Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Khan And Another vs S K I M S And Others on 9 May, 2014
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 2067 of 2009 c/w SWP No. 1040 of 2004 Ghulam Mohammad Khan and another Petitioners S K I M S and Others Respondents !Mr. Z. A. Qureshi, Sr. Advocate Ms. Rehana, Advocate ^Mr. N. A. Beigh, Advocate for 4-17 Mr. M. I. Dar, Advocate for Res. 1 to 3 Honble Mr. Justice Hasnain Massodi, Judge Date: 09/05/2014 : J U D G M E N T :
01. Petitioners and private respondents are working as Head Assistants/Incharge Head Assistants in the respondent Institute. The dispute raised in the petition is as regards their placement in the seniority list of Head Assistants. Petitioners on the strength of averments made in the petition seek quashment of various communications mentioned in the relief clause of the writ petition including seniority list notified vide No. SIMS/ Per/T. S. List/ 2008/4143-44 dated 10th June, 2008. They seek a direction to the respondents to accord consideration to their promotion to the next higher level irrespective of their placement in seniority list, ahead of private respondents.
02. Facts lay in narrow compass and may be noticed, in the first instance.
03. Petitioners and private respondents were initially appointed as Junior Assistants in the respondent Institute. They were promoted as Senior Assistants on different dates. Sanction was accorded vide order dated 9th January, 1992 to promotion of respondent No. 4-12 as Head Assistants in the pay scale of 1150-2050, against migrant vacancies for a period of one year or till return of migrants, which ever was earlier.
04. The respondents 13-17 were promoted as Head Assistants on officiating basis in the pay scale of 1400-2600. Their promotion however was made subject to successful completion of Secretariat Assistant Training Course. The officiating promotion to respondent 4-12 was subsequently confirmed and made on substantive basis with effect from 09.01.1992 i.e. date they initially joined as Head Assistants.
05. In terms of Recruitment Rules promotion as Head Assistant is to be made only after successful completion of Secretariat Assistant Training Course. Respondents 4-17, who admittedly on the date(s) they were promoted as Head Assistants had not undergone Secretariat Assistant Training Course, were deputed for the said training. They however did no avail the opportunity. Those of the private respondents, who reported to the training institute, did not pass the examination. They nonetheless continued to perform duties as Head Assistants in the respondent department.
06. Petitioner no. 1 on the other hand much before respondent 4-17 were deputed for the Secretariat Assistant Training Course, were enrolled in the training programm and successfully completed the training course. Petitioner no. 2 likewise completed the Secretariat Assistant Training Course in March 2003, sometime after that respondents 4-17 decided to join the Secretariat Assistant Training Course but failed to make the grade. Petitioners therefore are the only Head Assistants who have successfully completed their Secretariat Assistant Training Course.
07. The respondents on 10th June, 2008 issued tentative seniority list of Head Assistants wherein petitioners are shown at serial no. 33 and 34 and respondents 4-17 at serial No. 10 on words. Petitioners are shown to have joined as Head Assistant on 18th January 2002 and 9th December, 2003 respectively whereas the respondents are said to have joined as Head Assistants on 09,01,1992 and 25th September 1993.
08. Petitioners aggrieved with their placement in the tentative seniority list have come up with the writ petition on hand. They on the grounds urged in the petition seek quashment of communication No. PS/CS-29/2004 dated 18th October, 2004 addressed by Deputy Secretary to Chief Secretary to the then Director and Ex-Officer Secretary to Government of respondent Institute, communication no. SIMS 106 (P) OF 2004 dated 29th October, as also the tentative seniority list bearing No. SIMS/ Per/T. S. List/ 2008/4143-44 dated 10th June, 2008, issued by respondent no. 3. They further seek a writ of mandamus commanding respondents to revert the respondents 4-17 to the post of Senior Assistants, remove their names from the tentative seniority list dated 10th June, 2008 as Head Assistants and to consider petitioners for the next level promotion in accordance with rules.
09. Petitioners case is that respondents having not undergone or successfully completed the Secretariat Assistant Training Course are not entitled to be promoted as Head Assistant in terms of Jammu and Kashmir Secretariat (Subordinate) Service Rules 1998 as amended by SRO 94 of 22nd March, 2001. It is pleaded that the Jammu and Kashmir Secretariat (Subordinate) Service Recruitment Rules 1998 govern service conditions of petitioners and respondents 4-17 and other employees of the respondent Institute and in terms of said rules only a Senior Assistant having at least three years experience as such and having passed Secretariat Assistant Training Course is eligible for the promotion as Head Assistant.
10. Petitioners case is that as respondents 4-17 admittedly have not undergone and passed Secretariat Assistant Training Course, they were not eligible for promotion as Head Assistant, muchless rank ahead of petitioner in seniority list issued by respondent No.3. It is pointed out that as promotion of respondents no. 4-17 was made subject to their clearance of Secretariat Assistant Training Course, their failure to undergo training course or pass the examination would disentitle them from the benefits and status flowing out of the order whereby they were promoted as Head Assistants. It is insisted that respondent 1-3 are not clothed with power to make any relaxation as regards requirements for a Senior Assistant to pass Secretariat Assistant Training Course to be eligible for promotion as Head Assistant. The order No. SIMS 106 (P) OF 2004 dated 29th October, it is urged, is sans legal authority and so is the placement of respondent 4-17 in the seniority list issued vide dated 10th June, 2008 ahead of petitioner.
11. Petitioner reiterate that they having passed Secretariat Assistant Training Course in 2002 and 2003 respectively are the only Head Assistants duly promoted in accordance with rules and therefore entitled to rank in the seniority list of Head Assistant ahead of respondent 4-17, who according to the petitioner d0 not even have a right to be placed in the seniority list of Head Assistant and deserve to be reverted as Senior Assistant.
12. Respondents 1-3, do not deny that petitioners and private respondents service conditions are regulated by Jammu and Kashmir Secretariat (Subordinate) Service Rules, 1998. It is also not denied that respondent 4-17 did not undergo Secretariat Assistant Training Course or pass the course. It is however pleaded that as respondent 4-17 discharged their duties as Head Assistant on officiating basis, Junior Selection Committee of the respondent Institute in its meeting held on 5th June, 2005 decided to confirm respondent 4-17 as Head Assistant retrospectively form the date they were promoted on officiating basis from the dates 9.01.1992 and 25.09.1993 respectively. It is pleaded that the Junior Selection Committee earlier decided to give relaxation in favour of respondent 4-17 as regards Secretariat Assistant Training Course, as one time exception. The proposal submitted on the basis of recommendations made vide SIMS No. 302 09 06/91-2178-2205 dated 29th October 1994, is said to have met approval of Honble Chief Minister as conveyed No. PS/CS-29/2004 dated 18th October, 2004 leading to the order SIMS 106 (P) of 2004 dated 29th October. It is denied that placement in seniority list is in any way connected with the passing Secretariat Assistant Training Course, in terms of Rules 24 Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956.
13. The respondent 4-17 opposes the writ petition on hand on the grounds that petitioners earlier writ petition SWP no. 1040/2004 having been disposed of vide dated 28th April, 2004, the writ petition on hand was hit by principle of Resjudicata. Respondents deny all the factual averments made in the petition. It is pleaded that writ petition suffers from delay and laches inasmuch as respondent promotion on officiating basis ordered vide dated 9th January 1992 and 25th September 1993 and thereafter confirmation vide order dated 29th October, 1994 was not questioned by petitioner at any point till, petition on hand was filed. The petitioners are said to have filed a representation for change in their seniority position, and same to have been found without any merit and rejected by respondents. Respondents 4-17 seeks to find support to the decision taken by official respondents to relax the requirement to undergo and pass Secretariat Assistant Training Course as one time exception, having regard to their length of service as Head Assistant on officiating basis.
14. Petitioners in their rejoinder filed on 17.10. 2001 deny that earlier petition i.e. SWP No. 1040/2004 stood in their way to file instant writ petition. It is stated that the averments made in the petition and cause put forth in the present petition is different from one raised in SWP no. 1040/2004. Petitioners also dispute assertion that petition is hit by laches. It is pointed out that cause accrued to petition to throw challenge to the seniority list only after it was issued on 10th June 2008 and that petitioners came to know that official respondents 1-3 had without any power relaxed an essential qualification for promotion as Head Assistant in terms of Jammu and Kashmir Secretariat (Subordinate) Service Rules 1998, in favour of respondents 4-
17.
15. I have gone through the pleadings as also record available on the file. I have heard learned counsel for the parties. The issue emerging out the pleadings may be concretized as under. i. Whether the writ petition on hand is hit by the principle of Resjudicata and therefore not maintainable. ii. Whether writ petition suffers from laches and inordinate delay and therefore liable to be dismissed.
iii. Whether respondents 1-3 acted within their powers while allowing relaxation in rules to the extent the rules prescribed passing of Secretariat Assistant Training Course as an essential qualification to make promotion from the post of Senior Assistant to Head Assistant.
iv. Whether respondents 4-17 deserved to be reverted as Senior Assistant i.e. the post they held before their promotion as Head Assistant.
v. Whether petitioners are entitled to be placed ahead of private respondents under seniority grade as Head Assistant.
16. Petitioners aggrieved that they were not being considered for next promotion as Head Assistant with effect from the date vacancies were available, filed writ petition being SWP No. 1040/2004 seeking a direction to the respondents to accord consideration to their promotion. During pendency of the writ petition respondents accorded consideration to petitioners promotion and vide order dated 21St August, 2004 promoted petitioners as Head Assistant with effect from 18th January 2002 and 9. 12. 2003 respectively. The writ court on 28th April 2005 took notice of this development and disposed of writ petition observing that petitioners grievance stood redressed. The order dated 28th April 2005 therefore cannot be said to operate as Resjudicata against the writ petition on hand. The issues raised in the present petition were not directly and substantially involved in the earlier writ petition. The seniority list called in question in the present petition came to be notified a few years after the earlier writ petition was disposed of. The principle of Resjudicata therefore cannot operate against the writ petition. Viewed thus the writ petition is not liable to be dismissed on that ground.
17. The other grounds i.e. one of delay and laches, urged by respondents to seek dismissal of the writ petition at its threshold, is equally without merit. True that respondents 4-17 were promoted as Head Assistants on officiating basis on 9th June, 1992 and 25th September 1993 but their officiating promotion was for a brief period as evident from the initial order and extended from time to time and made subject to their clearance of Secretariat Assistant Training Course. Petitioners had no cause to be aggrieved as respondents officiating promotion for a fixed time and that too subject to their passing of Secretariat Assistant Training Course was not to raise any eye brows. Petitioners obviously expect respondents 1-3 to order reversion after the term of promotion expired or respondents failed to clear Secretariat Assistant Training Course. The Order No. SIMS 361 of 1994 dated 29th October 1994 whereby respondents (4-12) promotion was converted into regular/temporary was made subject to confirmation of Junior Selection Committee. Petitioner would be still left with expectation that authorities i.e. Junior Selection Committee would on examination find out that respondents were not eligible for the promotion and proceed to recommend their reversion as Senior Assistant. The clear position emerged only after the respondents issued seniority list. The relevant date to count the period of accrual of cause against the order no. SIMS/ Per/T. S. List/ 2008/4143-44 is 10th June, 2008 when the tentative seniority list was notified. Petition therefore does not suffers from delay of laches that may not be even otherwise available, as petition stands formally admitted to hearing.
18. There is an agreement between the parties that service conditions of petitioners and private respondents are regulated by Jammu and Kashmir Secretariat (Subordinate) Service Rules 1998 as amended by SRO 94 of 22nd March, 2001. In terms of Recruitment Rules the post of Head Assistant is to be filled up by promotion from cadre of Senior Assistants. It would be advantageous to reproduce relevant part of Schedule II of Jammu and Kashmir Secretariat (Subordinate) Service Rules 1998.
Schedule-II Category Pay Scale Method of Recruitment Head Assistant 5000-8000 By promotion from category (c) having at least 3 years service as such and having passed Secretariat Assistants Examination.
19. In terms of Recruitment Rules eligibility criteria for promotion including successful completion of Secretariat Assistant Training Course. We dont come across any provision in Recruitment Rules as would leave scope for relaxation of essential qualification. The respondents 1-3 therefore did not have power to relax the statutory requirements while promoting private respondents 4-17 as Head Assistants. They in the circumstances acted beyond the powers available under Recruitment Rules. It may be recalled that the private respondents were initially promoted as Head Assistants subject to their clearance of Secretariat Assistant Training Course. On their failure to clear Secretariat Assistant Training Course, despite adequate opportunities or reluctance to appear in examination, right course for respondents 1-3 was to cancel promotion orders made infavour of private respondents and accord consideration to the promotion of their colleagues who though junior to them fulfilled all the eligibility criteria prescribed under Rules.
20. The respondents 4-17 have been working as Head Assistants for last more than two decades. Some of them may have retired on superannuation or may be nearing their superannuation. Though respondents 4-17 did not have a right to have their promotion as Head Assistants regularized, much less figure ahead of petitioners in the seniority list of Head Assistants, yet it would be too harsh to revert them as Senior Assistants. However respondents 4-17 cannot have both the benefits i.e to occupy the post of Head Assistant without fulfilling eligibility criteria and claim placement in the seniority list over their colleagues, who were duly promoted as Head Assistants and satisfied eligibility criteria prescribed under Recruitment Rules. There is no scope for any disagreement that petitioners are only eligible Senior Assistants for promotion as Head Assistants amongst the petitioners and private respondents. While respondents 4-17 may be allowed, in view of above discuss, to occupy/hold the post of Head Assistants yet they cannot be allowed to steal march over petitioners. So viewed petitioners have right to figure ahead of respondents 4-17 in the seniority list of Head Assistant.
21. For the reasons discussed writ petition is allowed and respondents 1-3 are directed to reframe seniority list of Head Assistants working in the respondent Institute and place petitioners ahead of private respondents i.e. 4-17 in the seniority list.
22. Let this exercise be completed within three months so that petitioners are considered for any further promotion that is due to them under Recruitment Rules, regulating their service conditions.
23. Petition is accordingly allowed.
(Hasnain Massodi) Judge Srinagar Dated: 09/05/2014 M. Amin