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Judgment
The petitioner, namely, Atiqa Bano is an employee in the Education Department and through the medium of this petition she has claimed the
charge allowance from May, 1991 onwards as she according to her has been holding the post of Joint Director Schools Kashmir. She has also
prayed that by a writ of mandamus the respondents may be directed to assign her the job of Joint Director Schools as already she stands
appointed against that post from May, 1991. The writ petition discloses that she has been fighting litigation with the Department in other writ
petitions also, both in Jammu and in Kashmir Wings. She has referred to filing of a writ petition in the year 1992 in Jammu Wing of this Court when
respondent No.2 herein had not allowed her to work as Joint Director School Education, Kashmir, and her pay was withheld.
According to the petitioner, the writ petition is pending for disposal and no notice has been yet issued to the respondents. During the pendancy
of that writ petition wherein she has sought ammendment of the relief, Government Order No. 146Edu of 1993 dated 821993 was issued and the
person working as District Education Officers were redisignated as Chief Education Officers and adjusted as such on adhoc basis in the pay scale
of Rs.30004500, for a period of six months. She has alleged that she was the senior most Education Officer but her seniority was wrongly shown
and she filed writ petition No. 1115/86 before the Srinagar Wing of the Court (factual statement is self contradictory as made in the writ petition).
According to her, in terms of Government Order No. 146Edu of 1993 dated 821993 (annexureD) the post of Joint Director has been
downgraded to the level of Chief Education Officer and this has given her a new cause of action and has challenged the said order on the grounds
that respondentsState in this order has given an impression that the adjustment of the petitioner as Chief Education Officer was a promotion which
fact is not correct because she already was working as District Education Officer and that the adjustment of the District Education Officer as Chief
Education Officer on adhoc basis is arbitrary and illegal. The abolition of District Education Officers post was not warranted. She has claimed that
she should be given the grade of Chief Education Officer w.e.f. 1121987 when the post of District Education Officer was abolished. She has
claimed her promotion as Chief Eduction Officerw.e.f. 1121987 and her appointment as Chief Education Officer in higher grade w.e.f. 831993 is
illegal. That by virtue of Annexure 'D' (Government Order No. 146Edu of 1993) the petitioner has been adjusted against the post of Joint Director
School Education and they have thus downgraded the post to the level of Chief Education Officer which is not permissible under law. Respondent
No.1 is not competent to down grade the post of Joint Director to that of Chief Education Officer. The working of Joint Director School
Education carries higher responsibilites than that of a Chief Education Officer and under law she is entitled to the charge allowance from the date
she was posted as such (May, 1991 onwards). The impugned order is illegal and militates against the import of Art. 87 of the J&K Civil Services
Regulations. The functions of Joint Director has been defined and they are separate from the functions of Chief Education Officer. She has been
allowed to work against a clear vacancy with added responsibilties. She has sought the issuance of writ of certiorari for quashing Government
Order No. 146Edu, of 1993 so far as it down grades the post of Joint Director to that of Chief Education Officer. Other reliefs sought for have
been stated above.
The respondents in their objections have pleaded that the averments of the writ petition are vague, superfluous and do not disclose any cause of
action. There is no infringment of any legal, fundamental or statutory right of the petitioner and the writ petition is not maintainable. On facts, it is
pleaded that vide Government Order No. 146Edu. of 1993 the petitioner was adjusted as Chief Education Officer on adhoc basis in the pay scale
of Rs.30004500 of a period of six months or till the post is filled up by the DPC/PSC, whichever is earlier and was posted as Joint Director
School Education in her own pay and grade of Chief Education Officer against an available post i.e. the post of Joint Director which was down
graded to the level of Chief Education Officer. It is specifically pleaded that petitioner was not posted as Joint Director but was posted in
Directorate of School Education, Kashmir as District Education Officer in her own pay and grade against the post of Joint Director. This
arrangement was done for the purpose of drawal of salary in favour of the petitioner. It is also stated that the post of Chief Education Officer is in
higher pay scale as compared to the post of District Education Officer as the same is to be filled up from the categories of Principals Higher
Secondary School, Deputy Chief Education Officers, District Education Planning Officer with five years service in that class possessing Masteis
Degree with B.Ed. The post requires to be filled up through DPC/PSC and it is why adhoc arrangement was made for a period of six months. The
post of Joint Director requires to be filled up by the DPC/PSC from the cadre of Chief Education Officers. It is denied that petitioner automatically
had become Chief Education Officer after abolition of the post of District Education Officer. As stated earlier, the post of Chief Education Officer
is higher to the post of District Education Officer as is envisaged in the Jammu and Kashmir Education (Gazetted) Recruitment Rules, 1992 issued
vide SRO 83 of 1992. The post of Chief Education Cases were to be filled up after framing the recruitment rules and the present adjustment was
made without the existence of such rules and only on adhoc basis. The post of Chief Education Officers was filled up on the recommendations of
the DPC/PSC w.e.f. 821993 after examining the eligible candidates i.e. District Education Officers and Principals. No person junior to the
petitioner has been cleared as Chief Education Officer and she cannot be given any claim for becoming the Chief Education Officer w.e.f.
1121987. It is reiterated that the post of Joint Director School Education was downgraded to the level of the post of Chief Education Officer only
forthe purpose of drawal of salary in favour of the Chief Education Officers who were posted against the said posts of Joint Directors and the
petitioner was not the only Chief Education Officer who was allowed to draw her salary against the down graded post. The Government is
competent to downgrade any post for meeting the exigency of the service of its employees and in this case the post of Joint Director was down
graded in the best interest of the Government and the public. It is also pleaded that the petitioner is not entitled to the grant of any charge
allowance.
Mr. Pandita, the learned counsel for the petitioner, has contended that impugned order Annexure ""D1 was passed without giving any
opportunity to the petitioner of being heard and it runs contrary to Cabinet Decision No. 53 dt. 921987. Also, the said order Annexure 'D' has
been superceeded by Cabinet Decision Annexure 'A'. He has also contended that the petitioner has been allowed to continue as incharge Joint
Director (as perannexures F, G & G1) and in terms of the impugned order annexure 'D' the post of Joint Director has been down graded to the
post of Chief Education Officer for giving monetary benefits and she was allowed to work as Chief Education Officer only for six months and this
runs contrary to SRO 83. The order passed by the Addl. Secretary is in violation of Rule 12 of the Business Rules and in violation of Art, 14 and
16 of the Constitution. In support of his contentions he has cited the case of Lalit Kumar Vs. State and Ors. KLJ1995 page 20 and O.P. Bhaskar
Vs. State of J&K, KLJ 1993 page 633. The orderof reversion i.e. Annexure 'D' according to the learned counsel runs against the principles laid
down in Abdul Samad Bhat Vs. State and Ors, KLJ1986 page 271. The petitioner is the senior most Chief Education Officer and keeping all
these facts into consideration, she is entitled to the grant of charge allownace.
Mr. Chouhan, learned counsel has controverted the arguments by stating that from May, 1991, there was no post of Joint Director becaue the
new Education Policy had come into force. The rules were framed on April 7, 1992. In the absence of these rules the petitioner could not work as
Joint Director on the relevant time i.e in May, 1991. The petitioner was not holding the post of Chief Education Officer on substantive basis as she
was posted as District Education Officer aiongwith the post. The post of Joint Director is a selection post and she was never posted as Joint
Director. She was working against that post which has been down graded and under Business Rule 12, the Government had the power of down
grading the post.
I have considered the respective contentions of the learned counsel forthe parites.
Mr. Pandita, learned counsel in one breath has stated that Government Order No. 146Edu. of 1993 dated 821993 (annexure D) is illegal
because the same was made without hearing the petitioner herein and is in violation of Cabinet decision No. 53 of 9.2.1987. From the perusal of
the said order it appears that the order is of innocuous nature and runs with the opening words that it does not cause any prejudice to the seniority
of others. In terms of this order, the District Education Officers/ Principals were adjusted as Chief Education Officers on adhoc basis in pay scale
of Rs. 30004500 for a period of six months or till the posts are filled up by the DPC/PSC.
The petitioner herein who was working in the Directorate of School Education Kashmir was posted as Joint Director School Education,
Kashmir, in her own pay and grade of Chief Education Officer, against an available vacancy. The salary of Chief Education Officer against the post
of Joint Director was deemed to have been down graded to the level and pay scale of Chief Education Officer. This order was passed by the
Addl. Secretary to Government, Education Department.
Rule 12 of the Jammu and Kashmir Government Business Rules provides that every order or instrument of the State shall be signed either by
the Chief Secretary, Addl. Chief Secretary, Secretary, Addl. Secretary, Joint Secretary, Addl. Joint Secretary, the Deputy Secretary or an Under
Secretary to the Government or such other officer as may be specifically empowered by the Government in that behalf and such signature shall be
deemed to be the proper authentication of such order or instrument.
The present order has been signed by the Addl. Joint Secretary and it cannot be said that the order is not a Government order. The order in
question is an adjustment order whereby the Officers mentioned therein were adjusted against different posts and under law it was never required
that petitioner herein had the right to be heard before the order could be passed.
Cabinet decision No 53 of 9.2.1987 dealt with the organisational set up of the Education Department. At para 14 of this decision, it was
provided that the Recruitment Rules of the Education Department shall be suitably redrafted. Taking into consideration all relevant factors, these
rules were framed on April 7, 1992 vide SRO 83, wherein the post of Joint Director School Education was shown in the grade of Rs.31504500
and Chief Education Officer in the grade of Rs.23504050. The recruitment method for Joint Director School Education was by selection from
class three whereas in respect of Chief Education Officer by selection from dass five with at least five years service in that class possessing Masters
degree with B.Ed. In the Govt. Order No. 146Edu. of 1993 (impugned annexure D) it was specifically mentioned that the petitioner herein had to
draw her salary as Chief Education Officer against the post of Joint Director and the post of Joint Director was deemed to have been down graded
to the level and pay scale of Chief Education Officer. The petitioner was posted as Joint Director School Education, Kashmir in her own pay and
grade of Chief Education Officer. Against the backdrop of these facts it cannot be said by any reasoning that Government order No. 146Edu. of
1993 (Annexure D) is unconstitutional.
Now the question which falls for consideration and determination is whether the petitioner herein is entitled to receive the charge allowance.
Mr. Pandita the learned counsel has stated that under Article 187 of Civil Services Regulations, the petitioner was entitled to the charge
allowance. From a bare reading of Art. 187, it transpires that where a Government servant is assigned the additional charge of another identical or
equivalent post covered under sub clause (II) and (III) of Art. 85(2), charge allowance at the rate of 1/10th of minimum of pay of that post may be
allowed. It is to be seen whether the present case falls within the perview of sub clause II and III of Art. 85(2) or not. The fact of the present case
disclose that the petitioner herein was posted as Joint Director School Education Kashmir in terms of Annexure 'D' in her own pay grade of Chief
Education Officer. There was no additional charge assigned to her which is the requirement of subclause (II) and (III) of Art. 85(2).
Sub Clause B of Art. 187 deals with the appointment against a higher post and there should be formal appointment in question only then one
becomes entitled to the charge allowance which element is lacking in the present case. The post of Joint Director was available in May, 1991 and
at that time petitioner was not substantively holding the post of Chief Education Officer. Viewed from all angles it can be said that neither the
Government Order No. 146Edu. 1993 (Annexure 'D') can be quashed as illegal nor the petitioner herein is found entitled to any charge allowance.
The law cited at the Bar by Mr. Pandita has no bearing with the facts of the present case.
Accordingly, this petition is dismissed. No order as to costs.