State Of J&K And Ors vs Nissar Ahmad Kumar

Sanjay Dhar, J

1) The appellants have called into question judgment dated 16.04.2018 read with rectification order dated 10.05.2018 passed by learned Single Judge in

SWP No.1761/2017, whereby order bearing No.263-KRC of 2017 dated 30th of October, 2017, rejecting claim for regularization of the respondent on

the post of Driver, has been quashed and a direction has been issued to the appellants to regularize the respondent against the vacant post of Driver

retrospectively from the date he had been performing his duties as a Driver with the appellants.

2) Briefly stated, the case of the respondent (hereinafter referred to as “the writ petitionerâ€) before the Writ Court was that he was temporarily

appointed as Chowkidar in the office of appellant No.3 in terms of order No.156-KRC of 2007 dated 20.09.2007. After satisfactory completion of two

years’ period of probation, the services of the writ petitioner were confirmed vide order No.53-KRC of 2010 dated 19th of May, 2010. It was

further case of the writ petitioner that the appellants, after taking into account the fact that he was a matriculate and a duly licensed driver, ordered

the writ petitioner to perform his duties as a Driver against an available vacancy and consequently the writ petitioner started discharging the duties of

a Driver in the office of appellant No.3 which he continued to do till filing of the writ petition. It was further contended by the writ petitioner that

despite discharging duties against the post of a Driver, he was not being paid salary attached to the said post which compelled him to make a

representation on 21st of February, 2014, before the appellants.

3) It was also claimed by the writ petitioner that the Government has vide its order dated 14th of July, 2017, regularized services of one Shri Raj

Kishore Singh (Chowkidar) against the post of Driver retrospectively from the date he was discharging his duties as a Driver with appellant No.3. The

writ petitioner, therefore, claimed that on the grounds of parity, he is entitled to same treatment as was given to Shri Raj Kishore Singh.

4) The writ petition was resisted by the appellants herein by filing their reply wherein it was claimed that the Jammu and Kashmir Hospitality &

Protocol (subordinate) Service Recruitment Rules, 2008 are not applicable to the case of the writ petitioner and that his services are governed by the

J&K Trade Commission-cum-Agencies (subordinate) Service Recruitment Rules, 1971. According to the appellants, there is no provision in the

aforesaid Rules for promotion of a Chowkidar to the post of Driver, which as per the rules is to be filled up by direct recruitment. It was claimed by

the appellants that the writ petitioner was all along substantively working against the post of Chowkidar and drawing his salary against the said post.

However, it was admitted that the writ petitioner is performing the functions of a Driver due to shortage of staff and exigency of work. With regard to

case of Shri Raj Kishore Singh, it was claimed by the appellants that his case is quite different from the case of the writ petitioner.

5) It is pertinent to mention here that vide interim order passed by the learned Writ Court on 31.08.2017, a direction was issued to the appellants to

take a decision in the case of the writ petitioner for regularization of his services against the post of Driver on the same lines as adopted in the case of

Shri Raj Kishore Singh. The consideration was accorded by the appellants and the claim of the writ petitioner was rejected in terms of order No.263-

KRC of 2017 dated 30.10.2017, which was challenged by the writ petitioner before the Writ Court by making necessary amendment to the writ

petition.

6) The learned Single Judge after hearing the parties passed the impugned judgment whereby writ petition has been allowed and the aforesaid order

dated 30.10.2017 passed by the appellants herein has been quashed and a direction has been issued to the appellants to regularize the writ petitioner

against the vacant post of Driver retrospectively. It is this judgment of the learned Single Judge which has been called into question by the appellants

through the medium of instant appeal on the grounds that the facts of the case of Shri Raj Kishore Singh were entirely different from the facts

applicable to the case of the writ petitioner; that the impugned judgment would open a Pandora box as the similar requests/claims for

promotion/adjustment against the post of Driver from other employees who are performing functions of said posts would arise and that vide the

impugned judgment while directing retrospective regularization of writ petitioner as a Driver, the date of effect of such retrospective promotion has

been kept vague.

7) We have heard learned counsel for the parties and perused the grounds of appeal, impugned judgment and the relevant record.

8) The short question involved in this appeal is whether the facts applicable to the case of Shri Raj Kishore Singh, whose services as Driver were

regularized by the appellants, are different to the facts applicable to the case of the writ petitioner.

9) A perusal of the record shows that Shri Raj Kishore Singh was appointed as Chowkidar in the office of appellant No.3 vide order No.277-KRC of

1980 dated 07.02.1980 on temporary basis and ultimately his services as Chowkidar were regularized vide order No.35-KRC of 1989 dated

09.05.1989. Thereafter he was ordered to work as Driver temporarily against a leave vacancy and subsequently against an available post pending

filling up of the post on regular basis. In terms of order No.62-KRC dated 17.02.1993, Shri Raj Kishore Singh was reverted back and directed to

perform his duties as Chowkidar. Against this order, the above named official filed a writ petition before the High Court of Delhi wherein an interim

order was passed by the Court directing that the said official be not reverted back from the post of Driver. Thereafter during the pendency of the writ

petition, services of Shri Raj Kishore Singh were regularized as Driver (Grade-I) in terms of order No.25-KRC of 2000 dated 19.04.2000. However,

the writ petition filed by Shri Raj Kishore Singh was dismissed by Delhi High Court for non-prosecution on 06.07.2009.

10) It appears from the record that certain queries were raised with regard to the manner in which the services of Shri Raj Kishore Singh as a Driver

were regularized but ultimately on the recommendations of Financial Commissioner, Hospitality and Protocol Department, sanction was accorded to

the regularization of services of Shri Raj Kishore Singh (Chowkidar) against the post of Driver Grade-I retrospectively in relaxation of the rules, in

terms of Government order No.11-HP of 2017 dated 14.07.2017.

11) Coming to the facts of the case relating to the writ petitioner, as already noted, he was temporarily appointed as Chowkidar in terms of order

No.156-KRC dated 20.09.2007, where after his services as such were confirmed vide order No.53-KRC of 2010 dated 19.05.2010. The writ

petitioner has placed on record before the Writ Court a certificate showing that he has been working as a Driver since 2010. Though the competence

of the officer who has issued the certificate has been disputed by the appellants, yet the communication dated 21.02.2014, Annexure-D to the writ

petition, makes things clear. In the said communication, the appellant No.3 has clearly stated that six officials including the writ petitioner were

working as Drivers for the last many years and the officer has made a recommendation that consolidated amount equivalent to minimum pay scale of

the Driver be released in favour of all those officials, which includes the writ petitioner.

12) From the comparative analysis of the facts of the case pertaining to Shri Raj Kishore Singh and the facts of the case pertaining to the case of the

writ petitioner, it is clear that there is hardly any difference in the two cases. Both writ petitioner as well as Shri Raj Kishore Singh were appointed as

Chowkidars. Both of them were made to discharge the duties of a Driver on account of exigency of service and they continued to do so for years

together against the available vacancies of Drivers. In fact, the case of the writ petitioner stands on a higher pedestal because while Shri Raj Kishore

Singh was, by a written order, directed to join back the post of Chowkidar but the writ petitioner was never reverted back to his original posting. In the

case of Shri Raj Kishore Singh, despite his writ petition having been dismissed by Delhi High Court, though not on merits, sanction was accorded to

regularization of his services as a Driver. In the case of the writ petitioner, he was armed with an interim an interim order of the Writ Court directing

consideration of his case for regularization of his services as Driver. Thus, his case stands on a better footing.

13) It is on the basis of aforesaid analysis of the facts obtaining in the two cases that the learned Single Judge has reached a conclusion that the writ

petitioner is entitled to similar relief and treatment as has been accorded to Shri Raj Kishore Singh. The finding of the learned Single Judge in this

regard is quite lucid and well reasoned. The same does not call for any interference from this Court.

14) Even otherwise in a welfare State, the Government is expected to act as a model employer and not as an exploiter of workers. We have came

across from the perusal of the record that appellants have been utilizing the services of Chowkidars including the writ petitioner and other similarly

situated employees for discharging the duties of drivers for years together without paying them the salaries attached to said post in spite of the

recommendations of the officers in this regard. The Supreme Court in the case of State of Punjab and others v. Jagjit Singh and others, (2017) 1 SCC

148, while holding that an employee engaged for the same work cannot be paid less than other, who performs the same duties, has observed as under:

“55. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same

work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action

besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do

so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth,

and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of

paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering

position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

There can be no doubt, that the principle of „equal pay for equal work‟ would be applicable to all the concerned temporary

employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government

employees, holding the same post.â€​

15) In view of what has been observed by the Supreme Court, it is clear that the appellants were not justified in not releasing the pay and perks

attached to the post of Driver in favour of the respondent from the date he has been discharging duties as such under the directions of his superior

officer(s).

16) So far as the contention of the appellants that in the impugned judgment date of retrospective effect has not been mentioned, the same is without

any basis as the writ petitioner has placed on record documents to show that he has been working as a Driver since the year 2010. The appellants do

not deny the said fact though they have disputed the competence of the officer who has issued the certificate to this effect. Thus, there should not be

any difficulty for the appellants to determine the relevant date.

17) For the foregoing discussion, we do not find any infirmity or illegality in the impugned judgment passed by the learned Single Judge. The appeal,

being without any merit, is dismissed along with connected CM.

18) No order as to costs.