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2015 DIGILAW 387 (JK)

Gh. Sarwar Farooqi & Anr. v. State of J&K & Ors.

2015-08-05

BANSI LAL BHAT

body2015
JUDGMENT 1. The petitioners have filed the instant writ petition invoking the writ jurisdiction of this Court seeking writ of certiorari for quashing the Government Order No. 760-Edu of 2013, dated 16.09.2013 with further prayer to release all service benefits to the petitioners on the strength of Government Order No. 595-Edu of 2009, dated 28.07.2009 read with Government Order No. 181-Edu of 2012, dated 27.02.2012, on the grounds taken in the writ petition. 2. The case set up by the petitioners is that upon consideration of the proposal submitted by the Respondent No. 2 to the Respondent No. 1, the Respondent No. 1 created two posts of Computer Operators/ Assistants in the Directorate of School Education, Kashmir, by corresponding reduction of the two posts of Teachers held by the petitioners, in terms of Government Order bearing No. 662-Edu of 2001, dated 09.05.2001 and Order No. 1334-Edu of 2001, dated 01.10.2001. 3. It is stated that the Respondent No. 1 in pursuance and in furtherance of Cabinet Decision No. 12/7, dated 2nd December, 1996 issued Government Order No. 129-PD of 1996, dated 04.12.1996, according sanction, inter alia, to the creation of the posts of Computer Operators in different Departments of the Respondent State in the sanctioned Pay Scale of Rs. 2000-3200 (Unrevised) now revised to Rs. 6500-10500 (Pre-revised). It is seen from the record that in terms of Government Order No. 595-Edu of 2009, dated 28.07.2009, sanction was accorded to the up-gradation of pay scale of two posts of Computer Operators held by the petitioners from the pay scale of Rs. 5000-8000 to Rs. 6500-10500. It is stated that the aforementioned Government order came to be issued in compliance with the directions passed in the writ petition (SWP No. 1469/2003) preferred by petitioner No. 1 wherein he had sought extending/affording the benefit of up-gradation of the pay scale attached to the post of Computer Operator in the Education Department to Rs. 6500-10500 at par with the pay scale being paid to and enjoyed by the counterparts of the petitioners in the other departments of the Government. 4. 6500-10500 at par with the pay scale being paid to and enjoyed by the counterparts of the petitioners in the other departments of the Government. 4. The grievance of the petitioners appears to be that since the pay scale attached to the post of Computer Operators created in the Education Department came to be upgraded at par with the pay scale sanctioned vide Government Order No. 129-PD of 1996, dated 04.12.1996, therefore, it is axiomatic that the up-gradation of the pay scale takes effect rather becomes effective in law right from the date the post of the Computer Operators held by the petitioners came to be created vide Government Orders supra viz 09.05.2001 and 01.10.2001 respectively. It appears that the Respondent-Education Department in continuation of earlier Government order dated 28.07.2009 issued a fresh Government Order No. 181-Edu of 2012, dated 27.02.2012 whereby sanction was accorded to the up-gradation of pay scale of two posts of Computer Operators held by the petitioners retrospectively with effect from 09.05.2001 and 01.10.2001. It is contended by learned counsel for the petitioners that by issuance of Government Order No. 595-Edu of 2009, dated 28.07.2009 read with Government Order No. 181-Edu of 2012, dated 27.02.2012, the grievance projected in writ petition (SWP No. 1469/2003) was redressed fully and completely, therefore, the petitioner No. 1 preferred an application in the aforementioned writ petition, bringing it to the notice of the Court the subsequent developments in the context of relief prayed in the writ petition with a prayer that the writ petition aforementioned may be disposed of as settled in terms of aforementioned Government Orders. It is stated that this Court while considering the application on 12.04.2012 held that since the grievance of the petitioner stands redressed in terms of Government Order No. 595-Edu of 2009, dated 28.07.2009 and Government Order No. 181-Edu of 2012, dated 27.02.2012, the writ petition shall stand disposed of. It is stated that the respondent No. 2, as a follow up action, was required to release the benefits in favour of the petitioner in terms of the Government orders whereby the petitioner's grievance is said to have been redressed. 5. It is stated that the respondent No. 2, as a follow up action, was required to release the benefits in favour of the petitioner in terms of the Government orders whereby the petitioner's grievance is said to have been redressed. 5. It is next contended that on disposal of the aforesaid writ petition, the petitioners approached the Respondent No. 2 with a request for release of the monetary benefits accrued and payable to the petitioner No. 1 by reason of aforementioned Government order dated 27.02.2012. It is urged that instead of doing the needful as directed by this Court vide order dated 12.04.2012, Respondent No. 2 appears to have approached Respondent No. 1 with the request to authenticate the Government Order dated 27.02 2012, so that grievance of the petitioner No. 1 is redressed. The petitioner No. 1 has placed on record photocopy of one of the pages of service book which shows that exercise had already been undertaken by the Chief Accounts Officer, Directorate of School Education, Kashmir, and the pay of the petitioner had already been fixed with effect from 09.05.2001 in terms of the Government order dated 27.02.2012. 6. It is stated that being aggrieved of the act of Respondent No. 3 in the form of communication dated 20.06.2012, the petitioner No. 1 filed a writ petition in this Court which was registered as SWP No. 1854/2012, impugning the aforesaid communication on the ground that the Government order dated 27.02.2012 entitling the petitioners the pay scale w.e.f. 09.05.2001 and 01.10.2001 respectively, was actually the implementation of the orders passed by this Court. It is stated that on consideration of the SWP No. 1854/2012 filed by the petitioner No. 1, this court disposed of the writ petition after hearing the learned counsel for the respondents with a direction to the respondents to extend the benefit available under the Government Order No. 181-Edu of 2012, dated 27.02.2012 to the petitioner. It is stated that on consideration of the SWP No. 1854/2012 filed by the petitioner No. 1, this court disposed of the writ petition after hearing the learned counsel for the respondents with a direction to the respondents to extend the benefit available under the Government Order No. 181-Edu of 2012, dated 27.02.2012 to the petitioner. It is stated that the Respondent No. 1 instead of proceeding in the matter in accord with the mandate of orders passed by this Court from time to time, issued the impugned Government Order bearing No. 760-Edu of 2013, dated 16.09.2013 rescinding Government Order No. 181-Edu of 2012, dated 27.02.2012 with immediate effect, on the ground that the Finance Department did not concur to the up-gradation of two posts of Computer Operators retrospectively viz 09.05.2001 and 01,10.2001, ignoring the fact that the benefit has been extended to them in compliance to the orders passed by this Court. 7. Now the grievance of the petitioners in the writ petition at hand is that once they were held to be entitled to pay scale of Rs. 6500-10500 in terms of the orders passed by this Court from time to time, it does not lie in the mouth of the respondents to withdraw the benefit by passing the impugned order dated 16.09.2013. 8. The respondents have filed the detailed reply and have contested the averments made in the memo of writ petition. It is pleaded that the petitioners-were allowed the benefit of pay scale of Rs. 6500-10500 retrospectively w.e.f. 09.05.2001 and 01.10.2001 in terms of Government Order No. 181-Edu of 2012, dated 27.02.2012. However, it is pleaded that the Director, School Education Department, Kashmir, re-submitted the case to the Government vide communication dated 17.03.2012 stating therein that the Government order dated 27.02.2012 has been issued without seeking concurrence of the Finance Department. It is further pleaded that the matter was again re-examined by the Department and it was found that the issue involves considerable financial implications and in terms of rule 3.9. of book of financial powers no department has been authorized to issue any such order which affects the finances of the State without prior concurrence of the Finance Department. It is further pleaded that the matter was again re-examined by the Department and it was found that the issue involves considerable financial implications and in terms of rule 3.9. of book of financial powers no department has been authorized to issue any such order which affects the finances of the State without prior concurrence of the Finance Department. It is further pleaded that a review of the Government Order No. 181-Edu of 2012, dated 27.02.2012 was accordingly undertaken and it was decided to refer the matter to the Finance Department for obtaining concurrence to the up-gradation of two posts of Computer Operators retrospectively but the Finance Department returned the file with the observation that the Department conveyed regrets to the departmental proposal. It is further pleaded that it is in this backdrop, the Government order dated 16.09.2013 was issued and the earlier Government order was rescinded. 9. It is seen from the record of the writ petition at hand that the petitioner No. 1 filed a writ petition (SWP No. 1854/2012) seeking a direction to the respondents to give benefit under Government Order No. 595-Edu of 2009, dated 28th July, 2009 to respondents that there was no impediment in way of the petitioner to get the grade of Rs. 6500-10500 with effect from 01.10.2001, which was fairly conceded by learned counsel for the respondents. Upon this concession of the respondents, this Court directed the respondents to extend benefit available under the Government Order No. 18-1-Edu of 2012, dated 27.02.2012 to the petitioner. 10. I have heard rival sides, perused the record and considered the matter. Admittedly, the petitioners were extended the benefit of pay scale of Rs. 6500-10500 retrospectively in terms of the orders passed by this Court from time to time on the concession of the respondents which has not been assailed by the respondents as on date and has attained finality. I have heard rival sides, perused the record and considered the matter. Admittedly, the petitioners were extended the benefit of pay scale of Rs. 6500-10500 retrospectively in terms of the orders passed by this Court from time to time on the concession of the respondents which has not been assailed by the respondents as on date and has attained finality. More so, while resubmitting the case of the petitioners to the Finance Department, had it been brought to the notice of the Finance Department that the earlier two writ petitions of the petitioner No. 1 were settled on the premise that grievance stood redressed in pursuance of the issuance of Government Order No. 181-Edu of 2012, dated 27.02.2012, and this Court directed respondent No. 2 as a follow up action to release the benefits in favour of the petitioner in terms of the Government orders whereby the petitioner's grievance stands redressed, the impugned order may not perhaps have been issued. 11. In the backdrop of peculiar facts of the case, it was not open to the respondents to obtain concurrence of the Finance Department to the up-gradation of two posts of Computer Operators retrospectively with effect from 09.05.2001 and 01.10.2001 respectively. The grievance projected by the petitioners stood settled in terms of Government Order No. 181-Edu of 2012, dated 27.02.2012 and petitioners acted upon the same. It is significant to notice that in terms of Government Order No. 662-Edu of 2001, dated 09.05.2001 and Government Order No. 1334-Edu of 2001, dated 01.10.2001, sanction was granted to creation of two posts of Computer Operators in the Directorate of School Education, Kashmir, by corresponding reduction of two posts of teachers held by the petitioners. These Government orders referred to hereinabove were issued with the concurrence of the Finance Department. Such sanction was accorded in the pay scale of Rs. 4000-6000. Subsequently, in terms of Government Order No. 595-Edu of 2009, dated 28.07.2009 pay scales of the petitioners were upgraded from the revised pay scale of Rs. 5000-8000 to Rs. 6500-105000. This too was done with the concurrence of the Finance Department. But for Government Order No. 181-Edu of 2012, dated 27.02.2012; such upgraded scale of pay would have been prospective in application. 5000-8000 to Rs. 6500-105000. This too was done with the concurrence of the Finance Department. But for Government Order No. 181-Edu of 2012, dated 27.02.2012; such upgraded scale of pay would have been prospective in application. However, Government Order No. 181-Edu of 2012, dated 27.02.2012; conferred benefit upon the petitioners retrospectively with effect from 09.05.2001 and 01.10.2001 respectively, i.e., from the dates sanction was accorded to creation of two posts of Computer Operators by corresponding it with same number of posts of teachers held by the petitioners. SWP No. 1469/2003 was disposed of on 12.04.2012 as the grievance of the petitioners stood redressed in terms of Government Order No. 595-Edu-of 2009, dated 28.09.2009 and Government Order No. 181-Edu of 2012, dated 27.02.2012. Admittedly, the petitioners altered their position by not pressing SWP No. 1469/2003 further. It is not disputed that the Government Order No. 181-Edu of 2012, dated 27.02.2012 has been passed by competent authority and same could not be rescinded or withdrawn to the detriment of lawful interest and legitimate expectation of petitioners who altered their position by not pressing earlier writ petition any more. 12. In the aforementioned backdrop, this writ petition succeeds and is allowed. The impugned Government Order No. 760-Edu of 2013, dated 16.09.2013 is quashed. As a corollary, Government Order No. 181-Edu of 2012, dated 27.02.2012 is restored and the petitioners are held entitled to the grade as reflected in the said Government order. Accordingly, respondents, more particularly Respondent No. 1, is directed to release the benefits in favour of the petitioners in terms of the Government order supra, as expeditiously as possible, preferably within four weeks, which period shall begin from the date copies of this judgement are made available to the respondents. 13. Disposed of alongwith connected CMPs. There will be no order as to costs. Petition disposed of