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2018 DIGILAW 26 (JK)

Mohammad Ashraf v. State Of Jammu And Kashmir

2018-01-29

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. The factual matrix of the instant petition is that the petitioner was appointed as Tax Collector in the respondent Department in the year 2006, whereafter he was upgraded to the post of Tax Inspector by order bearing No. MC/P/MCP/06/727 dated 1st of November, 2006 and was placed in the grade of Rs. 4000-6000 with immediate effect. By letter No. MCP/01/243 dated 28th of May, 2007, of the Executive Officer, Municipal Committee, Pampore, addressed to the Director, Urban Local Bodies, Srinagar, Kashmir, the Executive Officer brought it to the notice of the Director that the official, i. e. the petitioner, is pressing hard for the implementation of the order by which he was upgraded to the post of Tax Inspector. By another order bearing No. MCP/07/406-408 dated 26th of June, 2007, i.e. the Annexure-C attached to the petition, the Administrator, Municipal Committee, directed that in supersession of the previous order No. DULB/Estt/2413/3633 dated 11th of June, 2007, sanction is accorded to the upgradation of Shri Mohammad Ashraf Dar (petitioner herein) from the pay scale of Rs. 2550-3200 to the pay scale of Rs. 3050-4550 with immediate effect. Annexure-D is an order bearing No. M. C/AWP/2008/915 dated 12th of May, 2008, passed by the Executive Officer, Municipal Committee, Awantipora, which directs that, in the interest of administration and for smooth functioning of the Committee, sanction is accorded for the promotion/upgradation of Shri Mohd Ashraf Dar, Tax Collector (Rs. 3050-4590) M. C. Awantipora as Tax Inspector and he is placed in the pay scale of Rs. 4000-100-6000 with immediate effect, subject to confirmation by the Director, Urban Local Bodies, Kashmir. 2. The grievance of the petitioner is that the scale of pay, to which he was entitled in the capacity of Tax Inspector, was not released in his favour. However, he moved a representation and, on the basis of that representation, the grade attached to the post, i.e. Rs. 4000-6000, was given to him alongwith the arrears, but the benefit of the revision of this grade from Rs. 4000-6000 to 5000- 8000 and then to Rs. However, he moved a representation and, on the basis of that representation, the grade attached to the post, i.e. Rs. 4000-6000, was given to him alongwith the arrears, but the benefit of the revision of this grade from Rs. 4000-6000 to 5000- 8000 and then to Rs. 5200-20200, has not been accorded in his favour though all other Tax Inspectors have been placed in the revised grade by Government order bearing No. 214-HUD of 2008 dated 23-05-2008, attached to the petition as Annexure-E. Accordingly, the petitioner has prayed for the grant of following reliefs in his favour: “In the premises it is therefore prayed that the Hon'ble Court may be pleased to pass a direction in the nature of writ of mandamus commanding upon the respondents to fix and release the pay of the petitioner as per the revised pay scale with effect from the 23-05-2008 in the grade of 5000-8000 till the grade was revised to 9300-34800 and thereafter from pay and fix the pay of the petitioner as is being paid to other tax inspectors of the department in grade of 9300-34800. The respondents be also directed by way of writ of mandamus to pay the arrears to the petitioner from 23-05-2008 till date. Any other order or relief the Hon'ble Court may deem proper may also be passed in favour of the petitioner. “ 3. The Respondents have filed their counter affidavit, wherein they have contended that the petitioner is not entitled to the grade attached to the post till such time that it is proved that his appointment/promotion/upgradation has been done by the competent authority and once he establishes so, he will be placed in the appropriate grade. It has also been stated that the Government has constituted an Enquiry Committee to enquire about the fake and fraudulent appointments/promotions/upgradation, etc. of hundreds and thousands of persons, including the petitioner. The said Committee has submitted its report, which is under the consideration of the Government. In the end, it has been stated that the petitioner is not entitled to any relief as prayed for in this petition and, as such, the petition merits dismissal and may be dismissed, accordingly. 4. of hundreds and thousands of persons, including the petitioner. The said Committee has submitted its report, which is under the consideration of the Government. In the end, it has been stated that the petitioner is not entitled to any relief as prayed for in this petition and, as such, the petition merits dismissal and may be dismissed, accordingly. 4. In his rejoinder, the petitioner has stated that the officials similarly situated with him have been promoted by the respondents in the same fashion and manner in which the petitioner has been promoted to the post of Tax Inspector and that they draw their salary in accordance with the mandate of the Government order bearing No. 214-HUD of 2008 dated 23rd of May, 2008, but to his dismay, he has been discriminated against. 5. Heard and considered. 6. Admittedly, the petitioner has been working as Tax Inspector and has been placed in the grade of Tax Inspector at the first instance and, after the revision of the grade by Government order bearing No. 214-HUD of 2008 dated 23rd of May, 2008, he was denied the benefit that had accrued to him. The Government order aforesaid dated 23rd of May, 2008, enunciates that the pay scale for the post of Tax Inspectors shall be Rs. 5000-8000 and the scale of pay of the Tax Inspectors, (a list whereof has been placed on record) does suggest that the Tax Inspectors have been placed in the said grade. The petitioner has been transferred from time to time in the capacity of a Tax Inspector and there are a series of orders on record to suggest so. The petitioner has also placed on record the excerpts of his service book prepared by the Executive Officer, Municipal Committee, Awantipora, from the perusal of which, what gets revealed is that the petitioner has been promoted/upgraded to the post of Tax Inspector on the directions of the Director, Urban Local Bodies, who is the competent officer to make the promotion(s), as stated in the information bearing No. MC/SH/014/1164-65 dated 21st of February, 2014, issued by the respondents in answer to the RTI application filed by the petitioner, which is attached to the rejoinder as Annexure-R6. 7. 7. The documents placed on record by the petitioner suggest and provide that the petitioner has been working as a Tax Inspector before the year 2008 when Government order bearing No. 214-HUD of 2008 dated 23rd of May, 2008, came to be passed. Therefore, irrespective of the fact whether he was holding this post on substantive basis or otherwise, he is entitled to the pay attached to the post as has been held in the judgment of law dated 8th of December, 2017, laid down by a Division Bench of this High Court in LPA No. 143/2017, titled 'State of JK and Anr. v. Bhupinder Singh and Ors., paragraph Nos. 4 to 6 whereof assume significance and these are reproduced below, verbatim: “4. In our considered opinion, the appeal appears to have been framed and presented before this Court without understanding the import of the order of the writ court. The writ court has no where stated in the order assailed in the appeal that the respondent No. 1 be considered for induction into IPS as per rules or that he was at any point of time eligible to be appointed as Director Police Telecommunication. The status of the respondent No. 1 was that of Incharge Police Telecommunication as directed vide order No. 161(P) of 2006 dated 12.05.2006 w.e.f 01.01.2006 and he served on the said post upto 30.11.2009. The Court after putting reliance on the judgments of law (Selvaraj v. Lt. Governor of Island, Portblair and ors., 1998 4 SCC 291 ) and in (Jaswant Singh v Punjab Poultry Field Staff Association and ors., 2002 1 SCC 261 ), followed by a judgment of the Division Bench rendered by this court in LPASW No. 91/2003 dated 09.04.2015 directed that since the petitioner served as Incharge Director Police Telecommunication on the strength of the aforesaid Government Order, therefore, he is entitled to the salary attached to the post from the date of his posting as Incharge Director Police Telecommunication and his pensionary benefits are required to be refixed based on the salary payable to the Director Police Telecommunication. This is a fundamental principle of law as enunciated by the Apex Court of the country in the case of Selvaraj v. Lt. Governor of Island, Portblair and ors., on which explicit reliance has been put by the writ court and in which it has been held as under:- “3. This is a fundamental principle of law as enunciated by the Apex Court of the country in the case of Selvaraj v. Lt. Governor of Island, Portblair and ors., on which explicit reliance has been put by the writ court and in which 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 and 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. 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. “ 5. This limited relief is required to be given to the appellant only on this ground. “ 5. The writ court has also banked upon the law laid down in Jaswant Singh's case, para 11 of which has a directed bearing on the issue involved in this appeal and it is reproduced below verbatim:- “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. “ 6. Applying the ratio of the law laid down above to the facts and circumstances of the instant case, there appears to be no illegality in the judgment and order of the writ court. The writ court has confined the relief to be granted in favour of the respondent No. 1 to the extent as indicated above. The State misunderstood the scheme and the application of the judgment of the writ court. The reliefs claimed by the respondent No. 1 in this appeal, before the writ court i.e., quashing the Government Order No. Home-490 (P) of 2001 dated 04.12.2001; commanding the respondents to consider his case for induction into Indian Police Service; quashing J&K Police (Gazetted Service Recruitment Rules) 2002 and commanding the respondents to consider and promote the petitioner to the next higher post of Director Telecommunication, have not been granted in favour of the petitioner. The base line of the judgment of the writ court is the relief claimed under the head, “any other relief as deemed appropriate be granted to the respondent No. 1 herein”. The writ court found favour with this and directed that the respondent No. 1 herein is entitled to the salary attached to the post of Director Police Telecommunication (which he was holding for more than three years and six months) and his pensionary and retiral benefits be fixed accordingly. This is in complete consonance to the law cited above. The writ court found favour with this and directed that the respondent No. 1 herein is entitled to the salary attached to the post of Director Police Telecommunication (which he was holding for more than three years and six months) and his pensionary and retiral benefits be fixed accordingly. This is in complete consonance to the law cited above. Therefore, we see no reason to interfere with the judgment and the order under appeal as a consequence of which the appeal fails and is dismissed. The appellants in the LPA shall comply with the terms of order and judgment of the writ court within a period of six weeks from the date the copy of this order is served upon them.” 8. The petitioner has been upgraded to the post of Tax Inspector by an order reflected above. The Director, Urban Local Bodies, who is the competent authority to accord consideration to such placement, has also recommended so, as is brought to the fore from the perusal of the service records of the petitioner attached to the rejoinder filed by the petitioner. Even if it is assumed, but not conceded for the sake of arguments, that the petitioner was not upgraded to the post of Tax Inspector, still then, on the basis of the law laid down above, he is entitled to the payment of the salary attached to the post on which he has/or is working in the Department. 9. Viewed in the context of what has been said and done above, the petition of the petitioner is allowed and is disposed of with a direction to the respondents to fix and release the salary of the petitioner as per the revised pay scale attached to the post on which he has/or is working in the respondent Department, i.e. Tax Inspector, from the date he has been upgraded to the said post, as has been done in the case of other similarly situated Tax Inspectors of the department. 10. Writ petition disposed of as above.