Jammu & Kashmir High Court - Srinagar Bench
Gulzar Ahmad Tantry vs State Of J&K And Others on 17 May, 2022
Sr. No.05
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
LPA No.166/2019
Gulzar Ahmad Tantry ...Petitioner(s)/Appellants.
Through: Mr. Z. A. Qureshi, Sr. Advocate, with
Mr. Asif Nabi, Advocate.
Vs.
State of J&K and others. ....Respondent(s)
Through: Mr. Satinder Singh, AAG.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
17.05.2022
01. The petitioner-appellant has preferred this appeal under Clause 12
of the Letters Patent so as to challenge the judgment and order dated
13.05.2019 passed by the learned Single Judge dismissing his writ
petition SWP No.1485/2015 Gulzar Ahmad Tantray v. State of J&K and
others.
02. The petitioner-appellant claims to have been appointed as Daily-
wager in the Department of Power Development, J&K. The Government
regularized his services as Daily-wager with effect from 04.08.1980. The
petitioner worked thereafter as a permanent employee and his designation
was shown as Meter Reader and then as Installation Inspector vide order
dated 04.08.1980. The petitioner retired on 31.12.2009 and all his dues
were cleared.
03. The petitioner-appellant in the light of his designation as
Installation Inspector filed writ petition SWP No.01/2015 for a direction
to grant and release the grade of salary attached to the post of Installation
Inspector from the date he was holding the said post till his retirement.
The said writ petition was disposed of vide order dated 02.01.2015
directing the respondents to consider the claim of the petitioner-appellant
to the above effect and to take a decision in this regard in accordance with
the rules. In pursuance thereof, a consideration order came to be passed on
24.03.2015 and the claim of the petitioner for payment of salary of the
grade of Installation Inspector was rejected holding that petitioner has no
right to claim such grade as he was never substantively appointed and
promoted on the said post.
04. It is in this background that the petitioner-appellant filed SWP
No.1485/2015 giving rise to the present appeal. The writ petition was
dismissed with the observation that the case of the petitioner-appellant
stands duly considered and the rules applicable do not favour the
adjustment of the petitioner-appellant against the post of the Installation
Inspector.
05. The petitioner-appellant was never appointed on the said post but
was simply given the designation. The petitioner-appellant was a daily-
wager and his services were regularized only as a daily-wager and was
subsequently given the designation of the Installation Inspector. He never
came to be appointed or promoted on the said post. The petitioner-
appellant continued to function as such and retired on 31.12.2009 without
any objection to the grade and salary paid to him. It was only in the year
2015 that he filed a writ petition seeking a grade of the Installation
Inspector which was disposed of with the direction to the respondents to
consider his claim whereupon his claim has been rejected. It means that
from the date of his retirement i.e., 31.12.2009 till the filing of the above
writ petition in 2015, the petitioner-appellant has not raised any dispute
regarding his grade and has quietly accepted the retirement without any
claim for higher grade of salary.
06. Learned counsel for the petitioner-appellant could not place any
material on record to substantiate that the petitioner-appellant either at the
time of his retirement or immediately thereafter made any protest or claim
for higher grade. The petitioner-appellant having accepted the salary as
was being paid to him and all retiral dues thereof without any protest has
waived his right for any furhter claim in that regard.
07. The submission that since the petitioner-appellant has been allowed
to function on a higher post is entitled to salary attached to the said post is
misconceived in the facts and circumstances of the case as the petitioner
all through had accepted the salary which was paid to him without any
reservation or claim for higher salary and allowed himself to retire as
such.
08. In view of the aforesaid facts and circumstances, we cannot permit
the petitioner-appellant to raise a stale or rather a dead claim by first filing
the writ petition seeking a mandamus and then challenging the
consideration order. Moreover, there is no flaw in the order passed by the
Writ Court.
09. In the aforesaid background, we find no merit in the appeal and the
same is dismissed.
(MOKSHA KHAJURIA KAZMI) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
17.05.2022
Abdul Qayoom, PS
Whether the order is reportable? Yes/No.
ABDUL QAYOOM LONE
2022.05.19 04:01
I attest to the accuracy and
LPA
