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2021 DIGILAW 41 (JK)

Latif Hussain Khan v. State of J&K

2021-02-26

ALI MOHAMMAD MAGREY, TASHI RABSTAN

body2021
Judgment Ali Mohammad Magrey, J.—By medium of the instant petition, the petitioners have craved the indulgence of this Court in granting them the following relief(s): “(i) Accord consideration for promotion to the post of Senior Assistant retrospectively to the petitioners with all the financial benefits attached to higher post; and (ii) Fix and grant pay scale, by appropriate amendment in Jammu and Kashmir High Court Staff (Appointment and Conditions of Service) Rules 2002, similar to that of Delhi and Punjab High Courts with retrospective effect from the date of their respective appointments as Restorers in High Court of Jammu and Kashmir. And Any other writ, order or direction that may be, appropriate in the facts of the case may also be issued in favour of the petitioner. Petitioner may also be awarded costs of this petition.” 2. The precise case of the petitioners is that they are working as Restorers in the High Court of Jammu and Kashmir (hereinafter referred to as “the High Court”) and that they have remained stagnated on the said posts as there are no promotional avenues available for them in terms of the rules governing the field. It is stated that apart from the above, the grade attached to the said posts of Restorers is Rs.2610-3450 (pre-revised) which is neither commensurate to the duties being performed by the petitioners nor at part with their counterparts working in the other High Courts of the country. Faced with this situation, the petitioners, as stated, in year 2008, filed a representation before the respondent No.2/ Registrar General of the High Court for seeking redressal of their grievances. The respondent No.2, in terms of communication No.16622/NG dated 3rd of August, 2016, requested the respondent No.3 to accord approval for upgradation of pay scale of Restorers working in the High Court from 2610-3450 (pre-revised) to 3050-4910 (pre-revised). It is pleaded that despite there being said recommendations for upgradation of pay scale from the respondent No.2, the respondent-Government is not considering the case for reasons not known to the petitioners. 3. Objections stand filed on behalf of the respondents. 4. It is pleaded that despite there being said recommendations for upgradation of pay scale from the respondent No.2, the respondent-Government is not considering the case for reasons not known to the petitioners. 3. Objections stand filed on behalf of the respondents. 4. In its objections, the High Court/ respondent No.2 has contended that insofar as the representation of the petitioners is concerned, the same was placed before Hon’ble the Chief Justice and His Lordship has directed that the matter be taken up with the Government for revision of pay scale of Restorers in order to bring them at par with their counterparts working in the other High Courts. It is pleaded that, thereafter, the communication, bearing No. 16622/NG dated 3rd of August, 2016, was issued to the respondent No.3 requesting therein to accord necessary approval for upgradation of pay scale of Restorers working in the High Court from 2610-3450 (pre-revised) to Rs.3050-4910 (pre-revised). As regards the contention of the petitioners that their case be considered in light of the mandate of the Jammu and Kashmir High Court Staff (Appointment and Condition of Service) Rules, 2002, the respondent No.2 has stated that there are no such Rules of 2002 governing the services of the High Court Staff and, instead, it is the High Court Staff Service Condition Rules, 1968, as amended from time to time, which governs the service condition of the staff of the High Court. 5. The respondents 1 and 3, in their objections, have pleaded that a consolidated proposal of the High Court was received by the Government for upgradation of pay scale of all the employees working in the High Court at par with the employees working with the High Court of Punjab and Haryana and High Court of Delhi. The issue was threadbare discussed and examined by the High-Level Committee constituted for this purpose which was headed by Financial Commissioner, Finance Department. The financial implications involved in the proposal, pay anomalies wherever occurring, and various other related aspects of the case was examined during the deliberations by the Committee which finally recommended that pay scale attached to the post held by all the employees working in the High Court cannot be upgraded as it will lead to similar claims from similarly placed employees of the State Government and it may also result in pay anomalies. However, keeping in view demands of the High Court employees, and also the direction passed by this Court in PIL titled ‘Joginder Singh v. State & Ors.’, it was decided that special pay equivalent to the 10% of the basic pay may be allowed in their favour. The said benefit of the “Special Pay” of 10% of the basic pay has already been accepted by the employees of the High Court and the Restorers working in the High Court has also been allowed the same benefit. The case of the Restorers cannot be examined in isolation from other employees of the High Court and same yardstick has to be adopted while dealing with the case of Restorers. Since, all the employees working in the High Court are governed by the same rules, same yardstick has to be adopted/ followed for each of such category of employees while examining and considering their case of upgradation of pay scale. Hence, the case of the Restores for upgradation of pay scale cannot be read and dealt with in isolation. 6. We heard learned counsel for the parties, perused the pleadings on record and have considered the matter. 7. At the very outset, what requires to be stated is that the first portion of the relief sought for by the petitioners in this petition which relates to consideration for promotion to the post of Senior Assistants is not only misconceived, but misdirected as well inasmuch as the posts of Restorers in the High Court have been, admittedly, created by the Government in Class-IV Grade and not in the Grade of Junior Assistants, therefore, there is no question of fixation of seniority of the petitioners in the cadre of Junior Assistants and their consequent promotion to the posts of Senior Assistants, unless there is any amendment in the recruitment rules governing the field to the said effect. Insofar as the second part of the relief claimed by the petitioners which pertains to fixation and grant of pay scale similar to that of their counterparts working in the Delhi as well as Punjab & Haryana High Court is concerned, the High Court has, vide communication No.16622/NG dated 3rd of August, 2016, already forwarded its recommendations to the respondent No.3/ Commissioner-Secretary to Government, Department of Law, Justice and Parliamentary Affairs, for accord of necessary approval for upgradation of pay scale of Restorers working in the High Court from Rs. 2610-3450 (pre-revised) to Rs.3050-4910 (pre-revised). In response to the request so made by the respondent No.2 for upgradation of pay scale of Restorers, the respondent No.3/ Government has contended that this issue was discussed threadbare and examined by the High-Level Committee constituted for this purpose, headed by the Financial Commissioner to the Government, Finance Department. The said committee is stated to have examined and deliberated upon the financial implications involved in the proposal, pay anomalies wherever occurring, and various other related aspects of the case and finally recommended that pay scale attached to the post held by all the employees working in the High Court cannot be upgraded as it will lead to similar claims from similarly placed employees of the Government of Jammu and Kashmir, besides resulting in pay anomalies. However, keeping in view the direction passed by this Court in PIL titled ‘Joginder Singh v. State & Ors.’, the committee is stated to have recommended that ‘Special Pay’ equivalent to the 10% of the basic pay may be allowed in their favour, which was accepted by the employees of the High Court, including the Restorers/ petitioners herein. This course of action adopted by the Government in intermingling the issue of upgradation of the grade attached to the posts of Restorers, as recommended by the High Court, with the grant of ‘Special Pay’ in favour of all the employees working in the High Court cannot be countenanced at all. The ‘Special Pay’ in favour of the employees working in the High Court was granted by the Government in recognition to the special duties being performed by such employees and same is a distinct element which, in no circumstance, can be merged with the basic pay. The ‘Special Pay’ in favour of the employees working in the High Court was granted by the Government in recognition to the special duties being performed by such employees and same is a distinct element which, in no circumstance, can be merged with the basic pay. The Government is expected to take a pragmatic view of this issue raised herein this petition and consider the same in the light of the recommendations made by the High Court. 8. The other concern of the petitioners revolves round the plea that right from their inception in service as Restorers in the High Court, they have remained stagnated on the said posts and that there is no promotion avenue available for them as per the rules governing the services in the High Court. It is relevant to note here that in terms of order No.579 dated 24th of October, 2008, the Chief Justice of the High Court, in exercise of powers conferred under Rule 9 of the Jammu and Kashmir High Court Staff (Condition of Service Rules), 1966 and, in supersession of all previous orders in this behalf, prescribed the qualification and mode of recruitment for appointment and promotion of various posts in the High Court. Insofar as the posts of Restorers are concerned, in terms of the said order, 50% of the posts were envisaged to be filled up through direct recruitment and 50% by promotion from amongst the Orderlies. Subsequently, the High Court issued order No.275 dated 7th of June, 2016, in terms whereof the order No.579 dated 24th of October, 2008 was modified to the extent of providing that the posts of Restorers be filled up 100% by direct recruitment. Perusal of these recruitment rules/ orders governing the service conditions of these Restorers reveals that the standing mode for filling up the available vacancies of Restorers in the High Court is 100% by direct recruitment, but, at the same time, it is also evident that these Restorers have not been made the feeding cadre for any higher post, meaning thereby that there are no avenues for their promotion to the next higher post at all. 9. It is settled position of law that right of consideration for promotion to the next higher post is a fundamental right of an employee. Opportunity of advancement in service career by promotion is considered to be a normal incidence of service. 9. It is settled position of law that right of consideration for promotion to the next higher post is a fundamental right of an employee. Opportunity of advancement in service career by promotion is considered to be a normal incidence of service. Besides, availability of reasonable promotional opportunities in service generates efficiency and fosters the appropriate attitude to grow for achieving excellence in service. 10. Hon’ble the Supreme Court, in case titled ‘Council of Scientific and Industrial Research v. K.G.S. Bhatt; (1989) 4 SCC 635 ’, in order to emphasize the importance of promotional avenues to obviate stagnation in service, at Paragraph 9, has held as follows: “…It is often said and indeed, adroitly, an organization, public or private, does not ‘hire a hand’ but engages or employees a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. The organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management, much less any career planning, man-power development, management development etc., which is not related to a system of promotions.” What emerges from a bare perusal of the aforesaid observations of the Hon’ble Apex Court, as repeated and reiterated from time to time in a catena of judicial dictums, is that absence of appropriate promotional prospects in service is bound to degenerate the employees. Stagnation in service on the same post for quite a long period of time and lack of any promotional avenues kills the desire to serve properly. Stagnation in service on the same post for quite a long period of time and lack of any promotional avenues kills the desire to serve properly. In the case on hand, the petitioners have been discharging their duties on the posts of Restorers in the High Court since a long period of time with the legitimate expectation that in due recognition of such services being rendered by them, they will be provided appropriate promotional avenues as is the procedure prevalent with regard to the rest of the posts borne on the establishment of the High Court. As per the recruitment rules which govern the services of the Staff of the High Court, including the present petitioners (Restorers), the factum of stagnation in service qua the petitioners is clearly evident even to a naked eye as, in their entire length of service, not even a single promotional avenue is available to the petitioners. The right against stagnation is thus, available to the petitioners in absence of any reasonable avenues of promotion to them. 11. In view of the foregoing analysis, we dispose of this Writ petition by directing the respondent No.3, i.e., Commissioner/Secretary to Government of Jammu and Kashmir, Department of Law, Justice and Parliamentary Affairs, to consider the recommendations of the High Court for upgradation of the grade attached to the posts of Restorers working in the High Court from Rs.2610-3540 (pre-revised) to Rs.3050-4910 (pre-revised), notwithstanding the grant of ‘Special Pay’ having been granted in favour of the employees working in the High Court and pass appropriate orders thereon. We also, in view of the stagnation in service being faced by the petitioners, direct the respondent No.2, i.e., Registrar General of the High Court, to consider the case of the petitioners for exploring the possibility of creating suitable promotional avenues in favour of the petitioners by making appropriate amendment in the rules governing the field, of course, commensurate to the present status/ qualification of the petitioners. Without fixing any timeframe in this behalf, we hope and trust that the aforesaid exercise is completed by the respondents as expeditiously as possible. 12. Writ petition disposed of as above, alongwith all the CMs pending therewith.