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2019 DIGILAW 411 (JK)

Sajjad Ahmad Shalla v. Bashir Ahmad Khan

2019-09-13

RASHID ALI DAR

body2019
JUDGMENT : 1. With the consensus of learned counsel for the parties, the main petition is taken up for final disposal. 2. Case of the petitioner as projected by him in the writ petition is that he has been initially appointed as daily wager in the Power Development Department and after completing seven years of continuous service was converted into Regular Temporary Establishment in the said department vide order No. 75-ED-IV of 1996 dated 28.06.1996 in the pay scale of (Rs.750-940) Executive, against available vacancy. After his regularization, the petitioner was asked by the department to work as Revenue clerk in the said department and till date he continues to work as such. According to the petitioner, he is the only person among the lot of daily wagers who is a graduate and is well conversant with typing. 3. The petitioner, as is being submitted by him, was continuously representing before the concerned authorities for his promotion and release of grade attached to the post of Revenue clerk on which he was working. It is his further submission that he has not left any stone unturned to get his grievances redressed but nothing could be done on the ground level. Aggrieved of the inactions on the part of the respondents, petitioner filed the instant petition praying for writ of mandamus commanding the respondents to consider the case of the petitioner and pass formal order of promotion to the post of Revenue Clerk retrospectively from 28.06.1996 in his favour. It has also been prayed to command the respondents to release the grade attached to the post of Revenue clerk retrospectively including arrears. 4. In pursuance of the order dated 19.02.2013 passed in CMP No. 322/2013(SWP No.214/2013) respondents were directed to consider release of grade in favour of the petitioner and also consider his promotion case in the light of the communications bearing nos. 183 dated 23.04.1993, ED I/E-14/10061-62 dated 16.12.2002, 577/SDR dated 16.04.2003 & DivCom/Dev-10/2508 dated 09.12.2010. However, the said order was subject to objections of the other side. 5. Respondents filed their objections to the writ petition, wherein it was contended that no cause of action has accrued to the petitioner to invoke the extra-ordinary writ jurisdiction of this Court, as the petitioner has misled the Court by misrepresentation of the material facts. However, the said order was subject to objections of the other side. 5. Respondents filed their objections to the writ petition, wherein it was contended that no cause of action has accrued to the petitioner to invoke the extra-ordinary writ jurisdiction of this Court, as the petitioner has misled the Court by misrepresentation of the material facts. It was also being contended that the communications referred in the interim order dated 19.02.2013 have no relevance with the promotion or otherwise of the petitioner. Next it has been contended that the services of the petitioner including other eligible persons have been regularized and presently the petitioner is dealing with the revenue correspondence of the department as per the records available in the office of the respondents. Handling of revenue matters/correspondence does not confer any right upon the petitioner to seek any undue benefit or out of turn promotion. 6. Non-compliance of the order dated 19.02.2013 passed in SWP No.214/2013, according to the petitioner, has given rise to filing of the petition (CPSW No. 222/2016) for initiation of contempt proceedings against the respondents, wherein it is being pleaded that the contemnors/respondents are wilfully, deliberately and intentionally not complying with the direction of this Court, as such, are liable to be punished for violating the same. Furthermore, it is being pleaded that the respondents/contemnors have deprived the petitioner for his accrued and constitutional rights by not redressing his genuine grievance. 7. In the statement of facts filed by the respondents, it is stated that the claim put-forth by the petitioner is not covered under law and rules, as the petitioner is not entitled or eligible for promotion to the post of Revenue clerk nor have any recommendation made in his favour by any officer or authority in this regard. It is further argued that handling of the revenue matters/correspondence in the department does not confer any right upon the petitioner to seek any undue benefit including out of turn promotion i.e. to the post of Revenue clerk, as the incumbent (class-IV) employee has to pass Departmental Type Test for such promotion. The manner in which the petitioner is claiming promotion to the post of Revenue clerk is contrary to rules, according to the respondents. 8. Learned counsel for the petitioner while arguing the matter submitted that the petitioner since his regularization in the department in the year 1996 has never been promoted. The manner in which the petitioner is claiming promotion to the post of Revenue clerk is contrary to rules, according to the respondents. 8. Learned counsel for the petitioner while arguing the matter submitted that the petitioner since his regularization in the department in the year 1996 has never been promoted. According to her, the petitioner is continuously working as Revenue clerk in the department since 1996 but he is not being paid the salary attached to the said post for which interim order dated 19.02.2013 has been passed, but non-compliance of the same resulted in filing the instant contempt petition. It is her further submission that the petitioner was the only qualified person when appointed in the department. She has placed reliance on the judgment passed by Rajasthan High Court in a case Hari Prasad Vs. State of Rajasthan decided on 17.04.1990 in S.B. Civil Writ Petition No. 2540/1989, wherein principle of equal wages for equal work has been discussed. 9. On the other hand learned GA submitted that the principle of equal pay for equal work is not attracted in the case of the petitioner as he does not stand appointed on the substantive post as Junior Assistant/Clerk. Learned GA further contended that the communications referred in the interim order passed on 19.02.2013 in SWP No.214/2013 have no relevance with the promotion of the petitioner herein. Furthermore, learned GA stated that dealing with the revenue matters/correspondence does not confer any special right on the petitioner to seek any undue benefit or out of turn promotion. 10. Considered the rival arguments. 11. It is admitted feature of the case that the petitioner herein had been brought on the regular establishment in the pay scale of (Rs.750-940) Executive, against available vacancy in pursuance of the order No. 75-ED-IV of 1996 dated 28.06.1996. There is no indication in the petition filed by the petitioner about cadre strength of the department or the class or category wherein the petitioner falls or the number of positions vacant or unfilled at the relevant time to which the petitioner had entitlement, if any under rules, for promotion. The job which had to be performed by the petitioner herein on his regularization too is not indicated either in the order of regularization (supra) or in the petition itself. 12. The job which had to be performed by the petitioner herein on his regularization too is not indicated either in the order of regularization (supra) or in the petition itself. 12. The pleadings, as such, are hazy and it is impracticable to record finding that the petitioner had been asked or directed to take the charge of any higher position from which it could be deduced that discharge of duties higher in nature would make the petitioner entitled for consideration either for charge allowance or increase in his salary/wages or up-gradation in his status. There appears force in the contentions raised on behalf of the respondents that merely attending the correspondence work of revenue matters does not mean that the petitioner is entitled to the relief claimed by him in terms of the instant writ petition. It may be quite apposite to refer to the judgment of the Hon’ble Apex Court ‘State of Punjab & Anr. Vs. Surinder Singh & Anr. 2007(3) JKJ 99 (SC)’, wherein their lordships have observed that the principle of equal pay for equal work has gone a sea change. In this regard Para-6 of the said judgment is relevant to be quoted hereunder:- “6. The principle of equal pay for equal work has gone a sea change. Earlier the view of this Court was that if two persons are discharging the same functions, they will be entitled to same wages. Subsequently this view has been changed and now the view of this Court is that there should be complete and total identity between the two persons similarly situated so as to grant equal pay for equal work. Recently this Court has held that identity between two persons has to be complete and total. In case of a regular appointee, he has undergone a selection process and his services are regular. Even if a daily wage employee is discharging the same functions as a regular employee the authorities are not bound to grant equal pay to such a person who is appointed on daily wage basis, i.e. is appointed for a short term and has not faced the selection process. Thus, the principle of equal pay for equal work has to be granted only if there is a total and complete identity between the two persons...” 13. In another case “S.C. Chandra & Ors. Vs. Thus, the principle of equal pay for equal work has to be granted only if there is a total and complete identity between the two persons...” 13. In another case “S.C. Chandra & Ors. Vs. State of Jharkhand & Ors., (2007) 8 SCC 279 ”, their lordships have held ‘that even the employees in the two groups are doing the identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale.” Their lordships’ in the said judgment have referred the case of ‘State of Haryana Vs. Jasmer Singh( AIR 1997 SC 1788 )’. Para-31 and 35 of the said judgment (S.C.Chandra), are pertinent to be extracted hereunder:- “31. In State of Haryana Vs. Jasmer Singh the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organisations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the administrative authorities concerning the responsibilities, which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally was not open to interference by the court. 35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay).” 14. It may also be proper herein to refer the judgment of ‘Orrisa University of Agriculture & Technology Vs. Manoj K. Mohanty, (2003)5 SCC 188 ’. While dealing with the question of ‘equal pay for equal work’, their lordships noticed the factual position as under:- “10. It may also be proper herein to refer the judgment of ‘Orrisa University of Agriculture & Technology Vs. Manoj K. Mohanty, (2003)5 SCC 188 ’. While dealing with the question of ‘equal pay for equal work’, their lordships noticed the factual position as under:- “10. The High Court before directing to give regular pay scale to the respondent w.e.f. September, 1997 on the principle of “equal pay for equal work” did not examine the pleadings and facts of the case in order to appreciate whether the respondent satisfied the relevant requirements such as the nature of work done by him as compared to the nature of work done by the regularly appointed Junior Assistants, the qualifications, responsibilities etc. When the services of the respondent had not been regularized, his appointment was on temporary basis on consolidated pay and he had not undergone the process for regular recruitment, direction to give regular pay scale could not be given that too without examining the relevant factors to apply the principle of “equal pay for equal work.” It is clear from the averments made in the writ petition extracted above, nothing is stated as regards the nature of work, responsibilities attached to the respondent without comparing them with the regularly recruited Junior Assistant. It cannot be disputed that there were neither necessary averments in the writ petition nor any material was placed before the High Court so as to consider the application of principle of “equal pay for equal work.” Based on the fact, that the respondent had not placed sufficient material on the record of the case, to demonstrate the applicability of the principle of “equal pay for equal work”, this Court set aside the order passed by the High Court, directing that the respondent be paid wages in the regular scale of pay, with effect from September, 1997.” 15. In this view of matter, no force is found in the contentions raised in terms of the instant petition. The relief sought cannot be granted. However, respondents are left free to consider the case of the petitioner in accordance with rules and regulations in force and applicable to the case of the petitioner either for release of charge allowance or for promotion along-with other eligible candidates. This shall also include consideration for release of unpaid wages, if any, in favour of the petitioner. However, respondents are left free to consider the case of the petitioner in accordance with rules and regulations in force and applicable to the case of the petitioner either for release of charge allowance or for promotion along-with other eligible candidates. This shall also include consideration for release of unpaid wages, if any, in favour of the petitioner. Furthermore, representation of the petitioner, if any pending, after consideration, be disposed of by the respondents as early as practicable preferably within a period of eight weeks from the date of receipt of a copy of this order. 16. Disposed of in above terms along-with Contempt petition and other ancillary application(s).