Sheikh Mohammad Hussain And vs Union Territory Of J And K
2023 Latest Caselaw 930 j&K/2

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                                                              Sr. No.01
                                                              Regular List
  IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
                   WP(C) No.1722/2021
                     CM(1368/2023)
                     CM(5757/2021)
                     CM(8472/2021)

 SHEIKH MOHAMMAD HUSSAIN AND                       ...Appellant(s)/Petitioner(s)
 ORS.(Senior Citizen)

Through: Mr. R.A. Jan, Sr. Advocate with Mr. Jasser Javed, Advocate
                                    Vs.
 UNION TERRITORY OF J AND K                                   ...Respondent(s)
 AND ORS. (FINANCE/GAD)

Through: Mr. Mohsin S. Qadri, Sr. AAG with
         Ms. Maha Majeed, Advocate and
         Mr. Faheem Nissar Shah, GA
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE
                          O R D E R (ORAL)

10.08.2023 N.Kotishwar Singh, CJ

01.Heard Mr. R.A. Jan, learned Senior Counsel assisted by Mr. Jasser Javed, Advocate, appearing for the petitioners as also Mr. Mohsin Qadri, learned Senior AAG assisted by Ms. Maha Majeed and Mr. Faheem Nissar Shah, learned GA, appearing on behalf of respondents.

02.The present petition has been filed by the petitioners being aggrieved by non-consideration on merit by the ld. Central Administrative Tribunal, Jammu (hereinafter referred to as "CAT") of the claim made by the Chief Engineers claiming pay scale commensurating with their status vis-à-vis revision of pay scale given to Superintending Engineers.

03.We may not go into the detailed facts of the case, but it will suffice to mention that the present petitioners had initially filed a representation to the authorities for appropriate revision of pay scales in the grade of Chief Engineers after necessary revision was made to the pay scale for the post of Superintendent Engineers vide SRO-403 dated 14th September, 2018 notified under Vol.131] Jammu, Fri., the 14 th WP(C) No.1722/2021

Sept.,2018/23rd Bihad., 1940. [No.24-e] in the Jammu and Kashmir Government Gazette.

04.By the aforesaid SRO-403 of 2018 the pay scale of the Superintending Engineers was revised as follows:-

" The Superintendent Engineers only shall be deemed to have been placed in the Pay Scale of 4500-5700 in place of 3150-4500, which shall be available notionally w.e.f. 01-04- 1987 and monetarily from 01-04-1990."

05.According to the petitioners, on such revision of pay scale of the Superintending Engineer, it was found that the Chief Engineers were getting similar pay scales to the post of Superintending Engineers which is not permissible under law, inasmuch as, the Chief Engineer's post is a higher post in the Department and as such they are entitled to higher pay scale than the pay scale enjoyed by Superintending Engineers.

06.Accordingly, the present petitioners are seeking higher pay scale than the one given to the Superintending Engineers and approached this Court by filing a writ petition, being WP(C) No.1722/2021 which stood transferred to the Central Administrative Tribunal (CAT). The CAT disposed of the said writ petition with the following observations and directions:-

5. The endeavor of the applicants is to get the corresponding enhancement, referable to the notification dated 14.09.2018. It has already been mentioned that a comprehensive revision of Pay Scale took place vide SRO No. 75 of 1992 and in the recent past, the Pay Scale for the post of Superintending Engineer was slightly revised. The notification reads:

"GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT-FINANCE DEPARTMENT

Notification

Srinagar, the 14th September, 2018 "SRO-403--In exercise of the powers conferred by proviso to section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to direct that the following amendment shall be made in the Jammu and Kashmir Civil Service (Revised Pay) Rules, 1992, namely:--

In the Schedule appended, the following shall be added as proviso 2nd, namely:-

WP(C) No.1722/2021

"The Superintending Engineers only shall be deemed to have been placed in the Pay Scale of 4500-5700 in place of 3150-4500, which shall be available notionally w.e.f. 01-04- 1987 and monetarily from 01-04-1990."

6. The applicants do not have any qualms about this notification. Their grievance is that the corresponding benefit in the higher posts of Chief Engineer and Development Commissioner was not provided. The question as to whether the correction or revision was exclusively for the post of Superintending Engineer or whether it constituted the basis, so that the corresponding benefits would accrue to the post of Chief Engineer and Development Commissioner, etc., needs to be examined. The applicants are naturally under the impression that once an upward revision has taken place for the post of Superintending Engineer, the revision must be reflected in the higher post also. This, however, is a matter, which needs to be examined by the respondents in detail. We cannot express any opinion at this stage, since the representations submitted by the applicants are already pending.

7. We, therefore, dispose of the T.A., directing the competent authority, i.e. respondent Nos. 1 and 2, to pass appropriate orders on the representations submitted by the applicant on 03.09.2018 and subsequent thereto, within three months from the date of receipt of a copy of this order. We, however, make it clear that we did not express any view on the merits of the matter. Any benefit, which may result on account of such revision, shall be prospective in nature.

8. There shall be no order as to costs.

07.Being aggrieved of the inaction on the part of respondents particularly

respondent No.1 in granting the legitimate dues, the petitioners

preferred WP (C) No.2134/2020, which came to be transferred to the

Tribunal Bench Jammu and was registered as T.A. No.3749/2021

before the CAT. The said T.A. No.3749/2021 (SWP No.2134/2020)

came to be disposed of in terms of order dated 23.03.2021.

08.Being aggrieved by the aforesaid order dated 22.03.2021, the present

petitioners have approached this Court by filing this writ petition,

being WP (C) No.1722/2021 challenging the said order dated

22.03.2021. This Court while issuing notice on 09-09-2021 made the

WP(C) No.1722/2021

following order:-

".......Meanwhile, respondents shall consider the representations of the petitioners submitted on 03.09.2018 and subsequent thereto, within three months from the date copy of this order is received for the benefit sought and the portion of the order impugned to the extent of rider is stayed and shall not come in the way of respondents."

09.Consequent upon the order passed by the learned CAT read with the

order dated 09-09-2021 passed by this Court in WP (C)

No.1722/2021, the authorities passed the order on 06-12-2021. The

said order is reproduced herein below which will give a background

picture of the issues involved:

Government of Jammu and Kashmir Finance Department, (Codes Division) Civil Secretariat, Jammu/Srinagar ******* Subject:- Judgment dated 22.03.2021, in TA No. 3749/2021 (SWP No. 2134/2020) passed by Hon'ble Central Administrative Tribunal, Jammu Bench and order dated 09.09.2021 passed by Hon'ble High Court of Jammu & Kashmir and Ladakh in WP(C) No. 1722/2021, titled "Er. Sheikh Mohammad Hussain and Ors Vs U.T of Jammu & Kashmir and Ors".

Government Order No. 319-F of 2021 Dated:- 06-12-2021

Whereas Jammu & Kashmir Government issued Jammu & Kashmir Civil Service (Revised Pay) Rules, 1992 vide SR0 75 dated 30.03.1992 wherein the pay scales of Government employees were revised.

Whereas, District & Session Judges/selection Grade District and Session Judges of Jammu & Kashmir State approached the Hon'ble High Court by way of SWP No. 529/92 titled "T.N. Bhat & others v/s State and others" with the prayer that they have been given lower pay scales of Rs. 3700-5000 and 4500-5700 in 1992, against the old pay scales of Rs 3150-4500 and Rs 3300-5050 (appearing at S.No. 23 & 25 respectively of the schedule to the SR0-75 of 1992) instead of the appropriate pay scales i.e., Rs. 4500- 5700 and Rs. 5100-6300 respectively.

Whereas, Hon'ble High Court vide its judgement dated 17.04.1996 quashed the fixation of their pay scales as Rs.3700-5000 and Rs 4500-5700 and directed the WP(C) No.1722/2021

respondents to treat them to have always been in the Pay Scale appearing at S.No. 25 & 26 of the schedule to notification SR0-75 dated 30.03.1992 i.e., Rs 4500-5700 and Rs. 5100-6300 respectively, right from date of its issuance, with all the consequential benefits to them including the payment of arrears for the past.

Whereas the said judgement was implemented by the State Government and SR0-163 dated 13.06.2005 was issued which is reproduced as under:-

"The Selection Grade District and Sessions Judges - and District and Sessions Judges/ Additional District and Sessions Judges only shall be deemed to have been placed in the Pay Scale of 5100-150-6300 and 4500-150-5700 in place of 3300-5050 and 3150-4500 respectively. The benefit shall be available notionally from 01.04.1987 and monetarily from 1.4.1990".

Whereas, thereafter certain Superintending Engineers of various departments also filed a writ petition on the same analogy bearing SWP 1608/92 (Santosh Singh & others v/s State) praying for same grades as have been granted to District and Session Judges vide SR0-163 dated 13.06.2005. Hon'ble High Court disposed of the writ petition with the directions to the respondents to grant the petitioners the Pay Scale of Rs 4500-5700 w.e.f. 01.04.1987 in accordance with SR0-75 dated 30.03.1992 at par with District and Session Judges. Whereas, State Government vide Government Order No. 239-F of 2013 dated 30.11.2013 implemented the orders of Hon'ble High Court and accorded sanction for grant of the Pay Scale of Rs. 4500-5700 revised to Rs. 14300-18300 and further revised to Pay Band 4 of Rs 37400-67000 + Grade Pay of Rs. 8700, in favour of petitioners (Superintending Engineers) namely Shri Santokh Singh, Shri V.K. Raina, Shri P.N. Gupta & Shri Gajan Singh notionally from 1.4.1987 and monetarily from 1.4.1990 at par with Pay Scale held by District & Session judges.

Whereas, State Government vide Government order No. 139-F of 2018 dated 26.03.2018, extended the benefit of the judgment passed in SWP No. 1608/1992 titled "Santokh Singh & Ors Vs State of J&K & Ors" to the petitioner Superintending Engineers in CMA No. 188/2013 titled "Er. Saif-ud-Din Shangloo and Ors Vs State of J&K & Ors". However the Hon'ble High Court on 28.08.2018 desired to issue an SRO in the same manner as issued in the case of District and Sessions Judges.

Whereas, in compliance to the orders of the Hon'ble High Court dated 28.08.2018, Government of Jammu & Kashmir extended the benefit to the non petitioners also and accordingly issued notification vide SR0-403 dated 14th September, 2018 wherein the pay scales of Superintending Engineers were upgraded from Rs. 3150-4500 to Rs. 4500-

WP(C) No.1722/2021

5700 notionally w.e.f. 01-04-1987 and monetarily w.e.f. 01- 04-1990.

Whereas, the petitioners namely Er. Sheikh Mohammad Hussain and Ors, filed SWP No. 2134/2020 before the Hon'ble High Court of Jammu & Kashmir at Srinagar with the prayer that the cascading effect of the revision of Pay Scaleof Superintending Engineers in terms of SRO 403 of 2018 in the higher post of Chief Engineer and Development Commissioner has not been mentioned in the said SRO which has resulted in denial of the benefits which were otherwise available to them.

Whereas, the said writ petition was transferred to the Hon'ble Central Administrative Tribunal, Jammu Bench for adjudication.

Whereas, the Hon'ble Central Administrative Tribunal on 22.03.2021 disposed of the aforesaid case bearing TA No. 3749/2021 with the following directions:

"We, therefore, dispose of the T.A., directing the competent authority, i.e. respondent Nos. 1 and 2, to pass appropriate orders on the representations submitted by the applicants on 03.09.2018 and subsequent thereto, within three months from the date of the receipt of a copy of this order. We, however, make it clear that we did not express any view on the merits of the matter. Any benefit, which may result on account of such revision, shall be prospective in nature."

Whereas, the petitioners challenged the aforesaid order before the Hon'ble High Court of Jammu & Kashmir and Ladakh through the medium of WP(C) 1722/2021 and the Hon'ble High Court on 09.09.2021 passed the following order:

"Meanwhile, respondents shall consider the representations of the petitioners submitted on 03.09.2018 and subsequent thereto, within three months from the date copy of this order is received for the benefit sought and the portion of the order impugned to the extent of rider is stayed and shall not come in the way of the respondents".

Whereas, in compliance to the judgment dated 22-03- 2021 passed by the Hon'ble Central Administrative Tribunal in TA No. 3749/2021 and the order dated 09.09.2021 passed by the Hon'ble High Court of Jammu & Kashmir in WP(C) No. 1722/2021, the matter has been examined in the Finance Department as per relevant recruitment rules notified vide SR0-297 dated 14.09.2006 governing the Jammu & Kashmir Engineering (Gazetted) services. It has been observed that the Pay Scaleof the post of Chief Engineer as per the recruitment rules is Rs 14300-400- 18300 revised to Pay Band PB-4 Rs 37400- 67000+G. P 8700 (as per 5th Pay Commission) which has been further revised to Pay Level-13 Rs 123100-215900 (as per 7th Pay Commission).

WP(C) No.1722/2021

Whereas an employee is governed by the conditions of service and same are accepted by the employee once appointed to the post.

Whereas, the post of Chief Engineer is a Head of Departments Level Post, which is equivalent to that of Special Scale of KAS, and other Head of Department Level posts. In case the post of Chief Engineer is placed in a higher scale than that of any of the Head of Department similar claims will pour in from other departments, and is bound to generate resentment/criticism besides litigations.

Now, in view of the above stated position, the representation of the petitioners has been considered in compliance to the judgment dated 22-03-2021 passed by the Hon'ble Central Administrative Tribunal in T.A No. 3749/2021 and order dated 09.09.2021 of Hon'ble High Court of Jammu & Kashmir & Ladakh in WP(C) No. 1722/2021 and found devoid of any merits and the same is accordingly rejected.

Sd/-

Atal Dulloo, (IAS), Financial Commissioner, (Additional Chief Secretary), Finance Department.

10.Thus, the crux of the decision of the Government order dated 6-12-

2021 is that while the pay scale of Superintending Engineers has been

revised in terms of direction of this Court, even though the Chief

Engineer is the Head of Department, in case the post of Chief

Engineer is placed in a higher scale than that any of the Head of

Departments, similar claims will pour in from other departments

which would generate resentment/criticism besides litigation and

accordingly rejected the claim of the petitioners for higher pay scale

than that of the Superintending Engineers.

11.Thus the position which exists as on today after the government issued

the order dated 06-12-2021 reproduced above is that the post of

Superintending Engineers would carry similar pay scale as that of the

Chief Engineers which is also clearly evident from the Government

Order No.22-JK(GAD) of 2023 dated 06-01-2023, a copy of which is

WP(C) No.1722/2021

annexed with the application being CM No.1368/2023. In the said

Government order dated 06.01.2023 the Government has indicated

category wise details of creation of posts along-with the

corresponding pay scale attached to the said post. In respect of

Superintendent Engineers (Civil) as mentioned in Serial No.1 of the

list in annexure "G" to the said Government Order dated 06.01.2023,

the pay scale has been fixed as level-13 (123100-215900). Similarly in

respect of post of Chief Engineer the same has been shown as level-13

(123100-215900). It may be noted that prior to that, the Chief

Engineer had been enjoying higher pay scale than the Superintending

Engineer as is also clearly admitted by the authorities in their affidavit

filed on 18th November, 2022. In para 1 of the said affidavit filed on

behalf of Deputy Secretary to Government Finance Department,

Srinagar, it has been mentioned in para 1 as follows:-

Sr. No. SRO Chief Engineer Superintending w.e.f. Remarks

Engineer

01 149 of 1973 1400-1900 1100-1600 01-07-1972

Dated

07.04.1973

02 91 of 1982 2050-2550 1850-2300 01-01-1982

Dated

22.03.1982

03 370 of 1987 3300-175-5050 3150-125-3900- 01-04-1987

Dated 150-4500

17.07.1987

04 75 of 1992 4500-150-5700 3700-125-4700- 01-04-1990

Dated 150-5000

30.03.1992

05 18 of 1998 14300-400- 12000-375- 01-01-1996

WP(C) No.1722/2021

Dated 18300 16500

19.01.1998

06 93 of 2009 37400- 15600-39100+ 01-01-2006

Dated 67000+G.P. G.P 7600

15.04.2009 (8700)

07 193 of 2018 Level 13 Level 12 01-01-2016

Dated (123100- (78800-209200)

24.04.2018 215900)

08 403 of 2018 4500-150-5700 This has been

Dated notionally w.e.f. provided in

14.09.2018 01.04.1987 & compliance to

monetarily from the Order of

01.04.1990 Hon'ble Court

dated

28.08.2018.

                                                                         However,        as

                                                                         per Recruitment

                                                                         Rules     notified

                                                                         vide SRO-297

                                                                         dated

                                                                         14.09.2006 the

                                                                         Pay Scale of

                                                                         Superintending

                                                                         Engineer        is

                                                                         12000-375-

                                                                         16500      revised

                                                                         to Pay Level 12

                                                                         (78800-

                                                                         209200)

12.Thus from the perusal of the aforesaid affidavit and the chart

WP(C) No.1722/2021

mentioned in the said affidavit, it is clearly evident that since the

issuance of SRO-149 of 1973 dated 07-04-1973 till SRO-193 of 2018

dated 24-04-2018, the Chief Engineer was placed at a higher pay scale

at level-13 (123100-215900) and Superintending Engineer was placed

at the lower level-12 (78800-209200). However, subsequently while

the pay scale of Superintending Engineer was revised in terms of

SRO-403 of 2018 dated 14-09-2018 as mentioned above, there has not

been corresponding revision of pay scale of the higher post of Chief

Engineer. Thus, in the said table there is no mentioning of

corresponding pay scale of Chief Engineer when the pay scale of

Superintendent Engineer was shown at Serial No.8 of the above table.

13.There can be no dispute to the legal proposition that the Chief

Engineer being a higher post than the Superintending Engineer will be

legally entitled to higher pay scale. As to what higher pay scale is to

be given to the Chief Engineer, it certainly would be in the wisdom of

authority. However, by any stretch of reasoning, the Chief Engineer

cannot be placed at the same pay scale and at par with the

Superintending Engineer which is a lower part which is reflected in

the Government Order No. 22-JK(GAD) of 2023 dated 06-01-2023.

Conferring same pay scales to two posts of different hierarchy

certainly would violate Article 14 and 16 of the Constitution of India.

Accordingly, we are of the view that the pay scale of the Chief

Engineer would be required to be revised correspondingly vis-à-vis

the post of Superintendent Engineer by making it higher than the one

granted to the Superintendent Engineer.

14.Accordingly we allow this petition by modifying the order impugned

order dated 22.03.2021 passed by the CAT with the direction that the

WP(C) No.1722/2021

Chief Engineers and other higher ranking engineers shall be entitled to

corresponding higher pay scale than the one given to Superintending

Engineers. The said exercise shall be undertaken by the authorities as

early as possible preferably within a period of three months. We also

make it clear that if any of the present petitioners are entitled to the

benefit of higher pay scale, the same shall be granted to them.

15.Disposed of.

             (M.A. CHOWDHARY)                   (N. KOTISWAR SINGH)
                       JUDGE                         CHIEF JUSTICE

SRINAGAR
10.08.2023
Shameem H.



             Whether the order is reportable:            Yes/No




                                                       WP(C) No.1722/2021