State of JandK and Others vs S.M. Sharma

M.M. Kumar, C.J.—The dispute relates to grant of benefit of revised pay scale emerging from Government order No. 1285-GD of 1983

dated 20.08.1983 which seeks to provide for uniform pay scale for all the feeder cadres eligible for induction to KAS. It is not disputed that the

writ petitioner-respondent was a member of J&K Employment Service having been recruited as District Employment Officer in 1968. As per the

record at the relevant time he was placed in the pay scale of Rs. 225-500 which was later on revised to Rs. 75-1400 in 1982. The writ petitioner

respondent came to be inducted in KAS in the year 1997 and superannuated in August, 2002 as Deputy Director Employment Exchange

Department, Jammu. The learned Single Judge has granted the benefit of the Government order dated 20.08.1983 primarily on the ground that

similarly situated persons, who filed various writ petitions were granted benefits. In that regard reliance has been placed on the observations made

in SWP No. 1218/1993 and other connected matters. The writ petitioner-respondent has made categoric averments in para 13 of the writ petition

asserting that persons junior to him have been granted the benefit of higher pay scale of Rs. 1000-1560. The names of the junior have been given

in para 13 being Sarv/Sh. M.A. Mukhari, S.C. Gandotra, Bashir Ahmed Wani and Bashir Ahmed Bhat.

The learned Single Judge has accepted the prayer made by the petitioner-respondent with all benefits of higher pay scale with effect from the

date of issuance of Government order No. 1285-GD of 1983 dated 20.08.1983. The pension of the writ petitioner-respondent was to be fixed

accordingly. His emoluments including retiral benefits were also to be fixed consequently. His case for grant of selection grade was also required to

be considered if otherwise he is found eligible and entitled.

Feeling aggrieved the State through its officers has filed the instant appeal and have disputed the entitlement of the writ petitioner-respondent to

the grant of pay scale in terms of Government order dated 20.08.1983. The basic argument raised by Mr. Basotra, learned Senior Additional

Advocate General is that a Division Bench of this Court in LPA No. 144/1998 titled Zaffarullah Bhat and ors. v. State of J&K and ors. decided

on 11.08.2005 has refused to grant the benefits and has distinguished the judgment rendered in the case of Abdul Majid Wani (SWP No.

1519/1988) decided on 27.09.1991. However, the case of Abdul Majid Wani for grant of higher benefit has been justified on the ground that he

was appointed on the basis of a common examination conducted by the Public Service Commission for various gazetted services and there was no

justification to appoint him in the grade of Rs. 875-1400 merely for the reason that he was allocated Community Development (Gazetted) Service.

The writ petitioners in the case of Zaffarullah Bhat were also in the pay scale of Rs. 875-1400 all along. In the case of writ petitioner-respondent

the aforesaid distinction would apply because the petitioner-respondent was also a direct recruit and was a member of J&K (Gazetted)

Employment Service. He was recruited as District Employment Officer and therefore the exception carved out by the Division bench would equally

apply to the case of the petitioner-respondent. Moreover, averments made in para 13 would further advance the case of the writ petitioner-

respondent because benefit of Government order dated 20.08.1983 has already been granted to persons junior to him namely S/Sh. M.A.

Mukhari, S.C. Gandotra, Bashir Ahmed Wani and Bashir Ahmed Bhat.

Mr. Basotra has raised another argument that the benefits cannot be given from 1983 as the writ petition was filed in the year 2004 after the writ

petitioner-respondent had superannuated. According to the learned counsel, the judgment of the learned Single Judge goes to the extent of

directing fixation of pay in the higher scale and grant of selection grade which would mean grant of arrears also.

Mr. Dutta learned counsel for the writ petitioner respondent has readily agreed that the writ petitioner respondent may be granted arrears only

for a period of three years plus two months preceding the date of filing the writ petition which as per the record is 31.03.2004.

In view of the above, the appeal is partially accepted. The judgment of the learned Single Judge is modified to the extent that the case of the

petitioner-respondent for grant of higher pay scale in terms of Government order No. 1285-GD dated 20.08.1983 shall be considered and his

emoluments be notionally fixed. His case for selection grade may also be considered and if he is found otherwise eligible and entitled then his

emoluments may also be notionally fixed. As a consequence of notional fixation of emoluments or selection grade his pension may also be revised

accordingly. However, he would be entitled to arrears for a period of three years and two months preceding the date of filing of the writ petition.

The appeal stands disposed of in the above terms.