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2015 DIGILAW 340 (JK)

Mohammad Faheem Naqshbandi v. State

2015-07-10

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Muzaffar Hussain Attar, J.:- 1. The petitioner was initially appointed Junior Assistant on ad hoc basis for a period of 89 days in terms of Government order dated 24-12-2001 in the pay scale of 3050-4910 in Social Welfare Department, District Baramulla, against available vacancy. After expiry of his first term, extension was granted to his ad hoc appointment. 2. In terms of Government order No. 237-GAD of 2004 dated 20-02-2004, petitioner’s services were converted from ad hoc to contractual. 3. The Director, Social Welfare Department, issued order on 24-02-2005 and allowed the petitioner to continue on the post of Junior Assistant till the same is referred to the Service Selection Board. It has also been provided in the said order that the petitioner will not have any claim on the post and he shall be paid contractual salary only without any allowance. Some other conditions were also attached to the appointment order of the petitioner. 4. It appears that after the petitioner was appointed on contractual basis on 24-02-2005, his pay was being drawn and disbursed to him in terms of his initial order of appointment on ad hoc basis. 5. On 25-06-2015, the Chief Accounts Officer, Social Welfare Department, Kashmir, sent a communication to District Social Welfare Officer, Baramulla, informing him that the petitioner is entitled to consolidated salary equivalent to minimum of the pay band plus applicable grade pay of the Junior Assistant post without allowances. The District Social Welfare Officer has been requested to pay salary to the employee at minimum of the pay band plus applicable grade pay of the Junior Assistant post without any allowance. The said Officer has further been requested to work out excess pay drawn by the employee in the shape of allowances and recover the same in one lump from him under intimation to the office of Chief Accounts Officer. This communication is called in question in this writ petition. 6. Learned counsel for the petitioner submitted that salary is being paid to the petitioner by the authorities themselves. He further submitted that the petitioner neither induced the authorities nor has he practiced any fraud for payment of his salary. Learned counsel further submitted that without notice, the pay scale cannot be restricted as indicated in the impugned communication and the excess amount drawn by the petitioner cannot be ordered to be recovered. 7. He further submitted that the petitioner neither induced the authorities nor has he practiced any fraud for payment of his salary. Learned counsel further submitted that without notice, the pay scale cannot be restricted as indicated in the impugned communication and the excess amount drawn by the petitioner cannot be ordered to be recovered. 7. The services of the petitioner are governed by order No. 135-DSW of 2005 dated 24-02-2005 passed by Director, Social Welfare Department, Kashmir. In the appointment order, it has been specifically mentioned that the petitioner, a contractual employee, will be paid contractual salary only without any allowances. 8. The manner of payment of salary to a contractual employee is governed and regulated by Notification 255 of 2003 dated 05-08-2003, rule 8(1) whereof provides that an appointee under these rules shall be paid consolidated monthly salary equivalent to the minimum of the pay scale of the post to which he may be appointed. 9. In terms of Government order No. 1661-GAD of 2009 dated 26-11-2009, sanction is accorded to the payment of consolidated salary equivalent to minimum pay band plus applicable grade pay of the post to which a person has been appointed and was in service on or after 01-01-2006. Copy of the order, produced by learned counsel for the petitioner, is taken on record. 10. The services of the petitioner are governed by his appointment order. He is entitled to the salary which is mentioned in the appointment order itself. If, for any wrong reason, he has been paid salary beyond that to which he was not entitled to in terms of his appointment order, then that amount has to be recovered from him and he is to be paid that salary only to which he is entitled to in terms of the aforementioned Notification and Government orders occupying the field. 11. The petitioner will not be entitled to receive the salary to which he is not entitled to in terms of statutory rules and Government orders occupying the field. His service conditions are governed by Notification 255 of 2003 dated 05-08-2003 and Government order No. 1661-GAD of 2009 dated 26-11-2009. The authorities are duty bound to enforce the said Notification and Government order. 12. There was no requirement of issuance of notice to the petitioner before passing of the impugned order, as is contended by learned counsel for the petitioner. 13. The authorities are duty bound to enforce the said Notification and Government order. 12. There was no requirement of issuance of notice to the petitioner before passing of the impugned order, as is contended by learned counsel for the petitioner. 13. For the above stated reasons, this writ petition is held to be meritless and is, accordingly, dismissed, along with connected MPs. However, the authorities, instead of recovering the excess pay paid to the petitioner in the shape of allowances in one lump, may recover the same in easy installments.