Jammu & Kashmir High Court
State Of J&K; And Others vs Sham Lal on 31 December, 2018
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No. 77/2010 (O&M)
(in SWP No. 1917/2001)
Reserved on 29.11.2018
Date of judgment: 31.12.2018
State of J&K and others vs. Sham Lal
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
CORAM:
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Appearance:
For Appellant(s) : Mr. H. A. Siddiqui, Sr. AAG
For Respondent(s) : Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate
Rajesh Bindal, J.
1. The State has filed the present intra-court appeal against the order passed by the learned Single Judge, whereby the writ petition filed by the respondent claiming promotion to the post of Computer (Junior Health Instructor), was accepted.
2. Learned counsel for the State, while impugning the order passed by the learned Single Judge, argued that the order runs contrary to the J&K Health and Medical (Subordinate) Service Recruitment Rules, 1992 (for short, 'the 1992 Rules'). The respondent was working as a Field Worker and could claim __________________________________________________________________________________ LPASW No. 77/2010 Page 1 of 10 promotion only as a Basic Health Worker, which was rightly accorded to him. But still aggrieved, he filed the writ petition claiming that he deserved to be promoted as Computer (Junior Health Instructor) and not Basic Health Worker. If the provisions of the 1992 Rules and the qualifications prescribed therein are considered, the next promotion could be as Basic Health Worker from the post of Field Worker. Specific quotas have been provided and in terms thereof, the respondent was promoted. The order passed by the learned Single Judge directing promotion is exceeding its jurisdiction, as all what could be directed was consideration of his case and not promotion as such.
3. On the other hand, learned counsel for the respondent submitted that if the 1992 Rules are considered, the post of Computer (Junior Health Instructor) is to be filled up 50% by way of direct recruitment, whereas 50% by way of promotion from Junior Assistant/Field Worker. Undisputedly, the respondent was working as Field Worker. He had a right to be considered and promoted as Computer (Junior Health Instructor). The petitioner had to approach this Court by filing the present petition seeking enforcement of his rightful claim as vide order dated 28.7.2001, he was promoted as Basic Health Worker instead of Computer (Junior Health Instructor). The relief was rightly granted to the petitioner as he is entitled to that in terms of the 1992 Rules. He further referred to the order, vide which the petitioner was promoted as Basic Health Worker, where different officers working on different posts were promoted in a different channel. He referred to the names of Mohd. Yousuf, who was promoted as Junior Health Instructor (Family Welfare) and also Bal Kishan, who was similarly promoted.
4. In response, Mr. Siddiqui, learned Senior Additional Advocate General submitted that prayer in the writ petition was only for consideration of the case __________________________________________________________________________________ LPASW No. 77/2010 Page 2 of 10 of the respondent as Junior Health Instructor and not as Computer (Junior Health Instructor), hence, the relief was wrongly granted to the respondent.
5. Heard learned counsel for the parties and perused the paper book.
6. Before the issues sought to be raised by the learned counsel for the parties are considered, it will be appropriate to refer to the relevant Rules. Annexure 'A' to the 1992 Rules provides for class and mode of recruitment of various posts of non-gazetted staff. The relevant portion of Annexure 'A' is reproduced hereunder:-
"L. Health Education:
Class category designation Grade Qualification Method of recruitment 1. 2 3 4 5 6 V A Basic 900- Matric 100% by promotion from Class VI category Health 1830 (a) having five years experience in that Worker category VI A Basic 800- Matric 100% by promotion from Class VIII Health 1500 category (a) & (b) subject to having passed Workers Matriculate examination. (All discipline)
7. A perusal of the aforesaid Schedule annexed to the 1992 Rules provides that there is a post of Basic Health Worker ( All Discipline) with pay scale of ₹ 800-1500 with minimum qualification as Matriculate. It has to be filled up 100% by promotion from Class VIII categories (a) & (b).
8. In Class V as well, there is a post of Basic Health Worker in the pay scale of ₹ 900-1830 with minimum qualification required as Matric. The same has to be filled up from Class VI (a) category having five years experience in that category. The post of Junior Health Inspector ( All Disciplines) provided __________________________________________________________________________________ LPASW No. 77/2010 Page 3 of 10 in Class V is having pay scale of ₹ 900-1830 with basic qualification as Matric. The same has to be filled up 70% by promotion from matriculate BHWs and 30% by promotion from un-qualified BHWs.
9. Classification of the post of Field Worker can be well appreciated if reference is made to Class V, Class VII and Class VIII, which is as under:-
Class category designation Grade Qualification Method of recruitment 1. 2 3 4 5 6 V A Basic 900- Matric 100% by promotion from Class Health 1830 VI category (a) having five Worker years experience in that category B Jr. Health 900- Matric 70% by promotion from Inspector 1830 matriculate BHWs and 30% by (All promotion from un-qualified Disciplines) BHWs.
C xxx xxx xxx xxxxxxxxx
D Computers 900- Matric (i) 50% by direct recruitment.
(JHI) 1830
(ii) 50% by promotion from
Jr. Asstt./ Field Workers
E xxx xxx xxx (iii) xxx
F xx xxxx xxx (iv) xxx
G xxxx xxx xxx (v) xxx
H xxx xxx xxx (vi) xxx
I Field 900- Matric (vii) 100% by promotion from Class
Supervisor 1830 VI category (a) having 5 years
experience in that category.
__________________________________________________________________________________ LPASW No. 77/2010 Page 4 of 10 Class VI Class category designation Grade Qualification Method of recruitment 1. 2 3 4 5 6 VI A Basic Health 800- Matric 100% by promotion from Class VIII category Workers 1500 (a) & (b) subject to having passed Matriculate (All examination.
discipline)
B xxx xxx xxx xxx
C Sup. Field 800- Middle 100% by promotion from Class VII and VIII
Worker 1500 category (a) having five years service in that
category.
D Public 800- -do- -do-
Health 1500
Surveyor
Class VII
Class category designation Grade Qualification Method of recruitment
1. 2 3 4 5 6
VII A Field 630- Middle 100% by promotion from Class VIII category
Worker 940 (a) having five years service in that category.
Class VIII
Class category designation Grade Qualification Method of recruitment
1. 2 3 4 5 6
VIII A Field 630- Middle 100% by direct recruitment.
Worker 940
B Arabic 630- Middle trained 100% by direct recruitment.
Teacher 940 in line
10. The Rules apparently are anomalous. The post of Field Worker in Class VIII with pay scale of ₹ 630-940 with Middle pass qualification is to be filled up 100% by way of direct recruitment. Whereas the post of Field Worker with same pay scale and qualification under Class VII has to be filled up 100% by __________________________________________________________________________________ LPASW No. 77/2010 Page 5 of 10 promotion from Class VIII category (a) having five years service as such.
Meaning thereby on promotion there is no stepping up of even basic pay.
11. The Field Workers and Arabic Teacher falling in Class VIII category (A) and (B), who are otherwise Matriculates, are eligible for promotion to the post of Basic Health Worker (All Disciplines) with pay scale of 800-1500. This post is to be filled up 100% by way of promotion from Class VIII categories (A) and (B).
12. The post of Basic Health Worker falling in Class V category (A) with pay scale of ₹ 900-1830 with basic qualification as Matriculation with five years experience, has to be filled up 100% by promotion from Basic Health Workers (All Disciplines).
13. The post of Computer (Junior Health Inspector) in Class-V, category-D is to be filled up by the candidates, who have Matriculation qualification, 50% by way of direct recruitment, whereas 50% by promotion from the Junior Assistant/ Field Workers. These are Field Workers in Class-VII and Class-VIII categories. The eligibility conditions provided for promotion as Computer (JHI) does not specify as to which category of Field Workers would be eligible to be considered for promotion. The Rules are anomalous. As from the Class-VIII, the post of Field Worker is to be filled up 100% by way of direct recruitment, whereas the post of Field Worker falling in Class-VII in the same pay scale with basic qualification as Middle, is to be filled up 100% by way of promotion from the Field Workers in Class VIII (A), with five years experience.
14. The post of Junior Assistant/ Tehsidar/ Gest Assistant is a Class-III post with basic qualification as Graduation with knowledge of type writing having speed of not less than 35 words speed per minute and six months certificate course in Computer applications from a recognized institute.
15. Post of Junior Assistant is provided under the heading Ministerial Staff in the Rules. Relevant part is reproduced hereunder:
__________________________________________________________________________________ LPASW No. 77/2010 Page 6 of 10 J. Ministerial Staff:
Class Cate Designation Grade Qualification Method of recruitment gory I xxx xxx Xxx xxx Xxx II xxx xxx Xxx xxx Xxx III xxx xxx Xxx xxx Xxx A xxx Xxx xxx Xxx B xxxx xxx xxx Xxx C Jr. Asstt./ 800-1500 (1) Graduation from (i) 75% by direct recruitment with Tehsidar/ any recognized 30 words speed in typing GestAssistnt University with knowledge of type (ii) 25% by selection from writing having not matriculation orderlies having a less than 35 words speed of not less than 25 words speed per minute. p.m in typing. Provided that it sufficient number of candidates
(ii) six months are not available for appointment certificate course in vacancies shall be filled up by Computer direct recruitment applications from a recognized institute.
IV Gest 800-1500 Middle Pass 100% by promotion from Class IV Assistant employees with 5 years experience in handling cyclostyle machine.
16. There is no match of the qualification and pay scale of Junior Assistant with Field Worker, who are eligible to be promoted as Computer (JHI).
17. The Field Workers, who are otherwise Matriculates are eligible for promotion to the post of Basic Health Worker ( All Disciplines). The post is to be filled up 100% by promotion.
18. The post of Supervisor Field Worker in Class VI in the pay scale of ₹ 800-1500 with Middle as minimum qualification is to be filled up 100% by promotion from Class VII and Class VIII (A) having five years service in that category. The person appointed as Field Worker in Class VIII (A) is to be promoted as Field Worker in Class VII after having five years service. Both __________________________________________________________________________________ LPASW No. 77/2010 Page 7 of 10 have been placed at par for consideration for promotion as Supervisor Field Worker falling in Class VI (C).
19. The post of Field Supervisor falling in Class VI (C) with Matriculation as qualification is to be filled up 100% by promotion from the Basic Health Workers (All Categories) having five years experience as such.
20. If the aforesaid position of the Rules is summed up, the Field Worker in Class VIII (A) can be promoted as Field Worker falling in Class VII (A) with five years experience and also as Supervisor Field Worker falling in Class VI (C). Same Field Worker is also eligible for promotion as Computer (JHI) falling in Class V (D) without any experience with minimum qualification as Matric.
21. For the purpose of filling up the post of Supervisor Field Worker, Class VI (C), two categories of employee have been made eligible. The Field Workers in Class VIII (A) and Class VII (A), which come from different Classes. Field Workers having five years of service falling in Class VIII (A) is eligible for promotion as Supervisor Field Worker falling in Class VI (C), whereas the Field Worker falling in Class VII (A) will have to render 10 years total service to be eligible for promotion as Supervisor Field Worker falling in Class VI (C).
22. The Field Worker, who is a Matriculate but falling in Class VIII (A) is eligible for promotion as Basic Health Worker ( All Disciplines) in the pay scale of ₹ 800-1500 with condition of no minimum service required. He is also eligible for promotion as Computer (JHI) in the pay Scale of ₹ 900-1830.
23. In none of the categories of the posts, which have been referred to above, where there are two feeder cadres for promotion quota has been prescribed for different feeder cadres. Therefore, it will make difficult for any authority to properly implement the Rules. There may be heart burning in the employees working in the field, who are eligible for promotion to the higher next post. The anomaly in the Rules is not limited to the posts referred to above.
24. Position of some of the posts is reflected in the following example:
__________________________________________________________________________________ LPASW No. 77/2010 Page 8 of 10 FIELD WORKER (Class-VII -A) (Scale-630-940) Qualification- Middle 100% by promotion from Class-VIII BASIC HEALTH WORKER (A) having 5 years service in that (Class-V-A) category (Scale- 900-1830) Qualification-Matric BASIC HEALTH WORKER 100% by promotion from Class (ALL DISCPLINES) VI(A) having five years (Class-VI-A) experience in that category.
(Scale- 800-1500) Qualification- Matric 100% by promotion from Class-VIII ((A) JR. HEALTH INSPECTOR & (B) subject to having passed (Class-V-B) matriculate examination. (Scale- 900-1830) Qualification-Matric FIELD WORKER 70% by promotion from SUPERVISOR FIELD WORKER Matriculate BHWs and 30% by (Class-VIII-A) (Class-VI-C) (Scale- 630-940) promotion from unqualified (Scale- 800-1500) BHWs Qualification-Middle Qualification- Middle 100% by direct recruitment. 100% by promotion from Class- VII &VIII (A) having five years service in that category.
FIELD SUPERVISOR (Class-V-I) PUBLIC HEALTH SURVEYOR (Scale- 900-1830) (Class-VI-D) Qualification-Matric JR.ASSITANT (Scale- 800-1500) 100 % by promotion from (Class-III-C) Qualification- middle Class VI (A) having five years (Scale- 800-1500) 100% by promotion from Class- VII &VIII experience in that category.
Qualification-(i)Graduation with (A) having five years service in that
knowledge of type writing having category.
not less than 35 words speed per
minute COMPUTER (JHI)
(ii) six months certificate course in (Class-V-D) Computer applications from a (Scale- 900-1830) recognized institute. Qualification- Matric 75% by direct recruit and 25% by 50% by direct recruitment selection from Matric orderlies. 50% by promotion from Jr. Asstt/Field workers __________________________________________________________________________________ LPASW No. 77/2010 Page 9 of 10
25. If the facts of the case in hand are considered, respondent-writ petitioner had approached this Court by challenging order dated 28.07.2001, by which he was promoted from the post of Field Worker to the post of Basic Health Worker. He claimed promotion as Computer (JHI). The learned Single Judge while accepting the writ petition; considered the petitioner eligible for promotion to the post of Computer (JHI) and directed his promotion from 28.07.2001. The order is erroneous. The Court could not direct promotion of the petitioner to any post. The direction can only be issued for consideration of his case. The petitioner had not pleaded that any person junior to him had been promoted as Computer (JHI). Even prayer made by the petitioner in the writ petition is for a direction to the official respondents to consider the petitioner for the post of Junior Health Inspector.
26. For the reasons motioned above, we find merit in the appeal. The same is, accordingly, allowed. Order dated 06.05.2009 passed by the learned Single Judge, is set aside. In case, any category of employees are to be considered for promotion, needful shall be done after removing the anomaly in the Rules. As delay in the action may stagnate the cadres, it is directed that the needful shall be done within a period of three months from the date of receipt of copy of this order.
(TASHI RABSTAN) (RAJESH BINDAL)
JUDGE JUDGE
JAMMU
31.12.2018
Karam Chand
Whether the order is speaking : Yes/No
Whether the order is reportable: Yes/No
__________________________________________________________________________________ LPASW No. 77/2010 Page 10 of 10