STATE OF J&K Vs. KRISHEN DASS

JUDGEMENT

(1.) THIS is an appeal from a judgment and order dated December 6, 1968, of Gurtu J. whereby the writ petition filed by the respondent was allowed and the appellants were directed by a writ of Mandamus to give him the benefit of revised pay scale of 200 -400 from the date from which the same was given to those Degree Holders who were in the first instance given the benefit of pay scale of 150 -10 -200 by order dated 3 -8 -1961/1 -11 -1961 and who were put in the scale of 200 -400 by order dated April 8, 1964 and to work out his pension on that basis i.e. in the pay scale of Rs. 200 -20 -300/E.B. 25 -400.

(2.) THE case of the respondent as set out in the petition was that after passing his Matriculation Examination and obtaining Kaviraj diploma from the D.A.V, College. Lahore, he joined the Medical Department of the State as a Vaid in 1939 A.D. that before 1961 all the Vaids and Hakims serving in the Medical Department of the State were placed in the uniform scale of 70 -6 -130 irrespective of the fact whether they were Degree Holders or Diploma Holders from the recognized universities as the nature of their duties was the same that a special grade of Rs. 150 -10 -250 was created in 1961 vide Government Order No. 519 -MG/ of 1961 dated August 3, 1961, for Vaids and Hakims who were Degree Holders from recognized universites and he was promoted to that grade vide order No. EST/3 -11 -121/ 10145 -46 dated September 29, 1961, that a general revision of grades took place in 1962 vide Jammu and Kashmir Civil Services (Revised Pay) Rules, 1962, where under the grades of 150 -10 -250 and 70 -6 -130 were revised to 200 -20 -300 E.B -25 -400 and Rs. 100 -200 respectively, that by this order another grade of Rs. 145 -15 -250 -EB -20 -350 was created for employees other than Vaids, doctor, and Sisters of the Medical Department, that on the aforesaid revision of grades in 1962 he was not given 200 -400 grade but was instead placed in 145 -350 grade even though the same was meant for persons other than doctors, that in 1964 the Government passed order No. 119 -MD/G -64 dated April 8, 1964 (Annexure A to the petition) which interalia provided that 200 -400 grade would be allowed to such qualified Ayurvedic Vaids and Unani Hakims as held a Diploma of four years course granted by the institutions in Punjab prior to 1947 (as mentioned in the Punjab Medical Manual), or Diploma of 4/5 years course from the recognized univer ­sities of Benares, Calcutta, and Aligrah etc. and possessed the Matriculation Certificate or a Certificate of having passed proficiency examination in Sanskrit or in Persian or Arabic respectively, that even after the passing of the order he was not given the benefit of Rs.200 400 grade and Continued scale to get pay according to the pay seal; of Rs,145 -350. that the order promoting him to the scale of Rs.150 -250 in the year 1961 when he was declared by the Government as the Senior Most qualified Vaid resulted in his substantive appointment in the grade of 150 -250 and in the year 1962 when there was a general revision of grades and 150 -250 was revised to 200 -400 he became automatically entitled to it and his promotion in 150 -350 grade which was not meant for doctors was not permissible and amounted to his hostile discrimination offending Articles 14 and 16 of the Consti ­tution, that order No. 119 -MD/G of 1964 was also discri ­minatory in as much as it classified Vaids into those holding Diplomas and those holding degrees which was not permis ­sible as initially all the Vaids were given the same scales of pay and the nature of their duties as in charge of Unani and Ayurvedic dispensaries was also the same and the posts were inter -changeable, that even if it be held that with the passing of Government order No. 519 -MD/G of 1961 the scale of Rs. 150 -250 was to be allowed only to the Degree holders from the recognized universities by granting to him this grade the appellants presumably relaxed the condition as to qualification in his case and considered him to be a degree holder in view of his efficiency and his being a senior most qualified Vaid, that having been promoted to the scale of 150 -250 in 1961 and that scale having been revised to 200 -400 in 1962 he became as of right entitled to the revised scale, that Raja Ram who did not hold the Degree and did not satisfy the condition of Government Order of 1961, 1962 and 1964 was promoted to the grade of 200 -400 in super ­session of his rights, that several representations made by him for higher grade of remuneration did not bear any fruit and the refusal to give him the higher grade was malafide and illegal.

(3.) THE appellants resisted the petition averring inter -alia that the respondent was a Vaid Kaviraj of two years course from the D. A. V. College, Lahore, that there was no uniform grade of 70 -6 -130 as alleged by the respondent, that before 1961 there were different grades of Vaids and Hakims viz 50 -4 -82, 70 -6 -130 and 150 -10 -250, the Govern ­ment Order No. 519 -MD/G of 1961 was actually issued on November 1, 1961, and the respondent was not promoted to the grade of 150 -250 pursuant to this Order which was issued on November, 1, 1961, but was holding the grade before the enforcement of this order, that on revision of pay scales in 1962 the grades of 70 -6 -130, 150 -10 -250 were revised to 100 -200 and 145 -350 respectively, that a separate grade of 200 -400 for Vaids and Hakims who possessed recognized degrees in Unani and Ayurvedic medicines was sanctioned vide item 18(x) of the Schedule to the Revised Pay Rules of 1962 but the respondent did not fulfill the qualification laid therein, that the respondent was given the appropriate grade of 145 -350, to which the grade held by him was revised, that the respondent being a Vaid Kaviraj diploma holder of only two years course was not entitled to the benefit of Government Order No. 119 -MD/1964, that there were different grades of Vaids and Hakims and all of them were not given the same pay scale, that the criteria for promotion to 200 -400 grade was fixed taking into consideration the different qualification and duration of training course of Vaids and Hakims which was permissible under Section 124 of the Constitution, that Raja Ram had passed four years Diploma course in three years as a regular student while the respondent had under -gone only two years course and in case of Raja Ram the experts of the Indian Medicines, Government of India, Ministry of Health, had opined that he had completed four years course in three years and was eligible to 200 -400 grade and that there had been no dis ­crimination or violation of fundamental rights.