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2017 DIGILAW 997 (JK)

Nisar Ahmed v. State of J&K

2017-11-10

SANJEEV KUMAR

body2017
ORDER : Sanjeev Kumar, J. 1. The petitioners in both these writ petitions are similarly situated and are aggrieved of the issuance of revised LPC issued by respondent No. 4 as also of the direction of respondent No.4 to effect recovery from the petitioners. Also, the issue raised in both these writ petition is same touching upon the interpretation of Article 77-D of the Jammu & Kashmir Civil Services Regulation, 1956, therefore, both the petitions have been taken up together. 2. With the consent of learned counsel for the parties, both the writ petitions are admitted and taken up for final disposal. 3. Briefly stated, the facts of the case are that the petitioners in SWP No. 2645/2012 were substantively holding the posts of Lecturer in School Education Department and Assistant Surgeon (Veterinary Surgeon) in Animal Husbandry Department respectively in the State Government when they applied for Combined Competitive Examination conducted by the Jammu & Kashmir Public Service Commission. Similarly, the petitioners in SWP No. 2609/2012 were holding the posts of Lecturers in School Education Department, when they too applied for the Combined Competitive Examination. All the petitioners, as averred in the petitions, were selected by the Jammu & Kashmir Public Service Commission and were subsequently appointed as Dy. SPs in the Jammu & Kashmir Police. Salary of the petitioners on their new appointment as Dy. SPs in the police department was fixed taking into consideration the pay and salary, which they were receiving while working on their posts substantively prior to their appointment as Dy. SPs and thus, protected under the provisions of Article 77-D of the Jammu & Kashmir Civil Service Regulations, 1956. As claimed by the petitioners, grade attached to the post of Dy. SP is lower than the grade in which the petitioners had been working prior to their new appointment. Therefore, their salary on the new post of Dy. SP was, accordingly, fixed by giving pay protection by strictly adhering to Article 77-D of CSR. The grievance of the petitioners in the instant writ petition is that respondent No. 4 without providing them an opportunity of being heard and without any cogent reasons unilaterally revised their LPCs and thus, reduced their salary with retrospective effect. SP was, accordingly, fixed by giving pay protection by strictly adhering to Article 77-D of CSR. The grievance of the petitioners in the instant writ petition is that respondent No. 4 without providing them an opportunity of being heard and without any cogent reasons unilaterally revised their LPCs and thus, reduced their salary with retrospective effect. It is urged that not only their salary was reduced by misinterpretation of Article 77 of CSR but a direction was also issued for effecting recovery from the salary of the petitioners. In the context of aforesaid grievance, the petitioners have filed these writ petitions. 4. Before proceeding further to take note of the brief grievance projected by the petitioners in these writ petitions, it would be appropriate to notice the relevant provisions of the Jammu & Kashmir Civil Service Regulations, 1956, which provide for pay protection to the government servants, who have been appointed to another service/cadre or department on direct recruitment basis. Article 77-D of J&K CSR, which is relevant for the purposes, may be reproduced as under:- "77-D. Fixation of pay in case of direct recruits (i) Notwithstanding anything contained in these rules, the following provision shall govern the pay of a Government servant who is appointed to another service/cadre or department on direct recruitment basis:- (a) He shall draw pay at the minimum of the time scale or at the probationary stage of the time scale of the service/or post as the case may be: Provided that where a Government servant has immediately before such appointment been holding a post in a substantive capacity and was drawing pay therein equal to or more than the minimum of the time scale of the service/post his initial pay at the time of his appointment to the new service/post shall be regularized under Art. 77(a)(ii) read with Art. 67(a)(ii): Provided further that in respect of the Government servant who immediately before such appointment has been holding a post in an officiating capacity and has been drawing his presumptive pay equal to or higher than the minimum of the time scale, his initial pat at the time of his appointment to the new service/post shall be regularized under Art. 77(a)(ii) treating his presumptive pay as substantive pay for purposes of such fixation alone. He shall not however be allowed the benefit of Art. 67(a)(ii): Provided also that the benefit of this rule shall not be available to a person who at the time of his appointment to the new service/post was holding a post on ad hoc basis or was working against a leave/suspension or any other short term vacancy. Provided also that the benefit of this rule shall not be available to a person who is appointed to a lower post in another service/cadre or department on direct recruitment basis. For this purpose a post in another department shall be considered to be a lower post if two factors out of three in the pay scale go down on the analogy of Note 2 below Art. 66. [Exception: In respect of an in-service Government Officer who is inducted into KAS against technical quota from any other service in terms of Rules 5(1)(c) of J&K Administrative Service Rules, 1979, such induction shall not mean appointment to a lower post for fixation of pay in time scale of KAS regardless of the pay scale enjoyed by such officer in his previous service.] (b) After fixing the initial pay under (a) above, drawal of next increment or any subsequent increment or increments during the period of probation and fixation of pay on confirmation after completion of the period of probation shall be regulated in accordance with the rules relating to the service/department in which appointment has been made. (ii) The provisions contained in sub-rule (i) shall apply mutatis mutandis to case of Government servant appointed on probation (on trial) with definite conditions against temporary posts in another service/department where recruitment to permanent posts of such service/department is made as probationers except that in such cases the fixation of pay in the manner indicated in clause (i)(a) shall be done under Art. 67(a)(i). (iii) The benefit of protection of pay as indicated above shall not in any case entitle the Government servants concerned to draw the joining time pay and/or transfer on tour T.A. for joining the new post. The transit or preparation days if any involved in such cases shall be treated as leave whatever kind due except casual leave. Pending cases, if any on the date of issue of these orders shall be decided accordingly. The transit or preparation days if any involved in such cases shall be treated as leave whatever kind due except casual leave. Pending cases, if any on the date of issue of these orders shall be decided accordingly. Note:-In service teachers who are appointed as lecturers (direct recruits) in between August, 1969 and July, 1974 and who on such appointment were allowed pay at the minimum of lecturers grade, will have their pay refixed under the provisions of Article 77-D (1), [subject to the condition that arrears will be payable w.e.f. 18.07.1974 i.e. the date of issue of SRO-346 dated 18.07.1974 or from the date they have taken over as such whichever is later.]" 5. From the perusal of Article 77-D, it is abundantly clear that the pay of a government servant, who is appointed to another service/cadre or department on direct recruitment basis is to be regulated by elaborate provisions contained in Article 77-D, which unequivocally provides that such direct recruit shall draw the pay at the minimum of the time scale or at the probationary stage of the time scale of the service or post as the case may be. This general rule under Article 77-D(a) is subject to the proviso, which provides that where a Government servant has immediately before such appointment been holding a post in a substantive capacity and was drawing pay therein equal to or more than the minimum of the time scale of the service/post his initial pay at the time of his appointment to the new service/post shall be regulated under Article 77(a)(ii) read with Article 67(a)(ii). 6. With a view to appreciate the manner in which the pay of such direct recruit is to be regulated, relevant provisions of Article 77 and Article 67 need to be noticed. Article 77(a)(ii), reads thus:- "77. Initial pay The initial substantive pay of a Government servant who is appointed substantively to a post on a time scaled of pay is regulated as follows:- (a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended:- (i) ... ... ... ... ... ... ... (ii) When appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage, the stage next below that pay plus personal allowance equal to the different, and in either case will continue to draw that pay until such time as he would have received an increment in the time scale of the old post or for the period after which in increment is earned in the time scale of the new post, whichever is less. But if the minimum pay of the time scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay;" Article 67(a)(ii) of J&K CSR reads thus:- "67. Pay on a officiating post (a)(i)... ... ... ... ... ... . (ii) On an enhancement in the substantive pay, as a result of increment or otherwise, the pay of such Government servant shall be refixed under sub clause (i) of this clause from the date of such enhancement as if he was appointed to officiate in that post on that date where such refixation is to his advantage: Provided that the provision of Art. 77-B shall not be applicable in the matter of refixation of pay under clause (ii) above." 7. From a bare reading of Article 77-D as reproduced herein above, it is abundantly clear that in case of a government servant, who is appointed to another service/cadre of department by direct recruitment, the pay shall be regulated by Article 77(a)(ii), which unequivocally provides that such direct recruit would draw his initial pay the stage of the time scale, which is equal to his substantive pay in respect of the old post and if there is no such stage corresponding to the stage on which such employee was drawing his salary on the old post, the stage which is next below that pay plus personal allowance equal to the difference shall be taken for fixation of such salary on the new post. This arrangement would continue till the employee would have received increment in the time scale of the old post or for the period after which the increment is earned in the time scale of the post, whichever is less. In short, Article 77-D (i)(a) read with Article 77(a)(ii) provides for pay protection of a government servant, who is appointed to another service/cadre or department on direct recruitment basis and the manner in which such pay protection is to be accorded has been elaborately provided in the in the aforesaid provision. If the Government servant immediately before his direct recruitment to the new post is holding the post in substantive capacity and is drawing the pay equal to or more than the minimum of the time scale of the new post then his initial pay has to be fixed at the stage of the time scale, which is equal to his substantive pay in respect of the old post. It is only, if no such corresponding stage in the time scale of new post is available then the stage next below plus the personal allowance, which would be equivalent to the difference would be allowed to such government servant. 8. In the backdrop of aforesaid legal position the facts of the case may be examined. The petitioners before their direct recruitment as Dy. SPs in the State Police Department were holding the posts in the School Education Department and Animal Husbandry Department of the State in substantive capacity and the petitioners have claimed that they were holding the pay scale in their previous departments, which was higher than the pay scale of the Dy. SPs in the police department. It is specifically pleaded in the writ petitions that the petitioners in the previous departments while holding the post of Lecturers in the School Education Department and Veterinary Surgeon in the Animal Husbandry Department, were getting the pay in the Rs. 9300-34800 plus grade pay of Rs. 5400/- whereas the post of Dy. SP against which the petitioners were subsequently appointed carriers the pay scale of Rs. 9300-34800 with grade pay of Rs. 4800/-. It is, thus, contended that the pay of the petitioners was required to be fixed at the stage of the time scale of the post of Dy. 9300-34800 plus grade pay of Rs. 5400/- whereas the post of Dy. SP against which the petitioners were subsequently appointed carriers the pay scale of Rs. 9300-34800 with grade pay of Rs. 4800/-. It is, thus, contended that the pay of the petitioners was required to be fixed at the stage of the time scale of the post of Dy. SP and as a matter of fact the respondents at the time of their fixation of salary had initially fixed the same by strictly adhering to the provisions of Article-77-D(a) and the proviso appended thereto but by virtue of the impugned revised LPCs, the same has been revised to the detriment of the petitioners. 9. It is contended by the learned counsel for the petitioner that the revision of petitioners' salary is not in consonance with the provisions of Article 77-D and the therefore, same cannot sustain nor the recoveries as ordered by respondent No. 4 could be effected from the salary of the petitioners. 10. Per contra, learned counsel appearing for the respondents has justified the revision of the salary of the petitioners by submitting that due drawn statements, which are appended with Objections as annexure R-1 to R-4 are self explanatory. It was submitted by the respondents that the tabulated format prepared by the respondents explains the basic pay that the petitioners were drawing as well as what was the basic pay due to them. It also shows the dues in the negative. It is, thus, submitted that the petitioner had been drawing their salary in excess than what was due to them. It is urged that the pay of the petitioners, which they were receiving in their previous employment has been fully protected by granting them personal pay and this has been done by the respondents in consonance with Article 77-D of J&K CSR. 11. Heard learned counsel for the parties and perused the record. 12. From the submissions made by the learned counsel for the parties, it is abundantly clear that there is no dispute with regard to the fact that the petitioners prior to their appointment as Dy. SPs in the police department, were holding the post or lecturers in school education department and Veterinary Surgeon in Animal; Husbandry Department, as already stated herein above, were receiving their salary in the pay scale which was higher than the pay scale of Dy. SPs in the police department, were holding the post or lecturers in school education department and Veterinary Surgeon in Animal; Husbandry Department, as already stated herein above, were receiving their salary in the pay scale which was higher than the pay scale of Dy. SP in the police department. It is also denied by the respondents that in view of the aforesaid fact the petitioners were entitled to pay protection as envisaged under Article 77-D of CSR. As a matter of fact, the respondents have categorically stated that the pay protection was extended to the petitioners not by fixing their pay in the stage of the time scale of the new post keeping in view the difference of pay which they were receiving in the previous posts but by way of granting them personal pay so that the pay which was received by the petitioners in their previous employment is not reduced. 13. Article 77-D and other relevant Articles of CSR, regulate fixation of salary/pay of the government servant appointed from one department to another government service/department on direct recruitment basis. I have also tried to explain the manner in which the provisions of Article 77-D (i)(a) and 77(a)(ii) are required to be understood. The pay protection, which is required to be granted to such employees, has reference to the stage in the pay scale in which such employees had been receiving their salary in their previous employment and fix the same at the stage of the time scale of the new post. It is only, if there is no corresponding stage of the time scale in the new post then the same can be fixed on the stage next below that pay but this has to be compensated by adjusting the personal pay. 14. That being the position, the stand of the respondents that pay protection was accorded to the petitioners by paying them personal pay so as to bring their salary at bar with the salary they were receiving in previous employment is not tenable as the same is not in consonance with the true import of Article 77-D of CSR. The respondents had correctly fixed the salary of the petitioners when they were first appointed as Dy. SPs on direct recruitment and therefore, the same did not call for any revision as has been done by the respondents. 15. The respondents had correctly fixed the salary of the petitioners when they were first appointed as Dy. SPs on direct recruitment and therefore, the same did not call for any revision as has been done by the respondents. 15. Learned counsel for the petitioner by way of MP also brought on record the re-fixation of pay of one Mr. Bashir Ahmed, Dy. SP, which was done by the respondents in the manner explained herein above. He has also placed on record the communication of the office of the Accountant General No. TM/S-1/2015-16/1065 darted 05.01.2016, a perusal whereof would indicate that the salary fixed in the case of Dy. SP Bashir Ahmed by way of pay protection has been accepted even by the office of Accountant General. 16. In view of the discussion made herein above, both these petitions are allowed. Accordingly, revised LPCs of the petitioners referred by respondent No. 4 by virtue of which the salary of the petitioners has been re-fixed and consequent recoveries ordered are quashed. Writ of mandamus is issued against the respondents to accord the pay protection to the petitioners in terms of Article 77-D(i)(a) read with Article 77(a)(ii) in the manner explained above. The respondents are further restrained from effecting any recovery from the petitioners on account of the impugned revised LPCs referred to by respondent No. 4.