Dil Afroza vs State of J&K and Others

Through the medium of this petition, the petitioners, who are working as Clerks Grade II, seek indulgence of this Court for grant of a writ of

mandamus directing the respondentcorporation to regularise the petitioners as routine clerks and pay them the salary and other incidental benefits

attached to the posts of routine clerks in the pay scale of Rs 12002040 and also to fix their seniority accordingly.

The petitioners initially joined the department as daily wagers, and were, on completion of seven years of service as such, taken on regular

establishment on 3081995 as Clerks Grade II. This post of clerk grade II carries a pay scale of Rs 7751205 and is on higher side as compared to

one related to clerks grade I. The higher pay scale was granted to those of the daily wagers who were matriculates and above. The petitioners

belonging to this category were placed in the higher scale of clerks Grade n. Meanwhile, due to mass migration from the valley, some posts in the

accounts section of the department seem to have fallen vacant and the petitioners were by way of temporary arrangement, asked to assist the

accounts section. They are continuing in such capacity. It will be pertinent to mention that in this behalf a formal order was passed by some senior

Manager on 10031996. By virtue of this order some decision seems to have been taken where under the two petitioners were directed to work as

routine clerks but in their own pay and grade and without any superior claim of seniority against senior clerks of the Corporation. The petitioners

have filed the present writ petition on the basis of a claim of equal pay for equal work hence the prayer for the reliefs indicated above.

The respondents have filed detailed objections wherein it has been contended that the petitioners did not have claim for the scale of Rs

12002140 as they stand appointed in the pay scale of Rs 7751205 only. It has been pleaded that the attachment of the petitioners with the

accounts section is of a temporary nature and can not be said to be a placement of the petitioners in a higher scale. In this behalf reliance is placed

on formal order passed by the senior manager on 10031996.

I have heard the learned counsel for the parties and gone through the file.

Mr. Parray appearing for the petitioners has tried to lay stress on persistent recommendations made by one G.M. Hakeem who was working as

Senior Manager, for placement of the petitioner No. 1 in the status of a routine clerk. According to Mr. Parray, this communication reveals that

some juniothers have been taken on higher scale. He has made an attempt to make out a case on discrimination and carved out a launching pad for

the relief on the, basis of Article 14 of the Constitution.

Learned counsel appearing for the respondents, on the other hand have taken a bifocal stand in the following manner :

I. That the petitioners admittedly stand appointed in the regular establishment as clerks grade II in the pay scale of Rs 7751205. In this behalf, the

orders of regularisation were passed on 30081995. That order has been acted upon. The petitioner have joined their posts, they are drawing their

salary and that order has not been challenged, therefore, they can not be allowed to find fault with the same order and make a claim which runs

counter to the spirit of this order.

II. That the placement of the petitioners in the Accounts Section is only on stop gap arrangement and does not confer any right upon the

petitioners.

Apart from the two limbs of the argument advanced, Mr. Manzoor has pointed out that in case of allowing the relief a backdoor for promotions

will have to be opened and same will be equivalent to saying goodbye to Rule 14 of J.K.I rules, which lays down the procedure and the norms for

making promotions.

I have considered the rival contentions. Making of promotions is a full fledged exercise which has to be made by an employer to place employee

working in junior scales in senior scales. This exercise is to be undertaken on recognised norms of merit, suitability and seniority. A certain number

of candidates eligible will have to be considered and the best/ seniormost candidates out of the lot will have to be taken. In case a candidate is

considered on the basis of certain stray recommendations distinctly this tentamounts to opening a back door for promotions and observing the rules

regarding promotions in breach. This has the effect of prejudicing the interest of others whose APRs may be superior. Merit and suitability is

determined on service record. APR's form the service record on basis of which relative merit of candidates is to be determined. Stray

recommendations made by some Officers in favour of some employees can not be allowed to be a substitute of APRs. Recommendations are

recommendations and may or may not be accepted by the competent authority.

In the present case petitioners been appointed as Clerks Grade II in the scale of Rs 7751205 only. They have accepted this position, joined the

posts and have so far been drawing their pay in this scale. They have approbated and can not be allowed to reprobate now.

The Apex Court of the country dealt with this issue in a case cited as R.S. Gosain Vs. YashpalDhir reported in AIR 1993 SC 352. The ratio laid

down in this case was that nobody can be allowed to approbate and reprobate at the same time.

As far the argument of placement of the petitioner as routine clerks is concerned the same is misconceived. Routine Clerk's work in the scale of

Rs 12002140. The petitioners were associated with the accounts section by virtue of an internal arrangement made by the Senior Manager vide his

order dated 1031996. This order asks them to work in their own pay and grade and does not confer any right upon them.

The relevant portion of the order is reproduced as under:

In view of the above, Mr. Gulzar Ahmad Bhat and MissDil Afroza, both clerks Grade II shall henceforth work in Accounts Section of the Mills as

Routine Clerks in their pay and grade without any superior claim on seniority against over all seniority of similar clerks of the corporation.

Their Lordship of the Supreme Court in case titled Puran Chandra Nanda vs. State of Orissa, reported in AIR 1997 S.Cpage 7, made it clear

that doctrine of equal pay for equal work can not be allowed to be used as a ploy to enable certain juniothers to jump the queue and steal a march

over their seniothers

On the foregoing anology, I find no substance in the petition. Accordingly the same is dismissed and the interim directions issued on 11071996

vacated.