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2018 DIGILAW 139 (JK)

Niyaz Ahmad Lone v. State

2018-03-07

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. 1. The case of the petitioner, as projected in the writ petition, is that he was appointed as a Conductor in the respondent-Committee. However, in terms of the directions of the respondent No. 4-Executive Officer, Municipal Committee, Budgam, he (the petitioner) discharged his duties as a driver. After working as a driver for about 02 years, his case was recommended to the respondent No. 2-Director, Urban Local Bodies, Kashmir, for confirmation against the post of driver and the respondent No. 2 vide his No. DULB/K/PS/ 37/2006, dated 11-05-2006, accorded sanction to such confirmation. 2. The petitioner has further stated that despite discharging the duties as a driver, the respondents have not, till date, released the pay and grade attached to the post of driver in his favour. It is further stated that although the case of the petitioner, for the release of pay and grade, was forwarded to the competent authority for approval yet no action has been taken on it so far and in the meanwhile, the petitioner has also qualified for promotion to the post of Grade (I) Driver, in terms of Rule 15 of the Jammu & Kashmir Civil Service (Revised Pay) Rules, 1998, which provides that the incumbent must be on the rolls of the State and must be holding the post on substantive basis and must have worked as Driver-Grade (II) for a period of 05 years. The petitioner has stated that he is having all the pre-requisites for being promoted to the post of Driver-Grade (I) and is entitled to get the salary accordingly. 3. In the objections, filed by the respondents, it is stated that the petitioner is working in the respondent-Department as driver in the grade of Rs. 3050-4910 and seeks promotion to the post of a chauffeur, which carries a pay scale of Rs. 5500-9000. The respondents have further stated that in terms of the Rules in vogue, the petitioner is not entitled to such grade, because the petitioner does not fulfill the criteria laid down and envisaged under the rules and, therefore, his case, for the release the of grade of chauffeur, cannot be considered and he cannot be allowed to march over such a post to the exclusion of his seniors and other similarly placed employees working in the respondent-Department. Respondents have further stated that on the basis of a mere recommendation and that too by an officer, not competent to do so, the case of the petitioner for being placed in the grade, attached to the post of chauffeur, cannot be considered. In the end, the respondents have prayed for the dismissal of the writ petition with costs. 4. Heard and considered. 5. Annexure (P1), attached to the petition, bears a testimony to the fact that, vide order dated 22-07-2002, the petitioner was appointed as a Conductor in the grade of Rs. 2550-3200 subject to confirmation by the Director, Local Bodies, Kashmir. Annexure (P2), attached to the petition, discloses that due to the attachment of one Shri Abdul Qayoom Khan, driver, the petitioner was directed to perform the duties of the driver of a Tractor on the strength of the driving license that he possessed for plying the Heavy Motor Vehicle. Annexure (P3) is a communication of the Executive Officer, Municipal Committee, Budgam, sent to the Director, Urban Local Bodies, Kashmir, with the request that the petitioner be confirmed against the post of the driver in the office of the Municipal Committee, Budgam. Annexure (P4), attached to the petition, is another articulation of the Executive Officer, Municipal Committee, Budgam, addressed to the Director, Urban Local Bodies, Kashmir, incorporating the request that necessary orders/approval may be issued/accorded to the release of the grade of Rs. 3050-4950 in favour of the petitioner from the date, he is holding the post. 6. What comes to the fruition further, from the perusal of annexure (P4) supra, is that the petitioner has been adjusted as a driver against a vacant post in terms of the order of the Executive Officer, Municipal Committee, Budgam, bearing No. MC/Bud/2004/120-22, dated 22-05-2004 and this action has been confirmed by the Director, Urban Local Bodies, Kashmir, vide his No. DULB/K/PS/37/2006, dated 11-05-2006. 7. What can be gathered from the perusal of the aforesaid documents attached to the petition is that, admittedly, the petitioner was appointed as a Conductor in the respondent- Committee. It is also admitted that due to the attachment of Shri Abdul Qayoom Khan, driver, the petitioner was asked to discharge the duties of a driver on the backing of the driving license by which he was authorized to ply Heavy Motor Vehicles. It is also admitted that due to the attachment of Shri Abdul Qayoom Khan, driver, the petitioner was asked to discharge the duties of a driver on the backing of the driving license by which he was authorized to ply Heavy Motor Vehicles. What gets revealed further from the perusal of the record is that the Director, Urban Local Bodies, Kashmir, was requested by the Executive Officer, Municipal Committee, Badgam, to accord confirmation to the appointment of the petitioner as a driver and the Director, Urban Local Bodies, Kashmir, confirmed the action of the Executive Officer, Municipal Committee, Badgam, by his letter No. DULB/K/PS/37/2006, dated 11-05-2006, as is reflected in annexure (P4) attached to the petition. The petitioner, having worked against the post of a driver from the date of the attachment of Shri Abdul Qayoom Khan upto the date of his confirmation, i.e. 11-05-2006, is entitled to the pay attached to the post of driver. It is a fundamental principle of law, as evolved by the apex Court of the country in the case of Selvaraj vs. Lt. Governor of Island, Port Blair and Others, wherein at paragraph (3) it has been held as under: "3. It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn against the post of Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident Commissioner, Andaman & Nicobar Administration that the appellant was regularly posted in the pay scale of Rs. 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground." 8. The same principle of law has been evolved in the case of Jaswant Singh vs. Punjab Poultry Field Staff Association and Others, JT 2001 (9) SC 646 : (2002) SCC 261, wherein at paragraph (11), it has been held as under: "The High Court's decision in Gobind Singh did not direct the promotion of Gobind Singh. What was directed was the payment and allowances of the post of Chick Sexer. Since Gobind Singh had been discharging the duties on that post. Therefore, while the appellant's promotion to the post of Chick Sexer cannot be upheld, given the fact that the appellant had discharged the duties of Chick Sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties." 9. Applying the ratio of the law laid down above to the facts and circumstances of the instant case, the petitioner is entitled to the receipt of the salary attached to the post of driver with effect from the date of the attachment of Shri Abdul Qayoom Khan, that is when he (the petitioner) was asked to serve in the capacity of a driver in the Municipal Committee, Budgam. 10. 10. The other aspect of the case that cannot be lost sight of is that the request of the Executive Officer, Municipal Committee Budgam, seeking the confirmation of the petitioner against the post of driver, was confirmed by the Director, Urban Local Bodies, Kashmir, vide his letter dated 11-05-2006. Rule 15 of the J&K Civil Services (Revised Pay) Rules 1998, running under the Head, "Special Treatment For Certain Posts" reads as under: "15. Special Treatment of Certain Posts: (a) Drivers: In service chauffeurs, Drivers Gr-I & Drivers Gr-II in the existing pay scale of Rs. 1640-2900, 1200-2040 and Rs. 950-1500 shall be placed in the revised pay scale of Rs. 5500-9000, Rs. 4000-6000 and Rs. 3050-4590 respectively from the respective dates they have been granted these pay scales pursuant to provisions of SRO 28, dated 25-1-1996. Henceforth the initial appointment to the posts of Drivers shall be made in the pay scale of Rs. 3050-4590. The rationalized pay structure of Drivers in the respective departmental cadre shall be as under:- (i) Drivers Gr-II (3050-4590) 50% of the total number of posts of Drivers. (ii) Drivers Gr-I (4000-6000) 30% of the total number of posts of Drivers. (iii) Chauffeurs (5500-9000) 20% of the total number of posts of Drivers. 11. On the analogy of the rule position evolved above, the petitioner is eligible to be considered for promotion to the post of driver, grade-I, on the basis of the length of his service, to be reckoned and calculated from 11-05-2006, provided there is a vacancy. 12. Viewed in the context of what has been said and done above, the petitioner is entitled to the salary attached to the post of a driver with effect from the date of the attachment of Shri Abdul Qayoom Khan and the respondents are directed to release the same in favour of the petitioner within a period of six weeks. Respondents are further directed to consider the case of the petitioner for his placement to the post of driver, Grade-I, from the date he has completed 05 years of service in the capacity of a driver, Grade-II, subject to the condition that a vacancy is in existence and subsistence under the said category. 13. Writ petition is, accordingly, disposed of along with connected IAs.