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2016 DIGILAW 577 (JK)

Ram Sewak v. State of J&K

2016-11-07

ALOK ARADHE

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JUDGMENT : Alok Aradhe, J. 1. With the consent of the learned counsel for the parties, the matter is taken up on board. 2. In this petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, the petitioner who has superannuated from the post of Basic Health Worker on 31.12.1995 inter-alia seeks quashment of order dated 26.06.2001 by which claim of the petitioner for payment of Third Higher Standard Pay Scale as per Rule 5(ii)(a) of the Jammu and Kashmir Civil Services (Higher Standard Pay Scale Scheme) Rules, 1996 (hereinafter referred to as 'the 1996 rules') has been rejected. The petitioner also seeks direction to the respondents to accord him the benefit of revision of pay of the petitioner from the existing pay scale of Rs. 900-1830 to the revised pay scale of Rs. 1200-2040 w.e.f. 01.04.1990 in view of the Jammu and Kashmir Civil Services (Pay Revision) Rules 1992. The petitioner has also prayed for a direction to respondents to calculate the petitioner's salary and to accord him all consequential benefits along with interest. Facts giving rise to the filing of this writ petition briefly stated are that the petitioner was initially appointed on the post of Vaccinator on 27.12.1962. Thereafter the petitioner passed the matriculation examination in the year 1986. The post of the Vaccinator was re-designated as Basic Health Worker. The petitioner was given the benefit of Higher Pay Grade with effect from 01.03.1987 and superannuated after rendering 32 years of service on 31.12.1995. The petitioner submitted a representation claiming the benefit of payment of Third Higher Standard Pay Scale under the 1996 rules which has been rejected vide impugned order dated 26.06.2001. In the aforesaid factual background, the petitioner has approached this Court. 3. Learned counsel for the petitioner while inviting the attention of this Court to Rule 2 of the 1996 rules submitted that the 1996 rules came into force with effect from 01.01.1995. It is further submitted that the petitioner is entitled to benefit of Third Higher Standard Pay Scale in view of Rule 5(ii)(a) of the 1996 rules and the claim of the petitioner with regard to revision of pay under the Jammu and Kashmir Civil Services (Pay Revision) rules 1992 has not been denied by the respondents. It is further submitted that the petitioner is entitled to benefit of Third Higher Standard Pay Scale in view of Rule 5(ii)(a) of the 1996 rules and the claim of the petitioner with regard to revision of pay under the Jammu and Kashmir Civil Services (Pay Revision) rules 1992 has not been denied by the respondents. It is further submitted that the petitioner was never promoted in his service career as defined under Rule 4(g) of the 1996 rules. Therefore, the petitioner is entitled to benefit of Third Higher Standard Pay Scale as well as all the consequential benefits. On the other hand, learned Additional Advocate General for respondents 1 to 3 submitted that the petitioner has superannuated from 31.12.1995 before coming into force of the 1996 rules. It is further submitted that in terms of the 1996 rules, the petitioner was entitled to Higher Standard Pay Scale after completing of nine years of service on 01.03.1996 and the petitioner before completing nine years of service had already attained the age of superannuation. Therefore, he is not entitled to relief under the 1996 rules. Learned Additional Advocate General has invited the attention of this Court to Rule 5(i)(a) of the rules and has submitted that in view of the aforesaid rule, the petitioner is not entitled to benefit of Third Higher Standard Pay Scale. 4. I have considered the submissions made on both sides. From perusal of Rule 2 of the 1996 rules, it is evident that the aforesaid rules have come into force with effect from 01.01.1995. For the facility of reference, Rule 4(g) and Rule 5(i)(a) and (ii)(a) are reproduced below: "4(g) "Promotion" means a functional promotion to the next Higher Post as per the Recruitment Rules. 5(i)(a) An employee covered under these Rules who has not got any promotion or promotional scale/selection in his service career and has completed 18 years or more but less than 27 years of regular satisfactory service before 1-1-1995 will be allowed, w.e.f. 1-1-1995, in place of his existing scale the second Higher Standard Pay Scale specified in column 4 of Schedule 1 of these rules. 5(ii)(a) An employee covered under these Rules who has not got any promotion or promotional scale/selection in his/her service career and has completed 27 years or more of regular satisfactory service before 1-1-1995 will be allowed, with effect from 1-1-1995, in place of his/her existing scale, the Third Higher Standard Pay Scale specified in Column 5 of Schedule 1 of these Rules." 5. It is not in dispute that the petitioner was given the higher pay grade with effect from 01.03.1987. In other words, the petitioner was not promoted as defined under the 1996 rules to the next higher post on functional basis as per the respective recruitment rules. Admittedly, the petitioner on 01.01.1995 has completed more than 27 years of satisfactory service, that is, 32 years of service. Therefore, in case of the petitioner, Rule 5(ii)(a) will apply and not Rule 5(i)(a) will apply as the petitioner was not given the benefit of promotion in his entire service career. Thus, in view of Rule 5(ii) (a) of the 1996 rules, the petitioner is entitled to benefit of Third Higher Standard Pay Scale. The reasons assigned in the impugned order dated 26.06.2001 that the petitioner would be entitled first time bound promotion after completing nine years of service, that is 01.03.1996 and since before 01.03.1996, the petitioner has already superannuated, therefore, the petitioner has not entitled to Higher Standard Pay Scale under the 1996 rules is erroneous. The impugned order cannot but said to be arbitrary and suffers from vice of non application of mind. It is accordingly quashed. 6. So far as the claim of the petitioner for grant of revision of pay in the revised pay scale of Rs. 1200-2040 with effect from 01.04.1990 is concerned, from perusal of Para 7 of the Return, it is evident that the respondents have not specifically denied the claim of the petitioner in this regard. Under the Jammu and Kashmir Civil Services (Pay Revision) Rules 1992 which have come into force with effect from 01.04.1990, the petitioner is entitled to benefit of revised pay scale with effect from 01.04.1990. Consequently the petitioner is also entitled to all the consequential benefits including arrears of salary along with interest. In view of the preceding analysis, the impugned order dated 26.06.2001 is hereby quashed. Consequently the petitioner is also entitled to all the consequential benefits including arrears of salary along with interest. In view of the preceding analysis, the impugned order dated 26.06.2001 is hereby quashed. The respondents 1 to 3 are directed to accord the benefit of Third Higher Standard Pay Scale to the petitioner as per his entitlement under Rule 5(ii)(a) of the 1996 rules as well as to accord him the benefit of revised pay scale of Rs. 1200-2040 with effect from 01.04.1990. Needless to state that the petitioner after calculation of the arrears due to him shall be entitled to payment of arrears of salary along with interest which is quantified at the rate of 6 per cent from the date of his entitlement till the actual payment is made to him. Let the aforesaid exercise be carried out within a period of four months from the date of receipt of certified copy of the order passed today failing which the amount due to petitioner shall carry interest at the rate of 9 per cent. With the aforesaid directions, the petition is disposed of.