MOHD SHAFI Vs. STATE

JUDGEMENT

(1.) PETITIONER who was initially appointed as Teacher in the Education department in the year 1984 in the grade of Rs. 950 -1830, was selected as Supervisor in the Cooperative department in the year 1990 for which post he had applied through proper channel. As the pay scale attached to the post of Supervisor was Rs. 800 -1500/ - and the petitioner was initially in a higher grade in a different service, he represented before the authority concerned for protection of his pay in terms of Article 77 of the Civil Service Regulations. Accordingly, respondent No.4 Registrar, Cooperative Societies. J&K Srinagar, who was the competent authority, vide its order dated 19th of Jan 91, protected the pay of the petitioner and this was fixed at Rs. 1050/ - w.e.f. the date of his joining the new assignment. The petitioner thereafter was promoted to the post of Senior Supervisor in the grade of Rs. 4000 -6000/ -. Respondent No.4, however, vide his letter dated 28th of Feb 02 (Annexure D), sought consideration of the matter for grant of ex -post facto sanction of benefit of pay protection of the petitioner from respondent No.3 in relaxation of rules. The matter was thereafter referred to the Finance Department but the case of the petitioner for ex -post facto sanction of pay protection was rejected which was communicated to the respondent No.4 vide letter dt. 4th of June 04, passed by Under Secretary to Government. Cooperative Department. The respondent No.4 accordingly issued order dt. 22nd of July Rs.04 (annexure J), vide which appropriate action has been directed to be taken against the petitioner. It is this action taken by respondents which is the subject matter of challenge in the present petition.

(2.) THE grievance of the petitioner is that the pay of the petitioner was rightly protected in terms of Article 77 of the Civil Service Regulations, vide order dt. 19th of Jan 91, and therefore, there was no necessity for referring the matter to the Finance Department in the year 2002 for seeking ex -post facto sanction of protection of pay. It is stated that the Government has been allowing this benefit to other similarly situated employees. One such Government order passed by the Commissioner/Secretary to Government, Revenue department bearing No. (Gaz) 105 of 2001 dt. 1st of June 01, has been placed on record. It is thus submitted that the petitioner cannot be discriminated and respondent -authorities cannot pass an order effecting recovery from the petitioner.

(3.) RESPONDENTS have filed objections stating therein that the appointment of the petitioner as Supervisor in the Cooperative Department was a direct recruitment, and therefore, he is not entitled to the relief of pay protection. It is stated that the respondent No. 4 had allowed this benefit in favour of the petitioner vide his order dt. 19th Jan 91, without referring the matter to the State Government. It is stated that the Government now after considering the matter afresh has rightly rejected claim of the petitioner and passed the orders for effecting recovery against the petitioner amounting to Rs. 1,72,176.