Masooda Hassan vs State of J & K

This appeal challenges the judgment of Single Judge dated March 12,1998, whereby, petition has been dismissed.

Ms. Masooda Hassan was appointed Class IV employee in the pay scale of 630940 by Chief Engineer Generation and Transmission Wing

Srinagar on November 15,1989. She was posted in the Generation Division Lower Jehlum Hydel Project Baramulla. On November 23,1989 the

Executive Engineer load Despatch Material and Testing Division Bemina Srinagar passed the following order:

Ms.Masooda Hassan a newly appointed incumbent in the grade of 630940 (Class IV Ministerial) vide Chief Engineer,Gen.& trans.wing

PDD,Bemina Srinagar's order No: 125 of 1989 dated: 15.11.1989 is hereby assigned the job of Receipt and despatch besides type work in the

Divisional office under close supervision of Shri Gh.Hassan Establishment clerk.

Later she was assigned the job of SubDivisional clerk stores as per order dated:June,l,1991, without any financial benefits.

Petitioner represented for her regularisation as Junior Assistant on regular basis, but her claim did not receive attention. Accordingly, she has

represented to the Chief Engineer, alleging discrimination bagainst her since one Miss Shabnam Hafiz, who had been working as Daily wage

worker, was promoted as Junior Assistant on regular basis in September, 1997. No order was passed and she had to move this court seeking

relief of regularisation of her services as Junior Assistant from November 23,1989 from which date she was assigned the job of receipt and

despatch, besides type work and payment of salary of the post of Junior Assistant from the same date.

Case of respondent is that appointment to the post of Junior Assistant can be made either by State Subordinate Service Recruitment Board or

by the Promotion of Class IV employees, subject to the eligibility against quota provided to them under rules. Petitioner can be appointed to the

post of Junior Assistant in case she is found suitable by the Departmental Promotion Committee from out of the vacancy reserved for class IV

employees. Since appointment of Ms.Shabnam Hafiz has not been challenged, her appointment could not be taken a ground by the petitioner for

appointment to the higher post. Case of the petitioner has been placed before the Departmental Promotion Committee, which is competent to

make the promotions.

Learned Single Judge did not appreciate the contentiion raised by the petitioner for her regularisation and her claim for the pay attached to the

post of Junior Assistant. It has been held that simply because she was directed to discharge the duty of Junior Assistant, that would not entitle her

to claim the salary of the post. With respect to appointment to the higher post, it is held that the petitioner is not entitled to the same. In view of the

Apex Court decision reported in Sanjukta Patanaik v/s State of Orisa and others,(AIR 1997 SC 1922).

We have heard learned counsel for the parties. Perused the record and the impugned judgement. First question of consideration is whether the

petitioner is entitled to regularisation against the post of Junior Assistant on the basis of continous work against the post. Shri R.A.Khan.GA,

counsel for the respondents, urges that petitioner is not entitled to claim regularisation in view of rules existing on the subject. Her case is pending

consideration before the Departmental Promotion Committee from the category of inservice employees in class IV cadre. Contention of Shri Syed

Manzoor, learned counsel for the petitioner, is to the contrary.

Learned counsel for the petitioner asserts that the petitioner is entitled to the regularisation to the post of Junior Assistant on the ground that she

has been working against this post for more than a decade. Learned counsel drew out attentiion to certain Apex court judgments for highlighting

the point, petitioner is stated to be the post graduate. Eligibility for the post of Junior Assistant is Matriculation. That apart, the petitioner knows

typing work also, proficiency of petitioner is plainly demonstrtated by the order of assignment dated:23.11.89, which is quoted in the preceeding

part of this judgment. This order does not impose any kind of restriction over her nor does it state that the assignment of the work of Junior

Assistant would be of temporary nature, nor assignment is terminated by any higher authority. She continues to work not only against the work

reflected in this order, but also as SubDivision Clerk (Stores) as per order dated:01.06.91. With this background, she represented for her

regularisation quoting the example of Ms.Shabnam Hafiz, who had been promoted as Junior Assistant on regular basis in September, 1997, though

she was a Daily Rated worker. Petitioner was better than Ms Shabnam Hafiz, since the former had been appointed against class IV post on

regular basis with a time scale pay, whereas, the latter was only a Daily Rated worker. Genuinely she claims regularisation against the post of

Junior Assistant pay scale attached to this post. However, the respondents did not regularise her to the post of Junior Assistant although Shri

A.K.Raina,Dev.Commissioner,Power development Department ( Commissioner/Secretary to State Government) had recommended to the Dhief

Engineer (Convenor DPC) Maintt. and R.E.Wing, Srinagar, vide Communication No:236/DC/PG dated:29.07.97 that case of the petitioner may

be considered for appointment as Junior Assistant since she had pointed out that her juniors with much less qualification had already been given the

benefit apart from stating that she was post graduate having type knowledge and was working in the Class IV post for the past eight years. Despite

this communication, the case of petitioner was not taken up and the benefit was not extended to her.

Shri Syed Manzoor Ahmad places before us two decisioins, namely AIR 1986 SG: 638 (Narinder Chada & ors. v/s Union of India & others)

and SLJ : 1996 P:304 (Smt Leela Koul v/s State and ors.), which are relevant for purpose of resolving the controversy raised in this case. In AIR

1986 SC:638 (Narinder Chada & ors. v/s Union of India & ors) it is held in para 14:

14.......we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for

appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in a

case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due delijeratioin, it would be

certainly unjust to hold that they have no sort of claim to such posts and could be reverted uncermoniously or treated as persons not belonging to

the service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results.....

Further in para 19 of the said judgement the court said:

(19).....when an officer has worked for a long period as in this case for nearly fifteen to twenty years in a post and had never been reverted, it can

not be held that the officer's continous officiation was a mere temporary or local or stop gap arrangement even though the order of appointment

may state so"".

Learned counsel for the appellant submitted the decision relied on by learned Single Judge, does not apply to the facts of this case.

What emerges out of the aforesaid discussion is that the petitioner has not been regularised against the post of Junior Assistant, although she is

working against this post since 23.11.89, and benefit has been given to the persons with lessor qualification and experience. This approach is

unreasonable and violates equality clause of the Constitution of India. It is inequitable and results in a frustation and despondency amongst the

employees when they are neither treated equally nor paid the salary of the post against which they are called upon to discharge duties. Assuming

that there are rules on the subject, as contended by Shri R.A.Khan.G.A. but they had not been applied to the case of the petitioner during all this

time. Rule is applicable to every one including Ms.Shabnam Hafiz, who has been regularised, though appointed on Daily Rated basis. With this

background, the petitioner deserves to be regularised against the post of Junior Assistant on the ground that she is working against the post of

Junior Assistant for over ten years by now..

It is pertinent to quote Section 22 of Jammu & Kashmir Constitution. It envisages that:

(22).Right of women:

The State shall endeavour to secure to all women:

(a) the right to equal pay for equal work; Therefore, the petitioner is entitled to regularisation to the post of Junior Assistant. She is also entitled to

the pay scale attached to the post less the pay she has already received; both benefits available from 23.11.89, the day she was assigned the job of

Receipt and Despatchcumtypist. No other point was urged.

12, Appeal is allowed. The impugned order is set aside. Respondents are directed to regularise the petitioner as Junior Assistant and be paid

salary of the post from 23.11.89.