MOHAN SINGH Vs. STATE
LAWS(J&K)-1993-6-3
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 04,1993

MOHAN SINGH Appellant
VERSUS
STATE Respondents




JUDGEMENT

- (1.)THE grant of withholding of the benefits SRO -149 of 1973, is the bone of contention between the rival parties involved in these petitions. It has been prayed that the order impugned in these writ petitions bearing No. DC/PD/Adm -III/83 of 1990 dated 14.11.1990 by which the order No. DC/PD/Adm -III/76 of 1990 dated 8.11.1990 has been kept in abeyance by the respondents, be quashed with Order No. PDD -6/III89 of 1990 dated 20.4.1990 along with Order No. DC/PD/Adm -III/76 of 1990 dated 8.11.1990.
(2.)THE facts leading to the filing of these writ petitions are: that the petitioners (except in writ petition No. 922/90) who are ITI trained diploma holders were initially working in the executive cadre have been performing their duties as technicians on the establishment of Power Development Department (EM & RE). They claim to be holding class III & IV technicians posts in the executive branch of the service. They further claim to have been struggling for and pressing hard for the grant of pay scales equivalent to their qualifications as envisaged under SRO 149 of 1973 with corresponding revision of pay granted from time to time. It is alleged that in all other departments, benefit of SRO -149 of 1973 has long back been given to the employees on the basis of their holding ITI qualification but the same was denied to the petitioners. Upon their representation that matter remained under active consideration of the respondents and ultimately the concerned department agreed to concede to the grant of benefit of SRO 149 of 1973 by virtue of Order No. PDD -6/III/89 dated 25.4.1990 as is evident from letter of Under Secretary to Govt. Power Development Department, (PDD) for short hereafter). Vide Order No. DC/PD/Adm/III/76 of 1990 dated 8.11.1990, respondent No. 2 i.e., Development Commissioner, PDD on the basis of the approval of the Administrative Deptt., dated 23.4.1990, conferred benefits of SRO -149 of 1973 upon the ITI trained employees of the respondents with effect from 25.4.1990. Inâ„¢ pursuance of the aforesaid order the petitioners submitted their joining report to their respective Executive Engineers who consequently put them in higher scales of pay. However, vide order impugned in the writ petition, Joint Commissioner, PDD, ordered that earlier order dated 8.11.1990 by which the benefit of SRO -149 of 1973 was conferred upon the petitioners and others be kept in abeyance. It is submitted that by the time the impugned order was passed, the earlier order issued had been implemented and the petitioners conferred its benefit it is submitted that one of the promotes, namely, Pavinder Kant, Technician II Working in the absence of the Executive Engineer (Inspections), Jammu had even drawn his arrears of pay of promotion. It is submitted that the order impugned is liable to be quashed being violative of the provisions of the Constitution of India as incorporated under Art, 311 and the J&K Civil Services (Classification, Control & Appeal) Rules, 1956. It is further contended that the order impugned having been passed without compliance of the principles of natural justice, was not sustainable. The order impugned is alleged to have adversely affected the petitioners resulting in reduction of their pay scales and salary. The order is also alleged to be violative of the provisions of Articles 14 & 16 of the Constitution of India as the person similarly situated as the petitioners are employed in other departments of the respondent -state, have been conferred the benefit of SRO 149 of 1973 which is alleged to have been wrongly denied to the petitioners. The petitioners have further prayed that on the principle of equal pay for equal work, they are entitled to the grant of benefits of the aforesaid SRO.
(3.)IN the counter -affidavit filed on behalf of the respondents it is submitted that as no fundamental or legal right of the petitioner has been violated, their writ petition totally being misconceived was liable to be dismissed. It is contended that the order dated 8.11.1992 which extended benefits to the petitioners on pursuance of SRO -149 of 1973 had become redundant and was not applicable to them. The said SRO is stated to be regarding the pay revision and could not be made applicable to such employees who were not in service at the relevant time. It is contended that with the framing of the service rules under SRO -381 of 1981 dated 26.8.1981, services of the petitioners came to be governed by the said SRO and they had as such become disentitled to the benefits arising out of SRO -149 of 1973. It is submitted that the order dated 8.11.1992 was issued under a bonafide mistake and the Administrative Department thereafter directed the Joint Commissioner, PDD, to keep the said order in abeyance. It is further contended that the order impugned in these petitions was issued on he various representations received by the administrative department from other categories of employees who are stated to be much superior to the petitioners. Had the order dated 8.11.90 been implemented the petitioners would have become senior over and above the other categories of the employees in the department and in some cases the petitioners would be allegedly getting double step promotions over and above other employees are stated to have made a representation which was subsequently kept in abeyance vide the order impugned in the petitions. It is submitted that as the petitioners have alternate, efficacious remedy of making representation to the Government, their petitions were liable to be dismissed. It is, however, admitted that the petitioners are Class IV technicians posted in various executive branches of the PDD. It is submitted that SRO -149 of 1973 was made applicable only to such employees as were in service at the relevant time but as the petitioners were admittedly not in regular service of the respondents, they were disentitled to claim its benefit. Alternatively it is contended that SRO -149 of 1973 was made applicable only to direct recruits who were ITI certificate holders and classified as semi -skilled workers/Category. Even if SRO -149 of 1973 is held applicable in the case of the petitioners they are stated to be not titled to its benefit on the ground of not possessing the qualifications as specified in the said SRO. It is denied that the administrative department vide its order dated 25.4.1990 had, however, intended to coffer any right on the petitioners. It is contended that the joining reports of the petitioners on the wrong interpretation of the Govt. order which was subsequently kept of in abeyance did not carry any weight age in their favour. It is submitted that operation of order dated 8.11.1990 was completely stayed but on the specific undertakings given by the petitioners to the effect that they will reinburse to the State exchequer of the higher emoluments drawn by them in case they are found to be not entitled to them, they were given its benefit. The present petitions are alleged to be misconceived and liable to be dismissed.
Writ petition No. 922/90 has been filed by the Provincial Power Employees Union and others with the prayer for quashing the order dated 8.11.1990 by virtue of which all the ITI trained employees working in various units of the executive cadre were given the benefit in pursuance of SRO. 149 or 1973 with effect from 25.4.1990 allegedly ignoring the rights of about 10,000 employees who were not ITI trained but were working in the department with the result that their promotion chances and seniority, were adversely affected. It is further prayed that mandamus be issued to be respondents to give the benefit of SRO -149 of 1973 to the non -trained (ITI) employees working in thePDD of Category B of the skilled workers.



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