Jammu & Kashmir High Court - Srinagar Bench
Ghulam Jeelani Shah & Ors vs State Of J&K on 30 December, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP no.2361 of 2013 CMP no.3831 of 2013 Ghulam Jeelani Shah & ors Petitioners State of J&K & ors Respondents !Mr. A. Haqani, Advocate ^Mr. J. A. Kawoosa, Sr. AAG, for 1 & 2 Mr. Azhar-ul-Amin, Advocate, for 3 Mr. J. I. Ganai, Advocate for 4, 5 & 7 Mr. Z. A. Shah, Sr. Advocate, with Mr. Asif Maqbool, Advocate, for 6 and 8 Honble Mr. Justice Ali Mohammad Magrey, Judge Date:30/12/2013 : J U D G M E N T :
1. The petitioners in this petition have called in question Government order no. 437-PW(R&B) of 2013 dated 29.11.2013 insofar as thereby private respondents 4 to 8 herein have been placed as Incharge Superintending Engineers in their own pay and grade. The petitioners have also prayed for issuance of Mandamus commanding the respondents to refer all the cases of stop gap promotions from the posts of Assistant Engineers upto the posts of Executive Engineers, including those of the petitioners and respondents, to DPC/PSC for consideration and clearance and issue orders for substantive promotions in accordance with rules holding the field. The petitioners have also prayed for a direction to the respondents to forebear from giving effect to the draft tentative seniority list, annexure P5 to the petition.
2. It may at the outset be observed that the petitioners are grieving of taboo breaking by the official respondents when they themselves have been beneficiaries thereof without raising any demur. Relevant facts as averred in the writ petition are briefly set out hereunder:
3. The petitioners and respondents 4 to 8 are stated to be General Category Degree Holder Civil Engineers, substantively holding the posts of Assistant Executive Engineers. It is averred that in compliance with Supreme Court judgment in Suraj Prakash Gupta v. State of J&K, the respondents, vide Government Order no. 370- Works of 2002 dated 23.07.2002, settled and notified the inter se seniority of officers in the category of Assistant Executive Engineers (sic). In that final seniority list, the petitioners were accorded their correct seniority positions and were shown senior to the private respondents herein. According to the petitioners, the respondents, without adhering to the rules governing promotions, placed the petitioners as well as the private respondents as Incharge Assistant Executive Engineers in their own pay and grade. Thereafter, without formulating, settling or notifying the seniority list of the Assistant Executive Engineers, both the petitioners as well as private respondents were placed as Incharge Executive Engineers (Civil) in their own pay and grade. However, while making the aforesaid Incharge arrangements, it is stated that the official respondents followed the roster for making promotions under the Reservation Rules in pursuance whereof the private respondents herein were placed as Incharge Executive Engineers earlier to the petitioners herein.
4 It is stated that the official respondents did not formulate any seniority list even of the officers in the category of Executive Engineers. However, the petitioners sought information under Right to Information Act which revealed that the respondents had prepared a draft tentative seniority list. In the said draft tentative seniority, it is alleged that the private respondents have been assigned seniority positions above the petitioners. It is stated that, acting upon the aforesaid draft tentative seniority list, private respondents 4 and 5 were placed as Incharge Superintending Engineers vide Government Order no. 514-PW(R&B) of 2012 dated 6.12.2012. The said order was challenged by one Satish Kumar Razdan in SWP no. 2513/2012. However, the order was kept in abeyance by Government order no. 515-PW(R&B) of 2012 dated 6.12.2012. During the pendency of the petition, the petitioner therein, too, was placed as Incharge Superintending Engineer. The petitioners have also made mention of some other writ petitions and Letters Patent Appeals disposed of by various Benches of this Court and the observations made by the Court therein which would be referred to later in this judgment. It is averred that unmindful of the displeasure expressed by the Honble Court and the mandate of law, the official respondents have issued Government Order no. 437-PW(R&B) of 2013 dated 29.11.2013, inter alia, ordering placement of private respondents 4 to 8 as Incharge Superintending Engineers over the head of the petitioners.
Precisely put, the petitioners case is that:
(i) the official respondents have failed to make regular promotions of the members of different cadres of the Service in terms of the Rules having bearing on the matter;
(ii) the official respondents have failed to formulate and issue the seniority lists in different cadres of the Engineering Service, namely, Assistant Executive Engineers and Executive Engineers;
(iii) in consequence of failure to formulate and issue the seniority lists in the aforesaid cadres, the official respondents have violated the catch up rule;
(iv) that the Incharge arrangements are dehors the Rules;
(v) that the petitioners, though senior to the private respondents, have not been considered for being placed in the higher post of Superintending Engineer and thus private respondents 4 to 8 have been placed as Incharge Superintending Engineers over their head in violation of the rights guaranteed to the petitioners in terms of Articles 14 and 16 of the Constitution.
In paragraph 10 of the petition, the petitioners have tabulated their respective dates of placement as Incharge Assistant Executive Engineers and Executive Engineers together with seniority positions assigned to them in the draft tentative seniority list, annexure P5 to the petition. It would be appropriate to reproduce the tabulation, so given, hereunder:
Particular s Seniority as AEs as per P1 Placement as AEEs as per P2 Place as EEs as per P3 Seniority as per P5 Sr. no.
Date Date Date Sr. no.1 2 3 4 5 6
Pet no.1 348 01.12.1987 03.02.1993 30.10.2009 212 Pet no.2 351
-do-
-do-
-do-
214Pet no.3 354
-do-
-do-
-do-
217Pet no.4 356
-do-
-do-
09.12.2009 219 Pet no.5 360
-d0-
-do-
-do-
222Pet no.6 462 01.12.1992 06.07.2009 21.01.2011 245 Resp. 4 438 01.12.1990 06.07.2001 23.11.2006 124 Resp. 5 439 01.12.1992
-do-
-do-
125Resp. 6 520 01.03.1993
-do-
-do-
128Resp. 7 530 01.12.1993
-do-
21.06.2007 161 Resp. 8 580 02.03.1994
-do-
06.05.2008 186
5. The official as well as private respondents have filed their respective objections / replies. Before the stating the case of the respondents, I deem it appropriate to mention here that on 03.12.2013, when this petition came up for consideration, the Court passed a detailed order which is extracted below:
Mr. J.A Kawoosa, Sr. AAG present in the court was asked to assist in the matter. Learned counsel waived notice on behalf of respondents 1 and 2.
Learned counsel appearing on behalf of caveators submitted that they are under instructions to accept notice on behalf of respondents 4 to 6 and 8. Their statement is taken on record.
Notice accepted by Mr. Z.A. Shah Sr. Advocate for respondent no.6.
Mr. J. Iqbal Ganie learned counsel for respondent no.8 and Ms. Moksha Qazmi learned counsel for respondents 4 & 5.
Notice to respondent no.3 returnable within the aforesaid period.
Petitioners have questioned Government order no. 437-PW(R&B) of 2013 dated 29.11.2013 whereby respondents 4 to 8 are placed as incharge superintending Engineers in their own pay and grade.
Mr. Haqani, learned appearing counsel for the petitioners submits that the order impugned has adversely affected the rights of the petitioners, because the respondents have failed to consider them for promotion, instead promoted respondents 4 to 8 who are far junior to the petitioners.
Mr. Haqani, learned counsel for the petitioners, invited attention of this court to various judgments of the Supreme Court as also order dated 17.07.2013 passed by this Court in SWP No. 2513/2013 and SWP No.13/2013 titled Satish Kumar Razdan Vs. State of J&K & Ors, and Tanveer Mir & Ors. Vs. State of J&K & Ors, respectively. Learned counsel further submits that during the pendency of SWP No.2513/2013, this court while issuing notice to the otherside had directed that promotions, if any made, shall remain in abeyance. He further submits that in compliance of the order dated 03.12.2012, respondents had kept the Government order No.514-PW(R&B) of 2012 dated 06.12.2012 in abeyance in terms of Government order No.515-PW(R&B) of 2012 dated 06.12.2012.
Mr. Haqani submits that despite final judgment of this court making observation about the approach adopted by the respondents regarding filling up of the posts of Superintending Engineers on adhoc basis for indefinite periods, the respondents have now in violation of the directions passed in writ petitions as also the directions of the Division Bench passed in LPA Nos.142/2013 & 169/2013 titled Fida Mohammad Farooqi & anr. Vs. State & Ors., and Tanveer Mir & Ors. Vs. State of JK & Ors, dated 01.08.2013 10.10.2013, respectively, issued impugned order. Mr. Haqani invited the attention of this court to the order dated 01.08.2013 passed by Division Bench in LPA No.142/2013 titled Fida Mohammad Farooqi & anr. Vs. State and others, wherein the learned Advocate General had undertaken to complete the process of filling up of the posts of Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers on regular basis as expeditiously as possible and this court had directed the respondents to complete the process of promotion on regular basis and not to resort to the stop gap arrangement. Learned counsel further submits that there is no compliance of the direction passed by this court in LPA No.142/2013 and LPA No.169/2013, instead the respondents on extraneous consideration have accorded the benefit of in charge arrangement in favour of respondents 4 to 8 in terms of the impugned order.
Mr. Z. A. Shah, Sr. Advocate, with Mr. Asif Maqbool, Advocate, Mr. J. I. Ganai and Mrs. Mokshah Kazmi, appearing on behalf of caveators/ respondents 4 to 6 and 8, while noticing the directions of this court passed from time to time including the one passed by the Division Bench, submitted that respondents 4 to 6 and 8 are not at fault but are entitled to promotion against the higher posts on the strength of rules occupying the field. They further submitted that they have no objection in filling up of the posts on substantive basis by considering all the eligible officers along with the private respondents. Learned counsels further submit that on the strength of Rule 25 of Classification, Control and Appeal Rules, 1956, the Government is empowered to make temporary arrangements even up to the period of six months and the private respondents have been placed as I/C Superintending Engineers only on 29.11.2013 and the said period of six months has not expired as yet.
On noticing the violation of the judgments passed by the Honble Court Supreme Court as also this court with reference to the incharge arrangements made by the Jammu & Kashmir Government against the posts of Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers, it was felt necessary to seek assistance of learned Advocate General in the matter. Mr. Kawoosa, learned Sr. AAG, present in the court was requested to ensure presence of learned Advocate General, who is reportedly in Srinagar Wing of this Court, and the consideration was deferred. When this case was again taken up, Mr. Kawoosa, learned Sr.AAG, apprised that by the time he could apprise learned Advocate General about the observations of the Court, he had left. Be that as it may, Government has not registered seriousness of the matter and ensured implementation of the law of the land. Despite directions passed by this court, it has become routine for the Government to violate the rules and judgments of the court.
The approach adopted by the Government of making promotions on stop gap basis is a routine. It is not known as to what are the compelling reasons for official respondents to continue adhocism for indefinite period in violation of the supreme court directions passed in the case of Suraj Parkash Gupta & Ors. v. State of J&K, reported as AIR 2000 SC 2386 as also of this court judgments/orders passed from time to time.
The result of the lis would be hinging on determination of the sole question, whether the Government could make the temporary promotion of the Engineers for an indefinite period?
Law in that regard is not res integra. It has long since been settled that an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months. Reference in this connection may be made to the decision of this Court in Mohd Amin Pandit v State of J&K, 1974 JKLR 688. For ready reference, paragraph 6 of the judgment is excerpted below:
Rule 4(d) (ii) of the J&K Public Service Commission (Limitation of Functions) Regulations, 1957 provides that it shall not be necessary for the Public Service Commission to be consulted on the suitability of candidates for:
Officiating promotions or transfers to any service or post, when at the time of making the promotion or transfer there is reason to suppose that the officiating promotion or transfer will be for not more than six months. This Rule 4(d)(ii) of J&K PSC (Limitation of Functions) Regus (1957) clearly lays down that an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months. As such the Govt. would be acting in excess of its powers if it directs such promotion for a period longer than six months or for an indefinite period, as in the present case. In any case, where the order does not specify the period or specifies a period longer than six months, the order cannot remain operative for a period of more than six months... As is, the impugned order directed the promotion of respondent No. 2 for an indefinite period. In the view I have expressed above, it was bad in law and could be effective for a period of six months and no more. That period has expired since. In fact more than four years have passed since the order was made. Presently, therefore, the respondent No. 2 holds the post of Deputy Director without any legal order to support it. There is yet another striking factor involved in the matter. Rule 25 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1957 deals with promotions. Sub-Rule (1) thereof says that all promotions shall be made by the appointing authority; Sub-rule (2) says that promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal. Sub- rule (4) provides that where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules, but such temporary promotion shall in no case exceed three months on each occasion. State-respondents have adopted the approach of adhocism for indefinite period against the mandate of Rule 25 sub rule (2) of Classification, Control and Appeal Rules, 1956.
In the given circumstances, in order to proceed further, it has become imperative to direct respondent No.2, Commissioner/ Secretary to Government, Public Works (R&B) Department, Civil Secretariat, Jammu, to file affidavit indicating the steps taken for implementing the judgment passed in Suraj Parkash Guptas case, supra, as also the directions passed by this court from time to time and by Division Bench in LPA Nos.142/2013 and 169/2013. Respondent No.2 shall also detail out the reasons forming basis for making adhoc arrangements in the shape of impugned order. The affidavit should be based on the official records and anything found contrary shall be viewed seriously and officer will be proceeded against. The respondent No.2 shall also provide details of the posts against which the Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers are working on adhoc basis with further details indicating the period of their adjustment. Till next date before the bench officials respondents are directed not to make any arrangements against the post of Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers on adhoc/ incharge basis. The affidavit shall be filed within a period of two weeks.
Prima facie, this court is of the opinion that the respondents 4 to 8 are holding the posts of Executive Engineer on incharge basis, for an indefinite period, therefore, there is no question of making further temporary arrangements unless their arrangement of feeding post is on substantive basis. Consideration for passing of interim orders staying the officiating arrangement made in respect of respondents 4 to 8 shall defer till next date before the bench.
List this matter on 16th of December, 2013.
6. Respondents 1 and 2 in their reply have stated that they have duly adhered to the rules while making Incharge placements to the higher posts, keeping in view exigencies of service and public interest; that the petitioners as well as private respondents are working as Incharge Executive Engineers and have accepted their higher placements, as such, they cannot now allege that respondents have failed to discharge their duties; that since all the petitioners are holding the post of Assistant Engineer on substantive basis, inclusion of their names in the seniority list of Assistant Executive Engineers or Executive Engineers does not arise at all;
that the answering respondents have already submitted the proposal of senior and eligible engineers to Public Service Commission for convening DPC for regularization of their services; however, the PSC sought certain clarification which includes notifying cadre strength of the service; that the same was done vide Government order no. 303-PW(R&B) of 2013 dated 05.09.2013 and the PSC is being requested to convene the DPC meeting for clearing regular promotions at various levels; that the answering respondents are duly adhering to the Reservation Rules while making placements upto the level of Executive Engineers. In this connection, it is submitted that respondents 4 to 8 were placed as Incharge Executive Engineers during the calendar years 2006, 2007 and 2008; whiles the petitioners were placed as Incharge Executive Engineers in the years 2009 and 2011. It is further stated that the department has made temporary placements as Incharge Superintending Engineers strictly as per the placements made at the Executive Engineers level subject to the condition that the Incharge Executive Engineers at the time of consideration for placement to the level of Incharge Superintending Engineer are clear from vigilance angle and no departmental actions are pending against them and their APRs are available and there is nothing adverse against them. It is further stated that the department has already prepared the year-wise regularization proposals for submission to the J&K PSC as per the details given in the reply strictly as per the J&K Reservation Rules.
7. It is also submitted by respondents 1 and 2 in the aforesaid reply that the claim of petitioners that respondents 4 to 8 figure junior to the petitioners at the level of Assistant Engineers and hence the petitioners shall have preferential claim for the post of Superintending Engineers is devoid of merit on the grounds that Rule 24 of CCA Rules provides that the seniority has to be determined from the date of first appointment to the service, class, category or grade with reference to which the question has arisen. The J&K Reservation Act and Rules provide the benefit of seniority to the candidates promoted on the basis of Reservation Categories. According to the respondents, seniority is to be reckoned from the date of first substantive appointment which includes promotion. It is submitted that the catch up rule incorporated in Rule 24 of CCA Rules vide notification SRO 186 of 1997 was subsequently deleted vide notification SRO 110 of 2000. Therefore, a member of service who gets promoted as a Reserve Category candidate is entitled to consequential seniority from the date of such promotion. It is submitted that the respondents 4 to 8 who have been placed as Incharge Executive Engineers much ahead of the petitioners shall be entitled to the consequential seniority as and when formally cleared by DPC.
8. The private respondents have contested the claims of the petitioners on somewhat identical grounds and prayed for dismissal of the writ petition.
9. I have heard learned counsel for the parties, perused the record and considered the matter.
10. Broadly speaking, the grievance of the petitioners is two fold:
first, that the official respondents have been making ad hoc / stop gap / incharge arrangements and not only continuing the same unabated, but even elevating such ad hocees to higher posts; second, that the placement of respondents 4 to 8 as Incharge Superintending Engineers is dehors the rules and violative of their right to consideration.
11. So far as the first grievance of the petitioners is concerned, the same is rather admitted by the official respondents without mincing any words. It is admitted that the private respondents 4 to 8 herein, too, are basically holding only the posts of Assistant Engineers on substantive basis. Noticing the prevalence of menacing practice in the department, the Coordinate Benches as well as the Division Benches of this Court have made goading observations on such practice and made appropriate directions. Reference in this connection may be made to the decision of the Division Bench of this Court in two clubbed Letters Patent Appeals, LPA nos. 212/2007 & 217/2007, lead case being State of J&K v Abdul Rashid, decided on 26.12.2012, wherein it was held as under:
It is not in dispute that respondent-writ petitioners and appellants in LPA no.217/07 are substantively holding the posts of Assistant Executive Engineers. The subsequent promotion to next higher post(s) are temporary in nature. On the basis of reservation rules and the roster point appellants in LPA no. 217/07 stole march over the respondent-writ petitioners and were temporarily promoted to the next higher post of Executive Engineer. While these appellants were holding the posts of Executive Engineers, having been temporarily promoted to these posts, the respondent-writ petitioners were also temporarily promoted to these posts. The appellants and respondent-writ petitioners have not become members of the Class-III of the schedule appended to Rules of 1978 viz. Executive Engineers, as were not promoted to these posts in accordance with rules viz. for such promotions were not made on the recommendation of DPC. In terms of Rules of 1956, the inter se seniority of the members of class of service is to be determined only when they are appointed by promotion to the posts in accordance with rules and only when they become permanent members of the class of service. The seniority list of 2002 is inconsequential in respect of the appellants and respondent-writ petitioners, inasmuch as their seniority in the class of Executive Engineers can be determined only when they become permanent members of the said class of service. The fixation of seniority of these appellants and respondent- writ petitioners in terms of year 2002 is not countenanced by law and non filing of objections to such illegal seniority list, so far it pertain to appellants and respondent- writ petitioners will not be determinative of the seniority post of these competing parties
12. While disposing of SWP no.2513/2013 titled Satish Kumar Razdan v State of J&K & ors., a Coordinate Bench of this Court has observed as under:
The practice of placing Assistant Engineers as Incharge AEEs, then Incharge AEEs as Incharge Executive Engineers, and then Incharge Executive Engineers as Incharge Superintending Engineers is totally in derogation of the Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978. The order governing the Incharge position contains a stipulation that it shall be for a period of six months purely on temporary basis against available vacancies or till the posts are filled up under rules on regular basis by the DPC/PSC, whichever is earlier. This stipulation has never been respected; instead position of Inchargeship has been continued at all levels. It is not forthcoming as to why on regular basis cases for promotion at every level are not referred to DPC/PSC nor it is understandable as to why Inchargeship is continued, which appears to be with some design. The operative portion of the aforesaid judgment contained a specific direction to the following effect:
For the afore-stated reason, this petition is disposed of with a direction to the official respondents that they shall ensure initiation of the process for regular promotion by referring all the cases at all levels to DPC/PSC and on the basis of recommendation of the DPC/PSC proper promotions are granted to the deserving Engineers at respective levels. In the process Reservation Rules of 23005, so far as those are applicable to the extent of permissible limit at the respective levels, shall be strictly adhered to.
13. In another LPA no. 142/2013, titled Fida Mohammad Farooqi v State of J&K, another, Division Bench of this Court, on 01.08.2013 has observed as under:
The matter has been heard at some length. It pertains to the incharge arrangements made by the respondent department on the posts of Assistant Executive Engineers, Executive Engineers, Superintending Engineers as well as that of Chief Engineers. These arrangements have continued from the posts of Assistant Executive Engineers to the posts of Chief Engineers for more than twenty years for the reasons best known to respondents. One of the argument raised is that a person who may be junior and has been given a charge of further higher post then he gains experience of working on higher post. The experience so gained by him is sought to be treated as a factor fulfilling the eligibility required by the Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978.
It is well settled that when charge arrangement is made, it has to be for a short duration not exceeding six months and such an arrangement does not confer any right whatsoever on the officer holding the post on charge basis except entitling him to the charge allowance. The basic idea of making charge arrangement emanates from administrative reasons. For example, if at Srinagar, the post of Chief Engineer falls vacant for any reason like retirement, transfer, deputation etc., then the available Superintending Engineer may be asked to take the charge of the post of Chief Engineer. At that stage, administration may not be able to promote Superintending Engineer as Chief Engineer. The charge arrangement can continue till a regular incumbent as per the rules is appointed. However, the facts of the present case reveal a piquant situation, which has resulted in continuation of charge arrangements for more than 20 years. How and why it has happened is better known to the respondents.
14. It may be relevant to mention here that on a statement made by the learned Advocate General in the aforesaid case, the learned Division Bench observed and ordered as under:
Mr. Qadri, learned Advocate General after obtaining instructions from respondent No.1 has stated that the cases of Assistant Executive Engineers were sent to the Public Service Commission on 8.4.2013 and the department is still awaiting the regularization of promotion in respect of Assistant Executive Engineers. In other words, the promotion of Assistant Engineers on substantive basis to the post of Assistant Executive Engineers by the Public Service Commission is still awaited. Mr. Qadri has further stated that after 10 days of the receipt of the recommendation of the Public Service Commission, further process of finalizing the seniority list of Executive Engineers would be undertaken. Similar process has to be undertaken in respect of Superintending Engineers and Chief Engineers. It appears that the whole process can be completed within one month if there is keenness on the part of the official respondents.
We direct the newly added respondent, J&K Public Service Commission to expedite the process so as to avoid any violation of rights of the appellants or any other person, who might be senior to those, who have required requisite experience and qualification for promotion to the superior posts.
15. In another Letters Patent Appeal, LPA no.169/2013 titled Tanveer Mir v. State of J&K, by order dated 10.10.2013, the Division Bench (of which I was a member) ordered that the directions passed in LPA no.142/2013 would, ipso facto apply to the said case also.
16. As indicated above, the Division Bench of this Court, headed by Lord Chief Justice, in its order dated 01.08.2013 passed in LPA no. 142/2013, titled Fida Mohammad Farooqi v State of J&K, on hearing learned Advocate General observed that it appears that the whole process can be completed within one month if there is keenness on the part of the official respondents. In paragraph 5 of the reply filed by respondents 1 and 2 in the instant case on 23.12.2013 it has been stated that the PSC is being requested to convene the meeting of the DPCs for clearing regular promotions at various levels. All observations made by different Benches of this Court from time to time, as mentioned and quoted above, have fallen to deaf ear of the Government and its concerned functionaries. The Supreme Court in Suraj Parkash Gupta v State of J&K, (2000) 7 SCC 561 had, among other things, directed the State of Jammu and Kashmir that it shall appoint a High Level Committee within a month from the date of that judgment to find out in which department the ad hoc / stopgap promotees are languishing without their cases being referred to the Service Commission/ DPC for regularization within their quota.
17. The facts and figurers given in paragraph 11 of the reply affidavit filed in the instant case by respondents 1 and 2 pursuant to order dated 03.12.2013 gives a dismal picture. It is revealed that presently 5 Chief Engineers, 24 Superintending Engineers, 200 Executive Engineers and 502 Assistant Executive Engineers are working in Incharge capacities. Shockingly, most of them are only holding the substantive posts of Assistant Engineers. Some of these arrangements are continuing since 06.07.2001, obviously demonstrative of the fact that the directions of the Supreme Court have not been carried out, not even superficially. Though the total sanctioned strength of these posts is not mentioned, but going by the magnitude of such Incharge Engineers, as indicated above, one wonders whether there would be any Engineer appointed on regular basis in the various cadres of the Department. The whole department seems to be ad hoc and naturally their performance and approach to developmental works cannot be expected more than that. All this cannot be per chance and, as rightly put by one of the Coordinate Benches of this Court, appears to be with some design. No sermon is going to have an impact on a brazen people, unwilling to or impervious to scruples. When the essence of conscience drops from the soul, rules of game are rendered immaterial and any effort at goading and prodding is reduced to mere whipping a dead horse. Though the exercise of power for making such ad hoc / stopgap arrangements is fully and effectively bridled by the Rules, but the authorities seem to have put on the winkers to eclipse the curbs attached thereto and sped in the single most convenient direction. It is shocking to note that it is now stated that even relevant creation orders were not available and the cadre strength of the department was not known.
18. It may be mentioned here that Mr. Azhar-ul-Amin, learned counsel for the Commission, has made a statement before the Court that if the papers are sent to the Commission in accordance with the rules having bearing on the matter fulfilling all requirements, it would not take the Commission more than two months to complete the process of regularizations. Whether the concerned functionaries in the department are really willing to do so is a million dollar question. The track record of the department shows that the functionaries think that they are impregnable. However, they must know that the Court is a custodian of fundamental rights guaranteed to the citizens, and is not powerless to seek strict compliance of statutory rules governing the field.
19. Now, coming to the second grievance of the petitioners, the stand taken by the official respondents has already been noted above. Apart from that reference has also been made by Mr. Z. A. Shah, learned Senior Advocate, appearing for respondent no. 6, referred to Article 85 of the Jammu and Kashmir Civil Service Regulations to canvass that the same provides for appointing a government servant to be Incharge of a higher post. The Jammu and Kashmir Civil Service Regulations does not contain enabling provisions relating to recruitments, promotions, official duties or discipline or the like. These Regulations only define the conditions and circumstances in which the salaries, leave, pension etc. can be earned. Article 1-A of the Regulations makes it manifest in the following terms:
1-A. (a) These Regulations are intended to define the conditions under which Salaries, Leave, Pension, Traveling or other Allowances are earned by service in the Civil Departments and in what manner they are calculated. They do not deal otherwise than indirectly and incidentally with matters relating to recruitment, promotion, official duties, discipline or the like. Therefore, reference to and reliance on Article 85 of the CSRs, in context of the controversy involved herein is irrelevant and inconsequential.
20. Mr. Haqani, learned counsel for the petitioners submitted that since the respondents 4 to 8 ranked junior to the petitioners in the rank of Assistant Engineers and Assistant Executive Engineers, they could not have been shown senior to them in the rank of Executive Engineers. He further submitted that even if the respondents were promoted on roster points, they would still figure junior to the petitioners in terms of the Reservation Rules and the catch up rule. He further submitted that consequently, these respondents could not be placed as Incharge Superintending Engineers over the head of petitioners, muchless without considering the superior claims of the petitioners. On the other hand, placing reliance on Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (CCA Rules), it was argued that seniority has to be determined from the date of first appointment to service class, category or grade with reference to which the question has arisen. It was further submitted that a member of service who gets promoted as a Reserve Category candidate is entitled to consequential seniority from the date of such promotion.
21. It may be observed here that the issues raised by the learned counsel have already been set at rest by the decision of the Division Bench of this Court in two clubbed Letters Patent Appeals, LPA nos. 212/2007 & 217/2007, lead case being State of J&K v Abdul Rashid, decided on 26.12.2012, referred to and quoted hereinabove. In that case it has clearly been laid down that in terms of Rules of 1956 the inter se seniority of the members of the service is to be determined only when they are appointed by promotion to the posts in accordance with rules and only when they become permanent members of a class or category of service. Therefore, reliance on Rule 24 of the CCA Rules is immaterial, since neither the petitioners nor the private respondents herein have become members of the class or category of the service with reference to which the dispute is sought to be racked. The catch up rule, too, would also come into play only when promotions are made on regular basis. Such rule would not be applicable to Incharge arrangements.
22. However, the argument of learned counsel for the respondents that persons promoted on roster points would be entitled to consequential seniority is not countenanced by Rules. In fact, the said issue also stands already decided by the Division Bench of this Court in the aforesaid judgment dated 26.12.2012, in which identical facts were involved. The relevant portion of the judgment is quoted hereunder:
The notification SRO 186/97 appears to have been issued in view of the law laid down by the Honble Supreme Court for fixation of seniority in the cases of accelerated promotion on roster point, and issuance of SRO 110 of 2000 appears to be a sequel to subsequent constitutional amendments which provided for giving seniority to those members of the services who are promoted on roster point as ST/SC category candidates. There was no requirement for issuance of notification SRO 186 of 97. The law laid down by the Honble S.C. in Ajit Singhs case would govern the field and is still governing the field in the State of J&K, as the subsequent constitutional amendments have not been made applicable to the State of J&K.
23. In paragraph 77 of the judgment in Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209, the Supreme Court held as under:
We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal (Union of India v. Virpal Singh, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813) and Ajit Singh (Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239) have been correctly decided and that Jagdish Lal (Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550) is not correctly decided. Points 1 and 2 are decided accordingly. Reference in this connection may also be made to the second proviso to Rule 31 of the Jammu and Kashmir Reservation Rules, 2005, which deals with fixation of inter se seniority between category candidates vis-`-vis general category candidates in appointment by promotion. It reads as under:
Provided also that the inter se seniority of the category candidates vis-`-vis general category candidates in appointment by promotion shall be determined by order of the select list as per rule 11 of these rules in accordance with the merit / seniority in the feeding cadre and Rule 24 (a) of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 where seniority is the basis for promotion. However, in respect of selection posts, the seniority on promotion shall be determined on the basis of the order of merit prepared by the Selection Authority. It may be worth while to mention here that another Coordinate Bench of this Court had also the occasion to deal with the issues in B. B. Sharma & others v. State and others, 2006 (2) JKJ 124 (HC), a case again concerning the Engineering Department. While noting the provision of Section 6 of the Reservation Act, 2004, the Court, in paragraph 11 of the judgment observed as under:
Admittedly, no reservation is permissible for the reserved categories of Scheduled Caste and Scheduled Tribes in so far as promotion to the post of Superintending Engineers is concerned. As per its own admission, the said respondents have specifically stated that the benefit of reservation is applicable only upto the post of Executive Engineers. Section 6 of the Reservation Act provides that except as otherwise provided in the Act, available vacancies to the extent as may be notified by the Government from time to time shall be reserved in any service, class, category or grade carrying a pay scale the maximum of which does not exceed the pay scale of the post of Deputy Secretary to Government. It is not known whether the parity that existed in the maximum of pay scales of Deputy Secretary to Government and Superintending Engineer continues to exist or it has been altered pursuant to the subsequent pay revision in 2009. If the parity continues, then the question of reservations for promotion to the post of Superintending Engineer would not arise.
24. Besides, while interpreting the above quoted second proviso to Rule 31 of the Reservation Rules, in B. B. Sharma & others v. State and others (supra), it was held that:
A careful reading of this rule clearly establishes that the State has not made any provision for consequential seniority in favour of the reserved category candidates. On the other hand the rule pertains to the contrary and provides for seniority as was operative in the feeding category where seniority is basis for promotions. Therefore, respondents No. 2 to 5 are not entitled to claim the seniority over and above the petitioners or for that matter other genial category officers in the cadre of Executive Engineer who were seniors to them as A.E.E. merely on account of their length of service as Incharge Executive Engineer. Catch-up rule will still operate and the petitioners and all such persons will be deemed to be senior to respondents No. 2 to 5 notwithstanding their promotion as Executive Engineer on a later date....
25. In view of the above, the contention raised on behalf of the respondents that reserved category candidates appointed on roster points would be entitled to consequential seniority by operation of Rule 24 of the CCA Rules is untenable.
26. To summarize, the law as it stands settled is that: (i) an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months [vide Mohd Amin Pandit v State of J&K (supra)]; (ii) when charge arrangement is made, it has to be for a short duration not exceeding six months and such an arrangement does not confer any right whatsoever on the officer holding the post on charge basis except entitling him to the charge allowance [vide order dated 01.08.2013 passed in LPA no. 142/2013, titled Fida Mohammad Farooqi v State of J&K (supra)]; (iii) In terms of Rules of 1956, the inter se seniority of the members of class of service is to be determined only when they are appointed by promotion to the posts in accordance with rules and only when they become permanent members of the class of service [vide judgment dated 26.12.2012 passed in LPA nos. 212/2007 & 217/2007, State of J&K v Abdul Rashid (supra)]; (iv) the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. [vide Ajit Singh (II) v. State of Punjab (supra)]; (v) the State has not made any provision for consequential seniority in favour of the reserved category candidates. [vide B. B. Sharma & others v. State and others (supra)]; (vi) no reservation is permissible for the reserved categories of Scheduled Caste and Scheduled Tribes in so far as promotion to the post of Superintending Engineers is concerned [vide B. B. Sharma & others v. State and others (supra)].
27. In view of the above position of law, could the respondents 4 to 8 be placed as Incharge Superintending Engineers, more so on the ground that being belonging to reserved categories, they are entitled to the consequential seniority in terms of Rule 24 of CCA Rules and, that too, without considering the petitioners, and under the garb of the powers under Rule 25 of the CCA Rules?
28. As already mentioned in this Courts order dated 03.12.2013, quoted hereinabove, Sub-rule (4) of Rule 25 of the CCA Rules provides that where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules, but such temporary promotion shall in no case exceed three months on each occasion.
29. The impugned order dated 29.11.2013 is totally non-speaking. It does not speak of any of the compelling or exigent reasons on which such arrangements could be ordered in terms of Rule 25(4) of the CCA Rules. However, in the reply affidavit, the respondents have disclosed certain reasons. In one of the sub-paras of paragraph 9 at page 4 of the reply, it is stated that in order to carry out various developmental projects / ongoing schemes the private respondents have been placed to carry out the functions of higher posts. Further there is precedence in the department for making ad hoc / stop gap arrangement purely in public interest to ensure that ongoing development works / scheme should not be adversely affected. It is curious to notice that public interest is shown not with respect to the instant impugned arrangements, but in regard to, and to justify, the precedence in the department for making ad hoc / stop gap arrangements. Then in paragraph 10 of the reply, it is stated that the fact of the matter is that the private respondents have been placed as Incharge Executive Engineers much before the petitioners. Keeping in view the working experience of private respondents, administrative exigencies and public interest in order to ensure time bound implementation of various developmental programmes / schemes, the private respondents have been placed Incharge of the higher posts purely on temporary basis. The truth doubtlessly seems to be that the impugned order has been issued in tune with the precedence of making ad hoc / stopgap arrangements in the department in which the official respondents, as rightly put by them, see public interest. Ordinarily, the term public connotes the members of a community as a whole, but the official respondents, given the magnitude of ad hoc Engineers working in different cadres even upto the level of Chief Engineer, seem to have reduced it to the alternate connotation, persons having inter se common interest.
30. For all what has been stated above, the impugned Government order no. 437-PW(R&B) of 2013 dated 29.11.2013 to the extent it relates to the private respondents herein is quashed. Respondents are left free to take necessary steps commensurate with the working exigencies in the department to make regular promotions in different cadres of the Service.
31. This also disposes of the connected CMP.
32. No order as to costs.
(Ali Mohammad Magrey) Judge Srinagar, 30.12.2013 Syed Ayaz, Secretary