Ut Of J&K And Anr vs Joginder Sharma
2021 Latest Caselaw 737 j&K

                                                                Case No. 213
                                                         (Supplementary Cause List)



                  HIGH COURT OF JAMMU & KASHMIR
                            AT JAMMU

                                               LPA No. 160/2020
                                               CM Nos. 8375/2020 &
                                               8376/2020

UT of J&K and Anr.                                    .....Appellant/Petitioner(s)
                       Through: Mr. F.A Natnoo, AAG
                  Vs
Joginder Sharma                                               ..... Respondent(s)
                       Through: Mr. Sheikh Najeeb, Advocate.

Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                   ORDER

16.07.2021 (OPEN COURT)

1. This is a Letters Patent Appeal against the judgment and order dated

10.02.2020, whereby the petition filed by the petitioner-respondent

herein was allowed and he was held entitled to wages @ Rs. 14,800/-

per month representing the basic minimum pay scale of Class-IV

employees in terms of SRO 193 dated 24.04.2018.

Briefly stated, the material facts are as under:-

2. The respondent came to be engaged as an Orderly on temporary basis

on a consolidated pay of Rs. 2550/-, which was the minimum basic

pay of Class-IV employees, in the Surinsar-Mansar Development

Authority, by virtue of order dated 21.07.2008. The respondent

continues to be working as such on consolidated basis. The case set up

by the respondent in the writ petition was that he was initially engaged

in the Surinsar-Mansar Development Authority on need basis and

thereafter, his status was converted from need basis to consolidated

employee in terms of order dated 21.07.2008. As per the order dated

21.07.2008, the respondent was appointed in the consolidated pay of

Rs. 2550/-, which was the minimum basic pay of Class-IV employees.

It would be pertinent to reproduce the relevant portion of the order

dated 21.07.2008 hereunder:-

"In the interest of administration and smooth functioning of Surinsar-Mansar Dev. Authority, The following two persons who are working in this authority as casual workers are engaged as orderly purely on temporary basis on a consolidated pay of Rs. 2550/- (Two thousand, Five hundred and fifty only) the minimum basic pay of class IV

1. Sh. Joginder Sharma S/o Sh. Om Parkash R/o Mantalai, The Chenani, Distt. Udhampur.

2. Sh. Tanveer Hussain S/o Lt. Sh. Fazal Hussain R/o Village Kundra The. & Distt. Reasi.

Their engagement is provisional and subject to the approval/confirmation by the Board of Surinsar-Mansar Dev. Authority.

This order shall have immediate effect."

3. The grievance of the respondent as reflected in the writ petition was

that on account of the application of SRO 193 dated 24.04.2018, the

basic pay of employees working against substantive posts was

enhanced to Rs. 14,800/- while the respondent was being paid

Rs. 5740/- after the application of the revision of 6th Pay Commission.

The respondent, therefore, sought the minimum of the scale at Rs.

14,800/- per month in terms of SRO 193.

4. The writ petition was allowed by virtue of judgment and order

impugned. The argument of the official respondents that the

provisions of SRO 193 were not applicable to the employees working

on consolidated basis as per Clause 2 (XII) of the said SRO was

rejected. For facility of reference, the said clause is reproduced

hereunder:-

"Clause 2(xii) Categories of Government servants to whom the rules apply:- 1) Save as otherwise provided by or under these rules, these rules shall apply to persons appointed to civil services and posts in connection with the affairs of the State including whole time contingent paid workers/work charged employees drawing pay in graded scales whose pay is debited to consolidated fund of the State.

2) These rules shall not apply to:-

(i) Members of the All India Services appointed to the civil posts/ serving in connection with the affairs of the State;

(ii) Faculty Members of Government Degree Colleges, to whom Government Degree Colleges (Adoption of UGC Revised Pay Scales) Rules 2009 apply;

(iii) Faculty Members of Government College of Engineering and Technology, Jammu, to whom Jammu College of Engineering & Technology (Adoption of AlCTE Revised Pay Scales) Rules 2013 apply;

(iv) Faculty Members of S.K. Institute of Medical Science, Srinagar, to whom S.K. lnstitute of Medical Sciences Faculty Members (Revised Pay) Rules 2009 apply;

(v) Members of J&K Subordinate Judicial services, to whom the Jammu and Kashmir Subordinate Judicial Pay Rules, 20 1 I, apply; (vi) persons not in whole-time employment;

(vii) persons paid out of contingencies;

(viii) persons paid otherwise than on a monthly basis including those paid only on a piece rate basis;

(ix) persons employed on contract basis except where the contract provides otherwise;

(x) persons re-employed in Government service after retirement;

(xi) persons whose services are obtained on deputation;

(xii) posts which carry consolidated rate of pay.

(xiii) any other class or category of persons whom the Government may, by order, specifically exclude from the operation of all or any of the provisions contained in these rules."

5. Learned counsel for the appellant states that the view expressed by the

writ Court and the directions issued for granting the benefit of the

minimum of the scale at Rs. 14,800/- were palpably erroneous and

contrary to the provisions of Clause 2 (xii) of the SRO 193 and,

therefore, unsustainable in law. It is true that according to Clause 2

(xii) of SRO 193, the provisions of the rules would not apply to the

posts which carried consolidated rate of pay and, therefore, no worker

working on consolidated pay basis would be entitled to claim the

benefit which would otherwise be available under the J&K Civil

Services (Revised) Pay Rules, 2018 notified vide SRO 193. The SRO

193, if read in isolation perhaps could disentitle those employees

working on consolidated pay basis, who claim the benefit under the

said rules. However, we cannot ignore the language of the order of

engagement of the respondent dated 21.07.2008, which allowed a pay

of Rs. 2550/- to the respondent. There had to be some basis for fixing

the consolidated pay at Rs. 2550/- and that basis finds a correlation

with the minimum of the basic pay of Class IV employees working

against substantive posts. It, therefore, presupposes that if today, the

official respondents were to engage an Orderly purely on a

consolidated pay basis, considering the past practice, the same would

also be fixed at the level of the minimum basic pay of Class IV

employees working against substantive post, which today is at Rs.

14,800/-.

6. No Rule or Government order has been brought to our notice, which

would give legal sanction for all times to come to the proposition that

such employees would be paid only an amount Rs. 2550/- forever.

The assurance which can be seen as having been accorded to the

respondent in terms of order dated 21.07.2008 appears to be that he

would be paid the minimum basic pay of a Class IV employee.

7. In that view of the matter, we are of the opinion that the respondent

would be entitled to receive the minimum basic pay of a Class IV

employee, which is at Rs. 14,800/- and, therefore, the view expressed

by the learned Single Judge was legally justified.

8. Be that as it may, the appeal is found to be without any merit and the

same is, accordingly, dismissed.

                                                 (Puneet Gupta)              (Dhiraj Singh Thakur)
                                                        Judge                               Judge
              Jammu
              16.07.2021
              Tarun

                                          Whether the order is speaking?      Yes/No
                                          Whether the order is reportable?    Yes/No




TARUN KUMAR GUPTA
2021.07.19 16:55
I attest to the accuracy and
integrity of this document