Mushtaq Ahmad Wani vs D/o Health And Medical Education Ut Of Jammu & Kashmir on 28 December 2022

O R D E R

Per Mr.D.S.Mahra, J.M.

The applicants have prayed for the following relief in the present TA : (I) By issuance of a Writ of Certiorari, or any other appropriate writ, order or direction, the impugned letter dated 15th December, 2017, issued by the respondent No.3 in so far as it directs the respondent No.2 to instruct all the concerned DDOs to take similar action, as has been mentioned in the aforesaid letter, as well as the proceedings initiated by the respondents for effecting recovery be quashed; (II) By issuance of a Writ of Mandamus, or any other appropriate writ, order or direction, the respondents be directed not to effect any sort of recovery from the salary/pension of the petitioners in terms of the impugned letter dated 25th of December, 2017, issued by the respondent No.3; (III) By issuance of a Writ of Mandamus, or any other appropriate writ, order or direction, the respondents be directed to give all the benefits to the petitioners as may have accrued to them and also give them the time bound promotion or any other promotion whichever due to them; (IV) By issuance of a writ of Mandamus, or any other appropriate writ, order or direction, the respondents be directed not to make any sort of re-fixation by lowering the pay scales of the petitioners and

they may be further directed to give all the benefits to the petitioners which are due to them. (V) Any other writ, order or direction, though not specifically prayed, as this Hon’ble Court deems fit and proper in the circumstances of the case may also be issued in favour of the petitioners and against the Respondents.

2. The fact of the case in a nutshell is that the applicants were appointed as Dawasaazs in the pay scale of Rs.2610-3540/- Indian System of Medicine (ISM), one of the wings of the Health & Medical Education Department. The promotional post was of Assistant Hakim (Vaid) carrying pay scale of Rs.3050- 4910/-. The nature of work of the applicants was same to their counterparts working as Medical Assistant/Pharmacists in Allopathic Wind (Directorate of Health Services, Jammu/Kashmir), but the Pharmacists were given higher pay scales than the Dawasaazs. Being aggrieved by such discrimination some of the Dawasaazs approached Hon’ble High Court in OWP 451/1992 (Ramanand Sharma & Ors. –vs- State of J&K and Ors.) seeking parity in pay scale with their counterparts and Hon’ble High Court vide order dated 20.7.1998 disposed of the same by directing the respondents to place the applicants in the same pay scale in which the Medical Assistants/Pharmacists are placed in the Department of Health, to designate the Dawazsaazs as Pharmacists and to extend all the benefits to the applicants which were available to their counterparts in the department. The respondents filed a Letters Patent Appeal No. 299/2000 against the said order and Hon’ble Division Bench in terms of judgment dated 23.11.2000 dismissed the same by observing that the duties performed by the Dawasaazs are similar to those being performed by the Pharmacists. The respondents filed

Special Leave Petition No. 14720/2001 before Hon’ble Supreme Court which was also dismissed vide order dated 7.3.2003. As such the judgment dated 20.7.1998 of the Hon’ble High Court attained finality. Thereafter the respondents vide order dated 21.5.2004 re-designated the Dawasaazs as Pharmacists and pay scales of all Dawasaaz (2610-3540) and Assistant Hakims (Vaids) (3050-4910) were merged into the pay scale of Rs.4000-6000/- w.e.f. 20.7.1998, i.e. the date of the judgment. The applicants were only re-designated but were never granted any functional promotion. They were granted first time bound promotion in 1995 and another time bound promotion in 2007 when they were re-designated. The applicants being re-designated in 2004 as Pharmacists were placed in higher scale but there was pay anomaly with that of the Pharmacists who were originally discharging duties with the Health Department. Subsequently the Administrative Department after examining 30 Service Books and equal number of pay fixation sheets of Pharmacists i.e. the applicants have issued the order dated 15.12.2017. The applicants being aggrieved by the order dated 15.12.2017 issued by respondent No.3 and the subsequent process for effecting recovery from their salary, have filed SWP No. 2748/2017 which has subsequently been transferred to this Tribunal and re-numbered as TA 301/2021.

3. The respondents have filed their counter stating that initially Pharmacists of ISM had designation as Dawasaaz holding the pay scale slightly above Class IV i.e. 2610-3200 upto 19.7.1998. However, vide Govt. order dated

21.5.2004, the Dawasaaz working in ISM Department (2610-3540) were placed in the higher pay scale of 4000-6000 w.e.f. 20.7.1998 and sanction was also accorded to re-designation of Dawasaaz as Pharmacist. Hence by virtue of the order dated 2.2.2004 two benefits were granted to the applicants :-

i) Upgradation of pay scale from (2610-3540) to 4000-6000;

ii) Change of nomenclature of Dawasaaz as Pharmacist.

It is also submitted that the upgradation coupled with change of nomenclature w.e.f. 20.7.1998 is functional promotion for the purpose of In- situ promotion as per Finance Department OM dated 22.10.1996. Moreover the applicants have admitted that their pay anomaly with their counterparts in Allopathic Wing was removed. Thus the In-situ promotion has to be considered after 09 years from the date of promotion i.e. 20.7.1998 which falls on 20.7.2007. Clause (g) of OM dated 22.10.1996 mentions two conditions to be fulfilled so that upgradation of pay scale shall not be treated as promotion for purpose of In-situ promotion :- i) The existing pay scale cases and exist to same is replaced by a new scale of pay; ii) No change in nomenclature of the post.

Since the pay scale of Dawasaaz i.e. 2610-3540 was upgraded to pay scale of 4000-6000 w.e.f. 20.7.1998 followed by change in nomenclature therefore above two conditions were not satisfied and hence it is to be treated as functional promotion for the purpose of In-situ promotion. It is further stated that Finance Department by OM dated 22.10.1996 advised to resolve the issue of seniors drawing less pay than the juniors and the respondents have issued instructions vide impugned letter dated 25.11.2017 to revise pay

fixation and no recovery has been made from the applicants. The respondents have therefore prayed for dismissal of the present TA having no cause of action and being devoid of any merit.

4. Heard learned counsels for both sides and perused the materials available on record.

5. It is an admitted fact that the initially Pharmacists of ISM had designation as Dawasaaz holding the pay scale slightly above Class IV i.e. 2610-3200 upto 19.7.1998. However, vide Govt. order dated 21.5.2004, the Dawasaaz working in ISM Department (2610-3540) were placed in the higher pay scale of 4000-6000 w.e.f. 20.7.1998 and sanction was also accorded to re- designation of Dawasaaz as Pharmacist. It appears that the applicants were given first time bound promotion in 1995 and thereafter in 2007. It is also seen that OM dated 22.10.1996 clearly states that re-designation as well as placement on new scale should not be construed to be a functional promotion for the purpose of grant of In-situ promotion, but despite that the respondents have issued letter dated 15.12.2017 which is reproduced as under : “While having random check of the Service Books, it was observed that the concerned DDO’s have wrongly fixed the pay of the officials and required correction has not been made even after the issuance of clarification by the Finance Department vide U.O. No.A/104 (2003)-167 dated 23.7.2014 which is reproduced as under : Vide clause (g) of OM No. A/29(96)-1034 dated 22.10.1996, ‘That upgradation with subsequent re-designation construed as a promotion. As such the officials are entitled for the Time Bound Promotion only after putting in 09 years of service after the upgradation. Accordingly the 30 Nos. of service books receive d from Director ISM are hereby dispatched back to you. The pay fixation sheets prepared are sent alongwith for working out the recoveries (if any) after further examination and computation of due and drawn statements.”

Challenging this order dated 15.12.2017 the applicants approached Hon’ble High Court in WP(C) 2748/2017 and Hon’ble High Court vide order dated 30.12.2017 directed as under : “Meanwhile subject to objections from the other side, recovery, if any, contemplated under the letter dated 15.12.2017, impugned in the petition, shall not be effected till next date of hearing before the Bench.”

Since the matter is already settled by Hon’ble High Court vide order dated 30.12.2017 passed in WP(C) 2748/2017, the department cannot sit over the order of Hon’ble High Court and cannot pass an order for recovery from the applicants.

6. In view of the above discussion the TA is allowed. The impugned order dated 15.12.2017 as well as the proceeding initiated by the respondents for affecting the recovery are quashed. The respondents are directed not to effect any sort of recovery from the salary/pension of the applicants. There will be no order as to costs.

(SHRI KRISHNA)

(D.S.MAHRA) MEMBER (A)

MEMBER (J)

I.Nath