Judgment:
1. This Letters Patent Appeal filed by the Jammu Municipal Corporation and Ors. is directed against the judgment of the learned Single Judge in SWP No. 1955 of 2002 titled Charan Dass v. State of Jammu and Kashmir and Ors. dated on 8.2.2006.
2. Charan Dass son of Shri Gangoo Ram R/o 509 Rajpura, Mangotrian, Jammu (hereinafter referred as respondent No. 1) was working as Safai Karmchari with the appellants. In the year 1977 he was assigned the job of Sanitary Supervisor but was paid the wages of Safai Karmchari only. Health Officer of the Corporation vide letter No. ACJ/H/2028 dated 26.10.1987 recommended to the Corporation to regularize the services of the petitioner as Sanitary Supervisor, but no action was taken on the recommendations which forced the petitioner and other similarly situated Safai Karamcharis to file a petition before this Court SWP No. 344/1989 which was heard and finally disposed of by this Court on 9.8.1990. The court directed as under:
The controversy revolves around as to whether the petitioners are entitled to be regularized as sanitary supervisors. Mr. Nanda learned Counsel appearing for the respondents has pointed out that there are no vacancies existing in Municipality of sanitary supervisors against which petitioners could be adjusted. Learned Counsel for the petitioners have, however, pointed out that principle of equal pay for equal work applies to the petitioners and they are entitled to be paid salary of sanitary supervisors when they are working as such. In view of the assertion made by the respondents that there are no vacancies of sanitary supervisors the question of the petitioners being adjusted as sanitary supervisors does not arise presently but the recommendation made by the Health Officer is required to be considered by the Executive Officer Jammu Municipality. When the petitioners are performing duties as sanitary supervisors for quite long time they are required to be regularized either by creation of additional posts or by adopting other administrative measures. This petition is, therefore, disposed of at this stage by issuing a direction that respondents 1 and 2 shall consider the recommendation of the Health Officer and dispose it of as early as possible in light of above observations. Till that is done, the petitioners shall be allowed to continue as Sanitary Supervisors in their own pay and grade.
3. Thereafter the matter was examined by the appellants who vide Order No, 71-MJ(Adm) of 1992 dated 1.2.1993 accorded sanction to the promotion of petitioner to the post of Sanitary Supervisor with effect from October 17,1992 as under:
Sanction is hereby accorded to the promotion of Shri Charan Dass S/o Shri Gangu Ram, Safai Karamchari to the post of Sanitary Supervisor in the scale of Rs. 950-1500 retrospectively i.e. from 17.10.1992. His seniority is determined as per recommendations of Departmental Promotion Committee held on 24.9.1992.
4. After sometime the petitioner superannuated from service, but according to him, his pension was fixed with effect from 17.10.1992 while as he was entitled to the same w.e.f. 17.10.1087. He had to file a contempt petition against the respondents which was decided by this Court on 7.2.1996. The court directed as under:.respondents No. 3 and 4 to take steps to settle the pension and gratuity case of the petitioner within two months from the date of receipt of this order, both these respondents shall be obliged to perform their respective duties in this regard and to ensure the settlement of the matter within the time prescribed.
In view of these directions the appellants vide Government Order No. 285-HUD/LSG of 1995 dated 29.9.1995 settled the pension case of the petitioner as under:
It is hereby ordered that a part of the consolidated service in respect of such Safai Karamcharies of Local Bodies/Municipalities of the State retiring after 1983 and likely to retire before 1998 whether State Subject or Non State subject be counted as qualifying service for pension so that total service is at least 10 years. This will be one time exemption to make them eligible for benefit of pension under Article 240AAA of J&K; CSR.
5. The petitioner felt aggrieved of it. Through the medium of another writ petition (SWP No. 1955/2002), he prayed for a writ of certiorari seeking quashment of Order No. 7-MJ/Administration of 1992 dated 1.2.1993 by virtue of which the petitioner was promoted to the post of Sanitary Supervisor with effect from 17.10.1990. He prayed for a writ of mandamus commanding the respondents to promote him with effect from 26.10.1987 and fix the seniority and pay the consequential benefits accordingly. The Writ Court on consideration of the matter decided the writ petition on 8.2.2006 by means of order which is impugned in the present appeal. The court on the basis of Article 177 of the Jammu and Kashmir Civil Service Regulations held the petitioner entitled to the promotion to the post of Sanitary Supervisor from October 17.10.1992 as also to the retrial benefits by treating the entire service rendered by him in temporary capacity from June 1977 till he was regularized on 1.5.1988. The court did not agree with the submissions of the learned Counsel for the appellants that the provisions of Articles 169 and 170 of the Regulations were applicable as it found that both these Articles were subject to Article 177 of the Regulations.
6. The appellants are aggrieved of the judgment of the learned Single Judge and have through the medium of present appeal challenged the same on the ground that the learned Single Judge has not taken note of the fact that respondent No. 1 was not working against any post permanently or temporarily or otherwise as before 1988 as no such post existed in the Corporation. To pay the salary to respondent No. 1 does not mean the post of Safai Karamchari existed. The appellant contends that the learned Single Judge has not properly appreciated the facts of the case and has on wrong application of provisions of Rule granted the relief to the respondent No. l which was not otherwise due to him.
7. Heard. We have considered the matter. The orders passed by the appellants regularizing the services of the petitioner have been reproduced above. The learned Single Judge has, taking note of these orders, found that respondent No. 2 was working on consolidated wages with effect from June 1977. This amount of consolidated wages, according, to the learned Single Judge, was not paid either from any work charge establishment or contingency. The learned Single Judge has also gone through the service book of respondent No. 1 and found that as per the endorsement made in it, amount was drawn against permanent/regular post available in the Municipality. The petitioner was regularized with effect from May 1,1988 while as he was working uninterruptedly on consolidated wages and that his salary/wages was drawn against permanent post. He was given the job of Sanitary Supervisor with effect from 17.10.1990 and he retired from service in February 1993. The entire period, observed the learned Single Judge from June 1977 is to be counted towards qualifying service in terms of Article 177 of CSR. The learned Single Judge has reproduced the entry at page 4/5 of Service Book of respondent No. 1 which is as under:
The entry on page 2 and 3 only countersigned regarding regular appointment. Wages/salary for the consolidated period were drawn against permanent and budgeted post. The wages/salary for the consolidated period were not drawn by debit to work charged established/contingencies. Consolidated service of 5 years preceding regularization are verified with Pay Acquitance Rolls.
8. The learned Single Judge has found that the entry in the service book shows that the petitioner wages/salary was not being debited to work charge establishment/contingencies but was drawn against a permanent and budgetary post. So far this observation is concerned there is no dispute over it. Even the appellants have in the memorandum of appeal admitted that the salary of respondent No. 1 was being paid from permanent/budgetary post, but they state that the existence of post and making payment from some permanent/budgetary post are two different things and payment from permanent/budgetary post would not entitle the petitioner to regularization with retrospective effect. According to the appellants the payment of salary of respondent No. 2 may have been made drawing the amount from permanent/budgetary post but no post of Safai karamchari existed during that period. We find inconsistent pleas have been raised by the appellant. If the payment of the salary/wages was made to respondent No. 1 from permanent/budgetary post, as observed by the learned Single Judge and admitted by the appellants, how the appellants can take a stand that there was no post existing in the Corporation? The learned Single Judge, in these circumstances, has on correct application of Article 177 of the Regulation, found the petitioner entitled to the regularization w.e.f. 1.5.1988. Article 177 provides as under:
177. Service does not qualify unless the Officer holds substantive office on a permanent establish.
Provided that in case of a Government Govt. servant retiring from service on or after 1st. January 1962 if he was holding a substantive office on a permanent establishment on the date of his retirement, temporary, officiating including temporary service on temporary establishment/Department, S.P.T. or quasi permanent service followed without interruption by confirmation in the same or another post shall count in full as qualifying service except in respect of:
(i) periods of service paid on work charge establishment and
(ii) periods of service paid from contingencies.
9. Under the Article, if an employee was holding a substantive office on a permanent establishment on the date of his retirement, temporary, officiating including temporary service on temporary establishment /Department, S.P.T. or quasi permanent service followed without interruption by confirmation in the same or another post shall count in full as qualifying service. The Article is not, however, applicable in two cases:
(i) periods of service paid on work charge establishment;
(ii) periods of service paid from contingencies.
10. Since the respondents admit that the petitioner was paid against permanent/regular post and not on work charge establishment or from contingencies, the petitioner was entitled to regularization as has rightly been observed by the learned Single Judge, with effect from the date he started performing the duties on such post i.e. 1.5.1988. While working uninterruptedly on the post his salary/wages were drawn against the permanent post, as such he was entitled to regularization with retrospective effect and the entire period from June 1977 is to be counted as qualifying service in terms of Article 177.Even if the plea of the appellants, that no post of Sanitary Supervisor existed is accepted, the appellants cannot escape the liability and deny the benefit to the respondent No. 1 on this count as the court, while disposing of SWP No. 344 of 1989 has specifically directed them to regularize the services of the respondent either by 'creation of additional posts or by adopting other administrative measures.' In view of this direction, which has not been challenged by the appellants, they are bound to grant the benefits of the post to the respondent No. 1 as directed by the learned Single Judge.
11. In the circumstances, We do not find any force in the pleas taken in the present appeal or submissions made by the learned Counsel for the appellants. Mr. Nanda has reiterated what he submitted before the learned Single Judge, regarding application of provisions of Articles 169 and 175. According to the learned Counsel, in view of these provisions the petitioner was not entitled to pensionary benefits as he was not having qualifying service to his credit and that pension granted in his favour was the result of relaxation of the rules. We find that learned Single Judge has properly considered and appreciated the issue and on correct-interpretation of the rules observed that both the said Articles 169 and 175 are subject to Article 177 of CSR. The learned Single Judge has in this behalf observed as under:
As for contention of Mr. Nanda regarding application of provisions of articles 169 and 175 is concerned these provisions are subject to Article 177 of Civil Service Regulation as is evident from Article 175 itself. Since entire service of the petitioner from June 1977 till he was regularized on 1.5.1988 is to be counted towards his qualifying service, his pensionary benefits are required to be refixed by counting the service w.e.f. June 1977. He is also entitled all post retrial benefits emanating from quasi temporary service towards qualifying service. This petition is accordingly disposed of with the direction to respondents to re-fix the pensionary benefits and other post retrial benefits of the petitioner by taking into consideration entire service rendered by him in temporary capacity from June 1977 and till he was regularized on 1.5.1988. Petitioner be given all post retrial benefits as also of promotion to the post of Sanitary Supervisor from 17.10.1992. Let his pensionary benefits be refixed and consequential order passed within period of three months from today. Consequential benefits be released in his favour within one month thereafter.
12. We find that the learned Single Judge has properly dealt with the facts of the case and decided the matter by correct application of the relevant provisions of the rules as such we do not find any legal or jurisdictional error in the judgment impugned.
The result, is that this appeal cannot stand and is, therefore, dismissed.
Ordered accordingly.