Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 454

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
WASIM SADIQ NARGAL, J.
Sarwa Begum and Ors. (LRs of Late Shabir Ahmad Dar)– Petitioners
Versus
State of J.&K. and Ors. – Respondents
SWP No. 349 Of 2011 (O&M)
Decided On : 03-08-2023

Advocates Appeared:
For the Petitioners: Mr. S.A. Makroo.
For the Respondents: Mr. Syed Musaib, Dy. AG

The main legal point established in the judgment is the entitlement of the petitioner, as a diploma holder, to the grade of Rs.5700-10100 retrospectively from the date of his initial appointment, emphasizing the principle of equal pay for equal work and the violation of the petitioner's rights under Articles 14 and 16 of the Constitution of India.

Headnote:
Writ Jurisdiction - Seniority and Pay Scale - Jammu and Kashmir Municipal Act, 2000 - Sanitary Inspector - Rs.1200-2040 - Rs.4000-6000 - Rs.5700-10100 - Assistant Sanitation Officer - Rs.6700-10700 - 10+2 in Science with one year’s Sanitary Inspector Diploma Course - Retrospective Release of Grade - Discrimination - Equal Pay for Equal Work
Fact of the Case:

The petitioner, a diploma holder, was appointed as a Sanitary Inspector in the grade of Rs.1200-2040 (Rs.4000-6000 pre-revised) and sought retrospective release of the grade of Rs.5700-10100 from the date of his initial engagement. The petitioner's appointment was confirmed, but he was placed in a lower grade than the one applicable to diploma holder Sanitary Inspectors. The petitioner made numerous representations to rectify the grade discrepancy, but no action was taken by the respondents. The Government of Jammu and Kashmir released the grade of Rs.5700-10100 in the petitioner's favor prospectively in 2010. The petitioner filed a writ petition seeking retrospective release of the grade and challenged the seniority list of non-diploma holder Sanitary Inspectors.
Finding of the Court:

The court found that the petitioner, being a diploma holder, was entitled to the grade of Rs.5700-10100 retrospectively from the date of his initial appointment. The court held that the respondents' inaction in rectifying the grade discrepancy was discriminatory and violated the petitioner's right to equal pay for equal work. The court allowed the petition, quashed the impugned seniority list, and directed the respondents to place the petitioner in the grade of Rs.5000-10100 retrospectively from the date of his initial appointment, along with all consequential benefits.
Issues: The issues involved the retrospective release of the petitioner's grade, the discriminatory placement of the petitioner in a lower grade, and the challenge to the seniority list of non-diploma holder Sanitary Inspectors.
Ratio Decidendi: The court held that the petitioner, as a diploma holder, was entitled to the grade of Rs.5700-10100 retrospectively from the date of his initial appointment. The court also emphasized the principle of equal pay for equal work and found the respondents' inaction to be discriminatory and violative of Articles 14 and 16 of the Constitution of India.
Final Decision: The court allowed the petition, quashed the impugned seniority list, and directed the respondents to place the petitioner in the grade of Rs.5000-10100 retrospectively from the date of his initial appointment, along with all consequential benefits. The respondents were directed to conclude the entire exercise within two months from the date of the court's order.

JUDGMENT :

1. By virtue of this judgment, the present petition which was pending for about 12 years has been taken up for final disposal.

2. Petitioner has invoked Writ jurisdiction of this Court, under Article 226 of the Constitution of India, read with Section 103 of the Constitution of erstwhile State of J&K, for issuance of appropriate writ for fixation of his seniority, proper placement in the final seniority list and consequential release of his retrospective promotional benefits.

3. Be it noted that the petitioner passed away during the pendency of writ petition and legal representatives were already brought on record.

BRIEF FACTS :

4. The case of the petitioner is that on the basis of the qualifications possessed by him, he came to be engaged as Sanitary Inspector in the grade of Rs.1200-2040 (Rs.4000-6000 pre-revised) and after being appointed as Sanitary Inspector, his appointment was confirmed by respondent no. 2 in terms of communication dated 20.11.1996. Since then, he has been performing his duties uninterruptedly and without any hindrance. It is averred that the posts of Sanitary Inspectors consist of two categories, i.e. Diploma holder Sanitary Inspectors and Non-Diploma holder Sanitary Inspectors. As per the learned Senior Counsel for the petitioner, the non-diploma holder Sanitary Inspectors have been given the grade of Rs.4000-6000, while as the diploma holder Sanitary Inspectors have been given the grade of Rs.5700-10100. This aspect of the matter is substantiated from a bare perusal of the seniority list, which has been placed on the record by the petitioner and marked as annexure D along with the present petition, where the grade of Sanitary Inspector Diploma has been shown as (Rs.5000-8000) and the grade of Sanitary Inspector non-diploma has been shown as (Rs.4000-6000).

5. Further case of the petitioner is that he is a diploma holder with 10+2 qualification in science stream, as such, he was entitled to the grade of Rs.5700-10100. But inadvertently, he has been placed in a grade which was lower than the grade that was applicable to the Sanitary Inspector diploma holder i.e. Rs.4000-6000. This aspect of the matter is also corroborated from the order dated 20.11.1996 whereby the petitioner was appointed as Sanitary Inspector subject to confirmation by the Director, Local Bodies Kashmir in lower pay scale (Rs.1200-2040). Feeling aggrieved of the same, the petitioner has been continuously representing before the respondents to redress his grievance insofar as release of his grade to the pay scale of Rs.5700-10100 is concerned, besides, seeking the fixation of his seniority in the category of Sanitary Inspectors with diploma holders. It is averred that the petitioner has filed first representation immediately after his appointment i.e. in 1997 (although the same is not on record) and thereafter in 2001, 2006, 2007, 2009 and 2010 is the latest representation. According to the petitioner, all these representations have neither been disposed of nor has any action been taken by the respondents.

6. It is the case of the petitioner that the Government of Jammu and Kashmir by virtue of notification vide SRO 417, dated 18th December, 2008, in exercise of power conferred by Section 307 and all other enabling provisions of Jammu and Kashmir Municipal Act, 2000, has been pleased to promulgate the rules, known as Jammu and Kashmir Urban Local Body Institutions (Management) Service Recruitment Rules 2008, which have come into force from the date of the publication i.e. 18.12.2008. According to the petitioner, Schedule-I, attached with the aforesaid rules is manifestly clear that the pay scale of the Sanitary Inspector has been shown as Rs.5700-10100 and the qualification which has been prescribed in the aforesaid rules is 10+2 in science with one year’s Sanitary Inspector Diploma Course from recognized institution and the petitioner fulfils the requisite criterion as envisaged in the aforesaid rules and thus, was entitled