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Judgment
Vide order of Executive Engineer, PHE bearing No.PHEP/5574-76 dated 25.01.2018 the claim of the petitioners for placement in the higher pay scale in terms of circular dated 18.3.1993 issued by the Chief Engineer, PHE, has been rejected.
The Brief facts leading to the filing of this petition are: the petitioners came to be regularised as Helpers in the PHE Department Division, Poonch on different dates in the year 1994 and 1995. They claim that they were entitled to the benefit of the aforesaid circular issued by the respondent No.2 dated 18.3.1993 read with modification effected vide communication of the respondent No.2 dated 11.6.1993 but the said benefit was not extended to the petitioners.
Aggrieved, the petitioners approached this Court by way of SWP No.2233/2017 which was disposed of by a Bench of this court vide order dated 11.9.2017, directing the respondents to consider the case of the petitioners for grant of higher pay grade strictly in accordance with the rules within a period of six weeks. The case of the petitioners was considered by the respondents in light of direction issued by this court on 11.9.2017 and was rejected vide order passed by the respondent No.3 on 25.01.2018 impugned in this petition.
Learned counsel for the petitioners submits that the case of the petitioners was fully covered by the circular issued by respondent No.2 but the same was rejected on frivolous grounds that the petitioners having been appointed after11.8.1993 were not entitled to the benefit of aforesaid circular.
The respondents have filed their reply and have justified the order impugned on the ground that plain reading of the aforesaid circular issued by respondent No.2 makes it unequivocally clear that the benefit of the circular was available only to such employees who were in position as on 18.3.1993 and had performed the duties of higher office though notionally for a period of three years.
Having heard learned counsel for the parties and perused the record, it is necessary to first set out the circular, the interpretation whereof would set at rest the controversy raised in this petition. The circular dated 18.3.1993 alongwith its modification effected is reproduced hereunder :
"
PUBLIC HEALTH ENGINEERING DEPARTMENT,JAMMU CIRCULAR
Representations are pouring into this office from filed staff that some of the officials have been placed in the lower grades of the posts notionally against the posts carrying higher grades. They have further stated that although they are working in the lower grades notionally against the higher grades of particular category of the post since three years but they have not been placed in the higher grades of the posts against which they are working in a particular division.
In order to concede this long pending demand, the below mentioned procedure shall be adopted by all the divisions for placing all those officials in the higher grades who are working notionally in the lower grades of the posts against the posts of higher grade.
All such officials should have quasi permanent status before claiming for higher post.
All these officials should have physically worked against the posts of lower scales notionally against the posts of higher scales at least three years continuous service.
The work and conduct of all such officials should have remained satisfactory during the intervening period. Such certificate should have been issued by the Ex En concernedand countersigned by the respective Superintending Engineers.
Sd/-
( Chief Engineer )
Public Health Engineering Department
Jammu.
No.PHEJ/20094-20213 Dated 18.3.1993"
"
In partial modification of this office circular instructions vide this office No. PHEJ/20094-20013 dated 18.3.1993, item 2 of para 2nd is read as under :
All those who have notionally completed at least three years in the lower grade and have physically worked against the post for at least one year shall be eligible for promotion of next higher grade. It has to be ensured that the placement in the higher grade is done not necessarily against the grade the incumbents are working but they shall be adjusted in the next higher grade from the grade they are working at present.
This shall be only promotion in the next higher grade but such a promotee shall not be entitled to any arrears.
Sd/-
( H.S. Khajuria )
Chief Engineer
Public Health Engg Deptt.Jammu"
A bare reading of the circular makes abundantly clear that the same was intended to provide higher grade to the incumbents who though holding the lower post were already officiating against the post carrying higher grade. As is clearly provided in the circular, this benefit was available to all those officials who were working in the higher grade notionally and had physically worked against such post atleast for a period of three years continuously and was not intended to be perennial in nature to cater such future arrangements. I am, therefore, in agreement with the stand of the respondents that the circular dated 18.3.1993 as modified on 11.6.1993, was applicable only to such employees who were in position on the date of issuance of aforesaid circular and were fulfilling three requirements contained in the circular.
Admittedly, in the instant case, the petitioners were appointed in the year 1994 -1995 and, therefore, could not have been extended the benefit of aforesaid circular. That apart, it is not the case of the petitioners that though they were appointed as Helper on regular basis in the year 1994 and 1995 but were officiating against the higher positions. Be that as it may, the fact remains that the aforesaid circular was one time exception and was applicable only to those employees who were holding the positions on the date of issuance of the circular. The circular itself makes it clear that it was intended to concede the long pending demand of some of the incumbents working in the department who had been officiating against the posts carrying higher pay grade for the last seven years without any monetary benefit. Although there is question mark with regard to the power of the Chief Engineer to issue such circular as the same is apparently beyond his domain but since the aforesaid issue is not the subject matter of adjudication in this petition, as such no comment is being offered on that aspect of the matter. Learned counsel for the petitioners, however, vehemently submits that the aforesaid circular has been understood by the respondents to apply to all the employees who had been regularised prior to 01.4.1996. Reliance in this regard was placed on communication of Public Law Officer bearing No. PHEJ/Legal/199/2016/Udhampur/3846 dated 10.6.2016.
I have given my thoughtful consideration to this aspect of the matter also. I could not find any rationale or justification to fix the date as 01.4. 1996 for the grant of benefit of the circular particularly when the language of the circular is itself unequivocal and does not admit of any second interpretation. Be that as it may, if the benefit of the aforesaid circular has been conferred upon some of the employees of the department contrary to the circular, it is for the respondents to look in that aspect of the matter but the wrong relief if any, granted to some employees if any, cannot be made the basis for seeking direction to the respondents to commit the same wrong again. Negative equality cannot be claimed by the petitioners nor the same can be enforced by the court in exercise of writ jurisdiction.
For all these reasons, I find no merit in this petition. The same alongwith connected IA is dismissed.