Jammu & Kashmir High Court - Srinagar Bench
State Of J&K & Ors vs Nissar Ahmad Kumar on 18 February, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 02.02.2021
Pronounced on:18.02.2021
LPASW No.144/2018
IA No.01/2018
State of J&K & Ors. ... Appellant(s)
Through: -Mr. B. A. Dar, Sr. AAG.
Vs.
Nissar Ahmad Kumar ...Respondent(s)
Through: - Mr. Syed Faisal Qadiri, Sr.
Advocate with Ms. Jasiya Ali,
Advocate
CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar, J
1) The appellants have called into question judgment
dated 16.04.2018 read with rectification order dated
10.05.2018 passed by learned Single Judge in SWP
No.1761/2017, whereby order bearing No.263-KRC of
2017 dated 30th of October, 2017, rejecting claim for
regularization of the respondent on the post of Driver, has
been quashed and a direction has been issued to the
appellants to regularize the respondent against the vacant
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post of Driver retrospectively from the date he had been
performing his duties as a Driver with the appellants.
2) Briefly stated, the case of the respondent (hereinafter
referred to as "the writ petitioner") before the Writ Court
was that he was temporarily appointed as Chowkidar in
the office of appellant No.3 in terms of order No.156-KRC
of 2007 dated 20.09.2007. After satisfactory completion of
two years' period of probation, the services of the writ
petitioner were confirmed vide order No.53-KRC of 2010
dated 19th of May, 2010. It was further case of the writ
petitioner that the appellants, after taking into account
the fact that he was a matriculate and a duly licensed
driver, ordered the writ petitioner to perform his duties as
a Driver against an available vacancy and consequently
the writ petitioner started discharging the duties of a
Driver in the office of appellant No.3 which he continued
to do till filing of the writ petition. It was further
contended by the writ petitioner that despite discharging
duties against the post of a Driver, he was not being paid
salary attached to the said post which compelled him to
make a representation on 21st of February, 2014, before
the appellants.
3) It was also claimed by the writ petitioner that the
MOHAMMAD ALTAF BHAT Government has vide its order dated 14th of July, 2017,
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regularized services of one Shri Raj Kishore Singh
(Chowkidar) against the post of Driver retrospectively from
the date he was discharging his duties as a Driver with
appellant No.3. The writ petitioner, therefore, claimed that
on the grounds of parity, he is entitled to same treatment
as was given to Shri Raj Kishore Singh.
4) The writ petition was resisted by the appellants
herein by filing their reply wherein it was claimed that the
Jammu and Kashmir Hospitality & Protocol (subordinate)
Service Recruitment Rules, 2008 are not applicable to the
case of the writ petitioner and that his services are
governed by the J&K Trade Commission-cum-Agencies
(subordinate) Service Recruitment Rules, 1971. According
to the appellants, there is no provision in the aforesaid
Rules for promotion of a Chowkidar to the post of Driver,
which as per the rules is to be filled up by direct
recruitment. It was claimed by the appellants that the writ
petitioner was all along substantively working against the
post of Chowkidar and drawing his salary against the said
post. However, it was admitted that the writ petitioner is
performing the functions of a Driver due to shortage of
staff and exigency of work. With regard to case of Shri Raj
Kishore Singh, it was claimed by the appellants that his
case is quite different from the case of the writ petitioner.
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5) It is pertinent to mention here that vide interim order
passed by the learned Writ Court on 31.08.2017, a
direction was issued to the appellants to take a decision in
the case of the writ petitioner for regularization of his
services against the post of Driver on the same lines as
adopted in the case of Shri Raj Kishore Singh. The
consideration was accorded by the appellants and the
claim of the writ petitioner was rejected in terms of order
No.263-KRC of 2017 dated 30.10.2017, which was
challenged by the writ petitioner before the Writ Court by
making necessary amendment to the writ petition.
6) The learned Single Judge after hearing the parties
passed the impugned judgment whereby writ petition has
been allowed and the aforesaid order dated 30.10.2017
passed by the appellants herein has been quashed and a
direction has been issued to the appellants to regularize
the writ petitioner against the vacant post of Driver
retrospectively. It is this judgment of the learned Single
Judge which has been called into question by the
appellants through the medium of instant appeal on the
grounds that the facts of the case of Shri Raj Kishore
Singh were entirely different from the facts applicable to
the case of the writ petitioner; that the impugned
judgment would open a Pandora box as the similar
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requests/claims for promotion/adjustment against the
post of Driver from other employees who are performing
functions of said posts would arise and that vide the
impugned judgment while directing retrospective
regularization of writ petitioner as a Driver, the date of
effect of such retrospective promotion has been kept
vague.
7) We have heard learned counsel for the parties and
perused the grounds of appeal, impugned judgment and
the relevant record.
8) The short question involved in this appeal is whether
the facts applicable to the case of Shri Raj Kishore Singh,
whose services as Driver were regularized by the
appellants, are different to the facts applicable to the case
of the writ petitioner.
9) A perusal of the record shows that Shri Raj Kishore
Singh was appointed as Chowkidar in the office of
appellant No.3 vide order No.277-KRC of 1980 dated
07.02.1980 on temporary basis and ultimately his services
as Chowkidar were regularized vide order No.35-KRC of
1989 dated 09.05.1989. Thereafter he was ordered to work
as Driver temporarily against a leave vacancy and
subsequently against an available post pending filling up
MOHAMMAD ALTAF BHAT of the post on regular basis. In terms of order No.62-KRC
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dated 17.02.1993, Shri Raj Kishore Singh was reverted
back and directed to perform his duties as Chowkidar.
Against this order, the above named official filed a writ
petition before the High Court of Delhi wherein an interim
order was passed by the Court directing that the said
official be not reverted back from the post of Driver.
Thereafter during the pendency of the writ petition,
services of Shri Raj Kishore Singh were regularized as
Driver (Grade-I) in terms of order No.25-KRC of 2000
dated 19.04.2000. However, the writ petition filed by Shri
Raj Kishore Singh was dismissed by Delhi High Court for
non-prosecution on 06.07.2009.
10) It appears from the record that certain queries were
raised with regard to the manner in which the services of
Shri Raj Kishore Singh as a Driver were regularized but
ultimately on the recommendations of Financial
Commissioner, Hospitality and Protocol Department,
sanction was accorded to the regularization of services of
Shri Raj Kishore Singh (Chowkidar) against the post of
Driver Grade-I retrospectively in relaxation of the rules, in
terms of Government order No.11-HP of 2017 dated
14.07.2017.
11) Coming to the facts of the case relating to the writ
MOHAMMAD ALTAF BHAT petitioner, as already noted, he was temporarily appointed
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as Chowkidar in terms of order No.156-KRC dated
20.09.2007, where after his services as such were
confirmed vide order No.53-KRC of 2010 dated
19.05.2010. The writ petitioner has placed on record
before the Writ Court a certificate showing that he has
been working as a Driver since 2010. Though the
competence of the officer who has issued the certificate
has been disputed by the appellants, yet the
communication dated 21.02.2014, Annexure-D to the writ
petition, makes things clear. In the said communication,
the appellant No.3 has clearly stated that six officials
including the writ petitioner were working as Drivers for
the last many years and the officer has made a
recommendation that consolidated amount equivalent to
minimum pay scale of the Driver be released in favour of
all those officials, which includes the writ petitioner.
12) From the comparative analysis of the facts of the
case pertaining to Shri Raj Kishore Singh and the facts of
the case pertaining to the case of the writ petitioner, it is
clear that there is hardly any difference in the two cases.
Both writ petitioner as well as Shri Raj Kishore Singh were
appointed as Chowkidars. Both of them were made to
discharge the duties of a Driver on account of exigency of
service and they continued to do so for years together
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against the available vacancies of Drivers. In fact, the case
of the writ petitioner stands on a higher pedestal because
while Shri Raj Kishore Singh was, by a written order,
directed to join back the post of Chowkidar but the writ
petitioner was never reverted back to his original posting.
In the case of Shri Raj Kishore Singh, despite his writ
petition having been dismissed by Delhi High Court,
though not on merits, sanction was accorded to
regularization of his services as a Driver. In the case of the
writ petitioner, he was armed with an interim an interim
order of the Writ Court directing consideration of his case
for regularization of his services as Driver. Thus, his case
stands on a better footing.
13) It is on the basis of aforesaid analysis of the facts
obtaining in the two cases that the learned Single Judge
has reached a conclusion that the writ petitioner is
entitled to similar relief and treatment as has been
accorded to Shri Raj Kishore Singh. The finding of the
learned Single Judge in this regard is quite lucid and well
reasoned. The same does not call for any interference from
this Court.
14) Even otherwise in a welfare State, the Government
is expected to act as a model employer and not as an
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exploiter of workers. We have came across from the
perusal of the record that appellants have been utilizing
the services of Chowkidars including the writ petitioner
and other similarly situated employees for discharging the
duties of drivers for years together without paying them
the salaries attached to said post in spite of the
recommendations of the officers in this regard. The
Supreme Court in the case of State of Punjab and others
v. Jagjit Singh and others, (2017) 1 SCC 148, while
holding that an employee engaged for the same work
cannot be paid less than other, who performs the same
duties, has observed as under:
"55. In our considered view, it is fallacious to determine
artificial parameters to deny fruits of labour. An employee
engaged for the same work, cannot be paid less than another,
who performs the same duties and responsibilities. Certainly
not, in a welfare state. Such an action besides being
demeaning, strikes at the very foundation of human dignity.
Any one, who is compelled to work at a lesser wage, does not
do so voluntarily. He does so, to provide food and shelter to
his family, at the cost of his self respect and dignity, at the cost
of his self worth, and at the cost of his integrity. For he knows,
that his dependents would suffer immensely, if he does not
accept the lesser wage. Any act, of paying less wages, as
compared to others similarly situate, constitutes an act of
exploitative enslavement, emerging out of a domineering
position. Undoubtedly, the action is oppressive, suppressive
and coercive, as it compels involuntary subjugation.
57. There can be no doubt, that the principle of „equal pay for
equal work‟ would be applicable to all the concerned
temporary employees, so as to vest in them the right to claim
wages, at par with the minimum of the pay-scale of regularly
engaged Government employees, holding the same post."
15) In view of what has been observed by the Supreme
Court, it is clear that the appellants were not justified in
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not releasing the pay and perks attached to the post of
Driver in favour of the respondent from the date he has
been discharging duties as such under the directions of
his superior officer(s).
16) So far as the contention of the appellants that in
the impugned judgment date of retrospective effect has not
been mentioned, the same is without any basis as the writ
petitioner has placed on record documents to show that
he has been working as a Driver since the year 2010. The
appellants do not deny the said fact though they have
disputed the competence of the officer who has issued the
certificate to this effect. Thus, there should not be any
difficulty for the appellants to determine the relevant date.
17) For the foregoing discussion, we do not find any
infirmity or illegality in the impugned judgment passed by
the learned Single Judge. The appeal, being without any
merit, is dismissed along with connected CM.
18) No order as to costs.
(Sanjay Dhar) (Tashi Rabstan)
Judge Judge
Srinagar
18.02.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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