Jammu & Kashmir High Court - Srinagar Bench
Mohammad Amin Thoker And Others vs State And Others on 4 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
SWP no. 2577/2017 Date of order: 04.10.2018 Mohammad Amin Thoker and others Vs. State of J&K and others Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge i. Whether to be approved for reporting In NET Yes/No ii. Whether to be approved for reporting In Digest/Journal Yes/No __________________________________________________________________ Appearing Counsel:
For Petitioner(s): Mr. Javaid Hamid, Adv. For Respondent(s): Mr. D. C. Raina, AG with Mr. Asif Maqbool, GA
1. In this petition, the petitioners beseech and seek the following reliefs:
i. A writ of mandamus commanding respondents to promote the petitioners on the posts of Assistant Compilers w.e.f 2013 by giving them same and similar treatment which has been given to the other similarly situated persons with the petitioners, and releasing all the consequential benefits to the petitioners.
ii. A writ of mandamus commanding the respondents to re-fix the seniority of the petitioners in the Assistant Compiler Cadre after giving the petitioners retrospective promotion from 2013 by showing their name at appropriate place in the seniority list of Assistant Compilers, with a further direction to the respondents to consider and promote the petitioners on the posts of Compilers in the respondent department on the basis of their re-fixed seniority in the Assistant Compiler cadre retrospectively with consequential benefits.
SWP No. 2577/2017 Page 1
2. The facts under the shade and cover of which the petitioners claim the aforesaid reliefs are that the petitioners initially came to be appointed on the posts of class - IV (orderlies) in the respondent organization.
Despite putting in a service of more than 20 years, they were not promoted to the next higher post of Assistant Compiler in the department which were vacant right from the year 2008 due to non- holding of the departmental promotion committee. Finally, on the persistent demand of the petitioners, the respondents settled their long pending grievance and on the basis of their seniority and merit promoted them in the year 2008 vide order no. 262 DF of 2008 dated 9-9-2008 to the post of Assistant Compilers in the respondent department on incharge basis.
3. It is pleaded that the petitioners were discharging their duties with zeal and zest to the satisfaction of their superiors on the post of Assistant Compilers in incharge capacity. It is submitted that after their promotion, the respondents under law were bound to hold the DPC so that the petitioners are substantively promoted to the post of Assistant Compilers, which were lying vacant in the respondent department. It is pleaded that the respondents were bound to hold the DPC twice a year as mandated in J&K Civil Service (reference of SWP No. 2577/2017 Page 2 vacancies and holding of departmental promotion committees) Rules 2005, but unfortunately the respondents did not pay any heed to the genuine claims of the petitioners.
4. In their reply, the respondents have submitted that the petitioners were placed as Incharge Assistant Compilers under and in terms of Order no. 262-DF of 2008 dated 09.09.2008 and their adjustment was without prejudice to the inter-se seniority. It is pleaded that the petitioners under law cannot take recourse to the aforesaid order and cannot claim regularization/promotion over and above the officials who are senior to them. It is submitted that immediately after the issuance of aforesaid order, representations were filed against the adjustment by one Smt. Firdousa Nisar and Smt. Akhter Jan agitating therein that they were matriculates and senior to that of the orderlies adjusted. However, in absence of final seniority list, the issue could not be settled.
5. It is further stated that the DPC could not reach to a conclusion in absence of final seniority list of orderlies. The petitioners continued to enjoy the benefit of their adjustment though having regard to final seniority list notified, the petitioners could not have been adjusted as a number of their seniors were left out. It is submitted that the SWP No. 2577/2017 Page 3 petitioners and other officials of the department could not be considered for regularization/confirmation for promotion due to non- availability of requisite number of vacancies under promotion quota up to 2016. It is also submitted that the case of Ghulam Hassan Wagay was not considered for regularization in isolation. The DPC in its meeting held on 18.12.2013 decided to regularize Wagay as he admittedly was senior (figuring at serial no. 1) to the orderlies and his adjustment was not agitated/objected to after the issuance of order no. 262-DF of 2008 dated 09.09.2008.
6. Heard and considered.
7. Learned counsel for the petitioners has argued that the petitioners were working continuously on the posts of Assistant Compilers in the respondent department right from the year 2008 with other similarly situated persons. They deserved to be promoted on the said posts on substantive basis right from the year 2008 when they were given charge of the said posts but unfortunately the respondents for one or the other reason did not promote them substantively on the said posts from the year 2008 despite the fact that the posts were lying vacant in the department right from the year 2008. It is submitted that on the one hand the petitioners' case for confirmation of their promotion was kept pending and on the other hand the respondents in an arbitrary SWP No. 2577/2017 Page 4 and illegal manner promoted the other similarly situated persons to the post of Assistant Compilers in the department. It is submitted that such promotion orders were kept a guarded secret by the respondents and it is only very recently that the petitioners came to know that one similarly situated person with them namely Ghulam Hassan Wagay who was also promoted on incharge basis with the petitioners in 2008 has been promoted on the said post on substantive basis by the respondents vide order dated 24.12.2013 with effect from 20.12.2013 ignoring the petitioners without any justification, as such the action of the respondents being discriminatory in nature is violative of law.
8. It is further argued that the respondents for nine long years continued the petitioners on the posts of assistant compliers (in incharge capacity) without promoting them substantively on the said posts despite the clear vacancies in the department. It is submitted that as per the rules and regulations governing the subject, the petitioners were required to be promoted from year 2008 or from the year 2013 when the other similarly situated persons were promoted by the respondents. But instead of complying with the mandate of law governing the subject, the respondents just to deprive the petitioners from their due seniority as well as from their promotion and other consequential benefits promoted them substantively on the posts of SWP No. 2577/2017 Page 5 Assistant Compliers w.e.f 1-3-2017, which action of the respondents is totally illegal and arbitrary and discriminatory in nature. It is pleaded that a direction deserves to be given to the respondents to promote the petitioners retrospectively w.e.f 2008 or from 2013 when the other similarly situated persons were promoted by the respondents on the said posts by releasing and paying all the consequential benefits to the petitioners after such retrospective promotion as same shall be in accordance with the law governing the subject as well as same shall be in the interest of justice and equity.
9. It is further argued that in order to redress their grievances the petitioners made a number of representations before the respondents but the same were not considered, which constrained the petitioners to approach this Hon'ble Court for protection of their service rights. Instead of complying with the mandate of the constitution of India as enshrined in chapter III and IV thereof the respondents have acted in a most arbitrary and illegal manner violating the fundamental rights of the petitioners guaranteed to them under chapter III of the constitution of India and also the directive principles of the state policy as are contained in chapter IV of the constitution of India.
10.Learned A.G. has argued that in different DPC meetings the DPC could not reach to a conclusion on the seniority being violated while SWP No. 2577/2017 Page 6 issuing order No. 262-DF of 2008 dated 09-09-2008, a final seniority list of orderlies was issued vide No. 86 of 2015 dated 24-08-2015 read with order No. JDFK/20 of 2017 dated 18-02-2017. Consequent to the notification of final seniority list, the case of the petitioners and other eligible orderlies was placed before the DPC. The DPC in its meeting held on 01-03-2017 considered the issue and after threadbare deliberation on the matter, the DPC decided and approved promotion/confirmation of 16 Class-IV employees prospectively including those working as Incharge Assistant Compilers against the available vacancies as on date under promotion quota with due regard to their final inter-se seniority up to serial No. 42. The action of the respondents, it is stated, is neither illegal nor arbitrary. The petitioners have not been subjected to any invidious discrimination. The petitioners cannot claim promotion retrospectively muchless over and above the officials who are senior to them.
11.It is further argued that the representations filed by the petitioners are inconsequential. There is no merit in the representations filed by the petitioners. The seniority and the promotion benefits accruing thereto in favour of the petitioners have been protected in accordance with the rules of law. The petitioners have no right to claim benefit which is not available under law. The petitioners cannot claim what is not SWP No. 2577/2017 Page 7 permissible in terms of the rules read with the order bearing No. 262- DF of 2008 dated 09-09-2008, which specifically provides that it has been issued without prejudice to the inter-se seniority.
12.What comes to the fore from the perusal of the record is that the petitioners and the other officials of the department were not considered for the regularization/confirmation for promotion due to the non-availability of the requisite number of vacancies under the quota earmarked for promotion up to the year 2016, as also the final seniority list. The promotion of the petitioners as Assistant Compilers was purely on in-charge basis and not substantively. Therefore, they cannot claim that any right has vested unto them in the year 2008 when they were promoted on in-charge basis. The order dated 09.09.2008 specifically provided that the arrangement has been made without prejudice to the inter-se seniority. The petitioners accepted the said order and cannot now turn around and contend that the seniority list is not in tune with the law and to cap it all Gh. Hassan Wagay was found to be senior to that of the petitioners in the order of the seniority and that is how his case was considered in isolation. His first date of appointment is 01.11.1988 and is brought to the fruition from the minutes of DPC meeting held on 01.03.2017, attached as annexure "R-1" to the reply filed by the respondent/State. The SWP No. 2577/2017 Page 8 petitioners cannot claim that they are similarly situated with him and therefore, their regularization/promotion be given a retrospective effect.
13.The law is that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimes "in service" candidates can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the rules. The case of the petitioners has not been treated as sui-genris case so that they could seek the indulgence of this Court in granting the reliefs claimed. In view of the above, the writ petition appears to be devoid of any merit. It entails dismissal and is accordingly dismissed.
( M. K. Hanjura ) Judge Srinagar 04.10.2018 N Ahmad SWP No. 2577/2017 Page 9