Jammu Sanitary/Food Inspectors (Medical) vs State of Jammu & Kashmir and Others

R.C. Gandhi, J.—This appeal has been directed against the judgment dated 19.11, 99 passed in SWP No. 97/94 whereby petition of the

writ petitioners has been dismissed, wherein petitioners were claiming payment of monthly allowance equivalent to 21/2 days in terms of

Government Order Not 274-HME of 1991 issued on 4.3.1991.

Appellants, Sanitary/Food Inspectors presented the writ petition before the Learned Single Judge seeking relief to quash the letter No:

DFO/Accounts/93-94/ Budget/5405-5520 dated 20.8.93 and to restrain the respondents from denying the benefit of the Government order Not

274-HME of 1991 dated 4.3.1991.

Earlier, the respondents issued Govt Order Not 652-HME of 1989 dated 22.8.1989, according sanction of monthly allowance equivalent to

21/2 days pay and allowances (basic pay. D-A and Special pay) in favour of those categories of the Non-Gazetted Para Medical Staff of Health

and Medical Education Department, who are required to perform duties on Sundays, Gazetted Holidays and also during nights. It is specified in

the said government order that the categories who would be eligible for benefit of this allowance shall be identified separately. It is stated-at the bar

that the respondents never acted upon the Government order dated 22.8.1989 identifying those categories.

Another Government order No: 274-HME of 1991 dated 4.3.1991 came to be issued according sanction to the grant of monthly allowance

equivalent to 21/2 days pay and allowances (Basic pay, DA and Special Pay) in favour of all those non gazetted employees of the Health and

Medical Education Department, who are on roaster duties in the various Health/Medical Institutions of the State and do not avail of any off day in

the performance of their official duties. This order was modified by issuing a corrigendum dated 7.3.1991. For facility of reference, this

corrigendum is being reproduced below:

Please, read in lieu of official duties on Sundays and Holidays"" instead of and who do not avail of any off day in the performance of their official

duties"" appearing in 6th to 8th lines of Government order No. 274-HME of 1991 dated 4.3.1991.

By order of the Government of Jammu and Kashmir.

Perusal of the aforesaid government order and the corrigendum makes it clear that the non-gazetted employees of the Health and Medical

Education Department who do not avail of Sundays and Gazetted Holidays and perform duties on roaster basis shall be entitled to monthly

allowance equivalent to 21/2 days pay. It is seen that the Drawing and Disbursing Officer of the appellants, has drawn and disbursed the monthly

allowance equivalent to 21/2 days to them though the appellants were not discharging the duties on roaster basis. It has been stopped vide

impugned communication dated 20.8.93 issued by the Controller, Drug and Food Control Organisation J&K Jammu. In this communication he has

directed the Head of the that no provision of 21/2 days monthly allowance be kept in the Budget estimates as it is not admissible to the employees

of the appellant's Organisation. Aggrieved of this, petitioners approached the court seeking directions as prayed for in the writ petition.

Stand taken by the respondents is that petitioner's are not entitled to the benefit of Govt. Order dated 4.3.1991 because they are not

discharging the/duty on roaster basis. Learned Single Judge considered the contentions of the parties and dismissed the writ petition of the

appellants on 19.11.99.

Aggrieved of the finding of the learned Single Judge, appellants have challenged the judgment under appeal on the same facts and the grounds as

set out in the memorandum of the writ petition.

We have heard the learned counsel for the parties and perused the record. Learned Single Judge on appreciation of facts and claims of the

petitioners dismissed the petition observing as under:

In the face of the factual position noticed above, it becomes apparent that the members of the petitioner-Organisation have never been brought in

the category of those persons who are entitled to claim wages equivalent 21/2 days pay and allowances.

Apart from this, it be seen that the notification on which reliance is being placed is applicable only to those employees who are in the Health and

Medical Education Department. The member of the petitioner-Association are admittedly not members of this association. It is not the case of the

petitioners that they do not avail of any of the gazetted holidays in the performance of their official duties. As a matter of fact, the aforementioned

circular does not apply to them.

Argument of the petitioners that this benefit was given to them previously and it was withdrawn lateron, is also an argument which is without any

force. If the petitioners were availing of some benefit of their own without there being any legal sanction behind it and if they have been asked not

to avail of that benefit then it cannot be said that the respondents have acted contrary to law. This petition as such is found to be without any merit

and is dismissed.

The appellants are asserting their claim based on the Government Order dated 4.3.1991 read with corrigendum issued on 15.3.1991. It is

evident therefrom that the allowance has to be paid to those categories of the Non-Gazetted Para Medical Staff of various Health/Medical

Institutions of the State who are discharging their duties on roaster basis and not availing of Sundays and holidays. It is admitted case of the

appellants that they are not working on roaster duties. It is submitted by the learned counsel for the appellants that they are working around the

clock. This stand has been taken in the rejoinder to the Counter Affidavit.

Govt order dated 4.3.1991 is applicable to those employees who do not avail of Sundays and Holidays in performance of their official duties

in the Health/Medical Education Department and are working as per duty roaster. Duty roaster is contemplated where employees are asked to

discharge duties on Sundays and Holidays. A public servant is entitled to avail of holidays. If the employer intends, in public interest, to get work

from them, it is the prerogative of the employer. The employees under such circumstances can be compensated. It appears that the respondents

have issued the Govt. order dated 4.3.1991 to compensate such employees only in lieu of their work on holidays. Appellants are working in the

field and not discharging their duty on roaster basis. It is an allowance and not the pay. There is thus no discrimination. It is within the province of

the respondents to pass such orders in public interest. The appellants are not similarly situated.

It is also brought to our notice by Mr. Shakula that some Area Inspectors similarly situated are being paid the said allowance though they are

not working a roaster duty. If the appellants are not being paid such allowance, it is not understandable. It appears that above who similarly

situated Area Inspectors in the same department are being paid. It is required to be checked and verified by the respondents from their records. If

the plea of the appellants holds water the respondents should immediately take corrective. If the respondent feel that the Area Inspector, being

similarly situated a and not working on roaster duty are entitled to the allowance in that event the case of the appellants shall also be reviewed by

the respondents.

Appeal is disposed of accordingly.