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2023 DIGILAW 69 (JK)

Gharu Ram v. State of J&K

2023-02-22

PUNEET GUPTA, RAJNESH OSWAL

body2023
JUDGEMENT Rajnesh Oswal, J. 1. The lack of rules providing for the qualification for the post of Sanitary Inspectors in the Directorate of Urban Local Bodies at the relevant point of time has given rise to this litigation. In all these four intra-court appeals, the common judgment dated 03.05.2018 passed by the learned writ court, disposing of two writ petitions each filed separately, by each of the respondent No. 3, has been impugned. The dispute now remains only between the appellant and respondent No. 3 in LPA No. 90/2018 & LPA No. 91/2018 respectively because the appellants in LPA No. 56/2018 and 57/2018 have attained the age of superannuation during the pendency of appeal, therefore both LPAs bearing nos. 90/2018 & LPA No. 91/2018 are being disposed of by this common judgment. LPA No. 90/2018: 2. The respondent No. 3 filed a writ petition bearing SWP No. 1596/2006 challenging the order dated 12.05.2006, whereby his juniors were promoted and also prayed for issuance of the directions for placing him in the grade of Rs. 1760-3200 (Revised to Rs. 5700-10,100) from the date of his appointment i.e. 17.04.1985. During the pendency of the writ petition, the final seniority list of Sanitary Inspectors of Urban Local Bodies was issued on 16.09.2011 and the respondent No.3 filed another writ petition bearing SWP No. 2060/2013 challenging the said final seniority list and prayed for the issuance of fresh seniority list including his name after fixing his seniority above the private respondents therein (20 in Nos.) w.e.f. the date the private respondent joined the service as Sanitary Inspector i.e. w.e.f. 17.04.1985. 3. The learned writ court vide its judgment dated 03.05.2018 while disposing of the two writ petitions mentioned above, quashed the seniority list dated 16.09.2011 and directed the official respondents to reframe the seniority list by reflecting the respondent No. 3 at an appropriate place keeping in view his date of appointment and further the respondent No. 3 was ordered to be placed in an upgraded pay scale of Rs. 1700-3200 revised to Rs. 5700-10,100/- w.e.f. the date his juniors were so promoted. 4. The official respondents did not choose to assail the judgment of the writ court and only the appellant along with appellants in LPA No. 56/2018 and 57/2018 assailed the same. 5. 1700-3200 revised to Rs. 5700-10,100/- w.e.f. the date his juniors were so promoted. 4. The official respondents did not choose to assail the judgment of the writ court and only the appellant along with appellants in LPA No. 56/2018 and 57/2018 assailed the same. 5. In LPA No. 90/2018, the appellant has pleaded that even in the absence of rules, the posts of Sanitary Inspector in the department were being filled up with the persons holding one year diploma in Sanitary Inspector training course and the respondent No. 3 was not holding any such technical qualification when he joined the department on 17.04.1985 but acquired the same on 12.01.1995, whereas the appellant joined the department on 18.02.1986 after having passed the Sanitary Inspector training course in the year 1985. It is also stated that while examining the tentative seniority list, certain discrepancies were found which created serious problem in compiling the inter-se seniority of Sanitary Inspectors, therefore, the respondent No. 2 mooted a proposal vide its communication dated 02.11.2004 recommending that Government Order No. 51-HUD of 2004 dated 26.02.2004 be made applicable to all qualified Sanitary Inspectors working in the Directorate with effect from the date of their appointment and in respect of others, from the date of qualifying Sanitary Inspector training course and the proposal so mooted was accepted by the Administrative Department vide its communication dated 10.01.2005. On the strength of these two communications, the respondent No. 3 was placed in the grade of Rs. 5700-10,100 w.e.f. 01.04.1995 whereas the appellant was given this grade w.e.f. 20.02.1986. It was only after the above development, the respondent No. 2 circulated tentative seniority list dated 26.10.2010, wherein respondent No. 3 was shown at serial No. 2 and so far as the appellant is concerned, he was shown at serial No. 3 and one Mohd. Ahsan figured at serial no. 1. 6. The appellant filed his objections to the tentative seniority list and thereafter final seniority list was circulated by the respondent No. 2 on 16.09.2011. Ahsan figured at serial no. 1. 6. The appellant filed his objections to the tentative seniority list and thereafter final seniority list was circulated by the respondent No. 2 on 16.09.2011. The judgment passed by the learned writ court has been impugned inter alia on the ground that the learned writ court has not appreciated the controversy in its true perspective and has not dealt with the issue raised by the appellant that the respondent No. 3 did not challenge the two communications dated 26.02.2004 and 10.01.2005 and has also not appreciated and interpreted CCA Rule 24 though reference of which has repeatedly been given in the judgment impugned. It is also stated that if the Sanitary Inspector training course was not pre-requisite for post of Sanitary Inspector then what prompted the respondent No. 3 to undergo the said course in the year 1995 and that too from an un-recognized Institute. In nutshell, the contention of the appellant is that respondent No. 3 lacked the basic qualification at the time of his appointment and acquiring of the said qualification subsequently would not entitle the respondent No.3 to get the benefit of grade of Rs. 1760-3200 (revised to Rs. 5700 to 10,100) from the date prior to the date of acquisition of said qualification and consequently fixing his seniority over and above the appellant. 7. Mr. Rakesh Sharma, learned counsel for the appellant vehemently argued that the appointment to the post of Sanitary Inspector used to be made on the analogy of the qualification prescribed for the appointment of Sanitary Inspectors in Jammu Municipality which was Matric with the diploma in Sanitary Inspector training course. Mr. Sharma laid much stress that the respondent No. 3 lacked the basic qualification at the time of his appointment and acquiring of the said qualification subsequently would not entitle the respondent No.3 to get the benefit of grade of Rs. 1760-3200 (revised to Rs. 5700 to Rs.10,100) from the date prior to the date of acquisition of said qualification and consequently fixing his seniority over and above the appellant. Mr. Rakesh Sharma, learned Counsel for the appellant relied heavily upon the judgment of Full Bench of Bombay High Court in the case of Shri Vaijnath vs. The Secretary, Marathwada Shikshan Prasarak Mandal 2006 SCC OnLine Bom 1131 and judgment of Apex Court in Union of India vs. H.R Patankar 1984 AIR (SC) 1587. 8. Mr. Mr. Rakesh Sharma, learned Counsel for the appellant relied heavily upon the judgment of Full Bench of Bombay High Court in the case of Shri Vaijnath vs. The Secretary, Marathwada Shikshan Prasarak Mandal 2006 SCC OnLine Bom 1131 and judgment of Apex Court in Union of India vs. H.R Patankar 1984 AIR (SC) 1587. 8. Mr. M. K Bhardawaj learned Senior Counsel for the respondent No. 3 in LPA No. 91/2018 and Mr. C S Gupta, learned Counsel for the respondent No. 3 in LPA No. 90/2018 argued that till 2008, there were no rules framed by the Government regarding the appointment and promotion of the employees of the Directorate of Urban Local Bodies and it was only in the year 2008 that the rules were framed by the Government and as there were no rules in vogue when the respondent No. 3 was appointed as Sanitary Inspector, so his seniority had to be determined w.e.f. the date of his initial appointment that is 17.04.1985 and as the appellant joined the services after respondent No. 3, he cannot be considered as senior to the respondent No. 3. 9. Mr. S.S Nanda, learned Senior AAG, appearing on behalf of respondent Nos.1 and 2 argued that vide order dated 20.04.1995 sanction was accorded for the up-gradation of 28 posts of Sanitary Inspectors of Local Bodies Jammu in the pay scale of Rs. 1760-3200 w.e.f 01.04.1995, subject to they being qualified. The respondent No. 3 was not covered under this order as he qualified the Sanitary Inspector Training course later. The department accorded his up-gradation also w.e.f. 01/04/1995 vide order dated 28.04.1995 as the respondent No. 3 did his diploma in the year 1994–95. In fact, the argument of Mr. Nanda is that there are two grades of Sanitary Inspectors in the department, one is of the qualified Sanitary Inspectors and the other of unqualified Sanitary Inspectors in the lower pay scale. 10. Heard and perused the record. 11. In fact, the argument of Mr. Nanda is that there are two grades of Sanitary Inspectors in the department, one is of the qualified Sanitary Inspectors and the other of unqualified Sanitary Inspectors in the lower pay scale. 10. Heard and perused the record. 11. The contention of the appellant is that the respondent No. 3 was not having diploma in Sanitary Inspector training course at the time of his entry into the service and he acquired the status of qualified Sanitary Inspector after completing diploma, that too from an un-recognized Institute in the year 1995, so the respondent No. 3 is not entitled to a higher grade from the date prior to the date of acquisition of said qualification. The appellant substantiates his contention by asserting that the appointments of Sanitary Inspectors used to be made in the Directorate of Urban Local Bodies on the basis of the rules framed for Sanitary Inspectors in the Jammu Municipality. 12. We have examined the response filed by the official respondents before the writ court, wherein no whisper has been made by them that the appointments of Sanitary Inspectors used to be made on the analogy of the qualification prescribed for the appointment of Sanitary Inspectors in the Jammu Municipality. As such, this Court is of the considered opinion that there is nothing on record to substantiate that the appointments of the Sanitary Inspectors in the Directorate of Urban Local Bodies used to be made on the analogy of the qualification prescribed for appointments of Sanitary Inspectors in the Jammu Municipality. 13. The issuance of Jammu and Kashmir Urban Local Bodies Institutions (Management) Service Recruitment Rules, 2008 vide [1]SRO 417, dated 18.12.2008 establishes one fact that there were no rules in vogue governing the appointment and promotion of Sanitary Inspectors working in the Directorate of Local Bodies, Jammu. Though the department has not chosen to assail the judgment impugned but Mr. Nanda, the learned senior AAG has supported the contention of the appellant that the respondent No. 3 was not a qualified Sanitary Inspector and because of that reason, the respondent No. 3 was not entitled to the benefit of higher grade from the date prior to the date of acquisition of said qualification. Nanda, the learned senior AAG has supported the contention of the appellant that the respondent No. 3 was not a qualified Sanitary Inspector and because of that reason, the respondent No. 3 was not entitled to the benefit of higher grade from the date prior to the date of acquisition of said qualification. A perusal of order of appointment of respondent No. 3 reveals that the Chairman, Notified Area Committee, R.S Pura was directed to allow the respondent No. 3 to join the service after verifying his matriculation certificate and permanent resident certificate. It was not provided in his appointment order that the respondent No. 3 was required to undergo any diploma/ certificate course within some stipulated time. The respondent No. 3 has admittedly undergone the diploma course in the year 1994-95. The department vide its order dated 20.04.1995 sanctioned the up-gradation of 28 posts of Sanitary Inspectors, provided they were qualified. It is relevant to note here that even on the said date, no technical qualification for post of Sanitary inspector was provided and rightly so because there were no rules in vogue. Vide order dated 28.04.1995, three more posts of Sanitary Inspectors of Local Bodies Jammu were upgraded in the pay scale of Rs. 1760-3200 again with a stipulation that they must be qualified. This is admitted by the official respondents that the appellant was granted the benefit of a higher grade w.e.f. 01.04.1995. It needs to be noted that prior to the issuance of both the orders, providing for up-gradation, the respondent No. 3 had already acquired the diploma in Sanitary Inspector training course on 12.01.1995. 14. As this Court has already observed that there were no rules in vogue at the time of entry of the respondent No. 3 in the service, the issue that is required to be considered is whether the respondent No.3 could have been denied the benefit of the higher grade being unqualified. 14. As this Court has already observed that there were no rules in vogue at the time of entry of the respondent No. 3 in the service, the issue that is required to be considered is whether the respondent No.3 could have been denied the benefit of the higher grade being unqualified. The Department initially vide its notification bearing No. 51-HUD of 2004, dated 26.02.2004 granted the benefit of upgraded scale only to the petitioners in SWP No. 435/1996 and vide order dated 10.01.2005, the order No. 51-HUD of 2004 was made applicable to all the qualified Sanitary Inspectors from the date of appointment and in respect of others from the date of qualifying the Sanitary Inspectors Training course on notional basis without any monetary benefits so that the final seniority list of Sanitary Inspectors is framed as per Civil Services (Classification and Control Appeal) Rules 1956. Nothing has been brought on record to demonstrate the distinction between Sanitary Inspectors and Qualified Sanitary Inspectors for the purpose of grant of higher grade by virtue of order dated 10.01.2005, more particularly in absence of any rule providing for the qualification of sanitary inspectors in the Directorate of Urban Local Bodies. The learned writ court has also come to the conclusion that qualified Sanitary Inspector would not necessarily mean a Sanitary Inspector, who had cleared the Sanitary Inspector training course on the date when he was appointed. The judgment reported in “2006 SCC OnLine Bom 1131” relied upon by Mr Sharma, learned counsel for the appellant will not apply in this case, once this court has come to the conclusion that the respondent No.3 was not disqualified to be appointed as Sanitary Inspector at the time of his entry into service because in the said judgment, the issue was with regard to the teacher, who was unqualified at the time of entry into the service and had obtained the requisite qualification after the other candidate having requisite qualification joined the service. Similarly, the judgment of the Hon'ble Apex Court in “Union of India v. H.R Patankar” is not applicable as this Court has already arrived at the conclusion that the qualified Sanitary Inspector did not necessarily mean a Sanitary Inspector having acquired the qualification of Sanitary Inspectors Training course. 15. Similarly, the judgment of the Hon'ble Apex Court in “Union of India v. H.R Patankar” is not applicable as this Court has already arrived at the conclusion that the qualified Sanitary Inspector did not necessarily mean a Sanitary Inspector having acquired the qualification of Sanitary Inspectors Training course. 15. In Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust, (2014) 13 SCC 219 , the Hon'ble Apex Court was confronted with a situation where the appellant had entered into service prior to the respondent No. 4 but the claim of the appellant for the promotion as Headmaster was rejected on the ground that the respondent no. 4 therein had acquired the B.Ed. degree prior to appellant and it was held as under: “18. In the present case, as already mentioned above, the appellant was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the primary school and it was not a case of appointment of an unqualified teacher when the appellant was appointed to the said post on 24.08.1979. This makes all the difference and renders the judgment in Vaijanath [Vaijanath v. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131] as inapplicable to the facts of the present case. The High Court has failed to notice this relevant distinction and mechanically applied the ratio of the judgment in Vaijanath [Vaijanath v. Marathwada Shikshan Prasarak Mandal.” xxxxx In the aforesaid backdrop, it is to be seen as to whether acquisition of B.Ed. degree by Respondent 4 (who joined as Assistant Teacher after the appellant and was junior to her as Assistant Teacher) earlier in point of time than the appellant would tamper with the seniority of the appellant and steal a march over her? The School Tribunal as well as the High Court has referred to the Full Bench judgment of the Bombay High Court in Vaijanath [Vaijanath v. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131 while answering this question in the affirmative. xxxx Insofar as manning the post of Head of the school is concerned, Rule 3 of the Rules provides for the qualifications. It is not in dispute that as on the date of which the Head of the school was to be appointed, the appellant fulfilled all the requisite qualifications mentioned in the said Rule. Further, as already found, she was senior to Respondent 4 as well. It is not in dispute that as on the date of which the Head of the school was to be appointed, the appellant fulfilled all the requisite qualifications mentioned in the said Rule. Further, as already found, she was senior to Respondent 4 as well. Therefore, it is the appellant who was the rightful claimant to the post of Head of the school. Depriving her of this legitimate right and making the appointment of Respondent 4 as the Headmaster of the school was, therefore, clearly erroneous, which resulted in infringement of the rights of the appellant to hold that post.” The judgment of the Hon'ble Apex Court is squarely applicable in this case. 16. In view of above, this Court does not find any infirmity in the judgment passed by the writ court and as such, the same is upheld. Resultantly, LPA no. 90/2018 is dismissed. For the same reasons LPA bearing no. 91/2018 is also dismissed. Other connected appeals are dismissed as having been rendered infructuous.