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2013 DIGILAW 272 (JK)

S. Kanmuth v. State Of J&K

2013-05-02

TASHI RABSTAN

body2013
1. Through the medium of present writ petition, the petitioners are seeking the following relief: "(a) Quash and set aside the Government Order No: 47-PDD of 2011, dated 10.02.2011, passed by the respondents, by virtue of which the claims of the petitioners for their placement in work charge cadre have been rejected and they have been directed to be paid @ Rs. 200 per day. (b) Direct the respondents to release the arrears of pay in respect of work charge grade in favour of the petitioners with effect from November 2004, when the work charge grade paid to the petitioners pursuant to order dated July 2002 has been stopped with the directions to the respondents to continuously pay the grade of work charge on the analogy of individuals named in this petition." 2. Mr. Khajuria, learned counsel appearing for the petitioners, submitted that the petitioners came to be appointed as daily wagers on different dates, mentioned in paragraph 4 of the writ petition. They are continuing as such from the date of their engagement and performing their duties of installing and maintaining high transmission lines and stations in the State. He further submitted that keeping in view the duties being performed by the petitioners, the respondents recommended their cases for regularization of their services and also for absorption in the Power Development Department. When, having served the respondents for numbers of years, the genuine grievance of the petitioners was not redressed, they filed SWP No: 2310/1998, which came to be disposed of vide judgment dated 01.01.1999 and directions were given to the respondents to consider the claim of the petitioners. Aggrieved by the same, respondents herein filed LPASW No: 144/2000 against the aforementioned judgment. It is averred by the petitioners in the writ petition that during the pendency of the aforementioned LPA, Special Secretary to Government, Power Development Department, vide communication dated 22.04.2002, addressed to Development Commissioner (Power), conveyed the approval of Administrative Department for conversion of 39 Non State Subject daily rated workers of System & Operation wing Jammu and M&RE Wing Jammu into work charge cadre. It is further averred that as a result of aforesaid communication, the petitioners were converted into work charge cadre in the pay scale of Rs 2610-3540 as Technician IV with effect from 22.04.2002 and were allowed to release salaries in their favour in the said grade. It is further averred that as a result of aforesaid communication, the petitioners were converted into work charge cadre in the pay scale of Rs 2610-3540 as Technician IV with effect from 22.04.2002 and were allowed to release salaries in their favour in the said grade. After conversion of petitioners into work charge cadre, the case of the petitioners was even recommended by the Superintendent Engineer for according higher grades than technician IV vide communication dated 11.09.2002. It was recommended that keeping in view the nature of duties performed by the petitioners, they should be accorded consideration for granting 3050-4590 grade instead of 2610-3540. It is further averred that after a period of two years, the salary of the petitioners came to be reduced by the respondents vide the order impugned and they again started getting the salary which they were getting prior to their placement in the grade of work charge cadre. Aggrieved by the same, the petitioners have filed the instant writ petition seeking the relief, as quoted hereinabove. 3. Respondents have filed the reply contesting the writ petition. 4. While going through the reply, one comes to an inescapable conclusion that the respondents have not denied the specific assertions made in paragraphs 10, 11, 12 and 13 of the writ petition, but they have simply stated that the contents of these paragraphs are matter of record. Virtually they have admitted the same. 5. It would be appropriate to reproduce paragraphs 10, 11, 12 & 13 of the writ petition hereunder. "10. That after the passing of the order dated 1st February 1999 and during the pendency of aforesaid LPA, the respondents more especially the Special Secretary to Government, Power Development Department vide communication dated 22nd of April 2002 addressed to the Development Commissioner Power J and K, conveyed the approval of administrative department to the conversion of 39 non-state subject daily rated workers of system and operation wind Jammu and M&RE wind Jammu into work charge cadre. It is relevant to state here that pursuant to said administrative approval, the Development Commissioner Power vide communication dated 23rd of May 2002 addressed to the Chief Engineer concerned, conveyed the aforesaid communication of administrative department. The copy of both the communications are enclosed herewith and marked as Annexure-F for the kind perusal of this Hon'ble Court. 11. It is relevant to state here that pursuant to said administrative approval, the Development Commissioner Power vide communication dated 23rd of May 2002 addressed to the Chief Engineer concerned, conveyed the aforesaid communication of administrative department. The copy of both the communications are enclosed herewith and marked as Annexure-F for the kind perusal of this Hon'ble Court. 11. That as a consequence of aforesaid communications, the petitioners were converted into work charge cadre in the pay scale of 2610-3540 as Technician IV with effect from 22nd of April 2002. The copy of the order dated 19 July 2002 evidencing the aforesaid fact is enclosed herewith and marked as Annexure-G for the kind perusal of this Hon'ble Court. 12. That even after the conversion of petitioners into work charge cadre, the respective cases for according higher grades than technician IV were recommended by the Superintending Engineer vide communication dated 11th of September 2002 and it was recommended that in view of the nature of duties performed by the petitioners, they should be accorded consideration for the grant of grade of 3050-4590 instead of 2610-3540. The copy of said communication is also enclosed herewith and marked as Annexure-H for the kind perusal of this Hon'ble Court. 13. That from the perusal of afore-stated facts, it is evident that the petitioners were placed in the work charge cadre with effect from 22nd of April 2002 and accordingly they were paid grade equivalent to the cadre in which they were placed and they received the salaries for a period of two years thereafter. But abruptly, the salary of the petitioners were reduced to the one which they were receiving prior to their placement in the grade of work charge cadre and no reason whatsoever was ever assigned for the same. It is further relevant to state here notwithstanding the fact that the grade of work charge cadre paid to the petitioners for two years was subsequently discontinued, but two similarly situated employees namely L. Raja and G. Murgashan at present posted at STD-IV Kalakote, were continuously paid the grade of work charged cadre and as per the information available with the petitioners they are still receiving the same rate as was given to them along with the petitioners. The copy of the document evidencing the aforesaid fact is enclosed herewith and marked as Annexure-H1." 6. The copy of the document evidencing the aforesaid fact is enclosed herewith and marked as Annexure-H1." 6. The specific submissions made in the petition, as reproduced hereinabove, have remained unrebutted and have not been adverted to in the reply. Therefore, there is a legal inference available to the Court that the same are admitted as true and correct. 7. It is beaten law of the land that when averments contained in the writ petition are not specifically denied, the same are deemed to have been admitted. Same view was taken by the Apex Court in case, titled as, Asha v. PT. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 . It would be relevant to reproduce paragraphs 17, 18 & 19 herein. "17. It is a settled principle of the law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the abovenoted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus expected of the respondents to reply to these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on the part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference. 8. At this stage, Mr. Khajuria, learned counsel for the petitioners made a statement at the Bar that this petition may be disposed of with a direction to the respondents to consider the case of petitioners for their placement in work charge cadre with effect from November 2004 in the light of what has been observed hereinabove and in view of the directions passed by this Court in SWP No. 2310/1998 and LPA(SW) No. 144/2000. His statement is taken on record. Mrs. Shekhar, learned AAG, also made a statement that she has no objection to the same provided the petitioners are eligible under rules. 9. His statement is taken on record. Mrs. Shekhar, learned AAG, also made a statement that she has no objection to the same provided the petitioners are eligible under rules. 9. Accordingly, this writ petition is disposed of with a direction to the respondents to consider the case of petitioners for their placement in work charge cadre with effect from November 2004 strictly in the light of what has been observed hereinabove as also in view of the directions passed by this Court in SWP No. 2310/1998 and LPA(SW) No. 144/2000 and having regard to the averments made in paragraphs 10 to 13 of the writ petition and the annexure annexed thereto. While passing the consideration order, respondents would also take note of the fact that the services of petitioners were earlier converted into work charge cadre in the pay scale of 2610-3540 as Technician IV with effect from 22.04.2002 and they were being paid salary in the said grade for a period of two years. Let the consideration order be passed within a period of three months from the date a copy of the order is made available to the respondents. Petitioners are also directed to supply complete set of paper book to the respondents enabling them to pass the consideration order. 10. Disposed of along with connected CMAs.