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2012 Supreme(J&K) 40
JAMMU & KASHMIR HIGH COURT
Muzaffar Hussain Attar, J.
Mohammed Syed Makhdoomi -Appellant
Versus
State & Ors. -Resopndent
SWP. No. 1672/2009 & CMP. No. 3103/2009
Decided On : 09-02-2012
Mr. Altaf Haqani, Advocate for Petitioner.
Mr. A. Chesti, AAG, for Respondents.
Headnote:
Promotion - Government Orders - Jammu and Kashmir Handicrafts (Scales & Export) Corporation - 222-Ind of 1988, 414-Ind of 1997, 149-Ind of 2005 - The court quashed a part of the Government Order No. 149-Ind of 2005 that abolished vacancies occurring in any cadre due to retirement/promotion, and directed the respondents to consider the petitioners' claim for promotion and pay parity, as well as grant insitu promotion in accordance with the Jammu and Kashmir Civil Services (Higher Standard Pay Scale) Rules, 1996.
Fact of the Case:
The petitioners, members of the Jammu and Kashmir Handicrafts (Scales & Export) Corporation, were transferred to the Handicrafts Development Department under various government orders. They sought promotion, claiming discrimination in salary and non-implementation of higher standard pay scale rules.
Finding of the Court:
The court found that the petitioners were entitled to seek promotion and pay parity, and that the condition abolishing vacancies in any cadre due to retirement/promotion in the Government Order No. 149-Ind of 2005 was unconstitutional and illegal. The court directed the respondents to consider the petitioners' promotion claims and settle the pay parity issue.
Issues: The issues involved the petitioners' right to seek promotion, discrimination in salary, and non-implementation of higher standard pay scale rules.
Ratio Decidendi: The court held that the condition abolishing vacancies in any cadre due to retirement/promotion was unconstitutional and illegal, and directed the respondents to consider the petitioners' promotion claims and settle the pay parity issue.
Final Decision: The court quashed a part of the Government Order No. 149-Ind of 2005, directed the respondents to consider the petitioners' promotion claims, settle the pay parity issue, and grant insitu promotion in accordance with the Jammu and Kashmir Civil Services (Higher Standard Pay Scale) Rules, 1996.
"Government of Jammu and Kashmir Industries and Commerce Department
Sub: Transfer of 35 Carpet training Centres under Massive Carpet Training Scheme from (JKH9S&E) Corporation to Handicrafts Dev. Department.
Government Order No. 222-Ind of 1988 Dated 29-7-1998
Sanction is hereby accorded to the:
1. Transfers of 35 carpet training Centres (15 in Jammu and 20 in Kashmir) as mentioned in Annexure 'A" to this order alongwith staff as listed in Annexure to this order, run under Massive training program from JKHEC to Handicrafts Dev. Department w.e.f. 1st. Sept., 1998.
2. Transfer of budgetary provision available under the scheme to this Handicrafts Dev. Department led by the amount acquired by the Corporation to cover establishment costs of 25 Centres on account of any like ... or other such expenditure (to be worked out separately) for a period of the three years only;
3. Conversion of 20 carpet training centers to be retained by the JKHEC into production centers.
It is further ordered that:-
a). The staff transferred from JKHEC to Handicrafts Dev. Deptt. Shall continue to be governed by the terms and conditions as in JKHEC till further orders;
b). The vacant posts will not be filled up by the Director of Handicrafts/Corporation;
c). The expenditure on account of purchase of raw material, stipend to trainees, salaries to staff upto and of July 1998 shall be reimbursable to JKHEC in full.
d). The semi-finished carpets on the looms of Centres, transfer to Handicrafts Department on completion will be handed over the Corpn. Provided all the material till completion of these carpets is provided by the Corporation.
e). One of the vehicles of Massive carpet scheme presently with JKHEC will be transferred to the Director of Handicrafts.
By order of the Govt. of Jammu and Kashmir.
Sd/-
Commr/Secretary to Government I & C Department."
02. The petitioners, who were working as Accountant-cum-Storekeepers in Massive Carpet Training Scheme of Corporation were beneficiaries of the aforementioned Government order. The Government again vide Order No. 414-Ind of 1997 dated 1st October, 1997, ordered for transfer of remaining 20 Carpet Training Centres under Massive Carpet Training Scheme alongwith staff from the Corporation to Department w.e.f. I" September, 1997. It was also provided in all these Government orders that the staff transferred from Corporation to Department shall continue to be governed by the terms and conditions, which were applicable to them in the Corporation. The petitioners being members of service of the Corporation were transferred to the Department. The Government in the year 2005 took policy decision to absorb 468 employees of erstwhile Massive Carpet Scheme of Corporation, who were transferred to the Department in terms of aforementioned Government orders, as a separate scheme, in the Department. The pay scales were also fixed. The Government Order of 2005 is taken note of:
"Government of Jammu and Kashmir Industries and Commerce Department Civil-Secretariat-Srinagar.
Sub: Absorption of 468 employees of Massive Carpet Scheme in the J&K Government Handicrafts Department
Ref: Cabinet Decision No. 30/3 dated 18.O4.2005
Sanction is hereby accorded to:
a. The absorption of 468 employees of erstwhile Massive Carpet Scheme transferred to the Department of Handicrafts vide Government Order No. 414-Ind of 1997 dated 01.10.1997 and Government Order No. 222-Ind of 1998 dated 29.07.1988, as a separate scheme in the Handicrafts Department with 3. Manager 7600-13450 pay scales as per annexure to this ord
