to be taken against the petitioner. It is this action taken by respondents which is the subject matter of challenge in the present petition. 2. The grievance of the petitioner is that the pay of the petitioner was rightly protected in terms of Article 77 of the Civil Service Regulations, vide order dt. 19th of Jan 91, and therefore, there was no necessity for referring the matter to the Finance Department in the year 2002 for seeking ex-post facto sanction of protection of pay. It is stated that the Government has been allowing this benefit to other similarly situated employees. One such Government order passed by the Commissioner/Secretary to Government, Revenue department bearing No. (Gaz) 105 of 2001 dt. 1st of June 01, has been placed on record. It is stated that the Government has been allowing this benefit to other similarly situated employees. One such Government order passed by the Commissioner/Secretary to Government, Revenue department bearing No. (Gaz) 105 of 2001 dt. 1st of June 01, has been placed on record. It is thus submitted that the petitioner cannot be discriminated and respondent-authorities cannot pass an order effecting recovery from the petitioner. 3. Respondents have filed objections stating therein that the appointment of the petitioner as Supervisor in the Cooperative Department was a direct recruitment, and therefore, he is not entitled to the relief of pay protection. It is stated that the respondent No. 4 had allowed this benefit in favour of the petitioner vide his order dt. 19th Jan 91, without referring the matter to the State Government. It is stated that the Government now after considering the matter afresh has rightly rejected claim of the petitioner and passed the orders for effecting recovery against the petitioner amounting to Rs. 1,72,176. 4. I have heard learned counsel for the parties and perused the record. 5. Petition admitted. Taken on board for final disposal. 6. Before considering the respective submissions of the learned counsel for the parties, it would be apt to notice the relevant provisions of Article 77 of the J&K Civil Service Regulations. These read as under: - 77. 1,72,176. 4. I have heard learned counsel for the parties and perused the record. 5. Petition admitted. Taken on board for final disposal. 6. Before considering the respective submissions of the learned counsel for the parties, it would be apt to notice the relevant provisions of Article 77 of the J&K Civil Service Regulations. These read as under: - 77. The initial substantive pay of a Government servant who is appointed substantively to a post on a time scale of pay is regulated as follows: - (a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended: - (i) When appointment to the new post involves the assumption of duties and responsibilities of greater importance (as interpreted for the purposes of Article 66) than those attaching to such permanent post, he will draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post; (ii) When appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage, the stage next below that pay plus personal allowance equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the time scale of the old post or for the period after which an increment is earned in the time scale of the new post, whichever is less. But if the minimum pay of the time scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay; (iii) When appointment to the new post is made on his own request and the maximum pay in the time scale of that post is less than his substantive pay in respect of the old post, he will draw that maximum as initial pay......................... 7. 7. A perusal of Article 77(a)(i) shows that when appointment to a new post is made and this involves the assumption of duties and responsibilities of greater importance than those attached with the permanent post on which the employee concerned was working, then his initial pay is to be fixed next above his substantive pay in respect of the old post. In terms of provision (ii), noticed above, in case, the appointment to the new post does not involve any such assumption as in noticed in provision (i), then the minimum initial pay which is to be fixed on the new post is to be same as was drawn by the said employee in his substantive capacity against the old post if the time scale of the new post is lower than that of the old one. 8. The petitioner has specifically pleaded that while he was working as Teacher in the Education department in the pay scale of Rs. 900-1830/-, he applied through proper channel for the post of Supervisor in the Cooperative Department, for which he was selected. The said post carried a lower pay scale of Rs. 800-1500/-. Therefore, in terms of the afore-noticed provisions, the petitioner is entitled to get minimum of the pay on the new post which he was getting while working in substantive capacity as Teacher in the Education Department. The plea of respondents that the petitioner being direct recruit against the post of Supervisor in the Cooperative Department, and this appointment having been made at his own request, he is not entitled to the pay protection, can also not be accepted in view of clause (iii) of Article 77 noticed above. The aforesaid provision clearly lays down that even if the appointment to the new post is made at the request of the employee concerned and if the maximum pay of that post is less than his substantive pay in respect of the old post, then the said employee is to draw that maximum as initial pay on the new post. 9. Even otherwise, the respondent State has been allowing similar benefit regarding pay protection to other employees of the State Department. Reference in this regard can be made to Government Order No. Rev(Gaz) 105 of 2001 dt. 1st of June01, on which reliance has been placed by the learned counsel for the petitioner. 9. Even otherwise, the respondent State has been allowing similar benefit regarding pay protection to other employees of the State Department. Reference in this regard can be made to Government Order No. Rev(Gaz) 105 of 2001 dt. 1st of June01, on which reliance has been placed by the learned counsel for the petitioner. A copy of this order has also been placed on record. For the reasons mentioned above, this petition is allowed. Order impugned dated 4th of June04 and 22nd of July04 shall stand quashed. The petitioner is entitled to pay protection in terms of the afore-noticed provisions of Article 77 of the Civil Service Regulations. The pay scale of the petitioner on the new post shall be fixed keeping in view the scale which he was getting while working in substantive capacity as teacher in the Education Department.