Mohammad Amin Bhat & Ors. vs Sher-i-Kashmir Institute of Medical Sciences & Ors.

HON'BLE MR. PRASANT KUMAR, MEMBER (Admn.)

The instant Transfer Application arises out of SWP No. 1040 of 2012 titled “Mohammad Amin Bhat & Ors. versus SKIMS & Ors.”. On 13.5.2015, the Hon’ble High Court of Jammu & Kashmir observed “Learned counsel for the respondents submitted that the records got destroyed in the devastating floods of September, 2014. In order to facilitate the hearing of the case. Mr. Qayoom, submitted that he will provide Xerox copy of paper book to the counsel opposite within one week. List again in the 2nd week of June, 2015 in the regular cause list”. Vide order dated 20.8.2024, the Hon’ble High Court of Jammu & Kashmir and Ladakh transferred the SWP No. 1040 of 2012 to this Tribunal, which is numbered as TA No. 127 of 2024.

The reliefs prayed for by the applicants are reproduced as under:–

The case as set up by the applicants is that they are serving under different technical categories (Laboratory Technician, ECG Technicians, Junior Pharmacist, Pharmacist) under Sher-i-Kashmir Institute of Medical Sciences (SKIMS) Medical College / Hospital, Bemina, Srinagar since the year 2000. On the basis of recommendations of Departmental Promotion Committee (DPC) they all were promoted in the year 2005 as BB Technician, Radiographer-I, Anesthesia Technician, OT Technician carrying the pay scale of 4500-7000.

On 8.8.2006, the applicants filed a representation before the respondents that the posts on which they have been promoted (pay scale 4500-7000) actually carries pay scales of 5000-8000, 5700-10000 and 6500-10500, in Government Medical College (GMC) Srinagar, Jammu, SKIMS Soura, in the Health Department having same qualifications and carrying out same functions, and hence the case of the applicants be considered sympathetically and pay anomaly and discrimination faced by them be removed.

To redress the grievances of the applicants a Pay Anomaly Committee was constituted on 21.9.2006 to examine the pay structure of the Technical Posts of SKIMS Medical College-Hospital, Bemina, Srinagar and the Committee was directed to submit its report in two month's time. The Ld. Counsel for the applicants submits that in the meeting of the Committee held on 25.3.2008, instead of redressing the grievances of the applicants, it opined that the issue needs to be examined by the Hospital Administration Department, SKIMS Medical College, Bemina in light of the Recruitment Rules of Non-gazetted posts of SKIMS Medical College-Hospital, Bemina and Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956.

Accordingly, a meeting was called by the Respondent No. 2, and the Hospital Administration Department recommended that steps be taken for re-organising, upgrading and re-structuring the departments to provide promotional avenues and to remove disparity in grade structure with respect to GMC, Srinagar / Jammu. However, applicant no. 5 and 8 were promoted to the next higher post from the date of creation of these posts, i.e. from 18.3.2008 with immediate effect.

On the recommendations of the Hospital Administration Department the Finance Committee examined the matter and on 6.1.2012 an order on upgradation of posts from the scale of 4500-7000 to the higher scale (5000-8000), and the post of Senior Pharmacist (5000-8000) was upgraded to the scale of (6500-10500) and was made effective from 6.1.2012.

Thus, the short and simple grievance of the applicants is that since they were promoted to the next higher grade and post of ECG Technician, Anesthesia Technician, Pharmacist and Senior Pharmacist on 9.8.2005, they were entitled to be placed in the revised higher scale with the same date, i.e. 9.8.2005, instead of 6.1.2012.

Learned counsel for the applicants submitted that Sher-i-Kashmir Institute of Medical Sciences Subordinate Service Recruitment Rules, 1998 were notified vide Government Order No. 10-IMS of 1998 dated 22.05.1998 and the same clearly prescribed the grades, qualifications and method of recruitment/promotion for various technical posts including Technician categories. Learned counsel submitted that the said Rules constitute the foundational statutory framework governing the service conditions of the applicants and once the Rules recognized the hierarchy and promotional avenues, the respondents were legally obligated to undertake regular promotions in accordance therewith.

The applicants have pleaded that during the pendency of the writ petition, several important documents came into their possession having direct bearing upon the controversy involved in the matter and accordingly the applicants filed CM No. 6285/2019 for bringing the said documents on record. The said application contained various Government Orders, Recruitment Rules, promotion orders, Standing Finance Committee recommendations, Governing Body decisions and seniority documents demonstrating the existence of a structured promotional hierarchy and institutional recognition of the claims projected by the applicants.

The applicants have taken various grounds as mentioned in the TA.

Per contra, learned counsel for the respondents submitted that the petitioners were not appointed through a selection process. When the Government took up the control of the Trust in the year 1998 and absorbed all the employees along with the applicants and placed them in different grades not governed by any Recruitment Rules. Thus the applicants have not approached with clean hands and have misled the Court by misrepresentation of facts and have concealed and suppressed material facts. It has been argued that promotions can only be granted subject to fulfillment of eligibility conditions, availability of sanctioned vacancies and recommendations of the competent Departmental Promotion Committee strictly in accordance with the governing Recruitment Rules. The applicants were promoted to the higher grades w.e.f. the date of creation of those posts.

Learned counsel for the respondents further submitted that several Government Orders and institutional decisions relied upon by the applicants were issued in peculiar administrative circumstances and cannot automatically create enforceable rights in favour of all employees. It has also been contended that the applicants cannot seek retrospective benefits merely on the basis of parity with other employees unless their cases are found to be identically situated in all respects.

Learned counsel for the respondents further argued that the orders relied upon by the applicants regarding assignment of charge, officiating arrangement or release of upgraded pay scales were temporary administrative measures undertaken to meet institutional exigencies and cannot by themselves confer substantive promotional status. It has been submitted that the respondents have acted strictly in accordance with applicable rules and availability of posts.

In support of his arguments the Ld. Counsel for the respondents referred to the judgment passed by the Hon’ble High Court of Himachal Pradesh in case no. CWPOA No. 1556 of 2019, passed in the case titled Nek Ram and Others Vs. State of HP and Others on March 17, 2026 wherein the Hon’ble Court held that “the doctrine of ‘equal pay for equal work’ is not an abstract doctrine and is capable of being enforced in a court of law, the equal pay must be for equal work of equal value. The equation of posts and determination of pay scales is the primary function of the executive and not of judiciary. ... the plea raised by the petitioners to grant them pay-scale on the analogy of their counterparts in the Punjab Government, cannot be acceded to”. He also referred to the judgment passed on 22.2.2023 by the Hon’ble Supreme Court of India in Civil Appeal No. 8329 of 2011 in the case titled Union of India Vs. Indian Navy Civilian Design Officers Association and Anr. wherein the Hon’ble Court has held that “the power of judicial review of the High Courts in the matter of classification of posts and determination of pay scale is no more res integra. It has been consistently held by this Court in plethora of decisions that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and the interference of the Court was absolutely necessary to undo the injustice”.

The applicants have filed their rejoinder affidavit also. Generally they have reiterated the averments as already made in the instant TA.

Before the Hon’ble High Court the applicants filed CMP No. 1698/2012 for grant of interim relief as non-grant amounted to suffering irreparable loss and injury which could not be compensated by any method whatsoever and he would be non-suited. Hon’ble Court, on 18.5.2012, directed “Notice in CMP as well. In the meantime, upgradation of posts impugned in the petition shall be subject to outcome of the CMP”.

During oral arguments, in support of his assertions, the Ld. Counsel for the applicants referred to the judgment of Hon’ble Supreme Court of India in the case titled MR Gupta Vs. Union of India and Others referred as 1996 AIR 669, wherein the Hon’ble Court held that ‘The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules.’

Heard learned counsel for the parties at length, perused the pleadings on record and considered the material available on file.

From the pleadings and documents placed on record and arguments made, it emerges that the controversy involved in the present matter essentially relates to the promotional and service rights of employees performing technical functions under SKIMS Medical College / Hospital, Bemina, Srinagar. The Hon’ble High Court of Jammu & Kashmir, on 11.6.2015, had also observed “...Their grievance in the present petition is restricted to their placement in the same grade from the date they were promoted as ECG Technician, Blood Bank Technician, etcetera”.

The records further demonstrate that the applicants have relied upon a series of Recruitment Rules, Government Orders, Standing Finance Committee recommendations, Governing Body decisions and Departmental Promotion Committee proceedings in support of their claim.

The records before us reveal –

The cumulative effect of the material placed on record, and as mentioned above, demonstrates continuing institutional recognition of the cadre structure, promotional hierarchy and anomalies, including pay anomalies, relating to technical staff, denial of promotions and consequential pay benefits and therefore requires examination on merits particularly when the claim is founded upon continuing institutional decisions and parity-based assertions.

The principal issue requiring consideration, as noted earlier, is whether the applicants, being technical employees working against recognized cadre posts under the governing Recruitment Rules and institutional framework, are entitled to consideration for substantive promotional and consequential financial benefits on parity with similarly situated employees?

In the instant case, the claim to higher pay scales has been preferred on the ground that the similarly situated technical staff of Government Medical College, Srinagar / Jammu are placed on higher pay scales and some in the SKIMS Medical College, Bemina have also been accorded higher pay scales. On the admissibility of such claim, we would like to refer to the case titled Union of India Vs. Manpreet Singh Poonam, reported as 2022 SCC OnLine SCC 272 wherein the Hon’ble Supreme Court of India held that “when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules”. Courts have also held that pay structure decisions rest within executive and expert committee domains, and retrospective financial benefits are rarely granted unless a direct, proven internal anomaly or explicit service rule violation exists. In the case titled Punjab State Co-operative Milk Producers Federation Ltd. versus Balbir Kumar Walia and Others in Civil Appeal No. 7427 of 2011, decided on 9.7.2021, Hon’ble Justices held that “the cooperative federation’s employees were not automatically entitled to state government-equivalent pay scales ...”.

This Tribunal is of the view that in matters relating to service jurisprudence, the State and its instrumentalities are expected to act fairly, transparently and consistently. Similarly situated employees, with no differences in nature of work, discharge of responsibilities and duty hours, cannot be treated differently without any reasonable or intelligible basis. Once the respondents themselves, in the instant case, have granted promotional and financial benefits to similarly circumstanced employees under the same institutional framework, denial of consideration to the applicants requires proper justification based on objective criteria.

From perusal of records before this Tribunal it is also seen that the respondents have not considered the grievances of the applicants in its entirety, including the material placed on record by the applicants, and have not passed any order upon consideration thereto. Accordingly, having regard to the entirety of the material placed on record including the Recruitment Rules of 1998, SRO 298 dated 12.10.1998, Government Order No. 08-SKIMS of 2005, Government Order No. 26-HME of 2006, Government Order No. 38-SKIMS of 2008, Government Order No. 206-HME of 2010, Government Order No. 75-SKIMS of 2014, Order No. 156 dated 30.08.2000, Order No. 186 dated 09.10.2001, Order No. AH-9/244 of 2004 dated 30.01.2004, Order No. 870 of 2014 dated 04.01.2014, proposal dated 17.10.2011 placed before the Standing Finance Committee, recommendations of the XXVIII Standing Finance Committee, Minutes of the XXVIII Governing Body Meeting and Order No. SKIMS-MC-231 of 2012 dated 30.03.2012, this Tribunal is of the considered opinion that a case for indulgence is made out and the claim projected by the applicants deserves reconsideration by the respondents in accordance with law.

Accordingly, the present Transfer Application is disposed of with a direction to the respondents to examine and comprehensively consider the claim of the applicants with regard to removal of anomaly in pay scales retrospectively, including consequential benefits of emoluments, increments, seniority, promotions, if there are no impediments. While doing so the respondents shall take into consideration the applicable Recruitment Rules, Government Orders, the proceedings of the Departmental Promotion Committee (DPC) meetings, the recommendations of the Standing Finance Committee, Governing Body decisions, and all other relevant material and documents relied upon by the applicants and referred to hereinabove.

While undertaking the aforesaid exercise, the respondents shall also consider the claim of parity projected by the applicants vis-à-vis similarly situated employees who have been granted retrospective promotions, upgraded pay scales, or other substantive service benefits under the same institutional framework.

The respondents shall take into consideration the eligibility, seniority, vacancy position, and all other applicable rules governing the field and thereafter pass a reasoned and speaking order within a period of eight weeks from the date a copy of this order is served upon them.

It is made clear that this Tribunal has not expressed any final opinion on the merits of the claim of the applicants or their ultimate entitlement. The respondents shall consider and decide the matter independently and strictly in accordance with applicable law, relevant rules, without being influenced by any observations or findings contained in this order.

Pending miscellaneous applications, if any, shall also stand disposed of. No order as to costs. Interim directions, if any, shall stand vacated.