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2016 DIGILAW 62 (JK)

P. K. Abrol v. State

2016-02-19

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. Petitioners through the medium of petition-in-hand seek quashment of Government orders bearing No. 12-ASH of 2014, dated 31.01.2014 and 228-ASH of 2013, dated 03.09.2013, whereby their claim seeking benefit of 3rd time-bound promotion has been rejected and also seek quashment of illegal action of respondents, whereby they have restricted the application of Govt. Order No. 3-ASH of 2010, dated 01.01.2010 only to the serving Veterinarians, who have completed 20 years of cumulative Gazetted service on or before the date of passing of the aforesaid order i.e. 01.01.2010, as the same being discriminatory and violative of the Constitution. Petitioners also seek quashment of Order No. ASH/Coord-57/08, dated 01.01.2010 issued by Deputy Secretary to Government, Animal and Sheep Husbandry Department, wherein it is provided that the Govt. Order No. 3-ASH of 2010, dated 01.01.2010 shall take effect from 01.01.2010 onwards, which is stated to be contrary to the order passed by the Government, by which sanction was accorded for dispensation of 3rd time-bound promotion to eligible Veterinarians, who have rendered 20 years of cumulative service, at par with Assistant Surgeons of Health Department, irrespective of the fact whether they are retired or working on the day of issuance of said order, i.e., 01.01.2010. Petitioners beseech for a direction to the respondents to give the benefit of Govt. Order No. 3-ASH of 2010, dated 01.01.2010 to them from the date they have completed 20 years of Gazetted cumulative service in the Animal and Sheep Husbandry Department and to accord the benefit of 3rd time-bound promotion in favour of members of Gazetted Service of Animal and Sheep Husbandry Department who have completed 20 years of cumulative service, on the analogy of their counterparts in Health and ISM Department. 2. The case as projected by the petitioners, in brief, is that they have been appointed as Veterinary Assistant Surgeons in the Department of Animal and Sheep Husbandry and all of them have rendered more than 20 years of unblemished cumulative service in Gazetted cadre of Animal and Sheep Husbandry Department. Earlier there was pay anomalies in the pay scales of Allopathic, ISM and Veterinary doctors, which were subsequently removed and all the three services were made at par and their pay scales were also made similar at the entry level, i.e. Rs. 8000-13500 (Pre-revised). Earlier there was pay anomalies in the pay scales of Allopathic, ISM and Veterinary doctors, which were subsequently removed and all the three services were made at par and their pay scales were also made similar at the entry level, i.e. Rs. 8000-13500 (Pre-revised). To remove the anomaly, Secretary to the Cabinet submitted a co-ordination memo to the Cabinet regarding Pay parity of Veterinarians with doctors of Allopathic wing, wherein it is revealed that the Finance Department vide office memorandum No. A/98(2001), dated 06.10.2003 has given agreement to proposal and Secretary to Govt., Agriculture and Animal and Sheep Husbandry Department, submitted the proposal to the Cabinet for approval for induction of time bound promotion scheme on the same lines as available to Assistant Surgeons/ISM of Health Department. The Cabinet, vide Cabinet Decision No. 44/3, dated 31.01.2004, approved the proposal. Accordingly, the Government, on the pattern of Health and ISM Department, introduced a Scheme for grant of 1st and 2nd time bound promotions vide SRO 43, dated 17.02.2004, which was made applicable w.e.f. 01.01.1996 notionally and monetarily from 17.02.2004 as per clarification given by Finance Department vide Communication No. O.M. No. A/98(2001)-1159, dated 17.11.2005. The said SRO 43, provided the grant of 1st time bound promotion in the pay scale of Rs. 10,000-325-15200 in favour of Veterinarians, who have completed 10 years of service and 2nd time bound promotion in the pay scale of 12000-16500 after 15 years of service. 3. It is further contended that in the Health Department, another order came to be issued, vide Govt. Order No. 388-HME of 2005, dated 30.06.2005, which provided the grant of 3rd time bound promotion in the pre-revised pay scale of 14300-18300 to the serving Doctors of Health Department, who had completed 20 years of cumulative Service. Similarly, vide Govt. Order No. 242-HME of 2008, dated 31.12.2008, the benefit of 3rd time bound promotion was also accorded to the Doctors of ISM, who had completed 20 years of cumulative service. It is also contended that Govt. Order No. 388-HME of 2005, dated 30.06.2005 issued by J&K Health and Medical Education Department, provides for 3rd time bound promotion in the pay scale of Rs. 4100-5300 (Pre-revised) in favour of serving Doctors of the Health Department including Dental Surgeons/Specialists, who have put in five years in pre-revised grade of Rs. 3000-5000/-, i.e., 20 years cumulative service. Order No. 388-HME of 2005, dated 30.06.2005 issued by J&K Health and Medical Education Department, provides for 3rd time bound promotion in the pay scale of Rs. 4100-5300 (Pre-revised) in favour of serving Doctors of the Health Department including Dental Surgeons/Specialists, who have put in five years in pre-revised grade of Rs. 3000-5000/-, i.e., 20 years cumulative service. Since the benefit of 3rd time bound promotion was restricted to only serving doctors and aggrieved of which the retired doctors, who have put 20 years service, approached the Government and their grievances were redressed by issuance of Corrigendum to Govt. Order No. 388-HME of 2005, dated 30.06.2005. In terms of the said corrigendum the words "Serving Doctors" were replaced by the words "Eligible Doctors". Thus, after issuance of said corrigendum, the retired doctors of Health and Medical Education Department, who have put five years service in the pay scale of Rs. 3000-5300 (pre-revised), were also given the benefit of 3rd time bound promotion. In case of ISM doctors, the benefit of 3rd time bound promotion was not sanctioned, which compelled one of retired ISM doctors to approach the Court through the medium of SWP No. 1230/2005, which was disposed of vide Order dated 08.03.2007, whereby respondents were directed to consider his claim for grant of 3rd time bound promotion along with all consequential benefits. The Govt., has complied with the said directions of the Court in contempt petition bearing No. 118/2005 and passed Govt. Order No. 242-HME of 2008, dated 31.12.2008, whereby the benefit of 3rd time bound promotion was sanctioned in the pay scale of Rs. 4100-5300 (Pre-revised) in favour of eligible ISM doctors of Indian System of Medicine Department, who have put five years service in the pre-revised grade of Rs. 3000-5000/-. 4. Learned counsel for the petitioners submitted that Veterinary doctors being similarly situated and deprived of the benefit of 3rd time bound promotion, filed representation but the respondents delayed the matter on one pretext or the other and ultimately, Govt. Order No. 3-ASH of 2010, dated 01.01.2010 came to be issued, which provided for grant to 3rd time bound promotion to the eligible Veterinarians, who have rendered 20 years of cumulative service to the pre-revised pay scale of 14300-18300 revised to 37400-67000 with grade pay of Rs. 8700 at par with Assistant Surgeons of Health Department. Order No. 3-ASH of 2010, dated 01.01.2010 came to be issued, which provided for grant to 3rd time bound promotion to the eligible Veterinarians, who have rendered 20 years of cumulative service to the pre-revised pay scale of 14300-18300 revised to 37400-67000 with grade pay of Rs. 8700 at par with Assistant Surgeons of Health Department. Thus all the eligible Veterinarians, who had rendered 20 years of cumulative service were entitled for the said benefits but unfortunately vide communication No. ASH/Coord-57/08, dated 01.01.2010 it was clarified that the effect of aforesaid Govt. Order dated 01.01.2010 takes effect from the date of issue of order unless it is expressly provided otherwise. Retired Veterinarians of Animal and Sheep Husbandry Department felt aggrieved of the action of respondents and thus approached the respondents by filing representation. 5. The cumulative effect of above is that the members of Gazetted Service of Animal/Sheep Husbandry Department, who have put in 20 years cumulative service much before 01.01.2010 have been denied the benefit of 3 time bound promotion from the date they have completed 20 years of service and they have been brought at par with those who completed the requisite period after 01.01.2010. Aggrieved of not conferring the benefit of 3rd time bound promotion in favour of petitioners they filed various writ petitions before the Court thereby seeking 3rd time bound promotion, but the respondents with total non application of mind to the facts and law of the case rejected the claim of petitioners vide orders impugned bearing Govt. Order No. 228-ASH of 2013, dated 03.09.2013 and Govt. Order No. 12-ASH of 2014, dated 31.01.2014. Being aggrieved of these orders, this petition has been filed. 6. Respondents have filed the objections. It would be helpful to reproduce paragraphs 11 and 12 of the objections as under:- "11-12 That in reply to the para 11-12, it is submitted that the Veterinarians were brought under the scheme of time bound promotion vide SRO 43, dated 17.02.2004 where under, it was ordered that the Veterinarians with more than ten years service in respect of BVSCs and 7 years in respect of post graduate shall be granted 1st time bound promotion from their respective scales they are holding and placed in the pay scale of Rs. 10000-15200 and shall continue to carry the designation of placed in the pay scale of Rs. 10000-15200 and shall continue to carry the designation of placed in the pay scale of Rs. 12000-16500 from the existing the post of the they hold. Similarly such veterinarians with cumulative 15 years shall be granted 2nd time bound promotion and pay scales they are holding. The Finance Department vide its O.M. No. A/98 (200D-1159, dated 17.11.2005 clarified that the SRO 43 of 2004, dated 17.02.2004 is applicable with effect from 01.01.1996 notionally and monetarily from 17.02.2004 with the clarification that the notional application of time bound promotion allowed for serving Vets who have retired during this period as pension is based on average of last ten months emoluments actually drawn as per Article 242 of J&K CSR, Vol. 1 conveyed vide O.M. No. A/98 (200D-243, dated 24.08.2006. Since Health and Medical Education Department granted 3rd time bound to its doctors, the respondents took up the matter with the Finance Department for granting of 3rd time bound promotion to the veterinarians also. The Finance Department conveyed the following agreement: "Finance Department conveys agreement to the grant of dispensation of 3rd time bound promotion to the eligible veterinarians in the pre-revised pay scale of Rs. 14300-18300 revised to 37400-67000 with grade pay of Rs. 8700 at par with Assistant Surgeons of Health Department subject to the approval of competent authority". On the basis of concurrence of the Finance Department, Veterinarians of Animal/Sheep Husbandry Department were also granted 3rd time bound promotion vide Govt. Order No. 3-ASH of 2010, dated 01.01.2010 read with letter No. ASH/Coord-57/08, dated 01.01.2010. It is further submitted that after receiving representation from the retired Veterinarians, the Department again took up the matter with the Finance Department for granting retrospective effect of the time bound promotion. The finance department in turn observed as under:- "The department proposal pursuant to any Finance Department's concurrence takes effect from the date of its issue unless, it is expressly provided otherwise. Thus giving of any other benefit retrospectively not available in terms of the said concurrence and subsequent Govt. order does not arise. As such, Finance Department conveys regrets to the Departmental proposal". After receipt of a number of petitions in the matter, the Department again took up the matter with the Finance Department for re-consideration. However, the Finance Department in turn observed as under :- "The Departmental proposal has been re-examined in the Finance Department. order does not arise. As such, Finance Department conveys regrets to the Departmental proposal". After receipt of a number of petitions in the matter, the Department again took up the matter with the Finance Department for re-consideration. However, the Finance Department in turn observed as under :- "The Departmental proposal has been re-examined in the Finance Department. It is considered view of the Finance Department that financial service benefits are not available retrospectively against Finance Department's concurrence and subsequent Government orders unless it is expressly mentioned otherwise. Therefore, the department is advised to proceed administratively against the departmental Officers who are responsible for drawl of monetary benefits retrospectively and rescind their Drawing and Disbursing Powers as well". It is further submitted that the Administrative Department vide communication dated 01.01.2010 has already cleared that the Govt. Order No. 03-ASH of 2010, dated 01.01.2010 will take effect from the date the same has been issued. The 3rd time bound promotion to the Assistant Surgeons of Health Department have been granted from the date they have completed the requisite service, the petitioners have no right to claim the similar treatment because the petitioners are governed by the different service rules. The Health Department and Animal/Sheep Husbandry Department constitute different services and are governed by different set of rules. Not only that the qualification prescribed for the posts are different and mode of recruitment is also governed by their own service rules. Thus, the retired Veterinarians of the Animal Sheep Husbandry Department cannot claim any similar treatment as has been granted to the Assistant Surgeons of the Health Department. Thus, the petitioners are entitled to the benefits of 3rd time bound promotion from the date of issuance of Govt. Order and not from any retrospective date." 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the respondents argues that petitioners have no right to claim similar treatment as has been given to the doctors of Allopathic and Indian System of Medicine because both of them constitute different services respectively and are governed by different set of rules, thus, the retired Veterinarians of Animal/Sheep Husbandry Department cannot claim any similar treatment as has been granted to Assistant Surgeons of Health Department and Medical Officers of ISM Department. Learned counsel further submits that since the pension is based on the last ten months emoluments, the Finance Department has conveyed that effect of Government order takes place from the date of its issuance. 9. To refute the arguments of respondents, learned counsel for the petitioners vehemently argues that right of equality as envisaged under the Constitution of India is hallmark of fundamental rights and State and its functionaries cannot be allowed to discriminate between its similarly placed employees. Learned counsel for petitioners strenuously argued that even petitioners' case is on better footing than those of Allopathic and Ayurvedic doctors. He invited the attention of the Court to Govt. Order No. 388-HME of 2005, dated 30.06.2005, by virtue of which 3rd time bound promotion was sanctioned in favour of serving doctors of Health Department (including Dental Surgeons/Specialists) but by virtue of Corrigendum to Govt. Order No. 388-HME of 2005, dated 30.06.2005 (Annexure-G), which was issued on 29.07.2005, the words "serving doctors" were substituted by "eligible doctors" and while sanctioning 3rd time bound promotion in favour of Veterinarians by virtue of Govt. Order No. 3-ASH of 2010, dated 01.01.2010, the sanction was granted to dispensation of 3rd time bound promotion to the eligible Veterinarians, who have rendered 20 years of cumulative service at par with Assistant Surgeons of Health Department. The said order was issued with concurrence of Finance Department conveyed vide their U.O. No. A/98(01)-465, dated 14.12.2009. Thus, when order dated 01.01.2010 itself mentions that eligible doctors, who have rendered 20 years of cumulative service, are entitled to benefit of 3rd time bound promotion at par with Assistant Surgeon, then there is no reason why the said benefit is not given to the retired Veterinarians, who were not in active service when the said order was passed. Moreover, the said order was passed after concurrence of Finance Department. Had there been the intention of giving the benefit only to serving Veterinarians, then it would have been specifically mentioned that serving Veterinarians are eligible for the said benefit rather than using the expression "eligible doctors". The benefit of 3rd time bound promotion has also been given to the retired ISM doctors pursuant to Contempt Petition bearing No. 118/2005, filed by Dr. H.N. Patwari v. State of J&K and Ors. Reliance is also placed on judgment dated 08.03.2007 passed by this Court in SWP No. 1230/2005, titled H.N. Patwari v. State (Annexure-H). The benefit of 3rd time bound promotion has also been given to the retired ISM doctors pursuant to Contempt Petition bearing No. 118/2005, filed by Dr. H.N. Patwari v. State of J&K and Ors. Reliance is also placed on judgment dated 08.03.2007 passed by this Court in SWP No. 1230/2005, titled H.N. Patwari v. State (Annexure-H). In that case, retired doctors of ISM approached this Court for grant of 3rd time bound promotion on the analogy of their counterparts in Allopathic System of Medicine and this Court vide order dated 08.03.2007 directed respondents to consider their case and vide Govt. Order No. 242-HME of 2008, dated 31.12.2008 (Annexure-F) sanction was accorded to grant of 3rd time bound promotion in favour of eligible ISM doctors. The said order was passed with concurrence of Finance Department vide their U.O. No. A/29(9c) III-417, dated 19.11.2008. Pursuant to said order, retired ISM doctors have got the benefit of 3rd time bound promotion and in this regard reliance can be placed on order dated 11.12.2008 and 17.04.2009 (Annexure-II). The Finance Department has already given concurrence to the benefit of 3rd time bound promotion to retired Allopathic and ISM doctors, as such, no contrary view could be allowed to be taken in case of retired Veterinarians. So far as contention of respondents regarding fixation of pension on the basis of last ten months' emoluments is concerned, it is devoid of any force as pension is not something, which cannot be revised. Even after 5th and 6th pay revisions, whereby the pay scales were revised from retrospective dates, the pensions were also revised. There is no legal justification in rejecting the case of the petitioners on the ground that they constitute different service and are governed by different set of rules than Allopathic and ISM doctors. The instant matter pertains to 3rd time bound promotion and the recruitment rules have nothing to do with regard to present controversy. When the Cabinet has already accorded parity to the Veterinary doctors with Assistant Surgeons/ISM doctors and induction of time bound scheme to Veterinary Assistant Surgeons on the same lines as available to Assistant Surgeons/ISM of Health Department, then not conferring the benefit of 3rd time bound promotion to the retired Veterinarians would amount to illegal, arbitrary and hostile discrimination. 10. When the Cabinet has already accorded parity to the Veterinary doctors with Assistant Surgeons/ISM doctors and induction of time bound scheme to Veterinary Assistant Surgeons on the same lines as available to Assistant Surgeons/ISM of Health Department, then not conferring the benefit of 3rd time bound promotion to the retired Veterinarians would amount to illegal, arbitrary and hostile discrimination. 10. Viewed thus, this writ petition is allowed and orders impugned bearing No. 12-ASH of 2014, dated 31.01.2014 and 228-ASII of 20.13, dated 03.09.2013 are declared unsustainable under law and are, thus, set aside. The respondents are directed to accord benefit of 3rd time bound promotion in favour of petitioners from the date they completed 20 years of cumulative service. Let needful be done within a period of three months from the date a copy of this judgment is served upon the respondents by the petitioners. 11. Disposed of as above along with connected MP(s).