Jammu & Kashmir High Court - Srinagar Bench
Fida Mohammad Farooqi & Ors vs State Of J&K & Ors on 18 July, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 1065 of 2013 CMP No. 1711 of 2013 Fida Mohammad Farooqi & ors. Petitioners State of J&K & ors. Respondents !Mr. Altaf Haqani, Advocate ^M/S: M. I. Qadri, Advocate Mr. Shah Aamir, Advocate Mr. M. Y. Bhat, Advocate Mr. C. S. Azad, Advocate Mr. Jahangir Iqbal Ganai, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 18/07/2013 : J U D G M E N T :
1. The grievances projected in this petition by the petitioners is that the respondent-State in violation of applicable rules has adopted the method of pick and choose in making stop gap promotions to the post of Chief Engineers. In the process both merit as well as seniority takes back seat.
2. Learned Advocate General appearing for respondent No.1 highlighted that the petitioners have been beneficiaries of the stop gap arrangements as their position as Assistant Executive Engineer, then Executive Engineer and now Superintending Engineer is on Incharge basis, same is the position of respondents No.2 to 4, further added that in terms of Govt. Order No.151-PW(Hyd.) of 2013 dated 03.06.2013, 07 Incharge Superintending Engineers (Civil) Hydraulic have been sanctioned to be placed as Incharge Chief Engineers (Civil) Hydraulic Wing in their own pay and grade with charge allowance as admissible under rules for a period of six months. Such act of the respondent-State is justified. The order in-effect is not a promotion. He further highlighted that the post of Chief Engineer has to be filled by way of selection as ordained by rules.
3. From the submissions of learned counsel for the parties and the record, a strange situation has emerged. An unhealthy, unwarranted and illegal practice, of placing the Assistant Engineers as Incharge AEEs, then Incharge AEEs as Incharge Executive Engineers, Incharge Executive Engineers as Incharge Superintending Engineers and then Incharge Superintending Engineers as Incharge Chief Engineers, is in vogue. Such method and process adopted is totally in derogation of the Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978 (hereinafter referred to as the Rules of 1978).
4. Final seniority list of the Assistant Engineers (Civil) Hydraulic Wing, who were regularized/appointed by the DPC/PSC, has been notified vide Govt. Order No.371-Works of 2002 dated 23rd July, 2002. Petitioners also figure in the said seniority list. Thereafter no seniority has been finalized as at all levels beyond AE, the practice of placement on Incharge basis has continued de horse the rules.
5. In terms of Govt. Order No.PW-88 of 1992 dated 26.3.1992, Assistant Engineers (R&B & Hydraulic) were placed as Incharge Assistant Executive Engineers in their own pay and grade. Thereafter vide Govt. Order No.203-PW(Hyd) of 2007 dated 24.07.2007, sanction has been accorded for placing various I/C Assistant Executive Engineers as I/C Executive Engineers in their own pay and grade for a period of six months purely on temporary basis against available vacancies or till the posts are filled up under rules on regular basis by the DPC/PSC, whichever is earlier. The stipulation contained in the said orders Viz. filling up the posts under rules on regular basis has not been allowed to fructify. The Incharge position has been allowed to continue even against the stipulation recorded in the orders. Instead again vide Govt. Order No.299-PW(Hyd) of 2012 dated 27.07.2012, some of the I/C Executive Engineers, which include petitioner No.1, have been placed as I/C Superintending Engineers Civil (Hydraulic) in their own pay and grade with charge allowance as admissible under rules purely on stop gap arrangement against available vacancies for a period of six months/or till the posts are filled under rules on regular basis by the DPC/PSC, whichever is earlier. Similar is the position of petitioners No.2 and 3 and that of respondents No.2 to 4.
6. Now vide Govt. Order No.151-PW(Hyd.) of 2013 dated 03.06.2013, respondents No.2 to 4 along with four other I/C Superintending Engineers have been placed as I/C Chief Engineers (Civil) Hydraulic wing in their own pay and grade with charge allowance as admissible under rules purely on stop gap arrangement against the available vacancies for a period of six months/or till the posts are filled under rules on regular basis by the DPC/PSC whichever is earlier.
7. The petitioners are aggrieved of this order as they claim to be senior to respondents No.2 to 4 as I/C Superintending Engineers, therefore, claim that they should have been placed as I/C Chief Engineers. It is in the background of said grievance they have filed the writ petition praying therein that the order No.151-PW(Hyd) of 2013 dated 03.06.2013 may be quashed, respondents may be commanded to refer all cases of stop gap promotions from the posts of Assistant Executive Engineers up to the posts of Superintending Engineers and Chief Engineers including those of the petitioners and respondents 2 to 4 to DPC/PSC for appropriate consideration/clearance for their substantive promotions in accordance with rules holding field and release the pay attached to the posts along with allowances, periodical increments and fix their seniority in the respective posts in accordance with rules.
8. The relief sought for referring all cases of stop gap promotions to DPC/PSC for appropriate consideration/clearance has to be granted. Why stop gap arrangements i.e. Incharge position at every level right from AEE has been continued even up to the level of Chief Engineer de horse the rules, is quite disturbing. It has given rise to another complicated situation i.e. seniority list at the level of Assistant Executive Engineer, Executive Engineer, Superintending Engineer and Chief Engineer has not been framed. How and why after expiry of six months time as stipulated in the referred Govt. Orders, have been continued and why posts have not been referred to DPC/PSC, is totally disgusting. It appears that some vicious circle is operating so as to allow the method of Incharge placement and thereafter its continuance, that too against the stipulation of six months arrangement.
9. There is no quarrel on the legal issue i.e. an officer holding the lower post can be asked to discharge the duties of a higher post by way of an interim arrangement but same cannot be treated as a promotion but entitles such employee to charge allowance. Such position is imperative where exigency of public service necessitates, same can be irrespective of seniority positions but continuance of such arrangement beyond 6 months indefinitely, then in the same manner placement at higher levels is without any sanction, as such, unwarranted.
10. When mode and method for promotion to the available posts at various levels, such as AEE, Executive Engineer, Superintending Engineer and Chief Engineer, is clearly prescribed by the Schedule attached to the Rules of 1978, why respondent-authorities have not initiated normal process at different levels, why this method of Incharge promotion on stop gap arrangement at every level is carried and continued for years, is a million dollar question which has not been answered. Better late than never is a proverb which requires adherence. When such I/C AEEs, I/C Executive Engineers and then I/C Superintending Engineers will retire, what will happen to them because inchargeship will never confer them permanent status and while reaching to the post of Chief Engineer, they may retire as AEs, which is the post substantively held by them. The petitioners too have been enjoying the position as I/C AEEs, I/C Executive Engineers and then I/C Superintending Engineers and till date they have not agitated but that shall not absolve the respondents from adhering to the relevant recruitment rules.
11. From the judgment rendered by the Honble Apex Court in case Ramakant Shripad Sinai Advalpalkar v. Union of India & ors (AIR 1991 SC 1145), following portion from para 4 is advantageous to be quoted:-
...asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post but gets only that in service parlance is called a charge allowance. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop gap arrangement.
12. It is also advantageous to quote following portion from para 6 of the said judgement:
...This contention ignores the fact that an in charge arrangement is not recognition of or is necessarily based on seniority and that, therefore, no rights, equities or expectations could be built upon it.
13. In view of the law laid down by the Honble Apex Court, the order impugned, where-under, amongst others, respondents No.2 to 4 have been sanctioned to be placed as I/C Chief Engineers Civil (Hydraulic) in their own pay and grade with charge allowance as admissible under rules purely on stop gap arrangements only for a period of six months or till the posts are filled up whichever is earlier. So the order in-effect is only for a period of six months, normally process of selection for the posts of Chief Engineers has to follow, well before the expiry of six months.
14. Vide SRO 297 notified on 14th September, 2006, Schedule, annexed to the Rules of 1978 has been substituted, qualification and method of recruitment has been prescribed for every level whereas for the post of Chief Engineer the qualification and method of recruitment is as under:
By selection from Class II (selection category) from amongst persons possessing at least 20 years of Gazetted Service in the same branch of Engineering in which appointment is to be made with at least one year experience as Superintending Engineer.
15. The order impugned is not to be treated as a promotion nor is it to continue beyond the period of six months. It is not to create any right so as to claim preference as against the seniors. While considering the cases of eligible Superintending Engineers for the posts of Chief Engineers, the arrangement made in terms of order impugned is not to have any impact so as to jeopardize the rights of other eligible Superintending Engineers. In the same background order impugned is sustainable.
16. The cumulative effect of the afore-stated position is that the impugned order dated 03.06.2013 favouring respondents No.2 to 4 is not interferable, as such, maintained.
17. The respondent-State authorities are directed to ensure that the process for regular promotion in accordance with rules is initiated and finalized right from the level of Assistant Executive Engineer up to the level of Superintending Engineer. It is further directed that the respondent-State authorities shall ensure that the Chief Engineers are selected in accordance with rules from amongst the eligible Superintending Engineers.
18. The mode adopted de horse the rules vis-a-vis promotions under the garb of Incharge position at all levels henceforth shall be given up except for exigencies but same shall not continue beyond permitted limit at a particular level.
19. Disposed of as above along with connected CMP.
(Mohammad Yaqoob Mir) Judge Srinagar 18.07.2013 Mohammad Altaf