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J&K High Court · body

2018 DIGILAW 780 (JK)

Fazal Karim v. M. D. JKPCC

2018-10-04

SANJEEV KUMAR

body2018
JUDGMENT : 1. In this petition, the petitioner has, inter alia, prayed for a writ of certiorari for quashing order No.7334/38 dated 27.03.2002 by virtue of which the claim of the petitioner for grant of benefit of SRO 149 of 1973 was rejected. The petitioner has also prayed for quashing promotion of respondent No.3 to the post of Chargeman made in the in the year 1984 and to the post of Chief Foreman in the year 1996 and also his further promotion to the post of Manager Maintenance in the year 2001. Similarly the petitioner has also assailed the promotion of respondent No.4 to the post of Senior Mechanic made by the respondents in the year 1985 and to the post of Foreman in the year 1996. The petitioner also seeks a direction to the respondents to extend the benefit of SRO 149 of 1973 to the petitioner and accordingly, promote him to the post of Senior Mechanic having due regard to the SRO 149 of 1973 with all consequential benefits. 2. Briefly stated, the admitted facts on record, are that the petitioner was initially engaged as daily wager in the respondent-corporation and was brought on the work charge establishment w.e.f. 24.03.1981 as Mechanic in the then pay scale of Rs.300-500. The services of the petitioner were later on regularized w.e.f. 31.03.1985. He was promoted to the post of Senior Mechanic w.e.f. 01.04.1995 and was placed in the next higher pay scale of Rs.6400-10000 w.e.f. 10.05.2001. The petitioner got further promotion to the post of Foreman on 28.11.2007 pursuant to the recommendations made by the Departmental Promotion Committee (DPC), but this was in his own pay and grade. 3. The grievance of the petitioner, as projected in this petition, and agitated on the basis of reply of respondents is that, though, he was promoted to the post of Foreman on the recommendations of the DPC on 28.11.2007 but the pay scale attached to the post was not released in his favour nor his promotion as Foreman was formally regularized by the respondents. 4. 4. The petitioner also claims that had his promotion to the post of Foreman been regularized in time and had he been given the pay scale attached to the post on 28.11.2007, he would have become entitled to be promoted to the next higher posts of Chief Foreman and Manager Maintenance, as was done in the case of respondent No.3. 5. The respondents have filed their reply in which the plea of the petitioner that he was entitled to the benefit of SRO 149 of 1973 has been refuted on the ground that vide SRO 149 of 1973, the State Government had issued J&K Civil Services (Revised Pay) Rules, 1973 which were applicable to the State Government employees and not to the employees of the public sector undertakings/government corporations. It is stated that insofar employees of the corporation are concerned the pay structure is governed by the Rajan Wages Committee recommendations revised from time to time by the government w.e.f. 01.04.1980. In short, the stand of the respondents is that the wages and pay revision of the employees of the public sector undertakings like the respondent-corporation are not governed by the Rules applicable to the State government employees but by Rajan Wages Committees recommendation which the government has revised from time to time. 6. The plea of the petitioner to seek quashment of promotion of respondent Nos. 3 and 4 has been contested by the respondent-corporation on the ground that both respondent Nos. 3 and 4 were admittedly senior to the petitioner. It is stated that respondent No.3 was appointed as Mechanic in the year 1976, whereas respondent No.4 was appointed in the year 1978 and therefore, the petitioner who was appointed in the year 1981 was junior to both of them. It is because of their seniority, they got further promotions prior to the petitioner in view of their eligibility and seniority. The respondent-Corporation has also questioned the maintainability of the petition insofar as it pertains to the challenge to the promotion of respondent Nos. 3 and 4 on the ground that the same is hit by delay and laches. It is submitted that respondent No.3 was promoted as Chief Foreman in the year 1996 when the petitioner was only a senior mechanic having been promoted on 01.04.1995. 3 and 4 on the ground that the same is hit by delay and laches. It is submitted that respondent No.3 was promoted as Chief Foreman in the year 1996 when the petitioner was only a senior mechanic having been promoted on 01.04.1995. He, therefore acquiesced in the promotion of respondent No.3 and did not raise any grievance till he filed this writ petition in the year 2002. It is further submitted that respondent NO.4 became Foreman in the year 1996 but the same was also not objected to by the petitioner whereas he was promoted as Foreman in his own pay and grade only on 28.11.2007. 7. Having heard learned counsel for the parties and perused the record, I find force in the submissions made by learned counsel for the respondents that SRO 149 of 1973, whereby J&K Civil Services (Revised Pay) Rules, 1973 were promulgated applies only to the government employees and not to the employees of the public sector undertakings or autonomous institutions/ corporations, unless same are adopted by the Corporation in the prescribed manner. There is nothing on record to show that respondent-Corporation ever took any decision to adopt the provisions of SRO 149 of 1973. On the face of aforesaid position, I have no reason to disbelieve the respondent-corporation that the pay structure of the Corporation is separately governed by the Rajan Wage Committee recommendations, which came into existence on 01.04.1980 and have been revised thereafter suitably by the government from time to time. This brings me to the challenge of the petitioner to the promotion of respondent Nos. 3 and 4 on the next higher posts. 8. As rightly contended by the respondent-Corporation, the promotions were made in the year 1996 and same were well in the knowledge of the petitioner. The petitioner did not challenge the same till he files the instant writ petition. Otherwise also, both respondent Nos. 3 and 4 are admittedly senior to the petitioner and have, therefore, got promotions prior in time than the petitioner. On account of the fact that respondent Nos. 3 and 4 are senior to the petitioner and also on account of delay and laches in challenging their promotions, I do not inclined to accept the prayer of the petitioner in this regard. 9. On account of the fact that respondent Nos. 3 and 4 are senior to the petitioner and also on account of delay and laches in challenging their promotions, I do not inclined to accept the prayer of the petitioner in this regard. 9. Insofar as grievance of the petitioner with regard to the inaction on part of the respondent-Corporation to release the pay scale of Foreman is concerned, I find substance in the submission of learned counsel for the petitioner. It is not in dispute that pursuant to the recommendations of the DPC, the petitioner was promoted as Foreman on 28.11.2007, which post he held till his superannuation. If that be the situation, there is no reason or justification to deny the petitioner the regular pay scale of the post of Foreman from the date he was promoted as Foreman in his own pay and grade. 10. I have gone through reply filed by the respondents and could not find any reason or justification put forth by the respondents to justify the refusal of the pay scale attached to the post of Foreman in favour of the petitioner w.e.f. 28.11.2007. 11. For the aforesaid reasons, the writ petition is partly allowed. The Respondent-corporation is directed to release the regular pay scale of the post of Foreman in favour of the petitioner w.e.f. 28.11.2007, the date when pursuant to the recommendations of the DPC, the petitioner was promoted as Foreman, though, in his own pay and grade. The petitioner shall be entitled to arrears on account of such placement and also to the consequent post retiral benefits. Needless to say that, if by placing the petitioner in regular pay scale of Foreman w.e.f. 28.11.2007, the petitioner has become entitled to further promotion during the tenure of his services, he shall also be considered by the respondents for such promotion in accordance with the Rules. Let the aforesaid exercise be completed by the respondents within a period of two months from the date certified copy of this order is served upon them.