Jammu & Kashmir High Court
Mushtaq Ahmad Bhat & Ors vs State Of on 31 January, 2010
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPA (SW) No. 97 OF 2010 Mushtaq Ahmad Bhat & Ors. Petitioners Pawan Kumar Abrol & Ors. Respondent !Mr. R.A.Jan, Advocate ^M/s S.S.Lehar, Sr. Advocate & Ajay Sharma, Advocate with Mr. Meharban Singh, Advocate and Mr. Gagan Basotra, AAG Mr. Justice J.P.Singh, Judge. Mr. Justice Hasnain Massodi, Judge Date: 31.01.2010 :J U D G M E N T :
J. P. Singh-J :
The Government of Jammu and Kashmir, in the Home Department, accorded sanction to the placement of nine Scientific Assistants as Scientific Officers, in their own pay and grade, purely on a stop gap arrangement subject to confirmation by the DPC/PSC for a period of six months or till the posts were filled up under rules whichever happened earlier, vide Government Order No.28 (P) Home of 2007 dated 24.01.2007. The appellants figured at Serial Nos. 6, 8 and 9 of the list of such Scientific Assistants, who were placed as Scientific Officers.2
Pawan Kumar Abrol, respondent No.1, felt aggrieved by the Government Order and questioned it by his Writ Petition SWP No.1974/2007 seeking its quashing besides a Command to the State-respondents to finalize the Seniority List of Scientific Assistants (re-designated as Assistant Scientific Officers) of the Jammu and Kashmir Forensic Science Laboratory and fill up the posts of Scientific Officers on substantive basis allowing him consideration therefor.
Allowing the Writ Petition, a learned Single Judge of this Court, quashed the Government Order, issuing directions to the State Government to finalize the seniority of the Assistant Scientific Officers considering the provisions of Rule 24 (b) of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, besides providing that the arrangement devised by Government Order No.28 (P) Home of 2007 dated 24.01.2007 would cease to operate after three months.
Respondent No.1 had impleaded only two Scientific Assistants as party respondents to his Writ Petition, besides the State of Jammu and Kashmir and the functionaries of the Police Department of the State 3 Government. The appellants were not impleaded as party respondents.
Aggrieved by the directions issued on respondent No.1s Writ Petition, the appellants have, after obtaining permission, filed this Letters Patent Appeal seeking setting aside of the Judgment and Order of the Writ Court. Appearing for the appellants, Mr. Jan submitted that the appellants, being necessary parties, respondent No.1s Writ Petition could not be determined in their absence and Judgment of the Writ Court, delivered in their absence, was thus unsustainable, additionally because, it had issued a Futile Writ because the Final Seniority List of the Assistant Scientific Officers stood already issued by the Competent Authority, before the delivery of the Judgment.
Learned counsel for respondent No.1 M/s Lehar and Sharma, on the other hand, submitted that the Judgment of the Writ Court having already been affirmed, with some modification by this Court in LPASW No.98/2010, modifying the Order passed by the learned Single Judge, the appellants Appeal may not be maintainable. They submitted that even otherwise, there was no scope for any interference in the judgment impugned in the Appeal as 4 the appellants cannot claim perpetuation of the adhoc arrangement devised vide Government Order dated 24.01.2007, ignoring the claim of other eligible Assistant Scientific Officers, like respondent No.1, to seek consideration for appointment/promotion as Scientific Officers on substantive basis. Learned counsel referred to the provisions of Rule 25 (4) of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956 to buttress their submission.
Learned counsel appearing for the State submitted that in view of the finalization of the Seniority List, the State was in the process of taking requisite steps to fill up the posts of Scientific Officers on promotion considering all eligibles therefor.
Responding to the submissions of the respondents learned counsel, the appellants learned counsel submitted that there being no bar under rules for continuance of the adhoc arrangement, against promotional posts, the appellants placement as Scientific Officers until promotion on substantive basis, cannot be faulted.
We have heard learned counsel for the parties and perused the Judgment delivered by the Division Bench in 5 LPASW No. 98/2010, preferred against the same Judgment, which is impugned in this Letters Patent Appeal.
It was not disputed by the learned counsel for the parties at the time of consideration of the Appeal that the Final Seniority List of Assistant Scientific Officers was issued in April 2010.
After having considered the matter, we do not find any merit in the appellants learned counsels submission, that there was no time limit prescribed under rules for continuance of the adhoc arrangement, devised vide Government Order No.28 (P) Home of 2007 dated 24.01.2007 because the argument appears to have been made oblivious of the provisions of Rule 25 (4) of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, which do not permit temporary promotion(s) or for that matter even temporary adjustment/s against promotional posts beyond a period of three months on each occasion and that too when owing to an emergency which could not be foreseen, it was necessary in the public interest to make temporary promotions. His submission is, therefore, rejected.
6Before considering the appellants learned counsels first submission that the appellants were necessary parties to respondent No.1s Writ Petition and the Judgment delivered on it without hearing them, was unsustainable, regard needs to be had to what was held by this Court while dealing with the Judgment of the learned Single Judge in LPASW No.98/2010. The observations and directions made by the Court in this respect are reproduced hereunder for reference:
After going through the judgment and the law laid down by Honble Supreme Court of India in Suraj Parkash Gupta vs. State of Jammu & Kashmir and others, reported as (2000) 7 SCC, 561 in the light of the provisions of rule 25(4) of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, which do not permit filling up of vacancy by promotion from a lower category beyond a period of three months on each occasion, we find that the view taken by the learned Single Judge in quashing the arrangement devised by order dated 24.01.2007, which had continued beyond the prescribed time without any legal authorization therefor, is in line with the spirit of the law laid down by Honble Supreme Court of India in Suraj Parkash Guptas case supra, not to perpetuate adhocism in service.
The direction of the learned Single Judges that the arrangement devised by order No. 28 (P) Home of 2007 dated 24.01.2007 would cease to operate after three months, appears to have been so issued keeping the interests of administration in view, so that the working of the Directorate of Forensic Science Laboratory was not affected during the period allowed to the State Government to 7 fill up the available vacancies of Scientific Officers by promotion on substantive basis. There is, thus, no scope for interference with the view taken by the learned Single Judge.
Although in terms of the judgment, the appellants may continue for a period of three months from the date of the judgment, yet considering the appellants counsels submission and the learned State counsels response thereto, we consider it appropriate to provide that the State-respondents would complete the process of filling up the promotional posts of Scientific Officers before November 03, 2010 and the arrangement devised by Government No. 28 (P) Home of 2007 dated 24.01.2007 shall not continue beyond November 03, 2010 even if the promotional posts of Scientific Officers were not filled up on substantive basis, for one or the other reason.
This Appeal is, accordingly, disposed of as indicated above. Having no right to continue on the adhoc arrangement beyond a period of three months in terms of Rule 25 (4) of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956 and the law laid-down in Suraj Parkash Gupta versus State of Jammu and Kashmir and others, reported as (2000) 7 SCC, 561, we do not find any sustainable reason justifying interference with the Order passed by the Learned Single Judge notwithstanding the fact that the appellants were not parties to respondent No.1s Writ Petition, for in view of the finalization of the Seniority List of Assistant 8 Scientific Officers, and the learned State counsels statement that the State Government was in the process of making substantive promotions against the posts of Scientific Officers considering all eligibles therefor including the parties to the Appeal, the appellants Appeal may not warrant consideration additionally because the appellants continuance on adhoc basis any more would be impermissible in view of the provisions of Rule 25 (4) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, and the directions already issued in LPASW No.98/2010, which take care of their right of consideration to substantive promotions as Scientific Officers as well.
We, therefore, do not find any merit in the appellants Appeal warranting issuance of any further directions in addition to those already issued while disposing of LPASW No.98/2010, modifying the directions of the learned Single Judge.
This Appeal is, therefore, disposed of, accordingly. (Hasnain Massodi) (J. P. Singh) Judge Judge JAMMU:
31.01.2011 Pawan Chopra