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2015 DIGILAW 363 (JK)

State of J & K v. Akbar Wani

2015-07-27

HASNAIN MASSODI, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Hasnain Massodi, J. 1. Respondents were way back in 1973, temporarily appointed as "Guardsmen" on consolidated pay of Rs. 30 + Rs. 114 as Dearness Allowance per month, in the Home Guards Department. They were subsequently vide Government Order No. Home-329 (Police) of 1979, dated 04-07-1979, placed in the pay scale of Rs. 210-4-250-EB-6-300. The State Government on 29th November 1982, took a policy decision to declare and constitute Home Guard as a permanent Department. The State Government, to address the problem of stagnation, in same post/pay scale, in government services vide SRO 14 of 1996, notified Jammu and Kashmir (Higher Standard Pay Scale Scheme) Rules 1996. In terms of the Rules, the Government servant stagnating in same post because of absence of promotional avenues, for nine years is to get in situ promotion to the next grade. In all, the government servant in terms of Rules is entitled to get three in situ promotions after interval of nine years during his/her service career, in case he/she is made to stagnate in same pay scale for 27 years. 2. Respondents, stagnated in the same pay scale for 18 years, and were granted first and second in situ promotions. However when they were to be considered for grant of third in situ promotion, the appellants decided to reckon their service with effect from 1-06-1979 i.e. the date they were placed in the pay scale of Rs. 200-300 and not from the date of their initial engagement i.e. 30 March 1973. Resultantly, sanction of third in situ promotion in their favour, got delayed. 3. Respondents aggrieved with the decision taken by the appellants to count their service from 01-06-1979 instead 30-03-1973 filed writ petition being SWP 211/1999. During the pendency of the writ petition, the State Government issued SRO 311 of 1997, dated 09th September 1997, whereby Rule 5-AA was added to Jammu and Kashmir (Higher Standard Pay Scale Scheme) Rules, 1996. In terms of newly added rule, provision was made for adding 50% of continuous work in case of work charged employees/Daily Rated Workers for grant of in situ promotions. Rule 5-AA was introduced to provide relief to work charged employees/Daily Rated Workers who spent long time serving the Government till they were regularized and placed in a pay scale. 4. In terms of newly added rule, provision was made for adding 50% of continuous work in case of work charged employees/Daily Rated Workers for grant of in situ promotions. Rule 5-AA was introduced to provide relief to work charged employees/Daily Rated Workers who spent long time serving the Government till they were regularized and placed in a pay scale. 4. Respondents, once SRO 311 of 1997 was issued and Rule 5-AA added to SRO 14 of 1996, contended before the writ court that their case would fall within the purview of Rule and 50% of their service as "Guardsman" on consolidated basis was to be counted while deciding their entitlement for third in situ promotion. The plea raised found favour with the writ court. The writ court accordingly allowed the writ petition with the following directions: "Rule 5-AA referred to above squarely applied to the consolidated pay employees the way it applied to the daily rated workers. Therefore, 50% of continuous work as consolidated wage service has to be counted with regular service for the purpose of grant of in-situ promotion. The fixation, therefore has to be made afresh because the earlier fixation made in the year 1995, where under service of the petitioners has been reckoned with effect from 30-03-1997 has to be changed. While fixing pay for grant of in situ promotion, 50% of continuous service which as the petitioners have spent on consolidated basis shall be counted with regular service and accordingly first, second and third higher standard pay scale as shall be warranted under such fixation shall be allowed. The excess amount as a result of earlier fixation if found to have been drawn on re-fixation on aforesaid terms shall be adjusted. Petition accordingly succeeds. Communication Nos. Home/HG/16/98, dated 01-01-1999 and ESTT/WP/Pay/43-45/99, dated 06-01-1999 shall be treated as non-est. 5. The writ court Judgment dated 1st December 2009, is assailed in Letters Patent Appeal on hand, on the grounds in view of nature of initial engagement of the respondents, their case would not fall within scope of Rule 5-AA introduced by SRO 311 of 1997. It is urged that Rule 5-AA is restricted to work charged employees/daily rated workers and that workers engaged on consolidated pay do not fall with the definition of work charged employees/Daily Rated Workers). It is urged that Rule 5-AA is restricted to work charged employees/daily rated workers and that workers engaged on consolidated pay do not fall with the definition of work charged employees/Daily Rated Workers). The writ court is said to have erred while treating respondents at par with work charged employees/Daily Rated Workers). 6. Heard and considered. 7. The respondents as their initial order of engagement would reveal were temporarily engaged as "Guardsman" on consolidated pay of Rs. 30 + Rs. 114 as Dearness Allowance per month in the Home Guards Organization, later treated as permanent Department. They admittedly served the Organization without any interruption or break in their service. The respondents therefore are not to be treated as casual or seasonal workers. They for all practical purposes were Daily Rated Workers from 30th March 1973 to 1st June 1979. This apart, the very fact that the respondents in addition to fixed wages per month were also allowed Rs. 114 as Dearness Allowance per month, would indicate that their status was extended to temporary employees, and not casual workers. Provision for Dearness Allowance on permanent basis, raised the status of respondents, higher than even Daily Rated Workers. 8. An employer while engaging a person may use a particular nomenclature. The nomenclature used would not by itself determine the exact status of the employee. While determining the exact status of the employee, factors other than nomenclature like wages paid, the terms and conditions of engagement are also to be considered. When the status of respondents are examined on the anvil of aforementioned test, it is abundantly clear that the respondents are entitled to the benefit intended to be granted by adding Rule 5-AA of SRO 14 of 1996. 9. Viewed thus, the writ court order cannot be faulted on any of the grounds urged in the memo of appeal. The Letters Patent Appeal is therefore bereft of any merit and is accordingly dismissed. Dismissed.