Jammu & Kashmir High Court
Ashok Kumar Gandotra & Ors. vs J&K; Board Of School Education & Ors. on 1 November, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Dated:01.11.2017
SWP No.1741/2013
Ashok Kumar Gandotra & ors. versus J&K Board of School Education & ors.
Coram:
Hon'ble Mr. Justice Tashi Rabstan, Judge.
Appearing counsel
For petitioner(s) : Mr. Abhinav Sharma, Advocate.
For respondent(s) : Mr. B.S. Bali, Advocate.
Mr. Rakesh Sharma, Advocate, for private respondents i. Whether to be reported in Press/Media : Yes/No ii. Whether to be reported in Digest/Journal : Yes/No
1. Through the medium of present writ petition, the petitioners are seeking quashing of Order No.398-B of 2013 dated 23.07.2013 issued by J&K State Board of School Education to the extent it pertains to regularization and promotion of respondents 3 to 28 as Assistant Secretaries with retrospective effect. Petitioners are also seeking a direction to the official respondents to regularize and promote them as Assistant Secretaries with effect from the date they were designated as such or when the grade of the post was released in their favour.
2. The facts as projected in the writ petition are that the petitioners herein, except No.5, were initially appointed as Junior Assistants in the J&K Board of School Education and, thereafter, from time to time came to be promoted as Senior Assistants, Head Assistants and then Section Officers on the basis of seniority alone. It is averred that Vide Order No.252-B of 2001 dated 26.04.2001 sanction was accorded to the adoption of Higher Standard Pay Scale Scheme for the Ministerial Staff of the Board from Class-IV upto the level of SWP No.1741/2013 Page 1 of 8 Section Officer. Further, it is averred that as per the said Scheme a Section Officer after completing 09 years of satisfactory service is entitled for the Higher Standard Pay Scale, which period was relaxed by two years vide Order No.503-B of 2008 dated 18.07.2008. It is averred that, accordingly, petitioners, except petitioners 7 & 8, vide different orders were placed in the Higher Standard Pay Scale from the date they completed seven years of satisfactory service as Section Officer and were designated as Incharge Assistant Secretaries, however, their placement was required to be confirmed/regularized by the Departmental Promotion Committee.
3. It is averred that as per seniority list of Assistant Secretaries and Section Officers, petitioner No.1 is senior to all private respondents, petitioners 2, 3 & 4 are senior to private respondents 19 to 28, petitioner No.5 is senior to respondents 23 to 28, petitioner No.6 is senior to respondents 24 to 28, whereas petitioners 7 & 8 are senior to respondents 26 to 28.
4. Further, it is averred that although the J&K State Board of School Education has not framed any regulation either under Section 18 or Section 33 of the State Board Act, 1975 governing the terms and conditions of recruitment and service regulations of the employees of the Board, it had been issuing various orders from time to time changing and altering the conditions of recruitment/service regulations at its whims and caprice to accommodate either a particular individual or a particular class and the latest one was Order No.12-B of 1994 dated 07.01.1994, which was based upon Board Resolutions No.12 & 13 dated 16.09.1993, providing graduation as minimum qualification for the post of Assistant Secretary, and the mode of filling the said post was 100% by selection from the posts of Section Officers/P.As, who have put in a minimum of seven years of service and also on the basis of consistently good service record, experience, merit and suitability to be determined from record and personal interview. Further, it is averred that the Board in its another meeting SWP No.1741/2013 Page 2 of 8 held on 30.09.2005 had resolved that no relaxation in norms for appointment of Assistant Secretaries/Deputy Secretaries/Joint Secretaries in the Board should be adopted, but at the same time resolved that while making promotion to the post of Assistant Secretaries, norms could be relaxed on case to case basis depending upon hard-work, dedication and efficiency for the upliftment of the morale of the officers of the Board. It is averred that taking advantage of Board resolution dated 30.09.2005, respondent No.1 issued Order No.398-B of 2013 dated 23.07.2013, impugned herein, whereby private respondents came to be promoted and their services came to be regularized as Assistant Secretaries from the date of promotion as Incharge Assistant Secretary/availability of post. Hence, the present writ petition.
5. Objections have been filed on behalf of the Board claiming that the Board has framed rules/norms governing the appointment and promotion of officers and ministerial staff. It is averred that the petitioners have no right to claim regularization against the post-in-question which was purely based on selection and that the criteria adopted by the DPC for promotion to the post of Assistant Secretaries is absolutely valid and legal. Further, it is averred that in view of low APR ratings of petitioners, they could not be recommended by the selection committee for the post-in-question.
6. Heard learned counsel appearing for the parties, considered the rival contentions and perused the writ file.
7. Notice in this petition was issued on 22.08.2013 and the petitioner filed registered covers for service of respondents on 24.10.2013. Respondents 8, 11, 13, 18, 19, 20 and 28 appeared in person before the Registry but did not choose to file objections. Registered notice issued to respondents 24 & 25 were duly served upon them, but they neither appeared in person nor chose to file objections. Notice issued to respondent No.6 had been received back with the report of postal authority that the addressee has retired. Notice issued to rest of SWP No.1741/2013 Page 3 of 8 the private respondents had not been received back either served or un-served, therefore, their service is presumed; however, they too neither appeared before the Court nor chose to file objections.
8. This petition came to be admitted on 22.12.2015 when Mr. Rakesh Sharma, Advocate, waived notice on behalf of respondents 4, 9, 14, 21, 26 and
26.
9. Lastly, this matter was listed on 31.08.2017, when Mr. Rakesh Sharma, Advocate, also waived post admission notice on behalf of private respondent Nos. 3, 5 to 8, 10 to 13, 15 to 20, 22 to 25 and 28. He further stated that the counter filed on behalf of official respondents be also read as counter on behalf of private respondents too. Otherwise too, it is the official respondents who have to justify the legal validity of order impugned and also whether the DPC was competent enough to adopt its own criteria rather than the one fixed by the competent authority.
10. Since, Mr. Abhinav Sharma, learned counsel for petitioners stated before the Court on 31.08.2017 that he does not want to file rejoinder, therefore, with the consensus of learned counsel for the parties, the matter was finally heard and reserved.
11. The petitioners have specifically pleaded and claimed in the writ petition that they were senior to private respondents; therefore, they were required to be promoted to the post of Assistant Secretary from the date they completed seven years of satisfactory service as Section Officers and were designated as Incharge Assistant Secretaries. Neither in the objections nor during arguments, the Board has ever disputed this position; rather, in paragraph-12 of objections the Board has specifically admitted that petitioner No.1 was senior to private respondents and further did not deny the claim of rest of the petitioners too; meaning thereby SWP No.1741/2013 Page 4 of 8 the Board has itself admitted the claim of petitioners being senior to some of the private respondents as projected in the writ petition.
12. Now the question arises for consideration is: as to whether the private respondents have rightly been promoted against the post of Assistant Secretary over and above the petitioners herein in breach of seniority list of Assistant Secretaries and Section Officers.
13. Before proceeding further, it would be appropriate to reproduce hereunder the relevant portion of Order No.12-B of 1994 dated 07.01.1994 based on Resolution Nos. 12 & 13 dated 16.07.1993 regarding qualification and mode of promotion to the posts of Assistant Secretaries in the Board:
"b) Qualification : Graduate
c) Mode : 100% by selection from the posts of Section Officers/P.A's who have put in a minimum of seven (7) years of service and such selection will be made by the Departmental Promotion Committee on the basis of consistently good service record, experience, merit and suitability to be determined from record and personal interview"
14. The afore-quoted relevant portion of order, based on Resolution Nos. 12 & 13, clearly reveals that the posts of Assistant Secretaries were to be filled up by selection from the posts of Section Officers/P.A's who have put in a minimum of seven (7) years of service and such selection was to be made by the Departmental Promotion Committee on the basis of consistently good service record, experience, merit and suitability to be determined from record and personal interview; meaning thereby the posts-in-question, amongst other conditions, were to be filled on the basis of consistently good service record and personal interview.
SWP No.1741/2013 Page 5 of 815. Further, it would be appropriate to reproduce hereunder the relevant portion of paragraph-17 of para-wise reply filed by the Board:
"....... It is submitted that since the authorities found it difficult to grade the employees for the purposes of APRs in the absence of a set procedure, the selection committee in its wisdom adopted the criteria of grading the employees taking into consideration that the selection committee, which comprise number of IAS officers, in its wisdom adopted a criteria which would choose the best for the post which would help select best for the post. The norms prescribed that the selection will be made by the DPC on the basis of consistently good service record, among others, for purpose of determining consistency, it would found proper that a block period be taken and the employee accordingly graded for purposes of writing the APRs. Not only this, five fundamentals (1) availability of the post (2) eligibility of the candidate (3) APRs (at least three very good out of five) (4) integrity (5) vigilance clearance. It is only such candidates who came within the zone of aforementioned consideration laid down by the DPC and were cleared and recommended for promotion and selection."
16. Thus, a perusal of the objections filed by the Board itself reveals that while filling up the posts-in-question, the Departmental Promotion Committee did not take into consideration the consistently good service record of candidates nor they had taken their personal interviews in terms of Order No.12-B of 1994 dated 07.01.1994, based on Resolution Nos. 12 & 13 dated 16.07.1993, as admitted by the Board in paragraph-e (reply to grounds) of objections, rather the Departmental Promotion Committee had changed the criteria on its own so as to favour the private respondents, which is nothing but an arbitrary exercise of powers and against the very spirit of Articles 14 & 16 of the Constitution of India; more particularly when the Board has itself admitted in paragraph-h (reply to grounds) of objections that the APRs of petitioners were not considered to be adverse. The Departmental Promotion Committee had no power/jurisdiction to change the criteria which was the prerogative of competent authority; the DPC was bound to follow the criteria fixed by the competent authority and not to adopt its own criteria.
SWP No.1741/2013 Page 6 of 817. Further, it is not the case of Board that any vigilance inquiry was pending against all the petitioners or any one of them nor have they disputed the merit or suitability/integrity/efficiency of petitioners in any manner for the post-in- question.
18. Further, the order impugned also revealed that even some of the candidates came to be promoted to the post of Assistant Secretaries in relaxation of qualification. However, it is hard to understand that how such candidates could be said to be having more merit, eligibility and better edge than the petitioners herein in absence of any explanation on the part of Board, either in the objections or during the course of arguments. Therefore, resolution dated 30.09.2005 regarding relaxation of norms for according promotion to the post of Assistant Secretary on case to case basis is nothing but an intentional loophole and colourable exercise of power for favouring non-deserving candidates by the Board as well as by the authorities sitting at the helm of affairs; more particularly when in the said resolution itself it had been specifically resolved that no relaxation in norms for appointment of Assistant Secretaries in the Board should be adopted. On this score too, the order impugned is in direct violation of Article 14 of the Constitution of India, hence needs to be quashed.
19. Further, as claimed by the petitioners that no regulation governing the terms and conditions of recruitment and service of the employees of the Board either under Section 18 or under Section 33 of the J&K State Board of School Education Act, 1975 has been framed by the Board, the Board in the objections has made an evasive reply. Therefore, in absence of such regulations for such a long period governing the terms and conditions of recruitment and service of the employees of the Board, the promotion of private respondents to the post of Assistant Secretary cannot be held to be legally valid, the same appears to be bad and requires to be quashed.
SWP No.1741/2013 Page 7 of 820. Therefore, in view of what has been discussed above, the writ petition merits to be allowed. Accordingly, the same is allowed and Order No.398-B of 2013 dated 23.07.2013 issued by the J&K State Board of School Education to the extent it pertains to regularization and promotion of respondents 3 to 28 as Assistant Secretaries with retrospective effect is hereby quashed with immediate effect. Respondents 1 & 2 herein are directed to consider the petitioners herein for their promotion to the post of Assistant Secretary from the date they completed seven years of satisfactory service as Section Officers and were designated as Incharge Assistant Secretaries, of course strictly in terms of the seniority lists of Assistant Secretaries and Section Officers. Respondents 1 & 2 to also consider promotion of private respondents to the post of Assistant Secretary subject to the availability of posts and strictly as per their position in the seniority lists of Assistant Secretaries and Section Officers. Connected miscellaneous petition(s), accordingly, stands disposed of.
Jammu (Tashi Rabstan)
Dated:01.11.2017 Judge
(AnilSanhotra)
SWP No.1741/2013 Page 8 of 8