Ghulam Mohammad Sheikh vs State Of J&K And Ors

Sanjeev Kumar, J

The case set up by the petitioner in this petition is that he along with one Khazir Mohammad Shah came to be engaged as daily wagers in the Municipal Committee Sopore in the year 1980, and their services were regularised by the respondents in the year 1988. While the petitioner and said Khazir Mohammad Shah were both working as sweepers, in the year 1994 the respondents promoted Khazir Mohammad Shah as Jamadar/Sanitary Supervisor. The petitioner though similarly situated and having been regularised on the same date was not given the similar treatment as had been given to Khazir Mohammad Shah.

Feeling aggrieved petitioner filed SWP No. 1614/1995 which was disposed by this Court vide order dated 06.03.1999 with a direction to the respondents to consider the petitioner for the post of Jamadar along with other eligible candidates, if any, from the date Khazir Mohammad Shah-respondent No. 5 in the said writ petition, was promoted, in case rules would allow. As is evident from the documents on record, aforesaid judgment was not implemented by the respondents in letter and spirit. Instead of considering the case of the petitioner for promotion to the post of Jamadar/Sanitary Supervisor on the analogy of Khazir Mohammad Shah, the Executive Officer of then Town Area Committee Sopore, somewhere in the year 2000, allowed the petitioner to work as Assistant Sanitary Jamadar in his own grade without any financial benefits till the claim of the petitioner for promotion was considered.

It seems that the claim of the petitioner for promotion was never considered and the petitioner was, from time to time, directed to discharge the work of Sanitary Supervisor in different beats of the Town Area Committee Sopore. Orders dated 4th July, 2000 and 2nd January 2002 passed by the Executive Officer bear the testimony of the fact that right from the year 2000, the petitioner though holding the post of Safai Karamchari has been performing the duties of Sanitary Supervisor. The petitioner has also placed on record the seniority list of Ministerial and other staff of the Municipal Committee to show that petitioner was regularised along with Khazir Mohammad Shah on 1st May 1988 and was otherwise senior to Nazir Ahmad Magrey who has also been promoted as Sanitary Supervisor pursuant to the directions issued by this Court in SWP No. 361/2016 upheld by the Division Bench of this Court in LPASW No. 108/2018.

It is interesting to note that though the petitioner was allowed to perform the duties of Sanitary Supervisor yet his case for regular promotion against the said post was not considered, despite there being specific directions issued by this Court in the order dated 6th August 1999 passed while disposing of SWP No. 1614/1995. Be that as it may, in the year 2005 the plight of the petitioner came to the notice of then Executive Officer Municipal Council Sopore, who after considering the entire matter in its perspective ordered, with the approval of the President of the Municipal Council Sopore, that petitioner shall be allowed to work as Sanitary Supervisor instead of Incharge Sanitary Supervisor with charge allowance. He also recommended the case of the petitioner for upgradation of the post held by him to the level of Sanitary Supervisor to the Director Urban Local Bodies Kashmir, Srinagar, for approval. The Director Urban Local Bodies Kashmir, Srinagar, did not act in the matter and failed to grant requisite approval for the upgradation.

It is pertinent to note that petitioner had approached this Court in the year 2002 also by way of SWP No. 567/2002 wherein he had sought a direction to the respondents to release the pay grade attached to the post of Sanitary Supervisor from the date petitioner had been made to work as such. While the aforesaid petition was pending consideration of this Court, the Executive Officer Municipal Council Sopore passed the order dated 28th April, 2005 (supra). Taking note of the aforesaid order of the Executive Officer Municipal Council Sopore, the writ petition SWP No. 567/2002 was disposed of by a Bench of this Court with a direction to the respondent No. 2 to consider the case of the petitioner on the basis of the order of Executive Officer Municipal Council Sopore bearing No. MC/SPR/83-85 dated 28th April, 2005 and pass appropriate orders strictly in accordance with Rules/Government orders occupying the field. The petition was disposed of vide order dated 10.12.2009. This is how the matter came up for consideration before the Director Urban Local Bodies Kashmir, Srinagar. The matter was considered by the Director at length and he came to the conclusion that the petitioner was not eligible to hold the post of Sanitary Supervisor in view of the qualification prescribed under J&K Urban Local Body Institutions (Management) Service Recruitment Rules, 2008 [“the Rules of 2008”].

Heard learned counsel for the petitioner and perused material on record. Indisputably, the petitioner and Khazir Mohammad Shah came to be regularised as Safai Karmachari in the year 1988. It is also not in dispute that in the year 1994 Khazir Mohammad Shah was promoted as Jamadar/Sanitary Supervisor without considering the claim of the petitioner. The petitioner came to this Court and succeeded in getting directions in SWP No. 1614/1995 which was disposed on 6th August, 1999, to consider his case also along with other candidates from the date Khazir Mohammad Shah was promoted provided the Rules permitted. This judgment was not complied nor the petitioner filed a contempt petition to enforce its compliance.

It seems that petitioner felt satisfied with the order issued by the Executive Officer Municipal Council Sopore in the year 2000 allowing the petitioner to work as Assistant Sanitary Supervisor in his own pay and grade. He continued to perform the duties of supervising the sanitation work in different beats of the Town Area Committee Sopore, but was neither given regular promotion to the post nor the grade attached with the post was released in his favour, though at one point of time the charge allowance was released. In the year 2002, the petitioner filed a petition seeking a mandamus to the respondents to release the pay grade attached to the post of Sanitary Supervisor from the date he was holding such post in Incharge capacity and working as Sanitary Supervisor. While this petition was pending consideration, the matter was considered by the Executive Officer Municipal Council Sopore (Town Area Committee had become Municipal Council under the J&K Municipal Corporation Act 2000). The Executive Officer Municipal Council Sopore took note of the fact that the petitioner, after having been assigned the duties of Sanitary Supervisor, had been regularly performing his job to the best satisfaction of his superiors and public in general. He also noted that the respondents had been providing him only a charge allowance to compensate him for the services of higher post being performed by the petitioner.

The Executive Officer Municipal Council Sopore after obtaining approval from the President of Municipal Council Sopore allowed the petitioner to work as Sanitary Supervisor instead of Incharge Sanitary Supervisor with charge allowance and recommended the case to the Director Urban Local Bodies Kashmir, Srinagar for upgradation of the post so that the petitioner could be substantively appointed as Sanitary Supervisor. It seems that this proposal did not materialise. The Court while hearing the Executive Officer Municipal Council Sopore dated 28th April 2005 and directed the Director Urban Local Bodies Kashmir, Srinagar, to consider the case of the petitioner in the light of aforesaid order dated 28th April, 2005, and pass appropriate orders in accordance with rules.

From the documents on record and undisputed fact situation, it is evident that right from 8th June, 2000, the petitioner has been discharging his duties of Jamadar/Sanitary Supervisor firstly in his own pay and grade and later subject to payment of charge allowance. Despite there being a clear mandate of the directions dated 06.08.1999 passed by this Court in SWP No. 1614/1995, the case of the petitioner for substantive promotion to the post of Jamadar/Sanitary Supervisor on the analogy of Khazir Mohammad Shah was never considered. The petitioner being a petty Safai Karamcharie was made to feel satisfied with the Incharge arrangement under which he was allowed to work as Sanitary Supervisor. When, for long, the grade attached to the post was not released in favour of the petitioner, he filed SWP No. 567/2002 which as already noticed was disposed of by this Court vide order dated 10.12.2009.

It is true that when the case came up for consideration before the Director Urban Local Bodies Kashmir, Srinagar, the statutory rules i.e., the Rules of 2008 had been promulgated. However, the fact remains that prior to the year 2008 there were no rules for recruitment of the officers and officials in the Urban Local Bodies and the recruitments and promotions in the department were regulated by sheer whims of the person at the helm of affairs in the department. The Director Urban Local Bodies Kashmir, Srinagar, may be correct in saying that under the Rules of 2008 the petitioner is not entitled to be promoted as Sanitary Supervisor, but the question that needs determination is as to when the right to promotion, if any, accrued to the petitioner. Obviously, in the facts and circumstances, the cause of action to seek promotion to the post of Sanitary Supervisor accrued to the petitioner firstly in the year 1994 when Khazir Mohammad Shah was promoted and the petitioner was ignored. He succeeded before the Court in seeking direction to the respondents, but said direction was never complied with.

Be that as it may, having regard to the grievance projected by the petitioner, the respondents, instead of giving him substantive promotion, allowed him to discharge duties of Sanitary Supervisor w.e.f June 2000. Ever since the petitioner has been performing the duties of Jamadar/Sanitary Supervisor without any interruption and is also receiving the charge allowance admissible under rules. I am aware that this Court while disposing of SWP No. 567/2002 did direct the Director Urban Local Bodies Kashmir, Srinagar, to consider the claim of the petitioner in the light of recommendations made by the Executive Officer Municipal Council Sopore vide its communication dated 28th April 2005 in accordance with rules/Government orders occupying the field, but it is equally important to bear in mind that in terms of order of Executive Officer Municipal Council Sopore dated 28th April 2005 which was passed with the approval of President of Municipal Council Committee Sopore, the petitioner stood promoted/appointed as Sanitary Supervisor w.e.f 28th April 2005.

The case file was forwarded to the Director Urban Local Bodies Kashmir, Srinagar, only to grant approval for the upgradation of the post held by the petitioner. Viewed thus, the Director Urban Local Bodies Kashmir, Srinagar, ought to have considered the matter in accordance with the rule position occupying the field as on 28th April 2005, and should not have rejected the claim of the petitioner by relying upon the Rules of 2008 which in any case are prospective in operation.

In view of the foregoing discussion, this Court is of the considered view that the writ petitioner deserves to be treated fairly and the technicalities should not be allowed to intervene to deny justice to the petitioner.

Having regard to the facts and circumstances of the case and the manner in which the petitioner has been treated by the respondents this petition is allowed by providing as under:-

i. The order No. DULB/CC/906 of 2013 dated 16.02.2013 impugned in this petition is quashed.

ii. The petitioner shall be deemed to have been appointed/promoted as Sanitary Supervisor in substantive capacity w.e.f 28th April 2005 i.e., the date on which the Executive Officer Municipal Council Sopore allowed the petitioner to work as Sanitary Supervisor instead of Incharge Sanitary Supervisor in terms of its communication bearing No. MC/SPR/83-85 dated 28th April 2005, with all consequential benefits.

iii. It shall be the responsibility of the respondents in particular the Director Urban Local Bodies Kashmir, Srinagar, to either create a post of Sanitary Supervisor retrospectively w.e.f. 28th April 2005 or to find out the vacant post or some equivalent post to adjust the petitioner.

Let the Director Urban Local Bodies Kashmir, Srinagar, to issue a formal order in this regard in compliance with the directions issued hereinabove and work out and release the arrears of salary in favour of the petitioner within a period of two months from date of copy of this judgment along with entire paper book is served upon the respondents.

Disposed of.