Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Rather vs State Of J&K And Ors on 18 March, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR SRINAGAR SWP No. 1208 of 2008 Ghulam Mohammad Rather Petitioners State of J&K and ors Respondents !Mr Zaffar A. Shah, Advocate Mr. A. Hanan, Advocate ^M/s N. H. Shah, Advocate S.F Qadri, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 18/03/2011 :J U D G M E N T:
The petitioners, direct recruits have been appointed as Assistant Grading and Marketing Officers (AGMOs) from the year 2000 up to 2004 in the pay scale of 6700- 200-10900(unrevised) vide Government order Nos. 442-Agri of 2000 dated 17th Nov. 2000, 45-Agri of 2004 dated 12.02.2004, and 315-Agri of 2004 dated 31st of Dec. 2004.
The respondents issued seniority list of members of Gazetted Service dated 2nd of May 1997, which was circulated vide Government order No. 298-Agri of 1997. It is claimed that thereafter no seniority list has been issued and for this reason the petitioners could not find their place in the seniority list. It is stated that Jammu and Kashmir Horticulture (Planning and Marketing) Gazetted Service Recruitment Rules, 1981( for short Rules of 1981), were notified vide SRO 559 dated 12th Dec.1981. The entry level post in terms of Rules of 1981 is class III category D. The 60% of the posts at the said level are to be filled up by direct recruitment and 40% by promotion from amongst the officers belonging to J&K Horticulture (Planning and Marketing) Subordinate Service (for short subordinate services). Private respondents are members of the subordinate service. In terms of government order No. 247 of 1998 dated 29th May 1998, pending clearance by DPC/PSC, sanction was accorded to the adjustment of Marketing Inspectors as Assistant Grading and Marketing Officers in their own pay and grade with charge allowance for a period of six months or till their clearance by DPC/PSC whichever is earlier. The Government order also provided that adjustment of Sr. No. 5 to 15 is against the direct Quota posts and is subject to reversion without prior notice. In terms of Government order No. 272-Agri of 2004 dated 29th Oct. 2004, pending clearance by DPC/PSC, sanction was accorded to the placement of Assistant Director (Transport)/Assistant Grading and Marketing Officers as Area Marketing officers/Assistant Directors Horticulture (P&M) in their own pay and grade with charge allowance till the posts are filled up in terms of Rules of 1981. In terms of Govt order No. 93-Agri of 2008 dated 31st March 2008, pending clearance of PSC/DPC, sanction was accorded to the release of grade of Rs.6700-10900 in favour of in-charge AGMOs from the date the vacancy became available in favour of each officer. The order was issued in respect of 14 officers. Director Horticulture (P&M) vide memo dated 25th April 2008, stated that officers from sr. no.1 to 5 in the government order No. 93-Agri dated 31st of March 2008 were holding the post under promotion quota and the officers from sr. no. 6 to 14 were holding post meant for direct recruits. In terms of said government order these officers were given benefit of grade prospectively from 31st of March 2008 till vacancy position of each case was ascertained. In terms of Government order No. 187-DHPM of 2008 dated 22th July 2008, which order is impugned in this writ petition, Director Horticultures (P&M) Srinagar accorded sanction for release of grade 6700-10900 in favour of Assistant Grading and Marketing Officers from sr. (1) to (14) appearing in the aforementioned government order w.e.f 29th May 1998. The aforementioned grade was released in favour of serial no. 4 and 5 w.e.f 29.05.1998 on notional basis and w.e.f 15.06.1999 and 04.04.200 on regular basis. It was also provided that interse seniority of direct recruits and the promotees shall be determined separately as per J&K Civil Services (Classification Control and Appeal) Rules 1956 (for short Rules of 1956).
The petitioners are aggrieved of this order which is challenged interalia on the ground that as the private respondents were placed in-charge AGMOs against the posts reserved for direct recruitment, allowing the grade in their favour retrospectively will affect the seniority position of the petitioners as and when same is determined.
On notice issued in this case respondents have filed objections/reply affidavit. Heard ld counsel for parties. Considered the matter.
Mr. Z.A. Shah, ld Sr. Adv. after referring to the pleadings in the writ petition and documents annexed therewith in extenso, submitted that the private respondents were not entitled in law to be given the grade from retrospective date as they are holding the posts meant for direct recruits. Ld counsel submitted that the petitioners service rights would be affected by this act of respondents. Ld counsel submitted that the seniority is to be determined in terms of Rule 24 of J&K Civil Services (classification, control and appeal) Rules, 1956 (for short rules of 1956) and term promotion has reference to grade as well, thus by release of grade in favour of private respondents retrospectively, the service rights of petitioners are affected.
Ld counsel for respondents submitted that none of the legal or fundamental rights of petitioners have been violated by issuance of order impugned in this writ petition.
The private respondents who have been placed in-charge AGMOs against the quota reserved for direct recruitment and even, those, who have been placed in- charge AGMOs in their own quota, admittedly as on date have not become members of gazetted service in as much as their cases have not been considered by DPC/PSC. The official respondents are duty bound to work out and ascertain the quota position viz-a-viz direct recruits and promotees. After ascertaining the respective quota position, official respondents have to consider the private respondents for being appointed by promotion on the post of AGMOs on regular basis. The release of grade in favour of private respondents would neither make them members of gazetted service nor would confer any benefit on them to stake claim for fixation of seniority from the date the grade has been released in their favour. The seniority of private respondents is to be determined only after they become member of gazetted service in accordance with rules. As stated hereinabove, the private respondents are to be considered for their appointment by way of promotion to gazetted service against their own quota and when they will be promoted against their own quota they will be considered for fixation of their seniority accordingly.
The ld counsel for respondents candidly admitted the legal position that by mere release of grade in favour of private respondents they would neither become members of the gazetted service nor would be entitled to stake claim for fixation of seniority on the basis of release of grade. The official respondents have to fix seniority in accordance with the mandate contained in rule 24 of 1956.
Rule 24 is reproduced as under:-
24. Seniority:- (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be.
Rule 2(h) is reproduced as under:-
(h) promotion means the appointment of a member of service or class or a service, in any category or grade to a higher category or grade of such service or class. The private respondents are members of Subordinate service. They have been placed as in-charge AGMOs, post born on gazetted service. As the private respondents have not been considered by DPC/PSC for being appointed by way of promotion in accordance with rules on the posts of AGMOs for quite some time, and as they are discharging their duties and responsibilities as AGMOs, on the principle of fairness and in view of mandate contained in Art. 14,19 and 21 of constitution they are entitled to be paid grade attached to the post of AGMO. This grade is being paid for afore-stated reason and cannot be termed as grade promotion so as to affect the rights of petitioners.
In terms of Rule 2(h) of Rules of 1956, Promotion means appointment of a member of service or class of service in any category or grade to a higher category or grade of such service. The private respondents are members of subordinate service. The private respondents if appointed to higher grade in their service or class of service would in law be said to have been given grade promotion. Certain posts born on a service or class of service are carried on more than one grade. The appointment to higher grade in such circumstances will constitute promotion and it is in this context Rule 24 of Rules of 1956 provides for fixation of seniority.
In this case private respondents are not members of gazette service as on date. The release of grade of post of AGMO will not constitute promotion in law, so will not be entitled to claim, fixation of seniority in different service by such release of grade. Such a claim would be opposite to settled norms and canons of service jurisprudence.
An employee who holds charge of higher post can be appointed by way of promotion to said post from the date same becomes available in his quota and on which he has worked on in-charge basis. His seniority can be fixed accordingly.
For the above stated reasons, this petition is disposed of in the following manner;
The respondents will ascertain quota which is available for direct recruits and promotees; respondents thereafter will consider the claim of in-charge AGMOs for regularization of their service on posts of AGMOs in their own quota. The PSC/DPC would consider the case of such in-charge AGMOs for being appointed by way of promotion on the said post. As and when the appropriate government orders are passed for their appointment by way of promotion they would become members of the gazetted service and their seniority will be fixed accordingly against the posts in their own quota. The petitioners seniority will be determined in their own quota in terms of Rule 24 Rules of 1956. The release of grade in favour of private respondents would neither make them members of gazetted service nor will confer any benefit on them to claim seniority from that date. Except in the event they are appointed by way of promotion on the higher post in their own quota, from an earlier date, viz when post has become available and they were working on such post on in-charge basis, then seniority is to be fixed from such earlier date.
Disposed of.
(Muzaffar Hussain Attar) Judge Srinagar 18.03.2011