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2021 DIGILAW 342 (JK)

UT of J&K v. Joginder Sharma

2021-07-16

DHIRAJ SINGH THAKUR, PUNEET GUPTA

body2021
ORDER : 1. This is a Letters Patent Appeal against the judgment and order dated 10.02.2020, whereby the petition filed by the petitioner-respondent herein was allowed and he was held entitled to wages @ Rs. 14,800/- per month representing the basic minimum pay scale of Class-IV employees in terms of SRO 193 dated 24.04.2018. Briefly stated, the material facts are as under:- 2. The respondent came to be engaged as an Orderly on temporary basis on a consolidated pay of Rs. 2550/-, which was the minimum basic pay of Class-IV employees, in the Surinsar-Mansar Development Authority, by virtue of order dated 21.07.2008. The respondent continues to be working as such on consolidated basis. The case set up by the respondent in the writ petition was that he was initially engaged in the Surinsar-Mansar Development Authority on need basis and thereafter, his status was converted from need basis to consolidated employee in terms of order dated 21.07.2008. As per the order dated 21.07.2008, the respondent was appointed in the consolidated pay of Rs. 2550/-, which was the minimum basic pay of Class-IV employees. It would be pertinent to reproduce the relevant portion of the order dated 21.07.2008 hereunder:- “In the interest of administration and smooth functioning of Surinsar-Mansar Dev. Authority, The following two persons who are working in this authority as casual workers are engaged as orderly purely on temporary basis on a consolidated pay of Rs. 2550/- (Two thousand, Five hundred and fifty only) the minimum basic pay of class IV 1. Sh. Joginder Sharma S/o Sh. Om Parkash R/o Mantalai, The Chenani, Distt. Udhampur. 2. Sh. Tanveer Hussain S/o Lt. Sh. Fazal Hussain R/o Village Kundra The. & Distt. Reasi. Their engagement is provisional and subject to the approval/confirmation by the Board of Surinsar-Mansar Dev. Authority. This order shall have immediate effect.” 3. The grievance of the respondent as reflected in the writ petition was that on account of the application of SRO 193 dated 24.04.2018, the basic pay of employees working against substantive posts was enhanced to Rs. 14,800/- while the respondent was being paid Rs. 5740/- after the application of the revision of 6th Pay Commission. The respondent, therefore, sought the minimum of the scale at Rs. 14,800/- per month in terms of SRO 193. 4. The writ petition was allowed by virtue of judgment and order impugned. 14,800/- while the respondent was being paid Rs. 5740/- after the application of the revision of 6th Pay Commission. The respondent, therefore, sought the minimum of the scale at Rs. 14,800/- per month in terms of SRO 193. 4. The writ petition was allowed by virtue of judgment and order impugned. The argument of the official respondents that the provisions of SRO 193 were not applicable to the employees working on consolidated basis as per Clause 2 (XII) of the said SRO was rejected. For facility of reference, the said clause is reproduced hereunder:- “Clause 2(xii) Categories of Government servants to whom the rules apply:- 1) Save as otherwise provided by or under these rules, these rules shall apply to persons appointed to civil services and posts in connection with the affairs of the State including whole time contingent paid workers/work charged employees drawing pay in graded scales whose pay is debited to consolidated fund of the State. 2) These rules shall not apply to:- (i) Members of the All India Services appointed to the civil posts/ serving in connection with the affairs of the State; (ii) Faculty Members of Government Degree Colleges, to whom Government Degree Colleges (Adoption of UGC Revised Pay Scales) Rules 2009 apply; (iii) Faculty Members of Government College of Engineering and Technology, Jammu, to whom Jammu College of Engineering & Technology (Adoption of AICTE Revised Pay Scales) Rules 2013 apply; (iv) Faculty Members of S.K. Institute of Medical Science, Srinagar, to whom S.K. Institute of Medical Sciences Faculty Members (Revised Pay) Rules 2009 apply; (v) Members of J&K Subordinate Judicial services, to whom the Jammu and Kashmir Subordinate Judicial Pay Rules, 201 I, apply; (vi) persons not in whole-time employment; (vii) persons paid out of contingencies; (viii) persons paid otherwise than on a monthly basis including those paid only on a piece rate basis; (ix) persons employed on contract basis except where the contract provides otherwise; (x) persons re-employed in Government service after retirement; (xi) persons whose services are obtained on deputation; (xii) posts which carry consolidated rate of pay. (xiii) any other class or category of persons whom the Government may, by order, specifically exclude from the operation of all or any of the provisions contained in these rules.” 5. (xiii) any other class or category of persons whom the Government may, by order, specifically exclude from the operation of all or any of the provisions contained in these rules.” 5. Learned counsel for the appellant states that the view expressed by the writ Court and the directions issued for granting the benefit of the minimum of the scale at Rs. 14,800/- were palpably erroneous and contrary to the provisions of Clause 2 (xii) of the SRO 193 and, therefore, unsustainable in law. It is true that according to Clause 2 (xii) of SRO 193, the provisions of the rules would not apply to the posts which carried consolidated rate of pay and, therefore, no worker working on consolidated pay basis would be entitled to claim the benefit which would otherwise be available under the J&K Civil Services (Revised) Pay Rules, 2018 notified vide SRO 193. The SRO 193, if read in isolation perhaps could disentitle those employees working on consolidated pay basis, who claim the benefit under the said rules. However, we cannot ignore the language of the order of engagement of the respondent dated 21.07.2008, which allowed a pay of Rs. 2550/- to the respondent. There had to be some basis for fixing the consolidated pay at Rs. 2550/- and that basis finds a correlation with the minimum of the basic pay of Class IV employees working against substantive posts. It, therefore, presupposes that if today, the official respondents were to engage an Orderly purely on a consolidated pay basis, considering the past practice, the same would also be fixed at the level of the minimum basic pay of Class IV employees working against substantive post, which today is at Rs. 14,800/-. 6. No Rule or Government order has been brought to our notice, which would give legal sanction for all times to come to the proposition that such employees would be paid only an amount Rs. 2550/- forever. The assurance which can be seen as having been accorded to the respondent in terms of order dated 21.07.2008 appears to be that he would be paid the minimum basic pay of a Class IV employee. 7. In that view of the matter, we are of the opinion that the respondent would be entitled to receive the minimum basic pay of a Class IV employee, which is at Rs. 7. In that view of the matter, we are of the opinion that the respondent would be entitled to receive the minimum basic pay of a Class IV employee, which is at Rs. 14,800/- and, therefore, the view expressed by the learned Single Judge was legally justified. 8. Be that as it may, the appeal is found to be without any merit and the same is, accordingly, dismissed.