Ms. Mehnaz Rather, Advocate vs Union Territory of J&K through its

Judgment

3. Union Territory of J&K through its Principal Secretary, Housing & Urban Development Civil Department, Secretariat, Srinagar/Jammu. Srinagar Authority Development through its Secretary, Bemina Bye Pass near SKIMS Medical College, Srinagar, Kashmir. Vice Chairman, Srinagar Development Authority, Bemina Bye Pass near SKIMS Medical College, Srinagar, Kashmir. Through: Mr. Bikramdeep Singh, Dy. AG. ...Respondent(s) Page 1 of 12 WP(C) No. 22/2020 CORAM: HON’BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE. JUDGMENT

1. The petitioners pleading common cause of action, facts to state and claims, against the respondents, have filed this petition jointly asserting therein that they are aggrieved of the Order No. SDA/VC/374 of 2014 dated 30th August, 2014, to the extent of placing them in the pay scale of 4000- 6000 (pre-revised), and by the decision of the Departmental Promotion Committee (DPC) meeting held in August 2017, to the extent it provides that petitioners may be placed in the pay scale of 5000-8000 (pre-revised) provided that they possess a certificate course in building construction from recognized institute.

2. The petitioners have pleaded that they were promoted to the post of Tax Collectors on 22nd February, 2006, from the post of Sales Incharge/Orderlies held by them. According, to the Draft Rules, in the

absence of any Recruitment Rules with regard to the Srinagar Development Authority, the petitioners have a right of consideration for being promoted against the post of Khilafwarzi Inspectors, as the same was to be filed up 50% by promotion from amongst Tax/Rent Collectors with five years of experience and the post of Khilafwarzi Inspector carried the pay scale of 5000-8000 (pre-revised); that having regard to the seniority and eligibility of the petitioners, the Departmental Promotion Committee, in its meeting held on 3rd June, 2014, was pleased to recommend the case of the petitioners for promotion against the post of Khilafwarzi Inspectors in the pay scale of 5000-8000 (pre-revised), w.e.f. 3rd June, 2014, and the recommendation Page 2 of 12 WP(C) No. 22/2020 made by the Departmental Promotion Committee was approved by the Competent Authority.

3. The petitioners allege that instead of placing them in the grade of 5000-8000 (pre-revised), as was the grade attached with the post of Khilfwarzi Inspector and having been recommended by the Departmental Promotion Committee, the petitioners though were promoted as Khilafwarzi Inspectors but were placed in the pay scale of 4000-6000 (pre-revised); that the placement of the petitioners in the pay scale of 4000-6000 (pre-revised) was not made in consonance with the recommendation made by the Departmental Promotion Committee and the pay scale sanctioned by it; that the petitioners filed a representation with a request for releasing the grade of 5000-8000 (pre-revised) instead of 4000-6000 (pre-revised),however, despite making representations against the decision and asking for placing them in the pay scale of 5000-8000 (pre-revised), the respondents did not take any decision in this regard.

4. Pursuant to notice, the respondents have filed the objections/reply through respondents No. 3 and 4 asserting therein that the request of the petitioners for release of pay scale of 5000-8000 (pre-revised) was placed before the Departmental Promotion Committee meeting held in the year 2017 and the matter was deliberated upon and the Departmental Promotion Committee recommended that the Khilafwarzi Inspectors may be placed in the pay scale of 5000-8000 (pre-revised) subject to the condition of basic qualification as Matriculate with Certificate Course in Building Construction, from the recognized institute. However, the minutes of the said meeting were not approved by the Administrative Department, who Page 3 of 12 WP(C) No. 22/2020 insisted upon finalization of Draft Recruitment Rules and the Administrative Department vide communication dated 29th March, 2019, directed the respondent-Srinagar Development Authority to conduct a fresh DPC with a condition that the same shall be done only after the finalization of the Draft Recruitment Rules and that a Reorganization Proposal, along with the Draft Recruitment Rules, has been submitted to the Administrative Department on 9th June, 2021, vide letter No. SDA/VC/2021/271 which is under consideration of the Administrative Department and finally it was prayed that the writ petition be dismissed.

5. Learned senior counsel appearing for the petitioners submits, that in response to a request for information under the Right to Information Act 2009, by the petitioners, the respondents informed them that the matter had been placed before the Departmental Promotion Committee, which had recommended that the petitioners be placed in the pay scale of 5000-8000 (pre-revised), provided they possess the required basic qualification as Matriculation and Certificate Course in Building Construction, from the recognized institute. The petitioners have submitted that it was not permissible for the respondents to place the matter again before the Departmental Promotion Committee, when the decision has already been taken to promote the petitioners as against the post of Khilafwarzi Inspectors in the pay scale of 5000-8000 (pre-revised) and that the decision is also not countenanced by law for the simple reason that there are no rules which provide for possessing certificate course in building construction from the recognized institute as a condition of eligibility for placing them in the pay scale of 5000-8000 (pre-revised), as no such qualification in the matter of Page 4 of 12 WP(C) No. 22/2020 eligibility has been prescribed till date while effecting promotions as against the post of Khilafwarzi Inspector, either by the Srinagar Development Authority or the Jammu Development Authority. Moreover, even otherwise, such a condition cannot be pressed into service for the reason that no effort has been made by the respondent Authority to depute the petitioners for undergoing such a course, as such, the entire decision has been taken arbitrarily and illegally, so as to denude the petitioners of their vested right of being placed in the grade pay of 5000-8000 (pre-revised).

6. It has been further pleaded that under and in terms of Office Memo No. SDA/VC/18385/43 dated 13th May, 2005, the sanctioned strength in the Srinagar Development Authority as on 13th May, 2005, was circulated for information to all the Controlling Officers and the Financial Advisor was requested to compile budget proposal as per this strength and ensure that the establishment bills are framed strictly as per this sanctioned strength in future, a perusal whereof would indicate that the post of Khilafwarzi Inspector carrying a pay scale of 5000-8000 (pre-revised) was shown; that vide SRO 858 dated 26th October, 2019, while notifying the cadre of Srinagar Development Authority, comprising the posts as indicated in Schedule-I for the Union Territory of Jammu & Kashmir upon exclusion of the posts of Union Territory of Ladakh, also provides pay scale as attached to the post of Khilafwarzi Inspector as that of 5000-8000 (pre-revised) [revised to that of PB-1/5200-20,200+4200 (G.P)], corrected by issuance of Addendum to Order No. SDA/VC/380 of 2014 dated 30.08.2024 as 5200- 20,200+GP 1900 vide No. SDA/VC/3148-56 dated 10.12.2020. Page 5 of 12 WP(C) No. 22/2020

7. Learned senior counsel for the petitioners submits that in view of the Office Memo dated 13th May, 2005 and the SRO 858, it was writ large that the pay band/pay scale as attached to the post of Khilafwarzi Inspector was that of 5000-8000 (pre-revised); that the petitioners by denying them the relevant pay scale have been subjected to harassment. He further submits that in the Jammu Development Authority the Khilafwarzi Inspector has been placed in the higher grade of 5700-10100 though the nature of the job of Khilafwarzi Inspector is same in both the Development Authorities.

8. The petitioners have finally prayed that respondents be directed to place the petitioners in the pay scale of 5000-8000(pre-revised) [now revised to that of PB-1/5200-20,200+4200 (G.P)] w.e.f. 3rd June, 2014 and thereto release all the arrears and all consequential benefits in favour of the petitioners.

10. Heard and considered. The Departmental Promotion Committee held a meeting on 3rd June, 2014, under the Chairmanship of Vice Chairman, Srinagar Development Authority with members as Additional Secretary H&UD Department, Director Land Management, Financial Advisor/CAO and Administrative Officer of Srinagar Development Authority as Member Secretary, with regard to various agenda items, in which, agenda item No. 14 related to placement of Khilafwarzi Inspectors, which was resolved as under: AGENDA ITEM No.14: Placement of Khilafwarzi Inspectors: “DPC recommended, as per seniority and eligibility, placement of five Tax Collectors namely Nazir Ahmad Sheikh, Ghulam QadirWagay, Mohammad Akbar Wani, Page 6 of 12 WP(C) No. 22/2020 Shabir Ahmad Bhat and Ghulam RasoolGanai as Khilafwarzi Inspectors in the substantive scale of 5000- 8000 (pre-revised), with effect from 3rd June, 2014, the date on which the DPC was convened.”

11. It is clear from the minutes of meeting of the Departmental Promotion Committee held on 3rd June, 2014, that all the petitioners, having regard to their seniority and eligibility as Tax Collectors, were recommended to be placed as Khilafwarzi Inspectors in the substantive pay scale of 5000- 8000 (pre-revised) w.e.f. 3rd June, 2014, the date on which the Departmental Promotion Committee meeting was convened. However, pursuant to the recommendations of the Departmental Promotion Committee held on 3rd June, 2014, an Office Order came to be issued by the Srinagar Development Authority as Order No. SDA/VC/374 of 2014 dated 30th August, 2014, which read as under: “...... As recommended by the Departmental Promotion Committee and approved by the Hon’ble Chairman, SDA (Minister for H&UD Deptt;)Mr.Nazir Ahmad Sheikh, Mr. Ghulam QadirWagay, Mr. Mohd Akbar Wani, and Mr. Gh. RasoolGanai, Tax Collectors are promoted as Khilafwarzi Inspectors against available vacancy in the substantive pay scale of Rs. 4000-6000 (pre-revised), w.e.f. 3rd June, 2014, on the basis of seniority list. This order is issued without any prejudice to the seniority and subject to the outcome of any writ petition before the court of law or representation filed by any of the officer/official before the Competent Authority.”

12. On agitating the matter by the petitioners with regard to the pay scale of 4000-6000 (pre-revised) in their promotion order dated 30th August, 2014, as against the recommendation of the Departmental Promotion Page 7 of 12 WP(C) No. 22/2020 Committee, even approved by the Chairman Srinagar Development Authority (Minister for H&UD Department), the matter was considered by the respondent-Srinagar Development Authority, in its communication dated 27thDecember, 2019, in reply to an information sought under Jammu & Kashmir Right to Information Act, 2009; that the Srinagar Development Authority Board by its 61st meeting had also approved one post of Khilafwarzi Inspector in its pre-revised grade of 5000-8000 and under the directions of the Establishment Committee under the Chairmanship of Commissioner cum Secretary to the Government H&UD Department, the Vice Chairman Srinagar Development Authority was advised to resolve the issue in the Departmental Promotion Committee and inform the Srinagar Development Authority Board accordingly; that the matter had been deliberated upon by the Departmental Promotion Committee, which recommended that Khilafwarzi Inspector may be placed in the pay scale of 5000-8000 (pre-revised) provided having basic qualification Matriculation with Certificate Course in Building Construction from the recognized institute.

13. The Respodnent-Srinagar Development Authority on 13th May, 2005, have issued the details of sanctioned staff strength of Gazetted as well as Non-Gazetted staff, showing Khilafwarzi Inspector at Serial No. 15 in the sanctioned Non-Gazettedstrength with sanctioned strength as 09 in the pay scale of 5000-8000 (pre-revised). The Administrative Department of Housing and Urban Development Department also issued a notification vide SRO 858 dated 26th October, 2019, whereby in Schedule-Ito SRO 858, the post of Khilafwarzi Inspector has been shown at Serial No. 22 in the pay Page 8 of 12 WP(C) No. 22/2020 scale of PB-1/5200/20200+4200 (GP). Even Khilafwarzi Inspector in Jammu Development Authority has been working in the pay scale of 5700-

14. The respondents in a compliance filed on 6th November, 2023, have submitted that the matter regarding release of grade pay of 5000-8000 (pre-revised) in favour of the petitioners was placed before the Departmental Promotion Committee on 4th/5thofJanuary, 2022 and the minutes of the Departmental Promotion Committee were submitted to the Administrative Department for approval by the Chairman Srinagar Development Authority. However, the Administrative Department vide communication dated 16th August, 2023, had directed the Srinagar Development Authority to conduct a fresh DPC.

15. As it appears from the record and also as submitted by the learned counsel for the parties, that there are no Recruitment Rules, as on date, governing the service conditions including promotions of the employees of the Srinagar Development Authority. The Departmental Promotion Committee headed by not less than the Vice Chairman of the Srinagar Development Authority approved the promotion of the petitioners from the post of Tax Collectors to the post of Khilafwarzi Inspectors in the pay scale of 5000-8000 (pre-revised) on 30th August, 2014. However, the order, whereby the petitioners were promoted, they were shown to be promoted in the pay scale of 4000-6000 (pre-revised) instead of 5000-8000 (pre-revised), and it is not apparent from the record as to why the promotion order was deviated from the recommendation of the Departmental Promotion Committee. It is also a fact that the Srinagar Development Authority in its Page 9 of 12 WP(C) No. 22/2020 details of the sanctioned strength of its staff had shown the post of KhilafwarziInspector in the pay scale of 5000-8000 (pre-revised) and so is the case in the SRO 858 issued by the Administrative Department, which indicated that the post of Khilafwarzi Inspector carried pay scale of 5000- 8000 (pre-revised)[now revised as PB-1/5200/20200+1900 (GP)].

16. It is not forthcoming as to how once the names of the petitioners having been cleared and appointed on promotion, as Khilafwarzi Inspectors, the same can be subjected to fresh Departmental Promotion Committee as advised by the Administrative Department. Also it was not within the competence of the Departmental Promotion Committee to take a decision in the year 2017 to prescribe certain qualification of a Certificate Course in Building Construction from the recognized institute, which is not prescribed in any of the service conditions or even in the Draft Recruitment Rules. The petitioners, in the considered opinion of this Court, have been subjected to continuous harassment for the inaction on the part of the Srinagar Development Authority, wherein they have been working and also by the Administrative Department of the Housing and Urban Development Department, that for the last about ten years they have been clamoring for grant of pay scale to which they are entitled to, as the post of Khilafwarzi Inspectors carries a pay scale of 5000-8000 (pre-revised) and from the record the respondents have failed to show as to how they have been placed in the pay scale of 4000-6000 at their own whim.

17. Having regard to the aforestated facts and circumstances of the case and the discussion made hereinabove, it is found that the petitioners who had been recommended by the Departmental Promotion Committee by Page 10 of 12 WP(C) No. 22/2020 Respondent-Srinagar Development Authority to be promoted as Khilafwarzi Inspector in the pay grade of 5000/8000 (pre-revised) and duly approved by the Chairman of the Authority i.e., Minister Incharge Housing and Urban Development Department.

18. The appointment order by way of promotion should have been issued in the same pay scale instead of 4000-6000 (pre-revised) in which impugned order was issued; also that the Departmental Promotion Committee subsequently in its meeting held in August 2017 was not Competent to issue the order that the pay scale of 5000-8000 (pre-revised) be released in favour of Khilafwarzi Inspector, subject to the condition that the incumbents are matriculate and also having a Certificate Course in Building Construction from the recognized institute as a matter of eligibility, as the same was arbitrary in nature in absence of any Recruitment Rules of Srinagar Development Authority governing the service conditions including the promotion of its employees. The petitioners have thus made out a case for grant of relief prayed for in their favour.

19. Viewed thus, the writ petition is allowed with the following directions:- (i) The impugned order dated 30th August, 2014, prescribing the pay scale of 4000-6000 (pre-revised) instead of 5000- 8000 (pre-revised), is quashed to this extent. (ii) The decision of the Departmental Promotion Committee in its meeting held in August 2017 to the extent it provided for possessing Certificate Course in Building Construction from the recognized institute as a matter of eligibility for being placed in the Page 11 of 12 WP(C) No. 22/2020 pay scale of 5000-8000 (pre-revised) is declared as illegal and is, accordingly, quashed. (iii) The respondents are directed to place the petitioners in the pay scale of 5000-8000 (pre-revised) with effect from 3rd June, 2014 and thereto release all the arrears accruing due and all consequential benefits in favour of the petitioners with further direction to place the petitioners in the revised pay scale from the date revised pay scales were made applicable. (M.A. CHOWDHARY) JUDGE SRINAGAR: 27 .09.2024 “Mir Arif” Whether the Judgment is Reportable? Yes MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document

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