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2015 DIGILAW 514 (JK)

Savita Gupta v. Sarita Chouhan

2015-09-28

B.S.WALIA, HASNAIN MASSODI

body2015
JUDGMENT : B.S. Walia, J. 1. Learned counsel for the petitioners states that SWP No. 1051-A/98 was allowed by the learned Single Judge vide judgment/order dated 05.03.2004, against which the respondents preferred LPASW No. 173/2006. Operative part of the order dated 03.03.2009 passed on the same is as under:- "Accordingly we allow the appeal, and set aside the judgment and order under appeal, but at the same time, allow the writ petition with a direction upon the appellants to consider the following claims of the writ petitioners-respondents in accordance with law:- (i) Claim of the writ petitioners-respondent Nos. 1 and 3 to receive salaries payable to Chief Librarian until the said post remained and, thereupon the salaries payable to the Librarian; (ii) The contention of the petitioners-respondent Nos. 1 and 3 that by reason of continuous discharge of duties of Chief Librarian and thereupon Librarians for last 20 years, in law, it must be deemed that they are holding the post included in the cadre of service known as the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 1995; (iii) In the event, they are not holding posts included in the cadre of the said service, their right to be regularised in a post in the said service in view of discharge of duties by them attached to the subject posts far in excess of twenty years in accordance with any order or other decisions of the Government; (iv) The claim that the petitioners-respondents are entitled to higher scale of pay upon acquiring qualification and experience mentioned in the Government decision of 1978; (v) Lastly, whether they are similarly placed as that of the persons dealt with by the order of the Government dated 10th March, 1987 and, if so, whether they are entitled to the benefits to be accorded to them from the date those persons were accorded the benefits by the said order." Learned counsel for the petitioners submitted that the respondents had not implemented the judgment passed by the Division Bench, therefore they were liable to be prosecuted and punished. On the other hand respondents have vehemently disputed non compliance by referring to the compliance report filed by the Commissioner/Secretary, Higher Education, Civil Secretariat, Srinagar stating therein that Government Order No. 135-HE of 2015, dated 15.04.2015 was passed to implement the orders passed by the High Court in the contempt petition whereafter in furtherance of orders of this Court dated 29.04.2015, order Annexure R-3 dated 15.05.2015 was passed by the respondents for complying with the directions of the Division Bench of this Court dated 03.03.2009 in LPASW No. 173/2006. It is also the stand of the respondents that in furtherance of Government Order No. 157/HE of 2015 dated 15.05.2015, Government Order No. 136-HE of 2013 dated 14.10.2013 and Government Order No. 135-HE of 2015 dated 15.04.2015 had been recalled due to the reasons stated in the aforementioned Government Order and the petitioners' case rejected. Petitioners' claim for parity with Mrs. Kamlesh Sharma and Mrs. Zahida Gulgam has been denied on the ground that they were not similarly situated as the aforementioned employees as the said employees had rendered more than 25 years and 14 years of service respectively and thereafter were substantively promoted as Librarian (Non-gazetted) after having acquired the requisite qualification and that their subsequent promotion as Chief Librarian was in their personal capacity on the recommendations of the Screening Committee vide Government Order No. 140-HE of 1987 dated 10.03.1987 under the provisions of SRO 291 of 1978, but the same was not in accordance with law as the said SRO 291 of 1978 was not in force at the relevant time, therefore, one wrong could not be said to be conferring any right to seek perpetuation of the wrong again especially since there were other similarly situated employees who would claim the same benefit which would result in opening of a Pandora's Box. It is further the stand of the respondents that employees senior to the petitioners, stood promoted vide Government Order No. 458-HE of 2011 dated 30.12.2011 and accordingly, the case of the petitioners had been rightly rejected as granting them the benefit in terms of Government Order dated 10.03.1987 would tantamount to violating the Gazetted Service Higher Education Rules of 1979, 1995 & 2004 as the petitioners did not possess eligibility in terms of the said rules. 2. 2. In the light of the above, submission on behalf of the respondents is that judgment dated 03.03.2009 in LPASW No. 173/2006 had been complied with in letter and spirit. 3. A perusal of Government Order No. 157/HE of 2015 dated 15.05.2015 reveals that the Department had notified Revised Jammu and Kashmir Education (Gazetted) College Services Recruitment Rules, 2008 under SRO 423 of 2008 dated 23.12.2008, under which, the post of Librarian (Gazetted) stipulated the following eligibility:- "(i) 60% by direct recruitment. (ii) 40% by promotion from amongst the following Non-Gazetted Categories with M. Lib or MA B. Lib Degree, on the basis of seniority through DPC/PSC; (a) Sr. Librarian (6500-10500 pre-revised) with 8 years of service. (b) Librarian (5000-8000 pre-revised) with 10 years of service. (c) Jr. Librarian (4000-6000 pre-revised) with 12 years of service. (d) Library Assistant/Reading Room Assistant (3050-4590 pre-revised) with 14 years of service." 4. As per record the petitioners along with seniors became eligible for promotion to the post of Librarian (Gazetted) in terms of Revised Jammu & Kashmir (Gazetted) Recruitment Rules of 2008 (SRO 423 of 2008) whereupon their cases along with those of others were placed before the DPC/PSC for consideration and recommendation in respect thereto received on 20.10.2011 and benefit of promotion given vide Government Order No. 458-HE of 2011 dated 30.12.2011 w.e.f. 23.12.2008 i.e. the date of issuance of SRO 423 of 2008. In the light of the same order dated 15.05.2015 records that the petitioners had already been promoted to the post of Librarian (Gazetted) in compliance to the judgment passed by the Hon'ble Division Bench dated 03.03.2009 on the recommendation of DPC/PSC, vide order No. 458-HE of 2011 dated 30.12.2011 w.e.f. 23.12.2008 i.e. the date from which they became eligible for promotion (i.e. the date of issuance of SRO 423 of 2008). 5. 5. As regards the claim of the petitioners for the period 20.03.1989 to 22.12.2008 during which they were placed against the posts of Librarian/Chief Librarian (Non-Gazetted) in their own pay and grade with charge allowance, the case of the petitioners was placed before the DPC and the DPC in the light of the direction of this Court, considered their case for promotion as Junior Librarian/Librarian (Non-Gazetted) purely on notional basis as ordered vide Government Order No. 136 of 2013 dated 14.10.2013 and vide Government Order No. 135-HE of 2015 dated 15.04.2015 granted promotion on monetary basis also thereby regularising the petitioners' services. Later in terms of order of the Division Bench dated 29.04.2015, the respondents in order to implement the judgment dated 03.03.2009 in letter and spirit, called a special meeting of the DPC on 02.05.2015, 03.05.2015 & 04.05.2015. Report submitted by the DPC was examined by the Department in accordance with the directions issued by the Division Bench as also the applicable Service Rules leading to passing of order dated 15.05.2015 complying with the directions issued by the Division Bench on 03.03.2009. 6. As per Government Order No. 157/HE of 2015 dated 15.05.2015 claim of the petitioners to receive salary payable to Chief Librarian until the said post remained and thereupon the salaries payable to Librarian, stands rejected for the period 20.03.1989 to 22.12.2008 on account of the petitioners not having been regularly promoted to the post of Junior Librarian, Librarian, Chief Librarian/Senior Librarian under the Non-Gazetted services being not eligible with due regard to their seniority and availability of vacancies in the said category/class. The petitioners were simply ordered to work against the posts in the absence of staff and compensated in the shape of charge allowance. However, the claim of the petitioners for promotion as Librarian (Gazetted) under Jammu and Kashmir (Gazetted) College Services Recruitment Rules of 2008 stands accepted and the petitioners promoted on the recommendation of the DPC/PSC vide Government Order No. 458-HE of 2011 dated 30.12.2011 w.e.f. 23.12.2008 i.e. the actual date from which they became eligible for promotion (i.e. the date of issuance of SRO 423 of 2008). 7. 7. Claim No. 2 i.e. on account of continuous discharge of duties as Chief Librarian and thereupon Librarian for last 20 years, petitioners be deemed to be holding the posts included in the cadre of services known as the Jammu and Kashmir (Gazetted) College Services Recruitment Rules, 1995, has been rejected as the petitioners were not holding the posts of Librarian (Gazetted) on regular basis. The petitioners were not regularly promoted to the post of Junior Librarian, Librarian, Chief Librarian/Senior Librarian under the Non-Gazetted services on account of ineligibility, lack of availability of vacancies in the said category/class, besides had been ordered to work against the posts in the interest of administration and had accordingly been compensated in the shape of charge allowance. 8. Claim No. 3, i.e. in the event, it was found that the petitioners were not holding the posts included in the cadre of the said service, they be held entitled to be regularised in a post in the said service in view of discharge of duties by them attached to the subject posts far in excess of twenty years in accordance with any order or other decision of the Government, has also not been accepted as it has been categorically found that the petitioners were not holding the posts included in the Jammu & Kashmir (Gazetted) College Services Recruitment Rules, 1995 and were governed by SRO 240 of 1979 dated 23.04.1979, the promotion prospects prescribed in the aforementioned SRO 240 were subject to availability of sanctioned post with due regard to seniority and petitioners were supposed to have worked on different levels/different pay scales, which they had not so worked, besides they had been regularly promoted to the post of Junior Librarian, Librarian, Librarian/Senior Librarian under the Non-gazetted services as they (sic) not eligible with due regard to their seniority and availability of vacancy in the said category/class. They had been simply ordered to work again (sic) posts in absence of staff and compensated in the shape of charge allowance. Besides, charge allowance, the petitioners had also availed In-situ promotion by opting the provisions of Jammu and Kashmir Civil Services (Higher Standard Pay Scale Scheme) Rules, 1996. They had been simply ordered to work again (sic) posts in absence of staff and compensated in the shape of charge allowance. Besides, charge allowance, the petitioners had also availed In-situ promotion by opting the provisions of Jammu and Kashmir Civil Services (Higher Standard Pay Scale Scheme) Rules, 1996. On the basis of the same, Government Order No. 157/HE of 2015 dated 15.05.2015 records that promotion of the petitioners in the absence of vacancy as Junior Librarian/Librarian ordered vide Government Order No. 136-HE of 2013 dated 14.10.2013 read with Government Order No. 135-HE of 2015 dated 15.04.2015 had been made in violation of the relevant Recruitment Rules, therefore, needed to be rescinded, ab initio. 9. Claim No. 4 i.e. that the petitioners were entitled to higher scale of pay upon acquiring qualification and experience mentioned in Government decision of 1978, has also been rejected in view of the petitioners being born in the department on 14.04.1980 and 24.04.1982 respectively and being governed by Government Order-SRO 240 of 1979 dated 23.04.1979, under which, the Government decision of 1978 stood repealed. 10. Claim No. 5 i.e. for grant of benefit as granted to others vide Government Order No. 10.03.1987, has been rejected on the ground that the benefit had been granted to such persons by mistake, therefore, such mistake could not be repeated, besides the petitioners could not seek parity with the case of Kamlesh Sharma and Zahida Gulfam as the said persons were appointees of 1963 & 1973 respectively while the petitioners were born on the establishment of Higher Education Department after issuance of SRO 240 of 1979 where-under all previous Rules stood superseded. In the light of the above, the promotion of the petitioners as Junior Librarian/Librarian (Non-Gazetted) ordered vide Government Order No. 136-HE of 2013 dated 14.10.2013 read with Government Order No. 135-HE of 2015 dated 15.04.2015 were rescinded, ab initio besides their claim for regularisation of services as Chief Librarian (Gazetted) during the period they were placed as Librarian/Chief Librarian in their own pay and grade with charge allowance, was also rejected. We have considered the submissions made by learned counsel for the parties and perused the record. The order of the Division Bench dated 03.03.2009 directed consideration of the claims of the petitioners, as detailed above, in accordance with law. We have considered the submissions made by learned counsel for the parties and perused the record. The order of the Division Bench dated 03.03.2009 directed consideration of the claims of the petitioners, as detailed above, in accordance with law. The respondents by passing Government Order No. 157/HE of 2015 dated 15.05.2015 (Annexure-R3) have complied with the directions as contained in the judgment and order of this Court dated 03.03.2009 in LPASW No. 173/2006. In case the petitioners are aggrieved with the decision (Annexure-R3) taken by the respondents, they would be at liberty to take recourse to remedy available to them in accordance with law for seeking redress thereto. In view of the above, the Rule issued stands discharged and the contempt petition dismissed.