Jammu & Kashmir High Court
Indu Bhushan vs State Of J&K & Anr on 13 November, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No.119 OF 2013 Indu Bhushan Petitioners State of J&K & anr Respondent !Mr. M.K.Bhardwaj, Sr. Advocate with Mr. Vasu Dubey, Advocate ^Ms. Seema Shekhar, AAG. Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date: 13.11.2013 :J U D G M E N T :
M.M.Kumar, CJ
1. The instant appeal under Clause 12 of the Letters Patent seeks annulment of judgment and order dated 24.05.2013 rendered by a learned Single Judge of this Court while dismissing SWP No.1170/2012 filed by the appellant. The writ petitioner-appellant has sought directions to respondents to promote him as Chief Enforcement Officer w.e.f. 31.10.2010 in the Jammu Municipal Corporation from the post of Enforcement Officer. The vacancy on the post of Chief Enforcement Officer was caused on 31.10.2010 when Sh. Ravi Kant Sharma superannuated. The writ petitioner-appellant, admittedly a senior most Enforcement Officer had 2 represented to the Commissioner, Jammu Municipal Corporation-respondent No.2 to promote him to the post of Chief Enforcement Officer keeping in view his qualification, meritorious service record and seniority. On 10.11.2010, the Commissioner Jammu Municipal Corporation recommended his case for consideration of his promotion on the vacant post of Chief Enforcement Officer (Annexure-B). However, the recommendations made by the Commissioner, JMC-respondent No.2 did not find favour with respondent No.1. The writ petitionerappellant then filed representation for consideration of his case. However, on account of his ensuing superannuation he filed firstly SWP No.287/2012 along with CMA No.399/2012. The Writ Court while issuing notice to the respondents issued directions on CMA No.399 to consider the case of the writ petitionerappellant in accordance with the rules and precedents. Respondents were required to take decision within the notice period. In terms of Section 67 of the J&K Municipal Corporation Act, 2000, the respondents constituted Departmental Promotion Committee vide order dated 27.04.2011. In its meeting a decision was taken and it was found that the claim of the appellant for promotion directly to the post of Chief Enforcement Office 3 (Chief Khilafwarzi Officer) was not tenable on account of absence of gazetted recruitment rules and he had never discharged duties against the aforesaid post as an incharge incumbent. Order dated 25.04.2012 was placed on the record of SWP No.287/2012 and the aforesaid writ petition was dismissed by reserving the right of the appellant to re-agitate the matter in view of fresh cause given by order dated 25.04.2012. As a consequence SWP No.1170/2012 relatable to the instant appeal was filed challenging order dated 25.04.2012.
2. The learned Single Judge has dismissed the writ petition filed by the writ petitioner-appellant by accepting the stand of the respondents asserting that respondent No.2 had forwarded his case to the Government for consideration for promotion to the post of Chief Enforcement Officer vide letter dated 10.11.2010. Thereafter some documents were sought to process the case viz. seniority list of Enforcement Officers, vacancy position and work and conduct certificate of the writ petitioner-appellant, which were sent to the Housing and Urban Development Department on 18.12.2010. The Commissioner, Jammu Municipal Corporation sent his reply to the representation made by the appellant to the Government. The learned Single Judge also accepted that 4 prior to coming into force the Jammu and Kashmir Municipal Corporation Act, 2000, the promotions and appointments were being made in accordance with Sections 51 and 52 of the J&K Municipal Act, 2008 (Svt.). After enforcement of J&K Municipal Corporation Act, 2000, (for brevity, the Act of 2000) Section 67 of the Act deals with the posts in the Corporation. In view of the provisions of Section 67 of the Act of 2000 selection committee for direct recruitment and Departmental Promotion Committee in the Municipal Corporation was constituted on 27.04.2011. The Departmental Promotion Committee met and rejected the claim of the writ petitioner-appellant to promotion against the vacant post of Chief Enforcement Office (Chief Khilafwarzi Officer) on account of absence of gazetted recruitment rules and for the reason that the writ petitioner-appellant was not holding the post of Chief Enforcement Officer as he was never given charge of that post before his superannuation. He was claiming consideration for promotion after his superannuation. Accordingly, his claim was rejected by passing order dated 25.04.2012. The view of the learned Single Judge is discernible from the following para of the judgement:-
In terms of the aforesaid Rules, the respondents constituted Departmental Promotion 5 Committee vide order dated 27.04.2011, which convened its meeting in which a decision was taken. It was found that claim of the petitioner was not tenable to seek promotion directly against the post of Chief Khilafwarzi Officer in absence of Gazetted Recruitment Rules, and as per precedence in vogue, he was not holding the said post nor was he ever placed as in-charge or worked against the post of Chief Enforcement Officer. Respondents have considered the same of the petitioner was per law applicable and found him ineligible for promotion as Chief Enforcement Officer. Thus, no exception can be found with the decision of the Departmental Promotion Committee, which is perfectly legal and in accordance with law.
3. We have heard learned counsel for the parties at a considerable length.
4. It is true that the writ petitioner-appellant had a right to be considered for promotion as it is one of the matters relating to employment or appointment within the meaning of Article 16(1) of the Constitution. The right to be considered for promotion does not necessarily mean that he must get promoted. In that regard reliance may be placed on various observations made in the judgments of Honble the Supreme Court rendered in the case of General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36 and Sarbjit Singh v. Ex-Major B.D.Gupta, (2000) 7 SCC 67. The appellant cannot claim promotion merely on the basis that he has been senior most in the cadre particularly in the absence of any rule. It is trite to observe that an obligation is cast on the authority 6 concerned to consider all employees for promotion in accordance with the statutory rules or conditions contained in the contract of service or executive instructions issued by the authorities and norms, as the case may be, and any such consideration must be fair and reasonable satisfying test of Articles 14 and 16 of the Constitution. There would be no violation of Articles 14 and 16(1) if writ petitioner-appellant is not promoted merely because he was senior most particularly after his superannuation. The view of the learned Single Judge upholding the order dated 25.04.2012 may not be wholly correct. It is not possible to accept that in order to earn promotion one must be holding the higher post of Chief Enforcement Officer (Chief Khilafwarzi Officer) on incharge basis yet the same would be relevant when we examine the issue in the light of the fact that the writ petitioner-appellant had superannuated. In that context it would be pertinent to observe that an officer, who have attained superannuation and his claim for promotion has been considered afterward then the factum of his holding the higher post of Chief Enforcement Officer on incharge/adhoc basis would attain significance in view of the judgment of Honble the Supreme Court rendered in P. Grover v. State of Haryana and another, 1983 AIR 7 1060. Therefore, we find that the appeal does not merit admission and the same is liable to be dismissed.
5. For the reasons aforementioned, this appeal fails and same is dismissed.
(Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Jammu, 13.11.2013 Vinod