Gharu Ram And Ors vs State Of J&K And Others
2023 Latest Caselaw 332 j&K

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU
                                                        Reserved on :       15.12.2022
                                                        Pronounced on:      22.02.2023

                                                     LPA No. 56/2018
                                                     c/w
                                                     LPA No. 57/2018
                                                     LPA No. 90/2018
                                                     LPA No. 91/2018
                                                      (O&M)


     Gharu Ram and ors.                                  .....Appellant(s)/Petitioner(s)


                           Through: Mr. Rakesh Sharma, Advocate
                                    Mr. S. K. Anand, Advocate
                      vs
     State of J&K and others                                          ..... Respondent(s)


                           Through: Mr. S. S. Nanda, Sr. AAG
                                    Mr. M. K. Bhardwaj, Sr. Advocate with
                                    Mr. Amit Gupta, Advocate
                                    Mr. C. S. Gupta, Advocate

     Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
            HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                       JUDGEMENT

Per Oswal-J

1. The lack of rules providing for the qualification for the post of Sanitary

Inspectors in the Directorate of Urban Local Bodies at the relevant point of

time has given rise to this litigation. In all these four intra-court appeals, the

common judgment dated 03.05.2018 passed by the learned writ court,

disposing of two writ petitions each filed separately, by each of the

respondent No.3, has been impugned. The dispute now remains only between

the appellant and respondent No.3 in LPA No. 90/2018 & LPA No. 91/2018

a/w connected matters.

respectively because the appellants in LPA No. 56/2018 and 57/2018 have

attained the age of superannuation during the pendency of appeal, therefore

both LPAs bearing nos. 90/2018 & LPA No. 91/2018 are being disposed of

by this common judgment.

LPA No. 90/2018:

2. The respondent No.3 filed a writ petition bearing SWP No. 1596/2006

challenging the order dated 12.05.2006, whereby his juniors were promoted

and also prayed for issuance of the directions for placing him in the grade of

₹ 1760-3200 (Revised to ₹ 5700-10,100) from the date of his appointment

i.e. 17.04.1985. During the pendency of the writ petition, the final seniority

list of Sanitary Inspectors of Urban Local Bodies was issued on 16.09.2011

and the respondent No.3 filed another writ petition bearing SWP No.

2060/2013 challenging the said final seniority list and prayed for the issuance

of fresh seniority list including his name after fixing his seniority above the

private respondents therein (20 in Nos.) w.e.f. the date the private respondent

joined the service as Sanitary Inspector i.e. w.e.f. 17.04.1985.

3. The learned writ court vide its judgment dated 03.05.2018 while disposing

of the two writ petitions mentioned above, quashed the seniority list dated

16.09.2011 and directed the official respondents to reframe the seniority list

by reflecting the respondent No. 3 at an appropriate place keeping in view

his date of appointment and further the respondent No. 3 was ordered to be

placed in an upgraded pay scale of ₹1700-3200 revised to ₹5700-10,100/-

w.e.f. the date his juniors were so promoted.

a/w connected matters.

4. The official respondents did not choose to assail the judgment of the writ

court and only the appellant along with appellants in LPA No. 56/2018 and

57/2018 assailed the same.

5. In LPA No. 90/2018, the appellant has pleaded that even in the absence of

rules, the posts of Sanitary Inspector in the department were being filled up

with the persons holding one year diploma in Sanitary Inspector training

course and the respondent No. 3 was not holding any such technical

qualification when he joined the department on 17.04.1985 but acquired the

same on 12.01.1995, whereas the appellant joined the department on

18.02.1986 after having passed the Sanitary Inspector training course in the

year 1985. It is also stated that while examining the tentative seniority list,

certain discrepancies were found which created serious problem in compiling

the inter-se seniority of Sanitary Inspectors, therefore, the respondent No. 2

mooted a proposal vide its communication dated 02.11.2004 recommending

that Government Order No. 51-HUD of 2004 dated 26.02.2004 be made

applicable to all qualified Sanitary Inspectors working in the Directorate with

effect from the date of their appointment and in respect of others, from the

date of qualifying Sanitary Inspector training course and the proposal so

mooted was accepted by the Administrative Department vide its

communication dated 10.01.2005. On the strength of these two

communications, the respondent No. 3 was placed in the grade of ₹ 5700-

10,100 w.e.f. 01.04.1995 whereas the appellant was given this grade w.e.f.

20.02.1986. It was only after the above development, the respondent No. 2

circulated tentative seniority list dated 26.10.2010, wherein respondent No.

a/w connected matters.

3 was shown at serial No. 2 and so far as the appellant is concerned, he was

shown at serial No. 3 and one Mohd. Ahsan figured at serial no. 1.

6. The appellant filed his objections to the tentative seniority list and thereafter

final seniority list was circulated by the respondent No. 2 on 16.09.2011. The

judgment passed by the learned writ court has been impugned inter alia on

the ground that the learned writ court has not appreciated the controversy in

its true perspective and has not dealt with the issue raised by the appellant

that the respondent No. 3 did not challenge the two communications dated

26.02.2004 and 10.01.2005 and has also not appreciated and interpreted CCA

Rule 24 though reference of which has repeatedly been given in the judgment

impugned. It is also stated that if the Sanitary Inspector training course was

not pre-requisite for post of Sanitary Inspector then what prompted the

respondent No. 3 to undergo the said course in the year 1995 and that too

from an un-recognized Institute. In nutshell, the contention of the appellant

is that respondent No. 3 lacked the basic qualification at the time of his

appointment and acquiring of the said qualification subsequently would not

entitle the respondent No.3 to get the benefit of grade of ₹1760-3200 (revised

to ₹ 5700 to 10,100) from the date prior to the date of acquisition of said

qualification and consequently fixing his seniority over and above the

appellant.

7. Mr. Rakesh Sharma, learned counsel for the appellant vehemently argued

that the appointment to the post of Sanitary Inspector used to be made on the

analogy of the qualification prescribed for the appointment of Sanitary

Inspectors in Jammu Municipality which was Matric with the diploma in

Sanitary Inspector training course. Mr. Sharma laid much stress that the

a/w connected matters.

respondent No. 3 lacked the basic qualification at the time of his appointment

and acquiring of the said qualification subsequently would not entitle the

respondent No.3 to get the benefit of grade of ₹ 1760-3200 (revised to ₹ 5700

to Rs.10,100) from the date prior to the date of acquisition of said

qualification and consequently fixing his seniority over and above the

appellant. Mr. Rakesh Sharma, learned Counsel for the appellant relied

heavily upon the judgment of Full Bench of Bombay High Court in the case

of Shri Vaijnath vs. The Secretary, Marathwada Shikshan Prasarak

Mandal 2006 SCC OnLine Bom 1131 and judgment of Apex Court in

Union of India vs. H.R Patankar 1984 AIR (SC) 1587.

8. Mr. M. K Bhardawaj learned Senior Counsel for the respondent No.3 in LPA

No. 91/2018 and Mr. C S Gupta, learned Counsel for the respondent No.3 in

LPA No. 90/2018 argued that till 2008, there were no rules framed by the

Government regarding the appointment and promotion of the employees of

the Directorate of Urban Local Bodies and it was only in the year 2008 that

the rules were framed by the Government and as there were no rules in vogue

when the respondent No. 3 was appointed as Sanitary Inspector, so his

seniority had to be determined w.e.f. the date of his initial appointment that

is 17.04.1985 and as the appellant joined the services after respondent No. 3,

he cannot be considered as senior to the respondent No.3.

9. Mr. S.S Nanda, learned Senior AAG, appearing on behalf of respondent

Nos.1 and 2 argued that vide order dated 20.04.1995 sanction was accorded

for the up-gradation of 28 posts of Sanitary Inspectors of Local Bodies

Jammu in the pay scale of ₹ 1760-3200 w.e.f 01.04.1995, subject to they

being qualified. The respondent No. 3 was not covered under this order as he

a/w connected matters.

qualified the Sanitary Inspector Training course later. The department

accorded his up-gradation also w.e.f. 01/04/1995 vide order dated 28.04.1995

as the respondent No. 3 did his diploma in the year 1994-95. In fact, the

argument of Mr. Nanda is that there are two grades of Sanitary Inspectors in

the department, one is of the qualified Sanitary Inspectors and the other of

unqualified Sanitary Inspectors in the lower pay scale.

10. Heard and perused the record.

11. The contention of the appellant is that the respondent No. 3 was not having

diploma in Sanitary Inspector training course at the time of his entry into the

service and he acquired the status of qualified Sanitary Inspector after

completing diploma, that too from an un-recognized Institute in the year

1995, so the respondent No. 3 is not entitled to a higher grade from the date

prior to the date of acquisition of said qualification. The appellant

substantiates his contention by asserting that the appointments of Sanitary

Inspectors used to be made in the Directorate of Urban Local Bodies on the

basis of the rules framed for Sanitary Inspectors in the Jammu Municipality.

12. We have examined the response filed by the official respondents before the

writ court, wherein no whisper has been made by them that the appointments

of Sanitary Inspectors used to be made on the analogy of the qualification

prescribed for the appointment of Sanitary Inspectors in the Jammu

Municipality. As such, this Court is of the considered opinion that there is

nothing on record to substantiate that the appointments of the Sanitary

Inspectors in the Directorate of Urban Local Bodies used to be made on the

a/w connected matters.

analogy of the qualification prescribed for appointments of Sanitary

Inspectors in the Jammu Municipality.

13. The issuance of Jammu and Kashmir Urban Local Bodies Institutions

(Management) Service Recruitment Rules, 2008 vide SRO-417 dated

18.12.2008 establishes one fact that there were no rules in vogue governing

the appointment and promotion of Sanitary Inspectors working in the

Directorate of Local Bodies, Jammu. Though the department has not chosen

to assail the judgment impugned but Mr. Nanda, the learned senior AAG has

supported the contention of the appellant that the respondent No. 3 was not a

qualified Sanitary Inspector and because of that reason, the respondent No. 3

was not entitled to the benefit of higher grade from the date prior to the date

of acquisition of said qualification. A perusal of order of appointment of

respondent No. 3 reveals that the Chairman, Notified Area Committee, R.S

Pura was directed to allow the respondent No. 3 to join the service after

verifying his matriculation certificate and permanent resident certificate. It

was not provided in his appointment order that the respondent No. 3 was

required to undergo any diploma/certificate course within some stipulated

time. The respondent No. 3 has admittedly undergone the diploma course in

the year 1994-95. The department vide its order dated 20.04.1995 sanctioned

the up-gradation of 28 posts of Sanitary Inspectors, provided they were

qualified. It is relevant to note here that even on the said date, no technical

qualification for post of Sanitary inspector was provided and rightly so

because there were no rules in vogue. Vide order dated 28.04.1995, three

more posts of Sanitary Inspectors of Local Bodies Jammu were upgraded in

the pay scale of ₹1760-3200 again with a stipulation that they must be

a/w connected matters.

qualified. This is admitted by the official respondents that the appellant was

granted the benefit of a higher grade w.e.f. 01.04.1995. It needs to be noted

that prior to the issuance of both the orders, providing for up-gradation, the

respondent No. 3 had already acquired the diploma in Sanitary Inspector

training course on 12.01.1995.

14. As this Court has already observed that there were no rules in vogue at the

time of entry of the respondent No. 3 in the service, the issue that is required

to be considered is whether the respondent No.3 could have been denied the

benefit of the higher grade being unqualified. The Department initially vide

its notification bearing No. 51-HUD of 2004 dated 26.02.2004 granted the

benefit of upgraded scale only to the petitioners in SWP No. 435/1996 and

vide order dated 10.01.2005, the order No. 51-HUD of 2004 was made

applicable to all the qualified Sanitary Inspectors from the date of

appointment and in respect of others from the date of qualifying the Sanitary

Inspectors Training course on notional basis without any monetary benefits

so that the final seniority list of Sanitary Inspectors is framed as per Civil

Services (Classification and Control Appeal) Rules 1956. Nothing has been

brought on record to demonstrate the distinction between Sanitary Inspectors

and Qualified Sanitary Inspectors for the purpose of grant of higher grade by

virtue of order dated 10.01.2005, more particularly in absence of any rule

providing for the qualification of sanitary inspectors in the Directorate of

Urban Local Bodies. The learned writ court has also come to the conclusion

that qualified Sanitary Inspector would not necessarily mean a Sanitary

Inspector, who had cleared the Sanitary Inspector training course on the date

when he was appointed. The judgment reported in "2006 SCC OnLine Bom

a/w connected matters.

1131" relied upon by Mr Sharma, learned counsel for the appellant will not

apply in this case, once this court has come to the conclusion that the

respondent No.3 was not disqualified to be appointed as Sanitary Inspector

at the time of his entry into service because in the said judgment, the issue

was with regard to the teacher, who was unqualified at the time of entry into

the service and had obtained the requisite qualification after the other

candidate having requisite qualification joined the service. Similarly, the

judgment of the Hon'ble Apex Court in "Union of India vs. H.R Patankar"

is not applicable as this Court has already arrived at the conclusion that the

qualified Sanitary Inspector did not necessarily mean a Sanitary Inspector

having acquired the qualification of Sanitary Inspectors Training course.

15. In Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust,

(2014) 13 SCC 219, the Hon'ble Apex Court was confronted with a situation

where the appellant had entered into service prior to the respondent No.4 but

the claim of the appellant for the promotion as Headmaster was rejected on

the ground that the respondent no.4 therein had acquired the B.Ed. degree

prior to appellant and it was held as under:

"18. In the present case, as already mentioned above, the appellant was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the primary school and it was not a case of appointment of an unqualified teacher when the appellant was appointed to the said post on 24-8-1979. This makes all the difference and renders the judgment in Vaijanath [Vaijanath v. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131] as inapplicable to the facts of the present case. The High Court has failed to notice this relevant distinction and mechanically applied the ratio of the judgment in Vaijanath [Vaijanath v. Marathwada Shikshan Prasarak Mandal."

xxxxx In the aforesaid backdrop, it is to be seen as to whether acquisition of B.Ed. degree by Respondent 4 (who joined as Assistant Teacher after the appellant and was junior to her as Assistant Teacher) earlier in point of time than the appellant would tamper with the seniority

a/w connected matters.

of the appellant and steal a march over her? The School Tribunal as well as the High Court has referred to the Full Bench judgment of the Bombay High Court in Vaijanath [Vaijanath v. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131 while answering this question in the affirmative. xxxx Insofar as manning the post of Head of the school is concerned, Rule 3 of the Rules provides for the qualifications. It is not in dispute that as on the date of which the Head of the school was to be appointed, the appellant fulfilled all the requisite qualifications mentioned in the said Rule. Further, as already found, she was senior to Respondent 4 as well. Therefore, it is the appellant who was the rightful claimant to the post of Head of the school. Depriving her of this legitimate right and making the appointment of Respondent 4 as the Headmaster of the school was, therefore, clearly erroneous, which resulted in infringement of the rights of the appellant to hold that post."

The judgment of the Hon'ble Apex Court is squarely applicable in this case.

16. In view of above, this Court does not find any infirmity in the judgment

passed by the writ court and as such, the same is upheld. Resultantly, LPA

no. 90/2018 is dismissed. For the same reasons LPA bearing no. 91/2018 is

also dismissed. Other connected appeals are dismissed as having been

rendered infructuous.

                                  (PUNEET GUPTA)                    (RAJNESH OSWAL)
                                          JUDGE                             JUDGE

Jammu
22.02.2023
Rakesh
                        Whether the order is speaking:           Yes/No
                        Whether the order is reportable:         Yes/No