Jammu & Kashmir High Court - Srinagar Bench
Abdul Khaliq Dar . vs State Of J&K; And Others. on 1 February, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.1275/2017
Date of Judgment: 01.02.2018
Abdul Khaliq Dar v. State of J&K and others.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing Counsel:
For Petitioner(s) : Mr. I.Sofi, Advocate.
For Respondent(s) : Mr. M.A.Rathore, AAG
Mr. Hilal A. Lone, Advocate.
(i) Whether to be reported in Yes
Law Journals etc.
(ii) Whether approved for publication Yes/No
in Media/Press.
1. The petitioner seeks a writ of quo warranto against the respondent Nos. 4 to 6 working as Farm Managers in the respondent-department. As a sequel to the aforesaid relief the petitioner has also prayed for quashment of all orders of appointments of respondent Nos. 4 to 6 issued on 12.07.1991, 17.07.1991 and 22.07.1991 respectively. The placement of respondent Nos. 4 to 6 on the higher posts ordered vide different government orders issued from time to time is also subject matter of challenge in this petition.
2. Briefly stated, the facts, as projected by the petitioner in this petition, are that the petitioner was appointed as Sericulture Assistant in the year 1985 vide order No.Ads/As/85/23 dated 01.07.1985 issued by the then Advisor, Sericulture Department. He was later on placed as Incharge Deputy Director, Sericulture vide order No.06-Agri of 2008 dated 11.01.2008. It is, thus, claimed by the petitioner that being a Sericulture Assistant borne on the SWP No. 1275/2017 Page 1 of 8 Jammu & Kashmir Sericulture Subordinate Service is entitled to be promoted to the post of Deputy Director, Sericulture borne on the Jammu & Kashmir Sericulture Gazetted Service. The grievance of the petitioner, however, is with respect to the appointment of respondent Nos. 4 to 6 as Farm Managers in the Sericulture Development Department of the State as also against the contemplated move of the official respondents to promote them to the post of Deputy Director, Sericulture. It is submitted by the petitioner that respondent Nos. 4 to 6 were appointed as Farm Managers in the National Sericulture Project sanctioned by the Government of India in consultation with the State Government and the aforesaid project was to be implemented over a period of five years commencing from April, 1989. That being so, it is submitted by the petitioner, the respondent Nos. 4 to 6 were never appointed to the Jammu & Kashmir Agriculture Subordinate Service nor were they ever absorbed in the Sericulture Development Department by the competent authority by any formal order. On this analogy, it is stated that respondent Nos. 4 to 6 who were holding the post of Farm Managers in the National Sericulture Project never became the employees of the State Government nor was the post of Farm Manager ever encadred in the Jammu & Kashmir Sericulture Subordinate Service constituted vide Jammu & Kashmir Sericulture (Subordinate) Service Recruitment Rules, 1979. It is, thus, contended by the petitioner that respondent Nos. 4 to 6 cannot be treated to be employees of Sericulture department and therefore are not eligible/entitled to be promoted to the post of Deputy Director, Sericulture borne on the Jammu & Kashmir Sericulture Gazetted Service constituted vide SRO 108 of 1995 dated 20.04.1995.
3. On being put on notice, respondent Nos. 1 to 3 and respondent Nos. 4 to 6 have filed their separate affidavits. In addition to the objections filed by respondent Nos. 1 to 3, aforesaid respondents have also filed a compliance SWP No. 1275/2017 Page 2 of 8 report in terms of order dated 13.11.2017 by which this Court had directed the official respondents to furnish information with reference to the closure of National Sericulture Project and the status of employees/posts which were created under this project after its closure.
4. I have heard learned counsel for the parties and perused the record.
5. Admittedly, the petitioner was appointed as Sericulture Assistant in the year 1985 and has, therefore, acquired eligibility to be promoted as Deputy Director and equivalent in terms of Jammu & Kashmir Sericulture (Gazetted) Service Recruitment Rules, 1995, wherein 30% posts of Deputy Director/Manager Seed etc. are required to be filled up from amongst the Sericulture Assistants/Demonstrators provided they are science graduate with five years experience or other graduates with seven years experience in their class.
6. Similarly, the post of Farm Manager also falls in the feeding category for promotion to the post of Deputy Director, Sericulture. In view of the rival submissions made by the learned counsel appearing for the parties, the only question that falls for determination in this petition is as under:-
"Whether respondent Nos. 4 to 6 who were initially appointed as Farm Managers in the National Sericulture Project have become the permanent employees of the Sericulture Department and are, therefore, eligible to be promoted to the post of Deputy Director in terms of the Jammu & Kashmir Sericulture (Gazetted) Service Recruitment Rules, 1995."
7. If answer to the aforesaid question is in the affirmative then the petitioner has no case as in that eventuality both, the petitioner who is Sericulture Assistant and respondent Nos. 4 to 6 who are Farm Managers, SWP No. 1275/2017 Page 3 of 8 would be eligible and entitled to be promoted to the post of Deputy Director under the Rules of 1995.
8. It is the argument of the learned counsel for the petitioner that though respondent Nos. 4 and 6 were appointed as Farm Managers by the Department of Sericulture pursuant to the recommendation of the Jammu & Kashmir State Subordinate Service Recruitment Board, yet their appointment was against the posts available in the centrally sponsored project, i.e., National Sericulture Project and their services were co-terminus with the life of the project. Learned counsel for the petitioner further elaborates that though after the closure of the project the service of respondent Nos. 4 to 6 were utilized in the Sericulture Department but there was no formal order issued by the competent authority with regard to their regular absorption. He, therefore, submits that continuation of respondent Nos. 4 to 6 as Farm Managers in the Sericulture Department was without any orders from the competent authority and therefore, respondent Nos. 4 to 6 cannot be treated to be part of or borne on the Jammu & Kashmir Sericulture (Subordinate) Service. Learned counsel for the petitioner has also referred to the Jammu & Kashmir Sericulture (Subordinate) Services Recruitment Rules, 1979 to demonstrate that the post of Farm Manager does not exist in the Rules.
9. Per contra, the submission of learned counsel appearing for the respondents is that it is true that the post of Farm Manager was initially created for running the National Sericulture Project which was finalized for the country as a whole by the Government of India in consultation with the concerned State authorities/World Bank. The project was to be implemented over a period of five years commencing from April, 1989. So far as Farm Manager is concerned, 10 posts were immediately created and five were to be created in future as is evident from Government Order No.328/Ind of SWP No. 1275/2017 Page 4 of 8 1989 dated 26.10.1989. It is stated that respondent Nos. 4 to 6 were appointed to the project but their appointment was pursuant to the recommendation made by the Jammu & Kashmir State Subordinate Recruitment Board which made such recommendations after holding proper selection process. Strong reliance was placed by the learned counsel for the respondents on Government Order No.256-Agri of 2006 dated 28.09.2006 wherein amongst others 208 posts sanctioned for National Sericulture Project were retained whereas 99 posts were abolished. Amongst the posts retained, 10 posts of Farm Manager figure at serial No.14 of the aforesaid order. It is contended by the learned counsel for the official respondents that the Government Order dated 28.09.2006 was issued for retention of staff partially in the Sericulture Development Department. He, therefore, submits that in terms of order dated 28.09.2006, respondent Nos. 4 to 6 who had been working as Farm Managers in the National Sericulture Project for the last 15 years were permanently transferred along with the post to Sericulture Development Department. This argument of learned counsel for the official respondents is, however, refuted by the learned counsel for the petitioner, who submits that only 208 posts which include 10 posts of Farm Manager were retained in the Sericulture Development Department but the incumbents were not transferred along with the aforesaid posts. He, therefore, submits that the Government Order dated 28.09.2006 cannot be construed to be an order of regular absorption of respondent Nos. 4 to 6.
10. From the sequence of events starting from sanctioning of National Sericulture Project and the appointment of respondent Nos. 4 to 6 against the sanctioned post of Farm Managers, that too, pursuant to the selection conducted by the Jammu & Kashmir State Subordinate Services Recruitment Board leading up to the issuance of Government Order dated 28.09.2006, it is abundantly clear that respondent Nos.4 to 6 who were serving as Farm SWP No. 1275/2017 Page 5 of 8 Managers in the erstwhile National Sericulture Project were actually transferred permanently alongwith the post to the Sericulture Development Department and therefore, with effect from 28.09.2006 respondent Nos. 4 to 6 became member of Sericulture Subordinate Service, though the post of Farm Managers were not formally encadred in the statutory Rules. As is evident from Government Order No.328/Ind of 1989 dated 26.10.1989, the project was sanctioned only for a period of five years and therefore, ordinarily the services of the incumbents who had been appointed to the project were co-terminus with the life of the project but this Court cannot lose sight of the fact that even after closure of the fact that respondent Nos. 4 to 6 were retained in the department and their services were utilized. They were given promotion as Incharge Deputy Directors and were posted at different positions from time to time and finally in the year 2006 vide order No.256-Agri of 2006 dated 28.09.2006 they were formally made part of the Sericulture Development Department. If we read the aforesaid order carefully in conjunction with the subject indicated in the said government order, this was an order issued by the Government to retain different posts including 10 posts of Farm Manager along with incumbents in the Sericulture Development Department. In this view of the matter and for the reasons stated above, the answer to the question posed above has to be in the affirmative.
11. That being the position, the argument of the learned counsel for the petitioner that since the post of Farm Manager does not exist in the Jammu & Kashmir Sericulture (Subordinate) Service Recruitment Rules, as such, the Farm Managers cannot be promoted to the post of Deputy Directors under the Rules of 1995 now needs to be examined. For facility of reference, the relevant Rule providing for qualification and method of recruitment to the post of Deputy Director is reproduced hereunder:-
SWP No. 1275/2017 Page 6 of 8S.No. Cate- Designation Grade Minimum Method of Recruitment gory qualification for direct recruitment VII A Dy. Director/ 2000-1. B.Tech. Silk Tech. 50% by direct recruitment &; 50% Manager Seed/ 3400 or by promotion/ Selection from the Research Officer/ 2. B.Sc. with Post J&K Sericulture (Subordinate) Principal S.T.I./ Graduate Diploma Service in the manner indicated Project Officer from C.S.B, or against each:-
(Bani). 3. M.Sc. Botany/
Zoology
a)Lecturers/ 60% provided they
Farm are graduated with
Managers/ JSC having atleast 5
Tassar/Project years experience in
Officers/Mark-that class.
et Supervisors
(2000-3200)
4. b) Instructors 10% provided the
(1760-3200) incumbent is B.Sc.
with PGD in
Sericulture having 5
years experience in
particular class.
5. c) Sericulture 30% provided the
Asstt;/Demons incumbents are
trators. Science Graduate
(1400-2600) with 5 years
experience or other
graduates with 7
years experience in
the particular class.
12. A bare perusal of the extracted Rule would indicate that the post of Farm Manager is in the feeding category for promotion to the post of Deputy Director and therefore, once it is held that respondent Nos.4 to 6 are holding the post of Farm Manager substantively in the Sericulture Development Department, they cannot be denied consideration for promotion to the post of Deputy Director. This is notwithstanding the fact that the post of Farm Manager is yet not encadred in the Sericulture Subordinate Service constituted vide SRO 347 dated 27.06.1979.SWP No. 1275/2017 Page 7 of 8
13. In view of the observations made herein above and the answer given to the question formulated, it would not be necessary for this Court to adjudicate upon the argument raised by the learned counsel for the State-
respondents that writ of quo warranto at the instance of petitioner who is having competing claim would not be maintainable. The learned counsel for the petitioner relied upon several judgments of the Apex Court to demonstrate that in a case of writ of quo warranto, the standards of locus standi are relaxed. Be that as it may, since this Court has not found any case on merits, as such, there would be no necessity to adjudicate upon the preliminary issue raised by the learned counsel for the State-respondents.
14. For all these reasons, I find no merit in this writ petition and the same is, therefore, dismissed.
(Sanjeev Kumar) Judge Srinagar 01/02/2018 Vinod.
SWP No. 1275/2017 Page 8 of 8