HIGH COURT OF JAMMU AND KASHMIR AT JAMMU WP (Service) no. 442/2008 Date of order: 04.02.2010 CMP nos. 670/2008, D-2323/2008, 2124/2008 & CMP no. 2865/2009 Union of Inda and ors. v. Sukhdev Kumar & ors. Coram: Hon’ble Mr. Justice Barin Ghosh, Chief Justice Hon’ble Mr. Justice Sunil Hali, Judge Appearing counsel: For petitioner(s) : Mr. B. S. Bali, Advocate. For respondent(s) : Mr. Anil Mahajan, Advocate for R-1. Whether approved for reporting in Yes/No. Law journals etc.: ii) Whether approved for publication in press: Optional In the event, promotion is to be accorded to the post of Electrician to a Lineman or to a SBA or to a Wireman, he is required to pass the qualifying trade test. Admittedly, respondent nos. 7, 8 and 9 did not qualify the trade test. On May 11, 1983, the employer propounded a policy and thereby amongst others upgraded the scale of pay of Lineman / SBA/ Wirman from Rs. 210-290 to Rs. 260-400 with a rider that persons holding 10% of such posts would be entitled to the pay scale of Rs. 330-480, which was the pay scale of highly Skilled Grade-II Workmen. Inasmuch as, respondent nos. 7, 8 and 9 in their respective category came within the zone of 10%, their pay scale was upgraded to Rs. 330-480. Prior to February 3, 1986, applicant before the Tribunal was working as a Lineman/SBA/Wirman. He having passed the qualifying trade test with effect from February 3, 1986, he was promoted to the post of Electrician in the scale of Rs. 260-350. Inasmuch as the decision of employer dated May 11, 1983 referred to above did not prescribe any separate pay scale for Electrician, many anomalies cropped up. Those were sought to be addressed by the employer in its communication dated December 22, 1988. In the said communication, it was made clear that all existing Electricians, who were promoted from Lineman/SBA /Wireman will enmass rank senior to all others. The word ‘all others’, referred to in this communication, referred to those Linemen/SBA/Wiremen, who have not been promoted, though may have had been given benefit of a better pay scale, in terms of the aforementioned decision dated May 11, 1983. The said communication dated December 22, 1988 made it further clear that the relative seniority of Linemen/Wiremen/SBA will be fixed on the basis of their 2 placement in the scale of Rs. 260-400, i.e., the date of giving effect to the alteration of their pay scale from Rs. 210-290 to Rs. 260-400, in terms of the above decision dated May 11, 1983. The said state of affairs clearly indicates that by reason of the decision communicated on December 22, 1988, applicant before the Tribunal having had been duly promoted to the post of Electrician should be deemed to be senior to respondent nos. 7, 8 and 9, inasmuch as, they were not promoted to the post of Electrician, but were only given the benefit of the pay scale available to 10% of their cadre in view of the decision dated May 11, 1983. Inasmuch as, applicant before the Tribunal became thus senior to respondent nos. 7, 8 and 9, applicant would come within 10% of the cadre and, accordingly, would be entitled to the pay scale of Rs.330-480 with effect from December 22, 1988. Applicant before the Tribunal approached the Tribunal contending that, in view of such clarification contained in the communication dated December 22, 1988, he is entitled to the benefit of seniority with effect from the date the pay scale of respondent nos. 7, 8 and 9 was upgraded. By the judgement and order of the Tribunal impugned in the present writ petition, the Tribunal has accepted the contention of applicant before 3 the Tribunal and has directed grant of pay scale of Rs. 330-480 to the applicant with effect from due date or from the date respondent nos. 7, 8 and 9 were given the said scale whichever is earlier. Aggrieved thereby, present writ petition has been preferred. By virtue of a fiction contained in the said communication dated December 22, 1988, applicant before the Tribunal with effect from December 22, 1998 got seniority over respondent nos. 7, 8 and 9 and, accordingly, entered the 10% bracket with effect from that date and, accordingly, became entitled to the revised scale of pay of Rs. 330-480 from December 22, 1988. To that extent, we modify the judgement and order impugned in the writ petition and dispose of the same. We hope and expect that the writ petitioner shall take immediate steps for release of the dues of applicant before the Tribunal at an early date. (Sunil Hali) (Barin Ghosh) Judge Chief Justice Jammu, 04.02.2010 Tilak, Secy. 4 5