Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shafi Khan vs State & Ors on 14 July, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No. 1347 of 2012
MOHAMMAD SHAFI KHAN
PETITIONERS
STATE & ORS
RESPONDENTS
!MR. B. A. KHAN, ADVOCATE
^MR. H. AMAN ALI, ADVOCATE
HONBLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR, JUDGE
Date: 14/07/2015
: J U D G M E N T :
(ORAL) 1/ The petitioner was working as Senior Assistant in the respondent Department. Vide Forest Order No. 326 of 2010 dated 15-10-2010, in pursuance to the decision taken by the Divisional Level Departmental Promotion Committee (DPC), held on 25-03-2009, he was made Incharge of the post of Head Assistant in his own pay and grade with Charge Allowance as admissible under rules. At the time of making him Incharge Head Assistant, the petitioner had already crossed the age of 50 years. The Divisional Level Departmental Promotion Committee took the decision of placing him as Incharge Head Assistant in view of mandate contained in SRO 272 of 2008 dated 19-09-2008, which is taken note of :
Whereas SRO 272 of 2008 dated 19-09-2008 reads as under: Provided that 25% of posts to be filled up in a calendar year shall be earmarked for promotion of those Senior Assistants who have not qualified the Secretariat Assistants Examination but have crossed the age of 50 years as on 01st January of the year in which such promotions are being considered. 2/ Thereafter, vide Forest Order NO. 420 of 2010 dated 29-11- 2010, the petitioner, along with three other Incharge Head Assistants, was placed in the pay scale of Rs. 9300-3480 (PB-2) (Grade Pay Rs. 4200) plus usual allowances. The order was conditional and it was mentioned therein that in the event DPC does not confirm the action with regard to release of grade in their favour, same would be recovered from them and that the officials shall undergo Secretariat Assistants Training Course.
3/ Despite opportunities, respondents have not filed the Reply Affidavit.
4/ Heard learned counsel for the parties. 5/ In terms of SRO 272 of 2008 aforementioned, 25% of posts,
which are required to be filled up in a calendar year, stand earmarked for promotion from those Senior Assistants, who have not qualified the Secretariat Assistants Training Course but have crossed the age of 50 years as on 01st January of the year in which such promotions are being considered. In view of mandate contained in the aforesaid SRO, the petitioner, who had already crossed the age of 50 years, was not, thus, required to undergo Secretariat Assistants Training Course. Even otherwise, the petitioner was never deputed to undergo such course. In view of mandate contained in SRO 272 of 2008, the petitioner was entitled for being appointed by way of promotion on the post of Head Assistant, having crossed the age of 50 years. He was made Incharge Head Assistant on the basis of decision taken by the Divisional Level Departmental Promotion Committee. Thereafter, the pay scale attached to the post of Head Assistant was also released in his favour. 6/ The petitioner has superannuated from service, but he has been deprived of retiral benefits attached to the post of Head Assistant. In the facts of this case, it is held that the petitioner has already been regularized on the post of Head Assistant, in as much as, his placement as Incharge, Head Assistant, was made by the Divisional Level Departmental Promotion Committee and thereafter the pay scale attached to the post was also released in his favour. The condition of undergoing the Secretariat Assistant Training Course would not be thus applicable to him. Since the DPC has already considered his case, the petitioner would be deemed to have been appointed by way of promotion on the post of Head Assistant on regular basis on November, 29, 2010, the date the pay scale attached to the post of Head Assistant was released in his favour.
7/ For the above stated reasons, this writ petition along with connected MAs is disposed of in the following manner :
It is declared that the petitioner shall be deemed to have become member of service of Head Assistants from November, 29, 2010 and shall be deemed to have been regularized on the post of Head Assistant from that date itself;
In view of aforestated declaration, the respondents are directed to release all the service benefits including post retiral benefits in favour of the petitioner by treating him to be member of the service of Head Assistants and, accordingly, give him all service benefits, which include retiral benefits on the same basis as well. 8/ Disposed of along with all connected MAs.
(MUZAFFAR HUSSAIN ATTAR) JUDGE TARIQ Mota SRINAGAR 14-07-2015