HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No. 850/2011 Pronounced on:06.06.2025 Ghulam Mohammad Kircha …. Petitioner/Appellant(s) Through:- Mr. A. H. Naik, Sr. Advocate with Mr. Zia, Advocate V/s State of J&K and others …..Respondent(s) Through:- Mr. Mubeen Wani, Dy. AG. CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The petitioner was appointed as a Saw Setter in the erstwhile Government Lumbering Undertaking, which was a wing of the J&K Forest Department on 08.11.1975 in the pay scale of Rs. 170-230. The Government Lumbering Undertaking was converted into Corporation and employees were given option either to remain as Government employees or to opt for the Corporation Services of the J&K State Forest Corporation. The petitioner did not opt for Corporation services and remained Government employee and continued to work in the Corporation. 02. The controversy arose when the petitioner was not granted the pay scale attached to the post of Saw Setter. The petitioner represented to the respondents but his representation was not considered, which resulted in filing of SWP No. 973/2001 before this Court. This SWP No. 850/2011 petition was disposed of vide judgment dated 18.11.2002, with the direction to the respondents to release the grade attached to the post of Saw Setter, in the event petitioner is and has been actually appointed and is working against the post of Saw Setter. The respondents considered the claim of the petitioner in compliance to the judgment of this Court and issued Forest Order No. 47 of 2003 dated 11.03.2003. Relevant portion of the order reads as under: - “…...Whereas, under the J&K Government Lumbering Undertaking (subordinate) Service Recruitment Rules 1974 issued vide SRO-554 of 1974 dt: 16.11.1974 the post of Saw Setter carried pay scale of Rs. 200-320; and Whereas, the petitioner and Sh. Ghulam Rasool Shah were appointed against the post of Saw Setter in the pay scale of Rs. 170-230 as indicated in the Government Order No: 50- FST of 1975 dt: 28.01.1975; and Whereas, his junior Shri Ghulam Rasool Shah was promoted by the then General Manager GLU in the pay scale of Rs. 200-320 on 04.06.1977 ignoring the senior Saw Setter Shri Ghulam Mohammad Kircha herein petitioner. Now therefore in view of above facts and in pursuance of Court order dt 18.11.2002, it is hereby ordered that Shri Ghulam Mohammad Kircha, Saw Setter shall be treated to have been promoted in the pay scale of Rs.200-320 from the date, his junior has been promoted i.e., w.e.f. 04.06.1977.” 03. Thus, the petitioner was held entitled to pay scale of Rs. 200-320 from the date, his junior was promoted i.e. w.e.f. 04.06.1977. Although the petitioner was promoted as Saw Setter with effect from 04.06.1977, however, arrears of salary from the date of his promotion in terms of Forest Order No. 47 of 2003 dated 11.03.2003, were not released in his favour. The petitioner moved a representation to the authority for release of arrears and the General SWP No. 850/2011 Manager, J&K State Forest Corporation vide communication dated 10.04.2006, directed the Divisional Manager, Sawmills Division Shalteng, to implement the Forest Order dated 11.03.2003. 04. The respondents failed to release his arrears, as such, the petitioner was constrained to approach this Court by filing another petition i.e., SWP No. 1484/2006. In the objections to this petition, the respondents stated that the claim of the petitioner for grant of arrear was rejected vide order dated 17.10.2006. The respondents rejected the claim of the petitioner for arrears, relying upon Rule-2.43 of Financial Code, by stating that an arrear claim submitted suddenly due of ignorance of rules, after a consideration time, is to be rejected. 05. The writ petition was disposed of vide judgment dated 11.09.2009, with the observation that the petitioner has not challenged order dated 17.10.2006 rejecting his claim for arrears of salary. However, liberty was granted to the petitioner to avail the remedy available to him under law. The petitioner, thus, has approached this Court challenging the order dated 17.10.2006, vide which, the claim of the arrears put forth by the petitioner has been refused. 06. The petitioner assailed the communication dated 17.10.2006 on the ground that though the respondents have not properly appreciated Rule 2.43 of the Financial Code as there was no question of opening an old case as he was deprived of his entitlement to arrears contrary to the orders of this Court and Forest Order No. 47 of 2003 dated SWP No. 850/2011 11.03.2003, as such, Rule 2.43 of Financial Code was not applicable in the case of petitioner. 07. The petitioner is within his right to receive the arrears of salary of the post of Saw Setter in the pay scale of Rs. 200-320, due to him. The said pay scale was already given to his junior in the year 1977 ignoring the seniority and entitlement of the petitioner. This fact was acknowledged by the respondents while issuing Government Order No. 47 of 2003 but still arrears of salary were denied to him. The respondents have not appreciated the fact that rules make a mention for re-fixation of pay scale but same cannot be denied retrospectively. 08. The respondents have filed their objections and have stated that though in terms of judgment dated 18.11.2002, passed in SWP No. 973/2001, directing that the petitioner be promoted to the pay scale of Rs. 200-320 w.e.f. 04.06.1977, and in compliance thereof, Government Order No. 47 of 2003 dated 11.03.2003 was issued by the Principal Chief Conservator of Forests, but there was no direction for payment of arrears. The respondents, however, took up the matter to respondent No. 2 for release of arrears in terms of Government Order No. 47 of 2003 dated 11.03.2003, however, while processing the case of arrears, the respondents decided not to release the same in terms of provisions envisaged under Rule 2.43 of the J&K Financial Code and held the same not maintainable. SWP No. 850/2011 09. The order dated 17.10.2006, issued by the office of the Principal Chief Conservator of Forests have denied the release of arrears to the petitioner. This order reads as under: - “In this connection, I am directed to request you that the Rule 2.43 envisaged that when an arrear claim is taken up suddenly after a considerable period either because of ignorance of rules or due to other reasons, is to be rejected but in exceptional circumstances for issuance in relation to refixation of pay in which case of the pay shall be refixed retrospectively but no arrears shall be paid for the past period. Therefore the claim of arrears retrospectively put forth by the officials cannot be considered in terms of the above rules and further action in the matter be taken and the concerned official be informed accordingly.” 10. This claim of release of arrears to the petitioner has been denied in terms of Rule 2.43 of the J&K Financial Code. This rule reads as under: - 2-43. The re-opening of old cases should be deprecated as a fundamental principal. Where, however, such cases are opened as a special case, as for instance in relation to the refixation of initial pay in time-scale, the arrears should not be allowed. 11. The contention of the petitioner is that he approached this Court in 2002 for release of the pay scale to the post of a Saw Setter on which he was working. The respondents also considering the fact that petitioner was appointed as a Saw Setter in GLU on 08.11.1975 on the grade of Rs. 170-230 and thereafter another employee of the GLU who was also appointed on same grade and was subsequently promoted as Saw Setter in pay scale of Rs. 200-320 on 04.06.1977 held that though the Ghulam Rasool Shah was junior to the petitioner SWP No. 850/2011 and he was appointed on the same grade also directed that the petitioner be treated to have been promoted in the pay scale of Rs. 200-320 from the date his junior has been promoted i.e. w.e.f. 04.06.1977. 12. The fact that the petitioner was eligible to be promoted w.e.f. 04.06.1977 has been accepted by the respondents. Forest Order No. 47 of 2003 dated 11.03.2003 clearly states that the petitioner is to be promoted in the pay scale of Rs. 200-320 from the date his junior has been promoted i.e., w.e.f. 04.06.1977. This would also include his entitlement for the salary of the post of Saw Setter on which he was continuously working. 13. The claim of the petitioner for release of the grade of pay of Saw Setter was allowed vide judgment dated 18.11.2002, on the condition that the petitioner was duly appointed and actually performing the duties. The respondents accepted both the facts and issued Government Order No. 47 of 2003, thereby granting him promotion w.e.f. 04.06.1977. The respondents have now denying the petitioner the benefit accorded to him on the plea that it would amount to reopening of old case, ignoring the fact that this is in terms of the directions of this Court. 14. The expectation of an employee is that the State would act fairly and he would receive his due in accordance with rules. The petitioner was denied the promotion to the pay scale, which was given to his junior in time. The petitioner knocked at the doors of the Court and SWP No. 850/2011 after the orders of this Court, his claim was acknowledged and Forest Order No. 47 of 2003 dated 11.03.2003 was also passed but the same was not implemented in totality by denying him the arrears of salary. The delay in granting and refixation of the pay scale is not attributable to the petitioner. This coupled with the fact that he has discharged his duties, therefore, the arrears of the salary cannot be denied to him especially when entire exercise is by way of judicial intervention and directions. 15. In view of the aforesaid facts and circumstances, this petition is allowed. Communication dated 17.10.2006 is quashed. The respondents are directed to implement Forest Order No. 47 of 2003 dated 11.03.2003 and release the arrears of pay to the petitioner within a period of four weeks from the date of receipt of this order. 16. Disposed of. (Sindhu Sharma) Judge Srinagar: 06.06.2025 Vishal Khajuria Whether approved for speaking : Yes Whether approved for reporting : Yes/No