Jammu, Jan 21: A CAT bench comprising of HON’BLE DR. BHAGWAN SAHAI, MEMBER (A) HON’BLE MR. RAKESH SAGAR JAIN, MEMBER (J) in a case of Roopali Puri Versus State of Jammu & Kashmir ordered as:-
(Delivered by Hon’ble Mr. Rakesh Sagar Jain, Member (J)
1. The present T.A. was initially filed in the Hon’ble High Court from where it has been transferred to this Tribunal. Applicant Roopali Puri is seeking the following reliefs:-
“i) Writ, order of direction in the nature of Writ of Certiorari quashing Office Memo No. A/35(09)-560 dated 16th August, 2018 issued by the respondent no. 2;
ii) Writ, order of direction in the nature of Writ of mandamus commanding the respondents to not to disturb the benefit drawn by the petitioner as per SRO 42 dated 2nd February 2011 by taking her Basic Salary as Rs. 16,370/- in accordance with the firs schedule of the Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009.
iii) Writ, order of direction in the nature of Writ of mandamus commanding the respondents to not effect any recovery whatsoever from the salary of the petitioner and to pay to the petitioner her salary at the scale at which, the same is being drawn by her as on today; and iv) Any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, may also be granted in favour of the petitioner and against the respondents along with cost.”
2. The Hon’ble High Court vide its order dated 28.08.2018 had restrained the respondents from disturbing the pay scale being enjoyed by the applicant having the Basic Pay of Rs.16,370/- as a result applicant continued to receive her emoluments in the Pay Band of Rs.9300-34800 with Grade Pay of 4280.
3. Case of the applicant is that vide advertisement notice issued in the year 2007, applications were invited for selection against the posts of Legal Assistant in the Jammu and Kashmir Law Department in the State Cadre and the pay scale of the post as advertised was Rs. 6500-10500. Before the selection and consequential appointment could be made, Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009 were framed by the Government and, as such, at the time of the appointment of the applicant, vide Government Order No:2392-LD (Estt) of 2009 dated 26.10.2009, she came to be appointed in the Pay Band of Rs. 9300-34800 with Grade Pay of 4200. Vide SRO 93 dated 15th April 2009, the Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009 were brought in force w.e.f. 01.01.2006 and the effective date of implementation was 01.07.2009.
As per the revised Pay Rules of 2009, the posts in the different pay scales which were mentioned in the 1st Schedule of the said Rules of 2009 from Serial No.11 to 16 i.e. the posts in the Pay Scale of Rs.5000-8000 to Rs.6500-10500, were clubbed together in the same Pay Band of Rs.9300-34800 with the Grade Pay of 4200.
The aforesaid merger of different grades into one Pay Band with the same Grade Pay, created anomalous situation, thus, forcing the State to issue SRO 42 dated 02.02.2011 and now for the first time for the different pre-revised pay scales i.e. 5000-8000, 5150- 8300, 5500-9000, 5600-9100, 5700-10100 and 6500-10500, different Grade Pay was provided, although the posts were in the same Pay Band and now for the first time the pre-revised pay scale of Rs.6500-10500 was revised to Pay Band of Rs.9300-34800 with the Grade Pay of 4280.
The said amendment was made effective notionally from 01.01.2006 and monetarily from 01.01.2011 and consequentially ready reckoner for computing the Basic Pay of all the pay scales mentioned above was also provided and for the pre-revised pay scale of Rs.6500-10500, the Basic Pay provided was Rs.16370/-.
4. It is the further case of applicant that since now the pay of the applicant was required to be refixed by taking her Basic Pay as Rs.16370/- as is clear from Annex-E to the T.A wherein specifically by ready reckoner for the Basic Pay of Rs. 6500/- in the Pay Scale of Rs.6500-10500, the revised Basic Pay was computed as Rs.16370/- and the applicant sought clarification from the Law Department because fixation of the salary of the applicant was required to be done. Accordingly, Law Department also vide its Communication No. LD (Estt.) 2009/P/RP dated 8-8- 2011(Annex F to the T.A) authorized the pay fixation of the applicant in terms of SRO 42 dated 02.02.2011.
Even the General Administration Department had clarified the issue vide its communication dated 18.04.2018 (Annex I to the T.A.). Subsequently, even the Finance Department had clarified the same vide information made available under Right to Information Act (Annex-G to the T.A) though the same was withdrawn by the Finance Department vide communication dated 12-04-2018 (Annex H), which according to the petitioner/applicant is an act of afterthought. Subsequently Respondent No.2 vide its Office Memo dated 16.08.2018, issued a clarification that SRO 42 dated 02.02.2011 is not an amendment of Rule 8 of Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009, prescribing pay fixation for all direct entrants to government service on or after 01.01.2006 but is an insertion/substitution of the new Grade Pays in Section 1 of First Schedule attached to the Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009 against Serial No.11 to 16 of Pay Band-2.
The aforesaid communication issued by Respondent No. 2 is a subject matter of challenge in the present petition as according to applicant it is absolutely illegal and arbitrary and has been passed in ignorance of SRO 42 dated 02.02.2011.
5. It is the case of applicant that initially when the rules were framed in the year 2009, the ready reckoner had been provided and the prerevised pay scale of Rs.6500-10500 was revised to Pay Band of Rs.9300-34800 with Grade Pay of 4280 and accordingly the same was paid to the applicant but subsequently with the amendment in the year 2011 vide SRO 42 dated 02-02-2011, the new ready reckoner was provided and same categorically provided that revised Basic Pay as against the pre-revised Basic Pay of Rs.6500/- in the pre-revised pay scale of Rs.6500-10500, shall be Rs.16370/- and accordingly benefit was given to the applicant.
6. In the counter affidavit filed by the Respondents No.1 & 2, a contention has been raised that the pay scale of the fresh recruits has to be governed by Rule 8 of the Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009 but unfortunately the respondents have failed to realize that Rule 8 was recast vide SRO-266 dated 31.08.2009, copy of the same has also been placed on record as Annex-C at page-78. SRO266 dated 31.08.2009 had also prescribed the table for fixation of the pay scales of the direct recruits and in the said table in the Pay Band of Rs.9300-34800, with Grade Pay of 4280 was not even mentioned.
The Grade Pay of 4280 was mentioned for the first time in the year 2011 vide SRO 42 dated 02-02-2011 and similarly ready reckoner was provided, which clearly provided that pre-revised Basic Pay of Rs.6500 in the revised Pay Band of Rs.9300-34800 with Grade Pay of 4200 shall be Rs.16370/-. Accordingly, the authorities had granted the said benefit to the applicant.
7. In case the contention of the respondents is agreed to then the same will result in anomalous situation as there will be no material difference between the different pay scales covered by SRO 42 dated 02.02.2011.
The only contention of the respondents is that it is not applicable to the fresh recruits but a perusal of SRO 42 dated 02.02.2011 will show that same has been made applicable notionally w.e.f. 01.01.2006 and monetarily from 01.01.2011 and it amends the Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009.
Even ready reckoner had been provided by the same, which itself shows that the Basic Pay of the applicant shall be Rs.16370/-. 8. Applicant has filed the rejoinder also rebutting the aforesaid assertions of the respondents.
The respondents are relying upon the unamended Rule-8 and they have failed to realize that vide SRO-266 dated 31.08.2009, Rule-8 was amended/recast thus providing the ready reckoner for fixation of the Basic Pay. However, the said ready reckoner does not have the Grade Pay of 4280. Subsequently SRO 42 of 02-02-2011 provides for Grade pay of 4280, with the ready reckoner that specifically fixed the pre-revised Basic Pay 6500 to the revised basic pay of Rs.16370/-. The aforesaid situation has not been explained by the respondents in any manner and, as such, applicant is entitled to the Basic Pay of Rs.16370/-.
9. There is yet another important aspect of the matter as the present controversy relates to the period of time, which was prior to the implementation of Jammu and Kashmir Civil Services (Revised Pay) Rules, 2018, which were notified by the Jammu and Kashmir Government on 24.04.2018 vide SRO 193 of 2018. The respondents, as such, cannot be permitted to effect any recovery from the salary of the applicant or to retrospectively decrease the salary of the applicant.
10. Further, respondent No. 2 has issued the clarification vide office memorandum No A/35/09-560 dated 16-08-2018, which is the subject matter of challenge, to effect change in Jammu and Kashmir Civil Services (Revised Pay) Rules, 2009 at a time when the Jammu and Kashmir Civil Services (Revised Pay) Rules, 2018 notified by the Jammu and Kashmir Government on 24.04.2018 vide SRO 193 of 2018 are in operation.
Thus it is a clear cut case of afterthought at the end of respondents 1 and 2, which is neither legally permissible under law nor has any force in law. Further, the OM Dated 16-08-2018 seeks to override the Government Notification SRO 93 read with SRO 42, which is beyond the purview and mandate of law as the clarifications cannot amend the Government Notifications and have to necessarily conform to the Rules framed in the statutes and Notifications issued from time to time.
11. Lastly, it is a case where the Government itself vide clarifications through law department as well as General Administrative Department has provided for fixation of salary under SRO 42 dated 02-02-2011. Now subsequently issuance of OM dated 16-08-2018 seeking to take back the benefits from the applicant/petitioner is an afterthought of Respondents 1 and 2 and same is not permissible in the eyes of law.
12. In this view of the matter and the fact that the respondents have themselves clarified the issue from time to time before release of salary in favour of the applicant, it does not lie in the domain of the respondents to effect any recovery from or to decrease the salary of the applicant. 13. In view of the above mentioned facts and circumstances of the case, the T.A. is allowed.
The Impugned Office Memo No. A/35(09)-560 dated 16.08.2018 issued by the Respondent No. 2 is set aside and the respondents are also restrained from disturbing in any manner the salary of the applicant already drawn/fixed in terms of SRO 42 dated 02.02.2011 and effecting any recovery by treating the applicant’s Basic Pay as Rs.16370/-.
No order as to costs.
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