Majid Khan vs State of J&K & Ors.

The Petitioner is stated to have been a regular Boiler Mechanic appointed in the grade of Rs. 9001830 in Kashmir Leather Tanneries, Shalteng,

Srinagar which was run under the administrative control of Jammu and Kashmir Industries. The state government wound up the same and ordered

the adjustment of its employees in various Government Departments Accordingly, Government order No. 201 GR of 1990 dated 9.7.1990 was

issued by Secretary to Government, Industries and Commerce Department vide the aforesaid order, government accorded sanction to the

appointment of the employees of Kashmir Leather Tannaries in various government departments against the posts shown in Annexure to the

foresaid government order. The name of the petitioner in this list figures at Serial No. 2. Against his name the following entry has been made in

Annexure ""A"" to government order dated 9.7.1990.

To be appointed by the Power Development Department against some suitable vacancy"".

Vide Government Order No. 108GR FDD of 1990 dated 27.7.1990 issued under the signatures of Deputy Secretary to Government, Power

Development Department, sanction was accorded to the appointment on regular temporary basis of the petitioner, Boiler Mechanic, in the pay

scale of Rs. 9001830 in the Power Development Department against any available vacancy of Boiler Mechanic in the valley. This appointment of

the petitioner was ordered subject to the condition that his appointment would be fresh and there would be no liability on the Government in

respect of his past service rendered with Jammu and Kashmir Industries. Further, the appointment was made in relaxation of the mode and method

of recruitment to the post, the qualification as well as the age. He was directed to report to Development Commissioner (Power) for further orders

of posting. Petitioner joined in the Power Development Department on the same date i.e. 27.7.1990. The respondents concerned, however, did

not post him anywhere in the Department. Vide communication dated 10.9.1990, the Administrative Officer of the Department wrote to

Commissioner/Secretary to Government Power Development Department that there was no post of Boiler Mechanic available in the Department,

but it was available in the Power Development Corporation. The Commissioner/Secretary, Power Development was therefore requested to post

the petitioner in that Corporation. Consequently, the Commissioner/Secretary, Power Development Department addressed a communication to the

Managing Director of Power Development Corporation in this behalf. The Managing Director vide his reply dated 15.7.1991 in turn informed the

Commissioner and Secretary, Power Development Department that a proposal for creation of the post of Boiler Operator for Gas Turbine

Projectll, Pampore had been mooted of which orders were still awaited. He, however, offered the post to the petitioner in the scale of 8001500

vacant in Gas Turbine Divisionl, Pampore against which the petitioner could be appointed till the creation of the post of Boiler Operation in Gas

Turbine Divisionll. In pursuance of the above, a communication dated 2.8.1991 was addressed to the petitioner by Under Secretary to

Government, Power Development Department seeking his consent for appointment against the vacant post in the pay scale of Rs. 8001500. In

reply, the petitioner agreed to work on a lower post, but in the grade of 9001830 as per his orders of appointment dated 27.7.1990 till the post of

Boiler Mechanic was created. Finally, the Government passed Order No. 270PDD of 1991 dated 30.9.1991 under the signatures of Under

Secretary to Government, Power Development Department.

It is stated that since then the petitioner is being paid the salary in the grade of 8001500 (old). The petitioner is aggrieved of this order on the

ground that his appointment had already been made in the pay scale of 9001830 vide Government Order dated 27.7.1990 on which date he

joined in Power Development Department, but his posting orders were not issued. Therefore, he has prayed for quashment of Government Order

No. 270PDD of 1991 dated 30.9.1991 with a direction to the respondents to pay to the petitioner his salary from 27.7.1990 in the grade of

9001830 subject to pay revisions from time to time and arrears thereof.

Respondents were noticed. Objections were filed by them to the admissibility of the writ petition. The petition was admitted to hearing on

5.8.1996 Respondents were directed to file the reply in 3 weeks and rejoinder, if any, was directed to be filed within one week therefafter. The

case was directed to be posted for hearing in the first week of September, 1998. However, no reply was filed by the respondents till the matter

came up for hearing. At the final hearing, Mr. R.A. Khan, GA contended that the objections already filed be treated as counter. Mr. Sofi learned

counsel for the petitioner has not objected to this course being adopted and also did not want to file any rejoinder thereof. Accordingly, the matter

was heard.

I have gone through the objections. All the facts stated in the writ petition by the petitioner have been admitted in to by respondents in these

objections. The only thing contested by the respondents is that in July, 1991 consent of the petitioner was sought for his appointment in the grade

of 8001500 (prerevised) in Gas Turbine Divisionl, Pampore for no post of Boiler Mechanic in the pay scale of 900 1830 was available in the

Power Development Department. Mr. Khan GA wants to convince this court that order dated 30.9.1991 was issued in pursuance of the consent

sought from the petitioner. But, it appears that, he loses the sight of the fact that even then, in their objections, the respondents have admitted that

petitioner consented to be adjusted against the post, but at the same time, he contended that his pay be fixed in the grade of 9001830 (prerevised).

Controversy has been shortened by the respondents by admitting that the petitioner was a regular employee of Kashmir Leather Tanneries under

JKI in the grade of 9001830. They have admitted that Vide Government Order dated 27.7.1990 annexure P2, sanction was accorded to the

appointment of the petitioner as Boiler Mechanic in the pay scale of 9001830 (prerevised). It is obvious from the order that the appointment of the

petitioner, even if it was taken to be a fresh, was made in the grade of 9001830. Petitioner claims to have joined in Power Development

Department on the same date and the respondents have not contested this claim of the petitioner. Therefore, the respondents could not pass the

impugned order dated 30.9.1991 reducing the petitioner both in rank and grade, that too only for the reason that the post in the grade of 9001830

was not available. Reduction in rank or grade amounts to a major punishment which, in the instant case, has been inflicted on the petitioner for

none of his faults and without following the procedure established under law. Of course, there was no occasion even for proceeding against the

petitioner. Even in this order dated 30.9.1991 it was written to the Managing Director, Power Development Commissioner that the case of

appointment of the petitioner (Boiler Mechanic) in the pay scale of 9001830 be considered when such post becomes available. Since 1991 upto

this date, respondents have never bothered to consider the petitioner in the original grade of 9001830. A right had accrued to the petitioner on

27.7.1990 when he was appointed in the grade of 9001830 to hold such post and grade. On the plea that the. post was not available, respondents

could not, to the utter disregard of the right accruing to the petitioner, modify the order dated 27.7.1990 and reduce the petitioner in rank and

grade after more than 14 months. Government should not have felt handicapped in getting a post created for the petitioner. Learned counsel Mr.

Khan has contended that the petitioner has consented to be appointed in the lower grade and has not agitated the matter for 3 years. I have

considered this point also. This argument is not tenable in law. Such a reasoning as is sought to be given by the Government Advocate, is not

disclosed in the order dated 30.9.1991. As a matter of fact, no reason has been disclosed in the order which had necessitated the modification of

order dated 27th July, 1990. As I have already observed, the basic appointment of the petitioner was made in a higher grade. He could not at all

be reduced to a lower grade by modification of the earlier order. The petitioner though consented to work on any post, but at the same time, he

made it categorically clear to the respondents that his salary be fixed in the pay scale of 9001830. The respondents have unilaterally reduced him in

rank as well as grade. They have slept over the matter for these long years to create a post for him in the pay scale of 9001830. Petitioner cannot

be made to suffer for the failure of respondents. This is clear case of arbitrary exercise of power by the respondents. Therefore, the. impugned

order cannot be allowed to sustain.

For these reasons, therefore this petition is allowed. Impugned order No. 270PDD of 1991 dated 30.9.1991 is quashed. Respondents are

directed to pay to the petitioner his salary in the grade of 9001830 (pre revised) along with all arrears right from 27.7.1990, the date his earlier

appointment order was passed. No order as to costs.