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2016 DIGILAW 441 (JK)

Mohd. Akber War v. State of J&K

2016-08-24

R.SUDHAKAR

body2016
JUDGMENT : R. Sudhakar, J. 1. Instant writ petition is of the year 2004. By nature of relief sought by the petitioner, the writ petition can be disposed of on merits more so on the statement of fact submitted by the learned AAG. Petitioner is seeking a mandamus commanding the respondents to grant the benefit of promotion as made admissible to respondent No. 4 vide order No. 329/Estt/1999, dated 17.10.1999 and further a direction to release the grade of pay retrospectively. Petitioner further seeks quashment of promotion order No. 60/PHE/Estt of 2003, dated 25.04.2002 and Order No. 218/PHE/Estt of 2004, dated 10.11.2004 of respondents 5 to 10 with a further direction to fix their seniority below the petitioner. Petitioner claims that he has been appointed as Motorman on regular basis w.e.f. 01.01.1979 and was drawing pay scale 900-1830 and was figuring at Sr. No. 5 in the seniority list and thereafter he was posted to Sopore in the year 1991. By virtue of Order No. 227 of PHE/Estt of 2002, dated 25.04.2002 petitioner was granted grade of Rs. 5000-8000. The petitioner's claim is that he is entitled to the said grade w.e.f. 13.08.1991. The other relief that petitioner seeks is that private respondents 5 to 10 who are juniors to him have got the benefit of seniority as well as higher pay and that he is aggrieved. Hence has filed the writ petition. 2. Respondents have filed their reply and counter which makes it clear that the case of the petitioner that his juniors have been placed on a higher grade earlier to the petitioner is factually incorrect. 3. The relevant portion of the counter reads as under:- "Petitioner was due for being considered for promotion in the grade of 5000-8000 which was accorded to him as per seniority and merit vide Order No. 227-PHE/Estt. of 2002, dated 25.04.2002. It is further submitted that the petitioner is figuring in the seniority list of field staff amongst Mechanical Cadre of the respondent department in the category of Pump Operators at S. No. 5 while as the private respondents fall at S. Nos. 6, 7, 8, 10, 11 & 12. The petitioner is already working in the grade of 5000-8000 since 25.04.2002 while as the private respondents have been given said grade of Rs. 5000-8000 w.e.f. 10.11.2004. So far as respondent No. 4 viz. 6, 7, 8, 10, 11 & 12. The petitioner is already working in the grade of 5000-8000 since 25.04.2002 while as the private respondents have been given said grade of Rs. 5000-8000 w.e.f. 10.11.2004. So far as respondent No. 4 viz. Habibullah Dar is concerned, he was working as Electrician in the grade of Rs. 5000-8000 prior to his promotion to the grade of Rs. 5150-8300 as Foreman. So no legal or fundamental right of the petitioner is violated or infringed in any manner what so ever. However, petitioner will be considered for next grade/promotion subject to his possessing requisite merit and eligibility as well as seniority as and when the post in the higher grade/scale becomes available in the department. 4. Petitioner was admittedly granted benefit of grade of Rs. 5000-8000, w.e.f. 25.04.2002, whereas the private respondents were granted the said benefit much later i.e. 10.11.2004. Therefore, the plea of giving private respondents higher grade and placing them above the petitioner is not correct as is evident from the reply filed by the State-respondent showing the seniority of private respondents and the petitioner and the pay scale. The first plea has no basis. 5. The next question that would arise for consideration is that the benefit of retrospective effect of the grade be granted to the petitioner as has been granted to respondent No. 4 (Habibullah Dar). However, counter affidavit makes it clear that respondent No. 4 was working as an Electrician in the grade of Rs. 5000-8000 prior to his promotion to the grade of 5150-8300 as Foreman. Therefore, the case of the petitioner cannot be compared with that of respondent No. 4 because they are not on equal terms. Therefore, the case projected by the petitioner would have no relevance. 6. Even otherwise learned counsel for the respondent-State Ms. Moksha Qazmi, AAG submits that the petitioner has superannuated in the year 2012 and the benefits have already been granted him. 7. In that view of the matter deciding the question of seniority becomes redundant. However, if petitioner feels that he is entitled to any other relief, he is at liberty to make a representation to the respondents. The respondents if such representation is made may consider and dispose of the representation in terms of the rules as applicable. Writ petition stands disposed of as above.