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2013 DIGILAW 419 (JK)

Mohinder Singh v. State

2013-07-25

Mansoor Ahmad Mir, TASHI RABSTAN

body2013
Tashi Rabstan, J. 1. By the medium of this appeal, writ petitioner-appellant has assailed the judgment of the learned Single Judge dated 28.09.2012 passed in SWP No. 847/2009, titled as Mohinder Singh v. State of J&K and others whereby and whereunder the learned Single Judge after hearing rival contention put forth by the learned counsel for the parties dismissed the writ petition of the writ petitioner-appellant. It is said judgment, which has been assailed by the writ petitioner-appellant in this appeal primarily on the following grounds:- (a) That learned Single judge has not appreciated the legal and factual position involved in the matter in right perspective inasmuch as specific case set up by the appellant in the writ petition that he was promoted as Section Officer in the Sainik Welfare Board and that the post of Section Officer and Assistant Secretary are interchangeable has not been appreciated by the learned Single Judge. (b) That the appellant was subsequently posted as Section Officer in the year 2004 and his subsequent posting as Assistant Secretary cannot deprive him of the pay scale attached to the post of Section Officer and that the appellant was entitled to upgradation/revision of his pay scale pursuant to SRO 259 of 2005. This aspect too has not been appreciated by the learned Single Judge in correct perspective. (c) That the finding returned by the learned Single Judge supporting dismissal of the writ petition are perverse and contrary to the provisions of law as the post of Assistant Secretary in the Sainik Welfare Board is also a State Cadre post as per Notification SRO 124 of 2006. 2. We have heard learned counsel for the parties and perused the record of the writ petition and judgment impugned. 3. From the careful scrutiny of the pleadings and the case set up by the writ petitioner, it transpires that the writ petitioner-appellant was appointed as Junior Assistant on 30.03.1974 and claims to have promoted as Senior Assistant in July, 1980 and Head Assistant in May, 1985. He further claims to have promoted as Assistant Secretary on 08.07.1996. The service conditions of the employees of the Sainik Welfare Board are governed by rules known as "The Jammu and Kashmir Department of Sainik Welfare (Subordinate) Service Recruitment Rules, 2003 which were promulgated vide SRO 286 dated 02.09.2003. 4. He further claims to have promoted as Assistant Secretary on 08.07.1996. The service conditions of the employees of the Sainik Welfare Board are governed by rules known as "The Jammu and Kashmir Department of Sainik Welfare (Subordinate) Service Recruitment Rules, 2003 which were promulgated vide SRO 286 dated 02.09.2003. 4. As per the rules, as contended by the writ petitioner-appellant, the posts of Section Officer and Assistant Secretary carry the same pay scale. It is further noticed that by virtue of order dated 20.12.2004, appended with the writ petition as Annexure-B, the writ petitioner-appellant came to be posted as Section Officer by way of attachment to the office of Directorate of Sainik Welfare, Jammu. Respondent No.1 vide SRO 259 dated 18.07.2007 upgraded the post of Section Officer to the pay scale of Rs.7450-11500, but, no similar upgradation has been ordered in case of Assistant Secretary. 5. The grouse of the writ petitioner-appellant as projected in the writ petition as also during the course of arguments before us was that since post of Section Officer as well Assistant Secretary borne on the Jammu and Kashmir Department of Sainik Welfare (Subordinate) Service Recruitment Rules, 2003 are interchangeable, as such, appellant who subsequently held the post of Assistant Secretary is also entitled to the benefit of upgradation as has been granted to Section Officer in terms of SRO 259 of 2007. As noticed by the learned Single Judge, it is true that the posts of Section Officer and Assistant Secretary are borne on the Jammu and Kashmir Department of Sainik Welfare (Subordinate) Service Recruitment Rules, 2003, promulgated vide SRO 286 of 2003 dated 02.09.2003 carry the same pay scale, but, the fact remains that both the posts are borne on different cadre of service inasmuch as the post of Section Officer is borne on State cadre of the Service whereas the post of Assistant Secretary is borne on District cadre of the service. Merely because in exigency of service or for other reasons, the writ petitioner-appellant was detailed to work as Section Officer, cannot claim pay parity with Section Officers, who have subsequently been upgraded to the higher pay scale. Merely because in exigency of service or for other reasons, the writ petitioner-appellant was detailed to work as Section Officer, cannot claim pay parity with Section Officers, who have subsequently been upgraded to the higher pay scale. Learned Single Judge, is, therefore, correct in appreciating the rule position and coming to the conclusion that two posts of aforesaid cadres were borne on two different cadres of service and simply because at one point of time these posts carry the same pay scale does not change the complexion of the matter. 6. Learned Single Judge has, therefore, rightly observed that the writ petitioner-appellant who at one point of time was transferred and adjusted as Section Officer in the office of Directorate of Sainik Welfare, Jammu could not claim benefit of his posting as Section Officer in the said Office and claim of benefit of SRO 259 for the reasons that vide order dated 14.07.2006 he was transferred back as Assistant Secretary to Zila Sainik Welfare Office Udhampur on his own request. The documents placed on record with the writ petition, particularly, Annexures-B, D and E did not support the cause of the writ petitioner-appellant rather fortify the conclusion arrived at by the learned Single Judge. 7. We have examined the pleadings of the parties and also gone through the judgment impugned minutely. In our view, we do not find any material to interfere with the well reasoned judgment of the learned Single Judge. Accordingly, the same is upheld. Appeal is, accordingly, dismissed along with connected CMA(s), if any.