Ghulam Hassan and others vs State and others

1.Petitioners have been appointed on class IV posts like chowkidars, helpers etc in the grade of 750940 under the orders of Dy. Commissioner

Kupwararespondent No. 3, from January 1998 to June 1998 in exercise of powers vested in Dy. Commissioner Kupwara under SRO 43 of 94

dated: 20.2.94. (Annexure P1 to P8). They have joined the Public Health Engineering Department and have been assigned work and taken duties

in P.H.E Division Haridwara (annexure P9 to P15). Pay and other emoluments have been disbursed to petitioners ending July 1998. Despite

rendering duties and continuously working on the graded posts to which they stand appointed, they are not being paid their earned pay and

emoluments. Petitioners have prayed for relief of mandamus for release and disbursement of their pay and remunerations from August 1998

onwards.

2.Respondent No.3Dy. Commissioner Kupwara, has filed reply. Mr. G. Ali, GA submits that the reply filed on behalf of respondent No.3 may be

treated as reply on behalf of respondent No.3 may be treated as reply on behalf of other respondents also. In reply respondents have in

unequivocal terms admit the appointment of petitioners to Class IV graded posts, under the Government on compassionate grounds in terms of

SRO: 211 of 95 (Jammu & Kashmir Govt. Compassionate Appointment Rules 1995). It is also admitted that the petitioners have been posted in

PHE Department Hindwara and have been posted in the said Handwara Division of PHE. The appointment of petitioners on compassionate

grounds have been ordered by respondent No.3 under SRO 43 of 94 in terms of the above compassionate appointment rules. Respondents have

not paid them pay dues now for some time, because of nonavailability of funds in so far as the pay dues of petitioners fall within the category of

nonplan budgetary provisions and the budget under the head was not received by the PHE Division Handwara. The matter has been taken up by

Executive Engineer PHE Division Handwara with the Chief Engineer PHE Kupwara.

3.After the case was admitted to the hearing on 21.1.1999, respondents in terms of reply and stand of respondents through their counsel, have

admitted petitioners' case of non payment of their pay dues for some time unequivocally and as plainly as it could be. The appointment of

petitioner, may be on compassionate grounds, is admitted. The powers of respondents No.3 to order appointment is not questioned, posting of the

petitioners and the assignment of their work and discharge of their duties in PHE Division Handwara is not also refuted. The disbursement of pay

dues to petitioners from inception of their appointment till July 1998 is not also denied.

4.Faced with the situation, the counsel for respondents submits that the petitioners have rights to receive the emoluments of Class IV grade to

which each of petitioner stands appointed, for the period the petitioners) have not been given the pay dues.

5.On aforementioned consideration upon hearing the parties, respondents are directed to release and disburse the pay/emoluments of petitioners

for the period same has remained undisbursed and unpaid after August 1998 and to pay the future emoluments to petitioners regularly. Reflection

of pay/salary of a Government employee in a plan or nonplan budgetary provisions, is a matter for the State to sort out. But an employee, who has

worked and earned the salary/emoluments, other conditions applying, cannot be denied the emoluments pay on any pretext whatsoever. After all

pay is a right of an employee, which he earns for the work done. To receive salary/pay is an en for cable right of property. Withholding of pay

amounts to punishment, which cannot be withheld inordinately as in this case for any reason, whatsoever. The State Officers cannot have a license

to deprive its employees of the earned pay/remunerations notwithstanding satisfactory performance and good conduct while rendering or

discharging their duties relatable to the period for which such remunerations/pay is earned.

6.Writ petition along with CMP is disposed of.