The central legal point established in the judgment is the entitlement of employees initially engaged on consolidated pay to the benefit intended by Rule 5-AA of SRO 14 of 1996, which allows for the counting of 50% of continuous work for grant of in-situ promotion.

Hasnain Massodi, J.

1. Respondents were way back in 1973, temporarily appointed as "Guardsmen" on consolidated pay of Rs. 30 + Rs. 114 as Dearness Allowance per month, in the Home Guards Department. They were subsequently vide Government Order No. Home-329 (Police) of 1979, dated 04-07-1979, placed in the pay scale of Rs. 210-4-250-EB-6-300. The State Government on 29th November 1982, took a policy decision to declare and constitute Home Guard as a permanent Department. The State Government, to address the problem of stagnation, in same post/pay scale, in government services vide SRO 14 of 1996, notified Jammu and Kashmir (Higher Standard Pay Scale Scheme) Rules 1996. In terms of the Rules, the Government servant stagnating in same post because of absence of promotional avenues, for nine years is to get in situ promotion to the next grade. In all, the government servant in terms of Rules is entitled to get three in situ promotions after interval of nine years during his/her service career, in case he/she is made to stagnate in same pay scale for 27 years.

2. Respondents, stagnated in the same pay scale for 18 years, and were granted first and second in situ promotions. However when they were to be considered for grant of third in situ promotion, the appellants decided to reckon their service with effect from 1-06-1979 i.e. the date they were placed in the pay scale of Rs. 200-300 and not from the date of their initial engagement i.e. 30 March 1973. Resultantly, sanction of third in situ promotion in their favour, got delayed.

3. Respondents aggrieved with the decision taken by the appellants to count their service from 01-06-1979 instead 30-03-1973 filed writ petition being SWP 211/1999. During the pendency of the writ petition, the State Government issued SRO 311 of 1997, dated 09th September 1997, whereby Rule 5-AA was added to Jammu and Kashmir (Higher Standard Pay Scale Scheme) Rules, 1996. In terms of newly added rule, provision was made for adding 50% of continuous work in case of work charged employees/Daily Rated Workers for grant of in situ promotions. Rule 5-AA was introduced to provide relief to work charged employees/Daily Rated Workers who spent long time serving the Government till they were regularized and placed in a pay scale.

4. Respondents, once SRO 311 of 1997 was issued and Rule 5-AA added to SRO 14 of 1996, contended before the writ court that their case would fall within the purview of Rule and 50% of their service as "Guardsman" on consolidated basis was to be counted while deciding their entitlement for third in situ promotion. The plea raised found favour with the writ court. The writ court accordingly allowed the writ petition with the following directions:

"Rule 5-AA referred to above squarely applied to the consolidated pay employees the way it applied to the daily rated workers. Therefore, 50% of continuous work as consolidated wage service has to be counted with regular service for the purpose of grant of in-situ promotion. The fixation, therefore has to be made afresh because the earlier fixation made in the year 1995, where under service of the petitioners has been reckoned with effect from 30-03-1997 has to be changed.

While fixing pay for grant of in situ promotion, 50% of continuous service which as the petitioners have spent on consolidated basis shall be counted with regular service and accordingly first, second and third higher standard pay scale as shall be warranted under such fixation shall be allowed. The excess amount as a result of earlier fixation if found to have been drawn on re-fixation on aforesaid terms shall be adjusted.

Petition accordingly succeeds. Communication Nos. Home/HG/16/98, dated 01-01-1999 and ESTT/WP/Pay/43-45/99, dated 06-01-1999 shall be treated as non-est.

5. The writ court Judgment dated 1st December 2009, is assailed in Letters Patent Appeal on hand, on the grounds in view of nature of initial engagement of the respondents, their case would not fall within