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2016 DIGILAW 269 (JK)

Mohd. Yasin Bafanda v. State of J&K

2016-05-14

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed praying for issuing the writ of mandamus directing the adjustment of the petitioners against the posts of Sr. Assistants carrying pay scale of Rs. 1200-2140 in the Directorate of Health Services and Election Department retrospectively and to give them the benefit attached to the said post with consequential promotion. The case of the petitioners is that they were employees of the Jammu & Kashmir Industries Limited and were working in Government Woolen Mills, Srinagar and while working in the Jammu & Kashmir Industries Limited, petitioners 1 to 3 were promoted from the post of Junior Assistant to the post of Senior Assistant vide Order Nos. JKI/199/1986, dated 30.09.1986, JKI/179/1990, dated 02.01.1990 and JKI/179/95 dated 23.02.1995 and petitioner No. 4 was also promoted against the post of Sr. Assistant in September, 1986. The pay anomaly in the pay scales of Jr. Assistants/Typists and Sr. Assistants/Sr. Typists of the Jammu & Kashmir Industries Limited and Jr. Assistants/Typists and Sr. Assistants/Sr. Typists working in other public sector corporations was removed by virtue of Order No. JKI/CJ-I/94, dated 28.02.1994 whereunder besides Jr. Assistants/Typists, Sr. Assistants/Senior Typists working in the pay scale of Rs. 900-1950 were given the pay scale of Rs. 1200-2140. Since there was surplus staff in the Jammu & Kashmir Industries Limited, the petitioners 1 to 3 were adjusted/absorbed in the Directorate of Health Services, Kashmir, and petitioner No. 4 was adjusted/absorbed in Election Department, against the posts of Jr. Assistants carrying pay scale of Rs. 950-1500, in relaxation of qualification/age bar. 2. The grievance of the petitioners is that since they were working against the post of Sr. Assistants carrying pay scale of Rs. 1200-2140 in the Jammu & Kashmir Industries Department, they should have been adjusted/absorbed against the same post of Sr. Assistants instead of Jr. Assistants in the respective departments. The petitioners made representations by stating that they have been adjusted in the respective departments without their consent and that they should have been adjusted against the posts of Sr. Assistant instead of Jr. Assistant and their adjustment against the posts of Junior Assistants amounts to reduction in rank and reversion from the post of Sr. Assistant to Jr. Assistant. However, the said representation of the petitioners was not acceded to, hence the petitioners have filed this writ petition with the aforesaid prayer. 3. Assistant instead of Jr. Assistant and their adjustment against the posts of Junior Assistants amounts to reduction in rank and reversion from the post of Sr. Assistant to Jr. Assistant. However, the said representation of the petitioners was not acceded to, hence the petitioners have filed this writ petition with the aforesaid prayer. 3. In the reply filed by the respondents, it is stated that respondents were not bound to engage the petitioners but in order to avoid any hardship to the petitioners as the petitioners were left without any livelihood, the petitioners were absorbed in the respective departments. It is further stated that respondents could employ only 22 employees out of total 234 employees of various categories who were declared surplus due to non-availability of the vacant posts. The further contention of the respondents is that they have shown mercy on the petitioners and appointed them as Jr. Assistants, otherwise they were not under an obligation to adjust/absorb the petitioners. Therefore, the petitioners cannot claim the right to the post of Sr. Assistants. 4. In the reply filed by the respondents, it is nowhere stated that posts of Sr. Assistant were not available when they were absorbed in the department against which petitioners could have been absorbed. In the absence of such plea and in absence of consent of the petitioners to be adjusted against the posts of Jr. Assistants, the respondents are not justified in adjusting/absorbing the petitioners against the posts of Jr. Assistants. It is well settled proposition of law that while absorbing/adjusting a person from one service in another because of abolition of the department or because of the excess staff, he is to be given the same status/post and pay as he was holding in the previous department unless consent is given by the said person to be adjusted/absorbed against a lower post which is also permissible only if post is not available. 5. In such circumstances, the writ petition is allowed and 1st respondent is directed to treat the appointment given to the petitioners against the post of Sr. Assistant in the pay scale of Rs. 1200-2140 from the date of absorption with all consequential benefits, and issue appropriate orders in this regard within a period of eight weeks from the date of the receipt of this order. Writ petition allowed. No costs.