Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ashraf Mir vs State Of J&K & Ors on 27 April, 2012
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No. 905 of 2005
Mohammad Ashraf Mir
Petitioners
State of J&K & ors
Respondents
!Mr. R. A. Jan,Advocate
^Mr. Noor-ul-Amin,Advocate
Honble Mr. Justice Mohammad Yaqoob Mir,Judge
Date:27/04/2012
: J U D G M E N T :
1. Essentially order No.KVIB/315 of 2005 dated 9th of August, 2005, issued by respondent No.4, where-under petitioner has been reverted to the post of Senior Supervisor and posted at Kupwara and order No.KVIB/222 of 2007 dated 27th of June, 2007, where-under period of absence of the petitioner with effect from 23.08.2005 to 07.09.2006 has been treated as dies-non, are under challenge.
2. For appreciating the matter, precise factual matrix is required to be noticed:
(I) Petitioner admittedly was appointed in the year 1983 as against the available post of Junior Supervisor on substantive basis in the respondent department, thereafter has been promoted on 12.5.1989 as Senior Supervisor.
Then vide order dated 27.04.2005, on the recommendations of Departmental Promotion Committee (DPC), has been promoted as Junior Zonal Organizer in the pay scale of 5000-8000 with effect from 2nd March, 2005. On such promotion has been posted at District Office, Leh to function as Incharge District Officer and accordingly joined at Leh. He applied for 15 days earned leave with effect from 08.08.2005 which has been sanctioned by the Competent Authority vide order No.KVIB/KD/46 dated 30.08.2005, where-under he had also been permitted to leave the station.
(II) Vide order No.KVIB/315 of 2005 dated 09.08.2005, issued by respondent No.4 (Secretary/CEO, J&K Khadi & Village Industries Board), petitioner has been reverted to the post of Senior Supervisor and posted at Kupwara whereas respondent No.5 (Abdul Majid Khan) has been promoted as Zonal Organizer against the said vacancy and posted at Leh. (III) Petitioner was availing earned leave of 15 days with effect from 08.08.2005, he had applied for extension of his earned leave which has been rejected but in the meantime on 12.9.2005, he filed the instant writ petition challenging the order of his reversion and promotion of respondent No.5. In terms of order dated 14.9.2005 passed by this Court, impugned reversion order was stayed, if not already implemented.
(IV) During the pendency of writ petition, another order dated 27.6.2007 has been passed by the respondent No.4, where- under period of absence from 23.08.2005 to 07.09.2006 has been treated as dies-non.
(V) Petitioner moved IA No.1923/2007 seeking leave to challenge the order dated 27.6.2007, which was allowed, resultantly petitioner filed the amended writ petition challenging both the orders i.e. order dated 09.08.2005 and 27.6.2007.
3. On careful perusal of the respective pleadings and the records as produced, formulation of following two important questions for determination has become imperative:-
(a) Whether order No.KVIB/315 of 2005 dated 09.08.2005 has been issued by the competent authority and as to whether same, otherwise, has been passed in accordance with law?
(b) Whether the period of so-called absence from 23.08.2005 to 07.09.2006 can be treated as dies- non, that too, by respondent No.4?
4. Question No.(a) Whether order No.KVIB/315 of 2005 dated 09.08.2005 has been issued by the competent authority and as to whether same, otherwise, has been passed in accordance with law?
Admitted position is that promotion to the post of Junior Zonal Organizer has to be made from amongst the Class VI of Executive Cadre (Field Staff Wing) with five years experience as such, as is envisaged in Schedule IV of the Jammu & Kashmir Khadi & Village Industries Board Staff Regulations, 1998. Regulation No.6 of the said Regulations reads as under:-
Qualification and Method of recruitment
(i) No person shall be eligible for appointment or promotion to any class, category or grade in the service unless he possess the qualifications as laid down in schedules and fulfils the requirements of recruitment, as provided in the rules and orders of the time being in force.
(ii) Appointment to the service shall be made:-
(a) By promotion/by selection by a departmental promotion committee which will be constituted by the Chairman from time to time.
(b) By direct recruitment/ selection by a selection committee to be constituted by the Chairman from time to time; and
(c) Partly by promotion/ selection and partly by direct recruitment or by deputation from State Government;
In the ratio as specified against each post in schedule.
In case suitable candidates are not available for promotion the post shall be filled up by direct recruitment with the prior approval of the Board.
The plain wording as employed would suggest that promotion/selection has to be based on the recommendations of DPC constituted by the Chairman from time to time.
5. In conformity with the said Regulation, the DPC constituted, after examination of case of the petitioner has recommended him for promotion and same recommendation has been approved by the respondent No.3 (Chairman). Subsequently respondent No.5 is shown to have represented that he is senior to the petitioner, therefore, he deserves to be promoted. The said representation has been considered and accepted, as is reflected in the record as produced, as a result thereof, petitioner has been approved to be reverted and respondent No.5 approved to be promoted. The said note has been approved by the Chairman on 10.08.2005 but the order under challenge has been issued on 09.08.2005 which gives rise to a question mark vis-`-vis bona fide action of the respondents. Secondly when the requirement of the Regulation is that for promotion it is the DPC which has to examine the case and make the recommendation, same in the case of respondent No.5, while approving his promotion, has not been adhered to. When DPC did not recommend him nor his case was send back to the DPC for consideration, how could the note proposing his promotion be approved, is a question which has remained to be answered.
6. The final seniority list, copy of which has been produced by the respondents No.2 to 4 along with their reply, would show that amongst the Senior Supervisors/Supervisors respondent No.5 figure at serial No.9 where as petitioner figure at serial No.28. If the seniority would have been the only criteria for promotion, then even serial No.9 i.e. respondent No.5 could not claim promotion over the head of his seniors. This aspect of the case has not been looked into by the authorities concerned nor same is discernible from the records as produced.
7. Again even if the order of promotion dated 27.4.2005, for any reason, was to be rescinded, at least the petitioner, who was duly promoted, should have been given opportunity of being heard. Deprivation of such hearing has offended the well settled principle of natural justice, therefore, petitioner has been condemned unheard.
8. How the respondent No.4(Secretary) has issued the order on 09.08.2005 when the note proposing reversion of the petitioner and promotion of respondent No.5 has been approved by the respondent No.3(Chairman) on 10.08.2005, therefore, the order issued on 09.08.2005 by respondent No.4 is totally without competence as the Secretary, by himself, has no such power and even in the order he has not recorded that the order is issued by the order of Chairman. This gives rise to inference of mischief.
9. For the afore-stated reasons and circumstance, the order impugned dated 09.08.2005 can be safely said to have been issued arbitrarily with mischief.
10. Sanctity of the actions has to be maintained at all levels, any deviation thereof would not only give rise to inferring arbitrariness and highhandedness but also un-necessary loss and distress both to the employee and to the department which in any case is unpleasant and liable to be discouraged.
11. Question No.(b) Whether the period of so-called absence from 23.08.2005 to 07.09.2006 can be treated as dies-non, that too, by respondent No.4?
Petitioner has proceeded on 15 days earned leave with effect from 08.08.2005. Said leave has been sanctioned by the competent authority on 30.08.2005, where-under permission to leave the station was also granted. At the back of the petitioner on 09.08.2005 order providing reversion of the petitioner and promotion of respondent No.5 has been issued. Mother of the petitioner was ailing because of which he had proceeded on leave and then he required further extension of leave with effect from 24.8.2005 but same is shown to have been rejected vide communication No.KVIB/KD/ Adm/1252-53 dated 26.09.2005 and it has also been mentioned that the petitioner has been relieved by the Zonal Organizer, Leh on 19.9.2005. The period of absence in the order is shown as 23.8.2005 to 07.09.2006. The petitioner admittedly has been in the state of uncertainty because order dated 09.08.2005 was stayed by this Court subject to condition if not implemented. So far the petitioner is concerned, it was never implemented because he was on validly sanctioned earned leave and then he had applied for extension of earned leave and it is during the said period he is shown to have been relieved which again is a mischief because when he was on leave, how he could be relieved and now if shown to have been relieved, in-effect he is not relieved. It is this position which has been taken note of by this Court in the order dated 31.8.2007 while considering IA No.1924/2007. It has been observed that it is surprising that the respondent No.4 while passing the said order has done something diametrically opposite to the direction passed by this Court which means to say at least shows to be mischievous.
12. The order dated 27.6.2007 appears to have been issued so as to dilute the efficacy of the directions issued by this Court from time to time and to cover up the arbitrary action of respondents No.2 to 4. If the petitioner had absented from 23rd August, 2005, why such order was not passed in 2005 or 2006, why the order has been chosen to be issued on 27.6.2007, itself speaks volumes as to how the matter has been dealt with. The said order has been attempted to be justified by referring to order dated 18.5.2007 passed by this Court when by virtue of said order direction was to the effect that the respondents shall deposit the extra salary that would accrue to the petitioner while working on the post of Junior Zonal Organizer, in this Court for its disbursement in terms of order that may be passed in LPA. Said LPA No.370/2006 has been disposed of vide order dated 13.5.2008 with the direction to Registry to post the writ petition in the hearing column before the Writ Court. This also shows as to how, while issuing the order, the concerned authority has applied its mind. It is the arbitrary approach of the respondents 2 to 4 which has given rise to uncertainty vis-`-vis position of the petitioner. Therefore, so-called unauthorized absence is the outcome of the trickstry approach of the respondents No.2 to 4 who have not only exposed themselves but have also exposed the Board to un-necessary litigation. Order dated 27.6.2007 is total outcome of non-application of mind and is outcome of total unbecoming arbitrary approach of the respondents No.2 to 4.
13. While summing up, what emerges is that both the orders i.e. order No.KVIB/315 of 2005 dated 09.08.2005 and order No.KVIB/222 of 2007 dated 27.6.2007 are illegal, so shall stand quashed. As a necessary corollary the amounts (extra salary), which in compliance to the order dated 18.5.2007 has been deposited in this Court, shall be returned to the official respondents who shall disburse the due payments to the petitioner which had accrued to him in view of his order of promotion dated 27.4.2005.
14. While parting, it is required to be taken note of that the respondent No.5 having been working against the post of Junior Zonal Officer from the year 2005, ends of justice will be served if the respondents No.2 to 4 would suitably accommodate him so that his interests, both service and monetary, are not now, after a long time, in any manner adversely affected.
15. Petition succeeds so shall stand disposed of as above.
16. Record as produced by learned counsel for respondents No.2 to 4 be returned to him.
(Mohammad Yaqoob Mir) Judge Srinagar 27.04.2012 Mohammad Altaf