J&K Veterinary Doctors Association v. State of J&K
2017-10-12
SANJEEV KUMAR, TASHI RABSTAN
body2017
DigiLaw.ai
ORDER : Tashi Rabstan, J. 1. In the year 1998 Notification/SRO 18 dated 19th January 1998 was issued. The SRO was called J&K Civil Services (Revised Pay) Rules, 1998 (for brevity "Rules of 1998"). The Rules of 1998 revised the pay scale of persons appointed to Civil Services and posts in connection with the affairs of the State including those paid from contingencies or charged to works whose pay was debitable to the Consolidated Fund of the State including those on deputation to other Governments/Organisation. However, Rules of 1998 did not apply to members of All India Services, persons to whom the J&K Civil Services Government Degree Colleges (UGC Pay) Rules, 1991, persons not in whole-time employment, persons paid otherwise than on monthly basis including those paid on piece rate basis, persons whose services were obtained on deputation, persons employed on contract basis except where contract provides otherwise, posts which carry consolidated rate of pay. 2. In terms of Notification/SRO 43 dated 17th February 2004, amendment in Rules of 1998 was made, by inserting Annexure-I, in the following manner: "(I) The existing posts of VAS in the scale of Rs. 7500-12000 are upgraded to the scale of Rs. 8000-13500. Consequently all the VAS in the Sheep & Animal Husbandry Department with less than 10 years service with BVSC & AH degree and 7 years service with P.G. Degree shall be placed in the pay scale of Rs. 8000-13500. All fresh recruitment to these posts shall be made in the pay scale of Rs. 8000-13500. (II) Such of the VAS/LDOs/PDOs/SDO or equivalent and Deputy Directors DSHOs or its equivalent with more than 10 years service in respect of BVSC's and more than 7 years service in respect of post graduates shall be granted 1st time bound promotion from their respective scales these are holding and placed in the pay scale of Rs. 10000-325-15200. They shall be designated as VAS Grade-II or shall continue to carry the designation of the post they hold. (III) Such of the VAS/LDOs/PDOs/SDO are equivalent and Deputy Director DSHOS or its equivalent with cumulative 15 years service shall be granted 2nd time bound promotion scale placed in the pay scale of Rs. 12000-16500 from the existing pay scale they are holding. Such of the VAS shall be designated as VAS grade-1 or shall retained the existing designation of the post they are holding.
12000-16500 from the existing pay scale they are holding. Such of the VAS shall be designated as VAS grade-1 or shall retained the existing designation of the post they are holding. The pay in respect of upgradation of posts of VAS shall be made as per 77-a(ii) however the benefit of Art. 77-B shall be available at the time of granting 1st and 2nd time bound promotion from the existing scale. Illustration is given as annexure "X" to this notification...." 3. By above amendment in Rules of 1998, posts of Veterinary Assistant Surgeons (VAS), were upgraded from pay scale of Rs. 7500-12000 to Rs. 8000-13500 and as a consequence VAS with less than 10 years' service having BVSC and AH Degree and those having 07 years' service with P.G. Degree were placed in the pay scale of Rs. 8000-13500 and all fresh appointments to the posts of VAS were to be made in the pay scale of Rs. 8000-13500. Qua VAS/LDOs/PDOs/SDO or equivalent and Deputy Directors DSHOs or its equivalent having more than 10 years' service in BVSCs and more than 07 years' service in respect of Post Graduates were to be granted 1st time bound promotion from their respective scales, which they were holding and placed in the pay scale of Rs. 10000-325-15200, and they were designated as VAS Grade-II. Likewise, VAS/LDOs/PDOs/SDO or equivalent and Deputy Director DSHOS or its equivalent with cumulative 15 years' service were granted 2nd time bound promotion scale, placed in the pay scale of Rs. 12000-16500. The pay regarding upgradation of posts of VAS was to be made as per 77-a(ii), but the benefit of Article 77-B was available at the time of granting 1st and 2nd time bound promotion. In addition to this, cut-off date for computation of number of years for aforesaid scheme was the date of issue of aforesaid notification and 31st March each year for future and in such computation, the number of years spend by Doctors on particular post in ad hoc capacity except at the entry level was also to be taken in account. Upgradation under aforementioned scheme was purely personal to Veterinarians and was having no relevance to seniority position and the scheme would not have any bearing on inter se seniority of doctors in a particular class/category.
Upgradation under aforementioned scheme was purely personal to Veterinarians and was having no relevance to seniority position and the scheme would not have any bearing on inter se seniority of doctors in a particular class/category. However, clarification was issued by Finance Department, J&K, vide O.M. No. A/98(2001)-1159 dated 17th November 2015 that extension of Time Bound Promotion Scheme to Veterinarians would be applicable from 1st January 1996, notionally and monetarily from 17th February 2004. 4. The above benefit of time bound promotions to Veterinarians was vouchsafed on the same lines as to doctors of Medical/ISM Department. The doctors of Veterinary Department were granted two steps: first at the stage of 10 years and 2nd at 15 years of cumulative service vide SRO 43 and OM No. A/98(2001)-115 dated 17th November 2005 on a par with doctors of Medical/ISM Department. In terms of Cabinet Decision, maintaining parity of Veterinarians with doctors of Medical/ISM Department, 3rd time bound promotion in favour of Veterinarians was sanctioned vide Government Order No. 3-ASH of 2010 dated 1st January 2010 having a cumulative service of 20 years. However, it was subsequently conveyed vide letters No. ASH/Coord-57/08 dated 1st January 2010; No. ASH/Coord-57/08 dated 26th October 2010 and No. ASH/Coord-57/08 dated 23rd May 2011, that benefit percolating from Government Order No. 3-ASH of 2010 dated 1st January 2010, would take effect from the date of its issuance. Petitioners are, therefore, aggrieved of restriction of Government Order No. 3-ASH of 2010 dated 1st January 2010, granting 3rdtime bound promotion in favour of members of petitioner Association, from 1st January 2010, instead of the date on which the Veterinarian completes 20 years cumulative service as in Medical/ISM department and, therefore, knock at portals of this Court with writ petition on hand, seeking following relief: "(a) That it be declared that Government Order No. 3-ASH of 2010 dated 1st January 2010 does not disentitle the members of the Animal and Sheep Husbandry Gazetted Service, who have completed 20 years of cumulative service before 1st January 2010, from claiming the benefit of third time bound promotion as from the date 20 years are completed by such member of the service.
In the alternative it is submitted that if the Government Order restricts its application as from 1st January 2010 and provides that the third time bound promotion will be released only after the said date in respect of the members of the service who have completed 20 years of cumulative service before that date, the same be quashed by issuance of appropriate writ direction or order including a writ in the nature of certiorari/mandamus being discriminatory and violative of Constitution and the law. (b) That by an appropriate writ, direction or order including a writ in the nature of prohibition respondents be restrained from recovering any amount from the officers who have drawn third time bound promotion as from the date they completed 20 years of service and the respondents be also restrained from withdrawing, drawing and disbursing powers from such officers. (c) By an appropriate writ, direction or order including a writ in the nature of mandamus respondents be directed to release the emoluments due to the officers with all consequential benefits as from the date each officer completes 20 years of cumulative service in Animal/Sheep Husbandry Gazetted Service. It is further prayed that the communication No. ASH/Coord-57/08 dated 1st January 2010, No. ASH/Coord-57/08 dated 26th October 2010 and No. ASH/Coord-57/08 dated 23rd May 2011 be also quashed." 5. Reply has been filed by respondents vehemently resisting the writ petition. 6. I have heard learned counsel for parties and considered the matter. 7. In the year 1988, a Scheme was introduced by the J&K Government to grant Time Bound Promotion in favour of doctors of Health Services Department and for that matter an order bearing Government Order No. 595-HME of 1988 dated 22nd July 1988 was issued. Thereafter, doctors of Indian System Medicine wing sought parity with doctors of Allopathic Wing. Their plight was addressed to and grievances remedied by Government Order No. 493-HME of 1999 dated 5th October 1999, removing disparity between doctors of Indian System Medicine Wing and doctors of Allopathic Wing as also introducing scheme of Time Bound Promotion for doctors in ISM Department. The benefit of Time Bound Promotion on the lines of Allopathic doctors was also implored for by Veterinarians of Animal and Sheep Husbandry Departments, which was granted vide aforementioned SRO 43 dated 17th February 2004. 8.
The benefit of Time Bound Promotion on the lines of Allopathic doctors was also implored for by Veterinarians of Animal and Sheep Husbandry Departments, which was granted vide aforementioned SRO 43 dated 17th February 2004. 8. The J&K State Government through Health & Medical Education Department vide Government Order No. 388-HME of 2005 dated 30th June 2015, in continuation to earlier Government Order No. 595-HME of 1988 dated 22nd July 1988, has granted 3rd Time Bound Promotion as well, in favour of doctors of Health Department including Dental Surgeons/Specialists. Not only Allopathic doctors, but doctors of Indian System of Medicines Department have also been given 3rd Time Bound Promotion vide Government Order No. 242-HME of 2008 dated 31st December 2008. It is pertinent to mention here that Allopathic doctors and ISM doctors are two different cadres and categories; they have different departments; they have separate seniorities; they have separate Service Recruitment Rules. But both of them (services), or for that matter present Veterinarians or persons appointed to Civil Services and posts in connection with the affairs of the State including those paid from contingencies or charged to works whose pay was debitable to the Consolidated Fund of the State including those on deputation to other Governments/Organisation, are governed and regulated by J&K Civil Service Regulations inasmuch as they received the benefits (revised pay) according to supra mentioned SRO 18 dated 19th January 1998 as also have been given benefits of pay revisions as granted thereafter to other/all State Government employees. So has been given and received by the Veterinarians of Animal and Sheep Husbandry Department. Therefore, Veterinarians of Animal and Sheep Husbandry Department (petitioners herein) cannot be singled out and denied the benefit of 3rd Time Bound Promotion that is being given to similarly situated persons. This Court has vide judgment dated 19th February 2016 in SWP No. 601/2014 titled Dr P.K. Abrol and others v. State of J&K and others, of which I am author, has set at rest the whole controversy raised in present petition. 9. Apart from above discussion, it may be mentioned that when the Government deals with public related matters even in distribution of bounty, the democratic form of Government exacts equivalence and absence of arbitrariness and discrimination. The government actions have a public element and, therefore, there should be fairness and equality in all provinces of the society.
9. Apart from above discussion, it may be mentioned that when the Government deals with public related matters even in distribution of bounty, the democratic form of Government exacts equivalence and absence of arbitrariness and discrimination. The government actions have a public element and, therefore, there should be fairness and equality in all provinces of the society. The State need not to venture into any such accord having discriminatory ramifications on other set of stratum. It may not be out of place to mention here that Article 14 of the Constitution of India strikes at arbitrariness in the State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory; it must not be guided by any extraneous or irrelevant considerations, for, that would be denial of equality. Principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is protected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. This proposition, as held by the Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India and Others reported in 1979 (3) SCC 48, would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving job so entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion or the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc.
The power or discretion or the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can he shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. 10. It has been repeatedly held that even in the matter of granting largesse, Government has to act fairly and without even any semblance of discrimination. Law on this subject has been very clearly laid down by the Supreme Court in Ramana Dayaram Shetty case (supra). A three-Judge Bench of the Supreme Court in the said decision has recognized that the Government, in a welfare State, is in a position of distributing largesse in a large measure and in doing so the Government cannot act at its pleasure. The Supreme Court, perusing the new jurisprudential theory of Professor Reich in his article on the "The New Property" (73 Yale Law Journal 733), accepted the following dictum contained therein: "The government action be based on standards that are not arbitrary and unauthorized." 11. The Supreme Court explained the purport of the aforesaid formulation by holding: "The government cannot be permitted to say that it will give jobs or benefits only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith or practising a particular or special activity. The government is still the government when it acts in the matter of granting largesse, and it cannot act arbitrarily. It does not stand in the same position as a private individual." 12. The aforesaid dictum in Ramana (supra) is being still followed by the Courts as the correct exposition of law and has been subsequently followed in many other decisions. Further to say here that whenever any governmental action fails to satisfy the test of reasonableness and public interest, it is liable to be struck down as invalid. A necessary corollary of this proposition is that the Government cannot act in a manner which would benefit a particular set of persons or party.
Further to say here that whenever any governmental action fails to satisfy the test of reasonableness and public interest, it is liable to be struck down as invalid. A necessary corollary of this proposition is that the Government cannot act in a manner which would benefit a particular set of persons or party. Such an action will be contrary to public interest. 13. For all what has been stated and discussed above, members of petitioner Association are entitled to third time bound promotion, who have completed 20 years of cumulative service before 1st January 2010 and any order or communication issued by respondents, denying third time bound promotion to members of petitioner Association, are declared unsustainable in law and accordingly set-aside. 14. As a corollary, writ petition is allowed. Respondents are directed to accord benefit of Third Time Bound Promotion in favour of members of petitioner Association 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. 15. Disposed of as above along with connected MP(s). Sanjeev Kumar, J. 16. I pronounce this judgment under Rule 138(3) of J&K High Court Rules, 1999.