SAT PAUL AND ANR. Vs. STATE AND ORS.

JUDGEMENT

(1.) Petitioner No. 1 was initially engaged as daily wager in the month of December, 1981 and being eligible for appointment to the post of Junior Assistant was accorded sanction for promotion to the said post vide order Annexure-A dated 25.10.1991. Likewise, petitioner No. 2 was engaged as daily wager in the month of December 1979 and was considered for promotion to the post of Junior Assistant by the Departmental Promotion Committee and was placed on regular establishment by giving promotion to the post of Jr. Assistant vide Order Annexure-B dated 7.11.1989. First in-situ promotion was given to petitioner No. 1 w.e.f. 01.01.1995 by treating petitioner No. 1 having completed nine years of service i.e. requirement under law for getting in-situ promotion by giving the benefit of SRO 311 and appropriate entry to that effect was made in the service book of petitioner No. 1 i.e. Annexure-D. Likewise, petitioner No. 2 was given in-situ promotion by virtue of order Annexure-D dated 31.01.1998 w.e.f. 01.01.1995, although entitlement for the same was claimed w.e.f. a date prior to the date on which petitioner No. 1 was given in-situ promotion as petitioner No. 2 had completed more than nine years service on 01.01.1995. Copy of service book reflecting grant of in-situ promotion to petitioner No. 2 w.e.f. 01.01.1995 is attached along with the writ petition as Annexure E.

(2.) Vide order Annexure-F dated 15.12.2004, petitioner No. 1 was given second in-situ promotion w.e.f. 01.01.2004 as on the said date, petitioner No. 1 had completed nine years of service. Likewise, vide order Annexure-G dated 27.01.2005, petitioner No. 2 was given second in-situ promotion on the basis of petitioner No. 2 having completed nine years of regular service after grant of first in-situ promotion. Subsequently, on the basis of audit conducted by the Audit and Accounts Department, the respondents without taking into account SRO 311 dated 09.09.1997 issued letter dated 28.07.2007 directing the respondents to recheck/confirm wrong fixation of pay of the petitioners and to effect recovery. A copy of letter dated 28.7.2007 is attached along with the writ petition as Annexure-J. In pursuance thereto, Executive Engineer EM&RE Division Kathua wrote letter dated 03.01.2008 to the Superintending Engineer EM&RE Circle-II Jammu seeking instructions of respondent No. 2 for effecting recovery of excess pay drawn by the petitioners.

(3.) Aforementioned letter No. PVP-2/J/2007-08/15 dated 28.07.2007 i.e. Annexure-J and order dated 03.01.2008 i.e. Annexure-K have been challenged by the petitioners on the ground that direction was to recheck/confirm the fixation of pay stated to be wrongly fixed, but the respondents on mere issuance of letter dated 28.7.2007 and without re-checking/confirming the position issued order dated 03.01.2008 whereas in terms of SRO 311, 50% of the total service as daily wager had to be counted as regular service while giving in-situ promotion. Mr. S.K. Anand learned counsel contends that in the circumstances, 1st and 2nd in-situ promotion was rightly treated as having been granted on completion of nine years of service but the respondents had not taken into account the said fact while passing the impugned order. Annexure-J dated 28.7.2007 is claimed to have not taken into account SRO 311 which provides for the benefit of continuity of 50% service rendered as daily wage for 1st, 2nd and 3rd in-situ promotion as the case may be. Relevant extract of SRO 311 is reproduced here under: