Gurmeet Singh vs D/o Public Health Engineering Ut Of Jammu And Kashmir on 31 December 2024

O R D E R

(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Judicial Member)

The applicant had filed SWP No. 733 of 2018 before the Hon’ble High Court of Jammu & Kashmir praying for the following reliefs:- “i) to quash order No. PHE/P/01 of 2018 dated 16.03.2018 issued by the Executive Engineer, PHE Mechanical Procurement Division, Jammu by which the Executive Engineer has rejected the case of the petitioner for grant of benefit of Circular dated 11.06.1993 on the ground that the petitioner is not covered under the said Circular and cannot be granted benefit of the Circular dated 11.06.1993, by issuance of writ of certiorari; ii) to issue directions to the respondents to extent the benefit of order No: PHER/2553-61 dated 20.10.1993 and also to place the petitioner in the next higher grade of 950-1500 now revised to 3050-4910 with effect from 11.6.1993 from the date the similarly situated persons have been given the benefit of grade vide order No; PHECD-1/1694-98 dated 12.7.2006, by issuance of writ of mandamus; iii) to issue directions to the respondents to release the arrears in favour of the petitioner and to give all the consequential benefits of higher grade retrospectively and to give similar treatment to the petitioner as is given to other similarly situated persons who have been given the revised pay scale of 3050-4910 retrospectively, issuance of writ of mandamus;”

2. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of the Notification No. G.S.R. 267 (E) dated 29.04.2020 read with notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of UT of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the

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record of SWP No. 733 of 2018 was ordered to be transferred by the Hon’ble High Court to this Tribunal on 15.06.2020 and renumbered as Transferred Application No. 1535 of 2020.

3. The brief facts of the case, as stated in the T.A. are that the applicant was engaged as a Daily Wager and regularized on 01.08.1985 as a Pump Driver. He retired as a Pump Operator on 31.12.2017, having performed his duties efficiently and honestly. The Chief Engineer, PHE, issued a circular on 11.06.1993, stating that employees who had notionally completed three years in a lower grade and worked physically against the post for at least one year would be eligible for promotion to the next higher grade. The circular mandated notional promotion without arrears but entitled employees to other benefits. Based on the circular, the Executive Engineer issued an order on 20.10.1993, placing eligible employees in higher grades. Several similarly situated employees were granted benefits under this circular, but the applicant was excluded despite being fully eligible. Aggrieved, the applicant filed SWP No. 487/2015, seeking directions for similar treatment and placement in the next higher grade with arrears and other benefits. The Hon’ble High Court, on 24.02.2015, directed the respondents to consider the applicant’s claim in light of the circular and relevant rules. However, the respondents rejected the applicant’s claim on 16.03.2018, citing that the applicant was not covered under the circular. It is stated in the T.A. that the applicant was regularized in 1985, fulfilling the criteria of having three years of service in the lower grade by 1993 and his work and conduct have

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been satisfactory. As such, he meets all conditions stipulated in the circular but was arbitrarily denied the benefits granted to similarly situated employees.

4. In the objections filed by Respondents No. 1 to 4, it has been stated that the applicant was regularized as Pump Driver vide order dated 21.08.1985 in the pay scale of Rs. 345-460 w.e.f. 01.08.1985 and his designation was changed from Pump Driver to Khalasi vide order dated 16.10.1986. The applicant was transferred from PHE Mechanical Division Jammu to PHE Mechanical Division Ground Water, Jammu dated 30.10.1986 vide order dated 25.10.1986. The applicant was upgraded as Pump Operator on 28.04.1992 in the pay scale of Rs. 745-1025. The first in-situ promotion in the pay scale of 825-1200 has been granted w.e.f. 01.01.1995 vide order dated 02.02.1998, second in-situ was granted w.e.f. 01.03.2001 in the pay scale of 3050-4910 vide order dated 21.07.2001 and Non-ITI benefit has been granted in the pay scale of Rs. 4000-6000 and transferred from PHE (M) Procurement Division to PHE (M) Rural Division vide order dated 24.08.2009. The third in-situ promotion has been granted w.e.f. 01.04.2009 vide order dated 29.05.2009 in the pay scale of Rs. 4500-7000 and also granted Daily Wager service benefit from 01.09.1978 to 31.07.1985 and retired on 31.12.2007.

5. The applicant has filed rejoinder affidavit, in which it has been stated that several similarly situated persons, regularized in the year 1985 like the applicant, had approached the Hon’ble High Court and the Hon’ble High Court disposed of the writ petitions filed by them

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with directions to respondents to consider their case for granting benefit of higher grade in pursuance of circular dated 11.06.1993 and order dated 20.10.1993. In pursuance of the orders passed by the Hon’ble High Court, the respondents extended the benefit in favour of similarly situated persons. However, in the case of the applicant, the respondents have adopted a discriminatory approach.

6. Ms. Surinder Kour, learned counsel for the applicant contended that the applicant, who was regularized as a Pump Driver on 01.08.1985 and retired as a Pump Operator on 31.12.2017, is fully eligible and entitled to the benefit of the Chief Engineer's Circular dated 11.06.1993, which provided for the grant of a higher grade (950- 1500, revised to 3050-4910) to employees who had completed three years of physical service in the lower grade. As per Ms. Kour, the applicant satisfies all conditions stipulated in the circular, including regularization prior to the issuance of the circular, completion of more than eight years of service in the lower grade by the time the circular was issued and a satisfactory service record with no adverse entries.

7. Learned Sr. Counsel further contended that the applicant has been discriminated against, as similarly situated employees, who were regularized under the same conditions, have been granted the benefit of the higher grade. This constitutes a violation of Articles 14 and 16 of the Constitution of India, which guarantee equality before the law and equal treatment in matters of public employment. The respondents' rejection of the applicant’s claim on the grounds that he does not meet the conditions of the circular is arbitrary and

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unsustainable. It has been further contended that the applicant held permanent status as of 1985, well before the issuance of the circular and has physically worked in the lower grade for over three years continuously.

8. Learned Sr. counsel for the applicant further contended that the respondents have failed to apply their mind and consider the applicant’s service record and eligibility under the circular. The denial of benefits to the applicant, while granting the same to other similarly situated employees, is discriminatory and violates the principles of natural justice.

9. Learned Sr. Counsel further argued that the Hon'ble High Court, in its order dated 24.02.2015 in SWP No. 487/2015, directed the respondents to consider the applicant’s claim under the provisions of the circular. Instead of complying with this direction, the respondents arbitrarily rejected the applicant’s claim without providing any cogent reasons, violating the applicant’s fundamental rights. The order dated 16.03.2018 rejecting the petitioner’s case is contrary to the service record and the provisions of the circular. The respondents’ reliance on erroneous interpretations of the conditions in the circular to deny the petitioner’s claim is an exercise of power that is arbitrary and manifestly erroneous.

10. Learned Sr. Counsel lastly prayed that the order rejecting the applicant’s claim be quashed, and the applicant be granted the benefit of the higher grade in compliance with the provisions of the circular dated 11.06.1993 and in parity with similarly situated employees.

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11. On the other hand, Mr. Dewakar Sharma, learned D.A.G. contended that the applicant was regularized as a Pump Driver vide order dated 21.08.1985 in the pay scale of 345-460, effective from 01.08.1985. Subsequently, his designation was changed to Khalasi on 16.10.1986. Over the course of his service, the applicant was transferred multiple times and promoted in accordance with the rules and regulations, including upgradation to Pump Operator on 28.04.1992 in the pay scale of 745-1025, 1st in-situ promotion to the pay scale of 825-1200, effective from 01.01.1995, granted on 02.02.1998, 2nd in-situ promotion to the pay scale of 3050-4910, effective from 01.03.2001, granted on 21.07.2001, 3rd in-situ promotion to the pay scale of 4500-7000, effective from 01.04.2009, granted on 29.05.2009.

12. Learned D.A.G. further contended that the applicant has been granted all admissible service benefits during his tenure, including the benefit of his daily wager service from 01.09.1978 to 31.07.1985. Upon retirement on 31.12.2017, the applicant had availed all benefits as applicable to him under the relevant service. All decisions regarding his service benefits have been made in accordance with the rules and policies governing such matters. The learned counsel prayed that the T.A. may be dismissed, as the applicant has not been able to demonstrate any legal or factual basis for his claim.

13. Heard the learned counsels for the parties and perused the records

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14. Perusal of record shows that the applicant had initially filed SWP No. 487 of 2015 seeking directions to respondents to extend the benefit of higher grade in terms of order dated 20.10.1993 and to place him in the next higher grade of 950-1500 now revised to 3050- 4910 w.e.f. 11.06.1993 from the date the similarly situated persons have been give the same benefit and all consequential benefits. The Hon’ble High Court disposed of the aforesaid SWP with the following directions:- “The writ petition is, accordingly, taken up for final disposal and as such disposed of with a direction to the respondents to consider the claim of the petitioner under rules having regard to judgment dated 06.03.2014 passed by a Coordinate Bench of this Court in SWP No. 570/2014 titled “Gushan Ram and ors. State and ors.”, provided the same is applicable in the case in hand and pass appropriate consideration order within a period of two months from the date a certified copy of this order is served upon them. Petitioner, on his part may hand over copy of the petitioner alongwith copies of its annexures to the respondents so as to facilitate early decision in the matter.”

15. In compliance to the aforesaid order of this Tribunal, the respondents considered the case of the applicant, however, rejected the same vide order dated 16.03.2018. Perusal of the order dated 16.03.2018 does not divulge as to how the applicant does not fulfil the criteria for the benefit of higher grade like the similarly situated persons and how other persons were eligible for the benefit.

16. It is evident from the record that the applicant was regularized as a Pump Driver on 01.08.1985. The applicant claims entitlement to the benefits of the Circular dated 11.06.1993 issued by the Chief Engineer, which provides for the grant of a higher grade to employees fulfilling specific conditions.

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17. The applicant has demonstrated that similarly situated employees (including Pump Drivers), who were regularized prior to or around the same time as him, have been granted the benefit of the circular. This disparity in treatment amounts to discrimination and violates Articles 14 and 16 of the Constitution of India, which guarantee equality before the law and equal treatment in matters of public employment.

18. The Court observes that the applicant was brought on the regular establishment as early as 01.08.1985 and had an unblemished service record throughout his tenure, which has not been disputed by the respondents. The respondents have failed to provide any cogent reason for denying the applicant the benefit of the circular while extending the same to other similarly situated employees. The respondents’ argument that the applicant has not worked against any higher post cannot override the intent and purpose of the circular, which provides for notional promotion to the next higher grade based on service rendered and eligibility criteria. The applicant has clearly demonstrated that he satisfies the conditions for entitlement under the circular, including rendering more than three years of continuous service in the lower grade at the time of issuance of the circular.

19. In light of the above, the rejection of the applicant’s claim by the respondents is found to be arbitrary, discriminatory, and contrary to the principles of natural justice. This Court finds merit in the applicant’s claim for the grant of a higher grade under the Circular

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dated 11.06.1993. Accordingly, the T.A. is allowed. The impugned order dated 16.03.2018, rejecting the applicant’s claim, is hereby quashed. The respondents are directed to grant the applicant the benefit of the Circular dated 11.06.1993 and place him in the next higher grade of 950-1500 now revised to 3050-4910 w.e.f. 11.06.1993 from the date the similarly situated persons have been given the benefit of grade vide order dated 12.7.2006 along with all consequential benefits including arrears etc.

20. The respondents shall comply with this order within a period of three months from the date of its receipt. No costs.

(Ram Mohan Johri)

(Rajinder Singh Dogra) Administrative Member

Judicial Member

Indrani…