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2012 DIGILAW 44 (JK)

Mohammed Syed Makhdoomi v. State & Ors.

2012-02-09

MUZAFFAR HUSSAIN ATTAR

body2012
01. The petitioners were members of service of Jammu and Kashmir Handicrafts (Scales & Export) Corporation (for Short "Corporation"). The Government took policy decision to transfer 35 Carpet Training Centres under Massive Carpet Training Scheme along with staff from the Corporation to Handicrafts Development Department (for short "Department"). Government Order No. 222-Ind of 1988 dated 29th July, 1998 was issued. The said Government Order is taken note of: "Government of Jammu and Kashmir Industries and Commerce Department Sub: Transfer of 35 Carpet training Centres under Massive Carpet Training Scheme from (JKH9S&E) Corporation to Handicrafts Dev. Department. Government Order No. 222-Ind of 1988 Dated 29-7-1998 Sanction is hereby accorded to the: 1. Transfers of 35 carpet training Centres (15 in Jammu and 20 in Kashmir) as mentioned in Annexure 'A" to this order alongwith staff as listed in Annexure to this order, run under Massive training program from JKHEC to Handicrafts Dev. Department w.e.f. 1st. Sept., 1998. 2. Transfer of budgetary provision available under the scheme to this Handicrafts Dev. Department led by the amount acquired by the Corporation to cover establishment costs of 25 Centres on account of any like ... or other such expenditure (to be worked out separately) for a period of the three years only; 3. Conversion of 20 carpet training centers to be retained by the JKHEC into production centers. It is further ordered that:- a). The staff transferred from JKHEC to Handicrafts Dev. Deptt. Shall continue to be governed by the terms and conditions as in JKHEC till further orders; b). The vacant posts will not be filled up by the Director of Handicrafts/Corporation; c). The expenditure on account of purchase of raw material, stipend to trainees, salaries to staff upto and of July 1998 shall be reimbursable to JKHEC in full. d). The semi-finished carpets on the looms of Centres, transfer to Handicrafts Department on completion will be handed over the Corpn. Provided all the material till completion of these carpets is provided by the Corporation. e). One of the vehicles of Massive carpet scheme presently with JKHEC will be transferred to the Director of Handicrafts. By order of the Govt. of Jammu and Kashmir. Sd/- Commr/Secretary to Government I & C Department." 02. The petitioners, who were working as Accountant-cum-Storekeepers in Massive Carpet Training Scheme of Corporation were beneficiaries of the aforementioned Government order. e). One of the vehicles of Massive carpet scheme presently with JKHEC will be transferred to the Director of Handicrafts. By order of the Govt. of Jammu and Kashmir. Sd/- Commr/Secretary to Government I & C Department." 02. The petitioners, who were working as Accountant-cum-Storekeepers in Massive Carpet Training Scheme of Corporation were beneficiaries of the aforementioned Government order. The Government again vide Order No. 414-Ind of 1997 dated 1st October, 1997, ordered for transfer of remaining 20 Carpet Training Centres under Massive Carpet Training Scheme alongwith staff from the Corporation to Department w.e.f. I" September, 1997. It was also provided in all these Government orders that the staff transferred from Corporation to Department shall continue to be governed by the terms and conditions, which were applicable to them in the Corporation. The petitioners being members of service of the Corporation were transferred to the Department. The Government in the year 2005 took policy decision to absorb 468 employees of erstwhile Massive Carpet Scheme of Corporation, who were transferred to the Department in terms of aforementioned Government orders, as a separate scheme, in the Department. The pay scales were also fixed. The Government Order of 2005 is taken note of: "Government of Jammu and Kashmir Industries and Commerce Department Civil-Secretariat-Srinagar. Sub: Absorption of 468 employees of Massive Carpet Scheme in the J&K Government Handicrafts Department Ref: Cabinet Decision No. 30/3 dated 18.O4.2005 Sanction is hereby accorded to: a. The absorption of 468 employees of erstwhile Massive Carpet Scheme transferred to the Department of Handicrafts vide Government Order No. 414-Ind of 1997 dated 01.10.1997 and Government Order No. 222-Ind of 1998 dated 29.07.1988, as a separate scheme in the Handicrafts Department with 3. Manager 7600-13450 pay scales as per annexure to this order. b. their entitlement to pensionary benefits as provided under the J&K CSR. However, the vacancies that occur in any cadre due to retirement/promotion or otherwise shall be deemed to have been abolished. c. the continuance of Craftsman/Master Craftsman of Massive Carpet Scheme on consolidated wages as enjoyed by them at present. The department will explore the possibility of converting the Training Centres into the Production Centres for which additional allocation may be arranged from the Planning and Dev. Department. By order of the Government of 11. Carpenter 2550-3200 01 Jammu and Kashmir. 12. The department will explore the possibility of converting the Training Centres into the Production Centres for which additional allocation may be arranged from the Planning and Dev. Department. By order of the Government of 11. Carpenter 2550-3200 01 Jammu and Kashmir. 12. Driver 4000-6090 01 Sd/- (A. Sahasranaman) Principal Secretary to chowkidar Government Industries and Commerce Department" 03. In terms of Annexure to the said Government Order, the post of Accountant-cum-Storekeeper was having the pay scale of 4000-6090. The Annexure to the aforementioned Government order is also taken note of: S.No. Desig- Pay Scale No. of posts nation 1. General Manager (Gazetted) 12375-16500 01 2. Sr. Manager (Gazetted) 10000-15250 01 3. Manager (Gezetted) 7600-13450 41 4. Accountant cum Storekeeper 4000-6090 79 5. Establishment Clerk 4200-6040 01 6. Junior Assistant 3050-4820 09 7. Designer 6500-10250 01 8. Tamil Writer 4200-6040 03 9. Copyists 4000-6090 010 10. Carpet Mistry 4000-6040 02 11. Carpenter 2550-3200 01 12. Driver 4000-6090 01 13. Orderly Cum Chowkidar 2550-3200 66 14. Helpers 2550-3200 115 15. Master Craftsman {Consoli datedpaid workers} 16. Assistant Craftsman {Consolidated paid workers} Xxxxxxxx Missing Para 04 Page 214 xxxxxxxxxxx "Government of Jammu and Kashmir Industries and Commerce Department. Subject: Absorption of Massive Capet Scheme in the Directorate of Handicrafts. Ref: Governor's/Advisory Council Decision No. 5/1/GR dated 21-07-2008. Govt. Order No. 198-Ind of 2008 Dated 25-07-2008 In continuation to Govt. order No. 149-IND of 2005 dated 02-06-2005, sanction is hereby accorded i. To the revision of pay scales of the employees of erstwhile Massive Carpet Scheme permanently absorbed in the Directorate of Handicrafts vide above mentioned Government order to bring them at part with their counterparts in the Directorate of Handicrafts. Annexure to the Govt. order No. 149-IND of 2005 dated 02-06 2005 shall be deemed to have been amended accordingly w.e.f. 02.06.2005 as per the annexure to this order. ii. To the regularization of services rendered by employees of the Massive Carpet Scheme as part in J&K Handicrafts Corporation from the date they joined in the Massive Carpet Scheme on notional basis, for the purpose of pensionary benefits only. iii. To recover the employer's share of contribution towards Central provident fund (CPF) as contributed, alongwith interest accrued thereon, from time to time, up to the date of absorption and the depositing of the same in the appropriate head of account. By order of the Government of Jammu and Kashmir. iii. To recover the employer's share of contribution towards Central provident fund (CPF) as contributed, alongwith interest accrued thereon, from time to time, up to the date of absorption and the depositing of the same in the appropriate head of account. By order of the Government of Jammu and Kashmir. Sd/- Commissioner/Secretary to Government Industries It Commerce Department" 05. The grievances of the petitioners are that there is no promotion avenue available to them and they have been stagnated in the post of Account-cum-Storekeepers; they have been subjected to discrimination in the matter of salary, inasmuch as, Accountant-cum-Storekeepers of Handloom Department are being paid higher pay scale: and, they have not been extended the benefit of higher standard pay scale rules notified vide SRO 14 of 1996. 06. On notice, respondents have filed reply affidavit/objections. 07. Mr. Haqani, learned counsel for the petitioners, submitted that the petitioners were appointed as Accountant-cum-Storekeepers in Massive Carpet Scheme and. were initially transferred and then permanently absorbed in the Department, can-not in law be denied the right to seek consideration for being appointed by way of promotion on the next higher post. Learned counsel further submitted that at no point of time, respondents have considered the claim of the petitioners for being appointed by way of promotion on the next higher post of Managers. Learned counsel submitted that respondents have been selective in picking up the employees from different cadres of the Massive Carpet Scheme of the Department and promoting them on next higher post. Learned counsel in support of his contention invited the attention of the Court to the Government Order No. 176-IND of 2005 dated 15th July, 2005 and Order No. 61-HD (CJ) of 1994 dated 3rd of January, 1994 enclosed with the rejoinder affidavit. In terms of the said orders, the employees working in Massive Carpet Scheme have been promoted to the next higher posts. Learned counsel submitted that in view of the law laid down by the Hon'ble Supreme Court in the judgments, reference whereof is made at paragraph 13(i) of the writ petition, the action of the respondents by not considering the petitioners for being appointed by way of promotion on the next higher post, is not only illegal but is unconstitutional. 08. Learned counsel also submitted that petitioners are entitled to be given pay scale as has been given to the Accountant-cum-Storekeepers working in the Handloom Development Department. 08. Learned counsel also submitted that petitioners are entitled to be given pay scale as has been given to the Accountant-cum-Storekeepers working in the Handloom Development Department. Learned counsel referred to Communication of General Manager, Massive Carpet Scheme, DOH, Jammu, sent to Director Handicrafts Department, Jammu and Kashmir, Government, Jammu dated 8th November, 2008 to indicate that request was made by the said authority to Director Handicrafts for referring the issue to pay anomaly committee, so as to redress the grievances of the petitioners on this score. Learned counsel also referred to Jammu and Kashmir Civil Services (Higher Standard Pay Scale) Rules, 1996 (for short " Rules of 1996") and submitted that though, it was duty of the respondents to extend the benefit flowing from these rules to the petitioners, but without any just and lawful cause, the benefits flowing from the said Rules have not been extended to the petitioners. Learned counsel submitted that respondents have, thus, failed to perform their statutory obligations in terms of Rules of 1996 and accordingly prayed for allowing the writ petition. 09. Mr. A. Chesti, learned Additional Advocate General, submitted that the petitioners are governed by the terms and conditions contained in Government Order No. 222-Ind of 1998 dated 29lh July, 1998, wherein at paragraph-3(a) , it was provided that the petitioners would continue to be governed by the terms and conditions of the Corporation. Learned counsel submitted that the condition continued in the aforementioned Government Order has to be read as part of Government Order No. 149-IND of 2005, dated 2nd June, 2005 and thus, the petitioners can not claim any benefit as is claimed in this petition. Learned counsel also submitted that in terms of clause-(b) of the Government Order No. 149-Ind of 2005, the petitioners can not stake claim for being considered for being appointed by way of promotion on the next higher post, as in terms of the aforementioned clause the vacancies that would occur in any cadre due to retirement/promotion or otherwise would stand abolished , so there would be no post available against which the claim of the petitioners for seeking promotion can be considered. Learned counsel submitted that this condition having been accepted by the petitioners and they having acquiesced in the Government Order No. 149-Ind of 2005 dated 02nd June,2005, are, thus, estoppel from staking claim for being considered for being appointed by way of promotion on the next higher post. Learned counsel further submitted that the petitioners claim to get salary attached to the post of Account-cum-Storekeeper working in the Handloom Development Department can not be accepted for the reasons that they have accepted the terms and conditions of the aforementioned Government Order, the annexure whereof also fixed pay scales of the petitioners . Learned counsel based his claim on clause-(b) of the aforementioned Government Order and submitted that petitioners are not entitled to get any benefit under the Rules of 1996. Learned counsel also invited the attention of the Court to the prayer clause of the writ petition and submitted that petitioners have prayed for issuance of writ of Mandamus to command the respondents to consider their claim for being appointed by way of promotion on the next higher post of Managers, when in terms of Jammu and Kashmir Handicrafts (Subordinate) Recruitment Rules, 2005 (for short "Rules of 2005"), there is no post of Manager available in the hierarchy of the service. Learned counsel accordingly prayed for dismissal of the writ petition. 10. The petitioners admittedly were members of Massive Carpet Scheme of the Corporation. The Government way back in the year 1988 took a policy decision initially to transfer 35 Carpet Centres (15 in Jammu and 20 in Kashmir) along with staff to the department w.e.f. 1st September, 1988. The Government in order to effectuate its policy decision issued Government Order No. 222-Ind of 1988 dated 29th July, 1988, in terms of which sanction was accorded for transfer of 35 Carpet Training Centres under Massive Carpet Scheme alongwith staff from the Corporation to Department. The Government in order to effectuate its policy decision issued Government Order No. 222-Ind of 1988 dated 29th July, 1988, in terms of which sanction was accorded for transfer of 35 Carpet Training Centres under Massive Carpet Scheme alongwith staff from the Corporation to Department. As the fate of the employees in this Massive Carpet Scheme was not finally determined and was hanging in balance, the State Government as a model employer and being governed by the rule of law and in order to comply with the Constitutional mandate as contained Article 14, 16 and 21 of the Constitution of India took another policy decision to absorb 468 employees of erstwhile Massive Carpet Scheme in the State service, who were transferred in terms of orders of 1988 and 1997 to the Department. The policy decision was acted upon by issuance of Government Order No. 149-Ind of 2005 dated 2nd June, 2005. It was, however, mentioned that these employees would constitute a separate scheme in the Department and would get pay as per the annexure of the said Government Order. In terms of clause-(b) of the said Government Order, sanction was also accorded to the entitlement of these absorbed employees for pensionary benefits as provided under the Jammu and Kashmir Civil Services Regulations. A rider, however, was placed on the rights of the petitioners by the State in terms of clause-(b) of the Government Order, when it was stated that the vacancies that would occur in any cadre due to retirement/promotion or otherwise shall be deemed to have been abolished. It is this part of clause-(b), which is sought to be quashed. 11. Before dealing with the aforementioned part of the clause-(b) of the Government Order No. 149-Ind of 2005 dated 2nrt June, 2005, it would be appropriate to place on record that in terms of the said Government Order, while according sanction for absorption of 468 employees, which admittedly include petitioners also, they were ordered to be treated as employees of a separate scheme in the Department. The annexure appended to the said Government Order would show the posts in the hierarchy of separate scheme of the Department. Three posts are shown in the Gazetted Rank, General Manager, Sr. Manager and Manager. They figure at Serial Nos. 1,2,3 and post of Accountant-cum-Storekeeper figures at Serial No. 4 of the said Government Order. 12. The annexure appended to the said Government Order would show the posts in the hierarchy of separate scheme of the Department. Three posts are shown in the Gazetted Rank, General Manager, Sr. Manager and Manager. They figure at Serial Nos. 1,2,3 and post of Accountant-cum-Storekeeper figures at Serial No. 4 of the said Government Order. 12. The petitioners admittedly would not be governed by the Rules of 2005 as they have been treated as a separate scheme in the Department, though by the very fact of their absorption they became employees of the Government. The next promotional post for Accountant-cum-Storekeeper is thus the post of Manager. 13. The contention of learned counsel for the respondents that the condi-tion-3 (a) of the Government Order No. 222-Ind of 1988 dated 29th July, 1988 is to be read as part of the Government Order No. 149-Ind of 2005 dated 02nd June, 2005, can not be accepted being not countenanced in law. Such a submission, if accepted would be against all cannons of service jurisprudence. The order of 1988 and Order of 1997 provide for the transfer of the Massive Carpet Training Centres alongwith their staff to the department. These transfer orders were governed by their own terms and conditions. In terms of Order of 149-Ind of 2005, a policy decision was taken to absorb 468 employees in the department, though as a separate scheme. The Government if, they would have decided to incorporate any of the condition of the order of the 1988 and order of 1997, then they would have specifically stated so in order of 2005. The contention being bereft of any legal support is accordingly rejected. The another contention that the petitioners have acquiesced in the Government Order of 2005 and have accepted the terms and conditions thereof, thus, can not stake claim for being considered for being appointed by way of promotion on the next higher post of Managers in the hierarchy of the scheme can not be accepted for the following reasons: a. The petitioners were employees of Massive Carpet Scheme and had no bargaining power viz-a-viz the Government. If they would have at that point of time agitated the matter, that would have exposed themselves to the risk of losing even their job. If they would have at that point of time agitated the matter, that would have exposed themselves to the risk of losing even their job. The Government is admittedly at higher bargaining position, such a condition incorporated in the order of 2005 on this basis is arbitrary and can not bind the petitioners. b. When a service is constituted by the Government, one of the duties of the employer is to create avenues of promotion for its employees. It would not stand to reason that a person would be appointed on a particular post and would be retired on the same post. The Hon'ble Supreme Court in plethora of the judgments, reference of some of which is made in the writ petition itself has held that stagnation has the adverse affect not only on the employees but on the working of institution itself. Right to seek promotion to the next higher post is a guaranteed fundamental right of an employee. The condition contained in Annexure-D of the writ petition to the extent "...However, the vacancies that occur in any cadre due to retirement/promotion or otherwise shall be deemed to have been abolished..." is rendered unconstitutional and illegal. c. Respondents have themselves considered the claim for being appointed by way of promotion of the employees of the Massive Carpet Scheme on the next higher post, reference of such orders have been made in this judgment. 14. Learned counsel for the petitioners submission that petitioners are entitled for being paid salary which is being paid to the Accountant-cum-Storekeeper of the Handloom Department can not be accepted, inasmuch as, no factual foundation has been laid in the writ petition. However, as the respondents have taken cognizance of the matter in terms of Communication, dated 8th November, 2008, sent by General Manager, Massive Carpet Scheme to Director. Handicrafts Department Jammu and Kashmir, Jammu, they shall have to settle the issue one way or the other way, either by anomaly committee or by any other appropriate authority. 15. The petitioners having been absorbed in the Government service in terms of Government Order No. 149-Ind of 2005 dated 02nd June, 2005, the petitioners claim for grant of insitu promotion in terms of the Rules of 1996 has to be considered and reckoned from date of their absorption in the Governments service. 16. 15. The petitioners having been absorbed in the Government service in terms of Government Order No. 149-Ind of 2005 dated 02nd June, 2005, the petitioners claim for grant of insitu promotion in terms of the Rules of 1996 has to be considered and reckoned from date of their absorption in the Governments service. 16. It is submitted at bar by learned counsel for the petitioners that three of the petitioners have already retired on superannuation. 17. For the above stated reasons this petition is disposed of in the following manner: i. By issuance of writ of Certiorari, the following part of the Clause-(b) of the Government Order No. 149-Ind of 2005 dated 02™' June, 2005 is quashed. "....However, the vacancies that occur in any cadre due to retirement/promotion or otherwise shall be deemed to have been abolished..." ii. By issuance of writ of Mandamus, respondents are directed to consider the claim of the petitioners for being appointed by way of promotion on the next higher post. While considering the claim of the petitioners, the respondents will also accord consideration to the claim of three retired petitioners also. iii. The respondents are further directed to get pay parity issue settled either by anomaly committee or by any appropriate authority. The respondents also to consider the claim of the petitioners for grant of insitu promotion in terms of Jammu and Kashmir Civil Services (Higher Standard Pay Scale) Rules, 1996. 18. This exercise be initiated and concluded by the respondents preferably within a period of twelve weeks from the date copy of this order is served on them. 19. Disposed of alongwith all connected CMP(s).