Zaffarullah Bhat and others vs State of J&K and others

The dispute in this letters patent appeal which arises from the order of the learned Single Judge dismissing the writ petition of the appellants,

relates to pay scale and grade of the post of Block Development Officer (EDO) in the Community Development Department of the State.

Relying on the judgment in the case of Abdul Majid Wani in SWP no. 1519/1988 decided on 27th September, 1991, the appellants

approached this Court in SWP no.486/1995 seeking direction upon the respondents to extend to them the benefit of the judgment with effect from

the dates of their substantive appointment on the post of EDO. By the said decision Abdul Majid Wani was held entitled to the (then existing) scale

of Rs. 10001560. The learned Single Judge held that the case of Abdul Majid Wani stood on a different footing and appellants were not entitled to

the benefit of the judgment. The learned Judge also held that there had been inordinate unexplained delay in filing the writ petition disentitling the

appellants to any relief on account of latches. The learned Single Judge, accordingly, dismissed the writ petition vide the impugned judgment dated

29th April, 1998 giving rise to this appeal.

3, In the meantime, one Abdul Qayoom Wani and nineteen others had also filed writ petition no. 144/1996 which was allowed by a short order on

9th December, 1999 without going into merit of the case observing that the petitioners were seeking the same relief as had been allowed by this

Court in SWP no 1519/1988. The judgment in the appellants' writ petition, decided earlier, apparently was not brought to the notice of the learned

Judge.

4, Be that as it may, when this appeal was taken up for hearing on 23rd February, 2004, a submission was made on behalf of the appellants that

the writ petition of similarly situated persons, namely, Abdul Qayoom Wani and others albeit filed later in point of time was allowed and it would

amount to giving the appellants a different treatment if they are denied the relief even though they are not only similarly situated but they had also

approached this Court earlier. The submission was noticed and the respondents were directed to take a firm stand as to whether the appellants

stand at par with the petitioners of SWP no. 144/1996, and if so, why the relief should not be allowed to the appellants.

It may be stated here that the judgment in case of Abdul Majid Wani was challenged by the State before the Division Bench in LPAno.66/ 1992

which was summarily dismissed as time barred on 28th December, 1992. The State thereafter filed special leave petition, being SLP (Civil) no.

2548/1994 which too was summarily dismissed ' on 18th October, 1994. The order in the case of Abdul Qayoom Wani and others was also

challenged before the Division Bench in LPAno.6 II 2001 which too was time barred and accordingly dismissed on 4th April, 2003. SLP (Civil)

no. 10660/2003 preferred against the said order met the same fate on 14th July, 2003.

6, The dispute being with respect to the grade or pay scale of a post with which the High Court does not ordinarily interfere, for, the grades /

scales of pay often have some historical background and otherwise also fixed on consideration of variety of factors, and is therefore, left to the

experts to consider, unless the grade / pay scale is found to be arbitrary and violative of Article 14 of the Constitution of India. Hence, while

appreciating the submission of the counsel that subject to parity with Abdul Majid Wani or Abdul Qayoom Wani and others the appellants should

be given the benefit of the judgments, we did not consider it appropriate to silently follow the judgments. Instead, we tried to go to the bottom of

the dispute so that the mistake, if any, is not unwittingly perpetuated.

Having heard counsel for the parties at length, we find that the dispute lies in a narrow compass but it was not correctly projected on earlier

occasions.

Recruitment to the post of BDO in the Community Development Department is governed by JandK Community Development (Gazetted) Service

Recruitment Rules, 1977. Rule 3 thereof states that the service shall comprise of the posts, classes, categories and grades as shown in the

schedule. Rule 5(2) lays down that appointment to the service shall be made partly by direct recruitment and partly by promotion / selection in the

ratio and in the manner as shown against each post in the schedule. In the schedule the grade of the post of BDO is mentioned as Rs.475850 while

the method of recruitment is mentioned as under;

(a) 75% by selection of such officers as are willing to be considered from the following.

(i) Agriculture Extension Officers in Agriculture / Horticulture Department with at least five years experience in extension work 30%.

(ii) Assistant Registrar of Cooperative Department in the selection grade of 46075020%.

(iii) Headquarter Assistant of the C. D. Department in the grade of

i) Rs.450700

ii) Rs.340700 (10%)

(iii) Graduate Panchayat Inspectors in the selection grade of 340700 10%.

(iv) Panchayat Supervisors in the grade of 4507005%

(b) 25% by direct recruitment.

From perusal of the above, it is manifest that as far as 75% posts to be filled by promotion are concerned, the recruitment has to be made by

selection from different feeder posts of different departments. It is the admitted position that the appellants herein were drawn from different

services / posts and promoted to the pot of BDO by selection against their quota of posts on different dates. Whereas appellant no. 1 was

promoted on 20th February, 1982, appellant nos. 2 and 3 were promoted on 29th October, 1979 and 19th October, 1981. As a result of pay

revision the grade / pay scale of Rs.475850 was revised to Rs.8751400 which was then the relevant grade of the post of BDO in vogue when the

appellants and others were promoted and accordingly on promotion they were recruited in the grade of Rs.8751400. It may be mentioned that the

grade /pay scale of Rs. 8751400 was further revised to Rs. 16502850 and Rs.20003400 as a result of pay revisions in course of time.

10 It is appropriate to mention here that the Jarhmu and Kashmir Community Development (Gazetted) Service, now known as JandK Commu:

nity Development and National Extension Service (Rural Development) (Gazetted) Service [in short, CD and NES (Gazetted) Service] is a feeder

service to the Kashmir Administrative Service (KAS) under rule 5 of the Jammu and Kashmir Administrative Service Rules, 1979. Rule 5 lays

down that recruitment to the service shall be made by (a) competitive examination at the junior scale and (b) promotion to the timescale of service

from amongst the members of the 'following' services holding time scale of Rs.21253600 or any other higher grade in the respective departmental

services. Below mentioned are the names of sixteen services which include the CD and NES (Gazetted) Service. Thus members of the CD and

NES (Gazetted) Service were eligible for promotion to the KAS provided they were in the grade of Rs.21253600 or any other higher grade. But

despite otherwise being eligible for promotion to the KAS, being in the grade of Rs.20003400 which was the revised grade of Rs.8751400 they

could not be considered for promotion. The Government of Jammu and Kashmir in the circumstances decided to rationalize the grades of the

members of the different feeder services including CD and NES (Gazetted) Service by providing uniform time scale of Rs. 10001560, which was

the prerevised pay scale of Rs.21253600, so as to make the members of the concerned Services effectively eligible for promotion to the time scale

of the KAS. Government Order no. 1285*G AD of 1983 accordingly was issued on 28th August, 1983 pursuant to Cabinet Decision no.231

dated 16th August, 1983. The order, inter alia, stated that:

In order to provide equal opportunities and facilities for induction into KAS in due course of time, all the aforementioned departmental services

shall have a uniform time scale of Rs. 10001560 and further that a selection grade of Rs. 12001800 shall be provided equal to 25% of the posts in

the time scale in each service.

The decision, however, was hedged in by a proviso as under:

Provided that the existing position will continue in respect of the gazetted posts below the rank and pay of Rs. 10001560, if any, in the

departmental services.

It took us some time to appreciate the true scope of the proviso but it soon became clear that the proviso intended to maintain the existing

position in respect of those holding the rank and pay below Rs. 10001560, if any. In the CD and NES (Gazetted) Service as seen above, the post

of BDO was in the grade of Rs.8751400 and, therefore, the incumbent BDOs in terms of the said Government Order were to remain in the same

grade of Rs.8751400.

A question arose about the reasonableness of the proviso and it was submitted that grade of the post having been raised toRs. 10001560, it

was arbitrary to provide a different and lower grade to those who were already in service. It was submitted that in the case of Nazir Ahmad

Sheikh, writ petition no.664/1995 decided on 14th August, 1996, the proviso was held to be unsustainable and ""under eclipse"". In the case of

Amar Singh, LPA(SW) no.203/2001 decided on 26.3.2004, referring to the judgment in the case of Nazir Ahmad Sheikh (supra), it was held that

in view of the judgment the proviso had become inoperative.

13 It appears that notwithstanding the fact that the post of BDO was in the grade of Rs.8751400 (being the revised grade of Rs.475850), the

direct recruit BDOs came to be allowed the grade of Rs. 10001560, which was the grade in which appointments were made on the basic posts in

the time scale pursuant to selection by the JandK Public Service Commission. The logic apparently was that having been selected on the basis of

the same competitive examination but allocated to different service they could not be given different scale of pay or grade. The promotee BDOs

nevertheless remained in the grade of Rs.8751400 revised to Rs. 16502850 and then to Rs.20003400.

The Government Order no. 1285GAD dated 20th August, 1983 (hereinafter referred to as 1983 order) which is the sheetanchor of the

appellants' claim, it appears to us, was a communication of the policy decision of the government to rationalize the pay scales / grades of all

departmental services. Being feeder services to the KAS under the KAS Rules 1979, it was necessary to make members of the services eligible in

terms of Rule 5(1 )(b) and bring them at par, lest making the CD and NES (Gazetted) Service as feeder service was meaningless. However,

though the object was laudable, the Government Order remained a piece of paper. The Government Order envisaged that the concerned

Departmental Services Rules and the KAS Rules shall be recast and modified suitably by the General Department. No such corresponding

modification or amendment was made. As a matter of fact, the Government Order provided for many more things as a part of rationalization

scheme ""with a view to improve the quality of administration and introduce the desired degree of efficiency and mobility in administrative services

as also to avoid stagnation at different levels..."" as stated in the preamble of the Government Order; nothing appears to have been done. For

example, the Government Order provided:

(iii)All Departmental Services shall provide 50%promotion quota and 50% direct recruitment quota at the level of posts in time scale pay of

Rs.10001560.

(iv) There shall be a Combined Service Competitive Examination for direct recruits to all the departmental services to be arranged in consultation

with Public Service Commission by the General Department (Services) who will also arrange allotment of candidates to various services. The

departmental services will, however, continue to be managed by the concerned Administrative Departments.

(v) A comprehensive training course shall be devised for the Direct Recruits to all the departmental services with foundational course common to

all Services and also departmental / specialized training in order to make them suitable to discharge their functions as members of service

effectively. The direct recruits shall also have to pass the prescribed departmental examination within the prescribed period.

15 The Government Order likewise contemplated recasting of the Kashmir Administrative Service, but all this remained on paper. Being mere

policy decision, the implementation of which apparently depended on amendment of the Rules governing the respective Services, we are of the

view that it could not be the foundation of claim for grant of the grade / pay scale of Rs. 10001560 (prerevised) or Rs.21253600 (revised).

16 From the papers made available to us, it appears that up gradation of post, distinct from policy statement as contained in Government Order

no. 1285GAD, took place on 23rd July, 1993 when sanction order upgrading the post was issued vide Government Order no.624G AD of 1993.

The Order reads as under:

Sanction is hereby accorded to the.i) upgradation of the following posts from the pay scale of Rs.20003400 to the pay scale of Rs.21253600:

(a) Assistant Directors Food and Supplies,

(b) Block Development Officers,

(c) Assistant Labour Commissioners,

(d) District Employment Officers.

(e) Information Officer.

17 Perusal of the relevant recruitment rules, namely, the JandK Food and Supplies Department (Gazetted) Service Recruitment Rules, 1990;

JandK Community Development (Gazetted) Service Recruitment Rules, 1977 (as already seen above); JandK Labour Department (Gazetted)

Service Recruitment Rules, 1977; JandK Employment Exchange (Recruitment and Conditions) of Service Rules, 1979 and JandK Information

Revised (Gazetted) Service Recruitment Rules, 1978 relating to the posts of Assistant Director, Food and Supplies; EDO (which is subject matter

of the present dispute), Assistant Labour Commissioner; District Employment Officer and Information Officer, respectively, shows, that the grade

of all these posts in the Recruitment Rules was mentioned as Rs.475850 (except the post of Assistant Director, Food and Supplies in which case it

was mentioned as Rs. 16502850 for the obvious reason that rules were framed in. 1990 and the revised grade of Rs.475850 in force at that time

was Rs. 16502850). It was on 23rd July, 1993 that the rationalization of grade took place by upgrading the post(s) from the scale of

Rs.2000r3400 (revised scale of Rs.475850 or Rs.8751400) to the scale of Rs.21253600 i.e. revised scale of Rs. 10001560.

18 We are conscious of the fact that our aforesaid conclusion may seem, to be at a tangent with the decision in the case of Abdul Majid Warti, It is

true that learned Judge referred to Government Order no. 1285GAD dated 20th August, 1983 in allowing the grade of Rs.lOOD1560 to the

petitioner but, significantly, he was allowed that grade from the date of his substantive appointment and not 20thAugust, 1983. If the Government

Order no. 1285GAD of 1983 was the basis, he should have been provided the grade from 20th August, 1983. Secondly, as rightly pointedout by

learned Additional Advocate General, Abdul Majid Wani stood on different footing from the appellants. He was a direct recruit appointed in the

direct recruitment quota as BDO on 25th June, 1982. Though a direct recruit, he was appointed in the grade of Rs.8251400. After suffering initial

set back in the shape of discharge from service at the very beginning of his service • career on 8th September, 1982, he succeeded in getting

reappointed on substantive basis from the date of initial appointment pursuant to judgment of this Court in writ petition no.470/1982. In SWP no.

1519/1988 which he later filed for grade, the learned Judge found that respondents 4 to 22 (some of whom were copetitioners with the appellants

in the connected writ petition or, may be, the appellants themselves) had been promoted as BDOs in their own pay and grade but subsequently

promoted on regular basis in the grade of Rs.8751400 from dates prior to 25th June, 1982 (the date of appoinfmexit'of the petitioner) which

affected his rights. The learned Judge also noticed that appointment against twenty four posts of Additional BDOs created in 1986 was made in the

scale of Us. 10001560, and the petitioner being also a direct recruit, he. naturally claimed the same scale. .

Mr Magrey submitted that there was a good rationale in allowing the grade of Rs. 1OOO"" 1560 to Abdul Majid Wani as he had been appointed

on the basis of common examination conducted by the Public Service Commission for various gazetted services and there could be no justification

to appoint him in the grade of Rs.8751400 merely because he was allocated to Community Development (Gazetted) Service. Mr Magrey

submitted that the appellants and others, who were the copetitioners, were all along in the grade of Rs.8751400 (prerevised) but they"" never made

any grievance. They approached this Court only after the Government allowed Shri Abdul Majid Wani the grade of Rs 1000. 1560 (prerevised)

on 29th November,1994 vide GO no 849 Agri of 1994, but the case of Abdul Majid Wani being different from the appellants, they cannot rely

on"" the decision of this Court and the grant of grade by the Government

20 At is relevant to mention here, that pursuant t6 the above said Government Order no.624GAD of 1993 dated 23rd July, 1993 the State

Government issued another order being Government Order no.504Agri of 1993 dated 9th November, 1993 placing the BDOs (whose names

were mentioned in the accompanying list) in the grade of Rs.21253600 with effect from 23rd July, 1993 i.e. the date of the order upgrading the

post of BDO, among other posts, to the grade of Rs.21253600. The list contained names of the appellants. The post of BDO held by the

appellants having been upgraded with effect from 23rd .July, 1993, we do not think they are entitled to the benefit of upgradation from an earlier

date.

21 For the reasons stated above, the appellants cannot claim parity with Abdul Majid Wani and, therefore, the decision in his case is of no avail to

them.

22 it is true that the cases of the appellants and the petitioners in SWF no. 144/1996 i.e. Abdul Qayoom Wani and nineteen others appear to stand

on the same footing. The learned Judge, however, as indicated above, did not go into the merit of the case at all. By a short order following the

order in the case of Abdul Majid Wani, observing that the petitioners were seeking the same relief as allowed earlier in SWP no. 1519/1993, the

learned Judge allowed the writ petition. The order runs as under:

Same relief which was allowed by this Court in SWP no. 1519/1988 decided on 27.9.1991, petitioners are seeking. It is not in dispute that letters

patent appeal was preferred in the aforementioned case and this was dismissed. Even special leave petition preferred before the Supreme Court of

India resulted in dismissal. If this be the position then petitioners are well within their right to contend that petitioners be allowed the same relief as

has been granted to the petitioner of the aforementioned writ petition.

Even though his petition is pending in this Court for almost four years, counter has not been filed. This petition is disposed of with a direction that

let requisite relief be granted to the petitioners as was done in the aforementioned case. Let a decision be taken within a period of three months

from the date copy of order passed by this Court is made available by the petitioners to the respondent authorities and also to the counsel who has

put in appearance on behalf of respondent authorities.

Disposed of accordingly.

23 No doubt the LPA and the SLP were dismissed by the Division Bench of this Court and the Supreme Court respectively, but the Division

Bench did not go into the merit and dismissed the appeal on the ground of limitation and as far as dismissal of the SLP is concerned, it is well

settled that summary rejection of SLP does not mean affirmation of the order of the High Court on merit. It simply means that the Supreme Court

declined to interfere with the order. [See the cases of Supreme Court Employees Welfare Association v Union of India, (1989)4 SCC

187; State of UP v Purushottam Pandey, (1996) 11 SCC 565, and Kunhayammed v State of Kerala, (2000) 6 SCC 359]. It is to be kept in mind

that the order impugned before the Supreme Court was the order of the Division Bench rejecting the condonation application and dismissing the

LPA as time barred.

24 in course of hearing our attention was drawn to orders passed in the case of Nazir Ahmad Sheikh v State of JandK and others (writ petition

SWP no.664/1995 decided on 14th August, 1996);]and Mohd Ashraf Bukhari and others v State of JandK and others (SWP no. 1218/1993 and

analogous decided on 18th July, 2002).

25 The case of Nazir Ahmad Sheikh related to the post of Information Officer in the JandK Information (Gazetted) Service, while the cases of

Mohd. Ashraf Bukhari and others related to the post of District Employment Officer in the JandK Employment Exchange (Gazetted) Service. The

aforesaid posts no doubt like the post of BDO were in the lower grade [(Rs.8751400 or Rs.475850 (prerevised)] and, therefore, governed by the

proviso to clause (ii) of Government Order no.!285GAD of 1983 dated 20th August, 1983, but the petitioners were allowed the benefit of the

grade of Rs. 10001560 relying on the decision in the case of Abdul Majid Wani. We have already mentioned the distinguishing features of the case

of Abdul Majid Wani and held that among other things, being a direct recruit the judgment was not applicable to promotees who had been

promoted to the grade in terms of the respective recruitment rules. We are conscious of the fact that the grant of a higher grade to direct recruit

may at first look appear to be discriminatory but direct recruits and promotees form separate class and, therefore, on grant of promotion to the

grade as provided in the recruitment rules, promotees cannot make any grievance.

In U. S. Menon v State of Rajasthan, AIR 1968 SC 81, different scales of pay to persons employed in the same post on the ground of their being

recruited from different sources or by different methods of recruitment was held to be valid. It was observed:

... It is entirely wrong to think that every one, appointed to the same post, is entitled to claim that he must be paid identical emoluments as any

other person appointed to the same post, disregarding the method of recruitment, or the source from which the officer is drawn for appointment to

that post. No such equality is required either by Article 14 or Article 16 of the Constitution.

In Delhi Veterinary Association v Union of India, (1984) 3 SCC 1, the Supreme Court stated:

... The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and

technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical

relativity with other jobs in the same service or outside are also relevant facts. ''

The following observation regarding scope of interference by Courts in Federation of AH India Customs and Central Excise Stenographers v

Union of India, (1988) 3 SCC 91, may also usefully be noticed:

Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere

volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities

make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are

charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide,

reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not ' amount to

discrimination ....

If it has a rational nexus with the object sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are

charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated 'that either it is

irrational or based on no basis or arrived mala fide either in law or in fact....

' 26 The appellants in the instant case stood promoted on different dates between 1979 and 1982 but they filed the writ petition only in 1995. The

finding of the learned Single Judge on the point of laches, therefore, cannot be said to be an arbitrary or wrong finding,

27 Mr. Z. A. Shah submitted that the government having accepted the position that there was an anomaly between inductees promotee BDOs and

direct recruit BDOs by issuing the rationalization order in 1983, withholding of monetary benefit since 1983 would be illegal and unconstitutional.

Alternatively, he submitted, even if financial benefits are denied to the appellants from 1983 they may be allowed notional benefit of the grade from

1983 because some of them were already getting higher pay. Counsel submitted that if they are allowed the grade of Rs. 10001560 notionally

from 1983 they would get selection grade of Rs. 12001800 comprising 25% of the posts in the time scale of the service and in that eventuality

there would be chance of induction into the Kashmir Administrative Service(KAS).

28 We have already dealt with above the first part of the submission. As regards the second part, Mr. Magrey referred to the amendment in rule 5

of the Kashmir Administrative Rules vide SRO no.570 of 1983 in terms of which the selection grade contemplated by Government Order no.

1285G AD of 1983 became redundant. He submitted that the amendment was the sequel td the 1993 upgradation of post under Government

Order no.624GAD of 1993 dated 23rd July, 1993). He further submitted that the submission of Mr. Shah as regards chance of induction is

without any merit as chance of promotion is not a condition of service and, therefore, is not enforceable by a court order. As a matter of fact, Mr.

Magrey stated, except appellant no.l, Zaffarullah Bhat, who is facing departmental proceeding and in whose case the 'sealed cover' procedure has

been applied, the other appellants have already been inducted into KAS. 1 find substance in the submissions of Mr. Magrey. The post of BDO

having been upgraded on 23rd July, 1993 and allowed the grade of Rs.21253600 being the revised grade of Rs. 10001560, the benefit of

upgradation cannot be extended beyond 23rd July, 1993 even notionally, the question of giving monetary benefit much less does not arise.

We, therefore, on consideration of the relevant rules and Government Orders hold that the appellants being promotee BDOs are entitled to the

grade of Rs. 10001560 (prerevised) from 23rd July, 1993 and accordingly entitled to reckon their seniority in the service and on the post from that

date.

It may be mentioned here that the writ petition, SWP no.486/1995, was filed by fifteen petitioners. Only three of them, namely, Zaffarullah Bhat,

Bashir Ahmad Jan and Ghulam Mohd Alamgir filed this letters patent appeal. The left out petitioners filed CMP nos. 226/2000,50/ 2004 and

59/2004 for being added as appellants so that the benefit of the judgment may be available to them. The CMPs are allowed and it is certified that

the present judgment will also be applicable to the applicants of the said CMPs.

This letters patent appeal and the CMPs stand disposed of accordingly. There will be no order as to costs.