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Employee Free To Challenge Conditions Of Appointment Order If They Are Not In Conformity With Law: Jammu & Kashmir High Court
Basit Amin Makhdoomi
10 Aug 2023 11:00 AM GMT
The Jammu and Kashmir and Ladakh High Court has upheld the right of an employee to challenge the conditions of his/her appointment order in case the same is not in conformity with law.A single bench of Justice Wasim Sadiq Nargal observed,"Once, the respondents have admitted their mistake of granting the lower pay scale to the petitioner in spite of the fact that the petitioner was entitled...
The Jammu and Kashmir and Ladakh High Court has upheld the right of an employee to challenge the conditions of his/her appointment order in case the same is not in conformity with law.
A single bench of Justice Wasim Sadiq Nargal observed,
"Once, the respondents have admitted their mistake of granting the lower pay scale to the petitioner in spite of the fact that the petitioner was entitled for the higher grade being diploma holder, then it was incumbent on the part of the respondents to have rectified their mistake by granting him the benefit of the said grade retrospectively from the date when the petitioner came to be appointed along with all consequential benefits."
It added, "inaction of the respondents has denied the petitioner‟s right to be considered for promotion and his right to get equal salary as is being paid to similarly situated persons. This inaction on part of the respondents is highly discriminatory in nature and has tendency to deprive the petitioner of his legitimate right to get his salary."
The petitioner was a diploma holder appointed to the post of Sanitary Inspector in November 1996 but was erroneously placed under a lower pay scale applicable to Sanitary Inspectors without diploma. The error was rectified prospectively in 2010, following merger of both grades, Petitioner sought this rectification to be applied to him retrospectively, particularly in matter of Seniority.
Respondent's counsel argued that the petitioner's appointment was contrary to the rules and that he should fulfil the criteria for the next higher post before being eligible for a higher grade pay.
At the outset, the Court said respondents cannot be allowed to blow hot and cold in the same breath when the respondents, on the one hand, have recommended the case of the petitioner for the release of the grade retrospectively from the date of his appointment on the basis of excellent APRs and on the other hand, the respondents have taken altogether contrary stand in their objections that the appointment of the petitioner is contrary to the rules and hence the petitioner is not entitled for further promotion.
Next, it emphasized the principle of 'equal pay for equal work' is to be given paramount importance, and held that the petitioner was entitled to the higher grade pay retrospectively from the date of his appointment.
“There is an admission on the part of the respondents that the petitioner was entitled for the said grade retrospectively from the date he came to be appointed while recommending his case by virtue of communication dated 31.12.2009. The respondents thereafter rectified their mistake by granting the said grade to the petitioner prospectively w.e.f. 2010 instead of 1996 by virtue of order dated 27.10.2010. Thus the action of the respondents was violative of mandate of equality enshrined in Article 14 of the Constitution of India, as similarly situated employees having diploma continued to get the said grade with the sole exception of the petitioner who has been discriminated without any fault”, the bench remarked.
Deliberating on the issue of delay in filing the writ petition as from 1997 till 2010, the bench said that he has continuously filed numerous representations and the said representations have neither been disposed of nor has any action been taken by the respondents. Therefore, the action on the part of the respondents is violative of Articles 14 and 16 of the Constitution of India as the petitioner has made a series of representations to the respondents to address his difficulty, the bench underscored.
Highlighting the right of an employee to challenge the conditions of their appointment if they are not in conformity with the law, even if they have accepted the appointment initially without raising objections, the Court said that since the respondents had acknowledged the mistake and had even recommended the petitioner's case for the release of the higher grade pay retrospectively in some instances and therefore, the respondents could not be allowed to deny the petitioner's rightful claim and discriminate against him.
In light of these observations, the bench quashed the impugned seniority list of non-diploma Holders Sanitary Inspectors to the extent of placement of the petitioner in the grade pay of Rs.4000-6000 and the respondents were directed to place the petitioner in the grade of Rs.5000-10100 (pre-revised) retrospectively from the date of his initial engagement order i.e. 20.11.1996.
Case Title: Sarwa Begum and Ors. (LRs of Late Shabir Ahmad Dar) Vs State of J&K and Ors.
Citation: 2023 LiveLaw (JKL) 213
Click Here To Read/Download Judgment
