1. SRO 14 of 1996 provide for time bound promotion. First, second and third in-situ promotion is to be granted to an employee who has stagnated on a post for a period of 9 years, 18 years and 27 years respectively. Said SRO 14 contains the rules known as the Jammu and Kashmir (Higher Standard Pay Scale Scheme) Rules 1996 (hereinafter referred to as H.S.P Rules 1996).

2. Petitioners have been granted first and second in-situ promotion but subsequently it has been noticed that their stagnation period for in-situ promotion was to be reckoned with effect from 01.06.1979 when their stagnation period has been reckoned with effect from 30.03.1973.

3. Petitioners earlier filed SWP No. 3944-46/96 captioned Mohammad Amin Wani & Ors v. State & Ors. Their grievance was that their services for the purposes of stagnation were to be reckoned from 30.03.1973. During the pendence of the petition, SRO 311 was issued by the Government in the year 1997, pursuant to which Rule 5AA has been added in the H.S.P. Rules 1996. In view of the same, counsel for the petitioner therein had made a submission that SRO 311 came into force which takes care of his grievance. Based on said submission petition has been disposed of on 23.07.1998 with the observation "the writ petition is disposed of along with CMPs as settled in terms of the said SRO 311".

4. Consequently matter had been taken up with the Government. Under Secretary Home Department vide communication No. Home/HG/16/98 dated 1.1.1999, addressed to the Inspector General of Police, J&K, conveyed that the Finance Department has observed as under: -

"The provisions of SRO 311 dated 09.09.1997 exclusively pertains to work charge daily rated workers and are not applicable to the employees who have been engaged on consolidated pay. Accordingly the period of service (i.e. 50% thereof) spent on consolidated pay is not to be counted along with the period spent on regular service. Accordingly the stagnation period for in-situ promotion is to be taken from 01.06.79. Based on which the period of stagnation in respect of the petitioner was found more than 9 years but less than 18 years, as such, only one time bound promotion was to be allowed. Therefore, second time bound promotion granted is in contravention of rules.

5. Based on the aforesaid communication the Director General of Police vide communication No. Estt/WP/Pay/ 43-45/99 dated 06.01.1999, addressed to Commandant Auxiliary Police 1st Bn. Srinagar conveyed that based on letter dated 01.01.1999 (as referred above) action regarding recovery of excess amount drawn by the petitioners on account of pay fixation in terms of SRO 14 be intimated.

6. Aggrieved thereof instant petition has been filed.

7. The controversy arose in the back drop of the particular facts of this case which are precisely noticed as under:

8. "Petitioners admittedly were appointed in the year 1973 as "Guardsman" temporarily and provisionally on consolidated pay of Rs. 30 + Rs. 114 as DA per month in the Home Guard Department. Subsequently vide Government Order No. Home-329(Police) of 1979 dated 4.7.1979, the petitioners along with other similarly situated persons i.e. "Guardsman" were placed in the pay scale of Rs. 210-4-250-EB-5-270-EB-6-300. Thereafter in the year 1982 pursuant to Government order dated 29.11.1982, Home Guards organization was declared as a permanent organization.

9. The claim of the petitioners is that they were appointed as "Guardsman" on regular basis in the year 1973 on consolidated pay and admittedly were placed in the graded scale on 4.7.1979, therefore, their services for the period of stagnation has to be reckoned from 30.03.1973 not from 4.7.1979 when they were placed in the graded scale. In alternative if is also claimed that even if for the purposes of stagnation the period is not reckoned with effect from 30.03.1973, still in terms of SRO 311 where-under Rule 5-AA has been added to the relevant rules, 50% of their service as rendered by them on consolidated basis w

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