Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shafi Zahid vs State And Others [2009(Supp.) on 22 May, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 2193 of 2012 Mohammad Shafi Zahid Petitioners State of J&K and others Respondents !Mr. M. A. Qayoom, Advocate ^ Mr. M. A. Chashoo, Advocate Mr. N. A. Malik, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 22/05/2013 : J U D G M E N T :
1. Mohammad Shafi Zahid - petitioner herein, and Mtr. Nasreen Khan - respondent No.3, in the petition are members of Jammu and Kashmir Archives, Archaeology and Musuems (Gazetted) Service. Both petitioner and respondent No.3 presently hold post of Deputy Director in the grade of 10000-15200.
However, respondent No.3, admittedly, is senior to petitioner. She is placed at serial No.02 in the Final Seniority List of Officers of the Department of Archives, Archaeology and Museums, as on 151 January 2009 whereas petitioner finds place at serial No.03 in the said List.
2. Petitioner is aggrieved with rejection of his claim for promotion to the post of Director, Archives, Archaeology and Museums, vide Government Order No.113-Cul of 2012 dated 27th September 2012 and promotion of respondent No.3 to the post vide Government Order No.114-Cul of 2012 dated 27th September 2012. He seeks quashment of both the government orders on the grounds set out in the petition.
3. The stand taken by respondents 1, 2 & 4 in opposition to writ petition is that case of petitioner as well as respondent No.3 for promotion to the post of Director, Archives, Archaeology and Museums, was placed before the Establishment-cum-Selection Committee of the Government and the Committee, on consideration of matter, having regard to the seniority of respondent No.3 and report of Medical Board, recommended her promotion on officiating basis, initially for a period of six months and respondent No.1, acting on the recommendations of Establishment-cum-Selection Committee, vide Government Order No.113-Cul of 2012 dater 28.09.2012 rejected petitioner's claim and vide Government Order No.114-Cul of 2012 dated 27.09.2012 accorded sanction to the promotion of respondent No.3 as Director, Archives, Archaeology and Museums, on officiating basis, as recommended by the Committee.
4. Respondent No.3 has not filed any separate Reply to the petition and instead adopted counter affidavit filed by respondents 1, 2 & 4.
5. Petitioner, in his rejoinder affidavit, pleads that the Government order No.5 of 2011 dater 19th January 2011, whereby petitioner's claim as also that of respondent No.3 for promotion to the post of Director, Archives, Archaeology and Museums was rejected, was questioned only by petitioner and no by respondent No.3; that the order has assume: finality as regards respondent No.3 and respondent: 1, 2 & 4, in compliance of Writ Court order dater 30th December 2011, were required to accord consideration only to the petitioner's claim for promotion. It is pleaded that respondents 1, 2 & 4, by according consideration to respondent No.3's case for promotion, oblivious to the finality assumed by order dated 19.01.2011 to the extent it pertains to her, violated mandate of Writ Court order dated 30th December 2011.
6. It is next pleaded that respondent No.3, after she was hit by a bullet in the year 1992, did not perform her duty or gain any experience as Assistant Director/Deputy Director, Archives. Archaeology and Museums, and therefore, did not possess the experience necessary in terms of Recruitment Rules for promotion to the post of Director. The petitioner, in his rejoinder affidavit, has made detailed reference to orders passed from time to time in favour of respondent No.3, after she was hit by bullet, to substantiate that respondent No.3 has not performed duty at any level in the Department of Archives, Archaeology and Museums as would entitle her to be considered for promotion to the post of Director, Archives, Archaeology and Museums.
7. I have gone through the pleadings as also record available on the file and have heard learned counsel for the parties.
8. The respondent No.3, as ill luck would have it, was hit in her head by a bullet in a militancy related incident. She was hospitalised and though discharged from the Hospital, bullet injury left her disabled and not in a position to perform her duties. Government order dated 11.11.1993, 08.11.1994, 28.04.2000 and subsequent transfer/ deputation/ deployment orders would show that she, because of be the tragedy that had befallen her, was either kept attached with office or given soft posting, in order to give her some respite from strenuous work involved in the post she held. She for quite some time was deployed to Government College of Education, Srinagar. The respondent No.3 vide Government order dated 24.03.1995, was placed as Assistant Director, Archives, Jammu, in her own pay and grade and thereafter vide order dated 20th April 1998, promoted as Assistant Director, Archives, with effect from 24.03.1995, on regular basis.
9. The petitioner and respondent No.3 were considered for promotion to the post of Deputy Director, Archives, Archaeology and Museums in the year 2001. Commissioner/Secretary to Government, General Administration Department - respondent No.2, however, in his communication dated 15th June 2001, informed respondent No.1 that though respondent No.3 as per seniority was ahead of petitioner, yet because of physical disability since 1992. she may not be able to perform the duties attached to the post of Deputy Director, Archives, Archaeology and Museums and that petitioner be temporarily adjusted against the post of Deputy Director with the benefit of charge allowance without prejudice to seniority of respondent No.3. However, State Government unmindful of communication dated 24.05.2001, vide Government order dated 15.06.2001, gave charge of post of Deputy Director, Archives, Archaeology and Museums, Jammu, temporarily to respondent No.3 along with drawing and disbursing powers in respect of Jammu Division, later withdrawn vide Government Order dated 11.08.2003. This was followed by Government order dated 21st September 2006, whereby sanction was accorded to regular promotion of respondent No.3 and petitioner to the post of Deputy Director, Archives, Archaeology and Museums, with effect from 02.04.2002 and 01.10.2003 respectively. The respondent No.3 thereafter vide Government Order No.162-Edu (Tech) of 2006 dated 28.12.2006 was transferred and posted in Government College of Education, Srinagar. The respondent No.3 stayed away from duty from 20.05.2006 to 15.05.2007. The period was later treated as on Commuted Leave with effect from 20.05.2006 to 15.11.2006 and Earned Leave with effect from 16.11.2006 to 16.02.2007. The respondent No.3 continued to be posted in College of Education till the order dated 27th September 2012, whereby she was promoted to the post of Director, Archives, Archaeology and Museums, on officiating basis for a period of six months.
10. It appears that the post of Director, Archives, Archaeology and Museums, became vacant in February 2010 due to retirement on superannuation of Shri S.K.A. Qadri. Respondent NO.1 vide Government Order No.09-Cul of 2010 dated 26.02.2010 gave the charge of Director, Archives, Archaeology and Museums, to Director, libraries and Research. The petitioner approached respondents with a representation, seeking consideration for promotion to the post of Director, Archives, Archaeology and Museums. Before a decision could be taken by respondents on the representation, so filed, petitioner filed writ petition, being SWP No.820/2010, throwing challenge to the aforesaid Government Order and temporary arrangement made thereby.
11. The respondents, thereafter vide Government Order No.633-GAD of 2010 dated 31.5.2010 transferred and posted Shri Sonam Gyalson, Special Secretary to Government, Ladakh Affairs Department, as Director, Archives, Archaeology and Museums. The petitioner assailed the Government order in SWP No.1218/2010. The case set up by petitioner was that in terms of J&K Archives, Archaeology and Museums (Gazetted) Service Recruitment Rules (hereinafter referred to as "Recruitment Rules"), the respondents were to accord consideration in the first place to promotion of Deputy Directors, Archives, Archaeology and Museums to the post of Director and only thereafter fall back on options (ii) and (iii) given in the Schedule II of Recruitment Rules. The Writ Court disposed of the writ petition on 30th August 2010, with a direction to respondents to resort to option (i) in the first place and accord consideration to the case of petitioner and respondent No.3.
12. The respondents in compliance of Writ Court order dated 30.08.2010, accorded consideration to the promotion of respondent No.3 and petitioner to the post of Director in view of recommendations of Establishment-cum-Selection Committee. The Committee held their claim "not merit to consideration", on the ground that respondent No.3 was physically unwell and not in a position to attend her office regularly and do justice to her assignment and also that she did no possess five years' experience as Deputy Director, Archives, Archaeology and Museums, required for promotion to the post of Director and furthermore that her APRs for the relevant period were not available. Petitioner's claim was found without merit on the ground that petitioner because of allegations levelled against him, was advised to be careful in future, ensure decorum in office and strictly follow the rules while discharging his duties and that none of the five APRs taken into consideration for evaluation was found complete.
13. The petitioner questioned Government Order No.05 of 2011 dated 19.01.2011, whereby his claim for promotion to the post of Director, Archives, Archaeology and Museums, was found to "not merit consideration" in SWP No.385/2011.
14. The State Government, in the meantime, vide Government Order No.505-GAD of 2011 dated 27th April 2011, gave charge of Director, Archives,
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Archaeology and Museums, to Director Libraries and Research, J&K. The petitioner once again turned to the Court with writ petition, being SWP No.905/2011. However, he could not persuade the Writ Court to pass ad-interim order in his favour. Aggrieved with the refusal of Writ Court to stay operation of Government Order No.505-GAD of 2011 dated 27.4.2011, the petitioner filed Letters Patent Appeal registered as LPA No.114/2011. The LPA was disposed of on 30.07.2011 with the request to Writ Court to dispose of three petition viz. SWP No.820/2011, 385/2011 and 905/2011 by or before 31st August 2011.
15. The Writ Court, accordingly, decided three writ petitions vide judgement dated 30th December 2011. SWP No.385/2011 was allowed and order dated 19.01.2011 whereby petitioner's claim for promotion to the post of Director, Archives, Archaeology and Museums, was found to "not merit consideration" I was quashed. The respondents were also directed:
to consider case of petitioner afresh and pass appropriate orders while taking into consideration the entire APRs and the other factors the reference of which has been made hereinabove viz. the certificates of appreciation etc. Ordered accordingly. The entire exercise be completed in such a way that the consideration order is made within two months from the date copy of the judgment is served upon them."
16. Writ petitions bearing SWP No.820/2011 and 905/2011 were held to have been rendered infructuous. However, interim arrangement ordered in SWP No.905/2011 was directed to remain in force for two months i.e. till consideration order was passed, in compliance of direction given in SWP No.385/2011.
17. The respondents in compliance of Writ Court judgement dated 30th December 2011, again referred the matter to Establishment -cum-
Selection Committee. The Committee opined that as respondent No.3 was senior to petitioner in the feeding cadre of Deputy Director, Archives, Archaeology and Museums, she had "superior claim" of consideration for the post of Director, Archives, Archaeology and Museums, and held that her claim was to be considered ahead of petitioner. The Committee decided to have views of Principal, Government Medical College, and Standing Medical Board as regards health status of respondent No.3. In its meeting held on 29th August 2012, reflected in General Administration Department's letter No.GAD (L) F-256/2010 dated 29.08.2012, Committee decided to recommend that respondent No.3 "be promoted on officiating basis initially for a period of six months". It was decided that "her performance would be assessed during this period for deciding about future course of action". The matter was placed before State Cabinet and the Cabinet vide Decision NO.16 7/25/ 2012 dated 12.09.2012, accorded approval to the recommendation of Establishment -cum -Selection Committee. Since respondent No.3 was decided to be promoted as Director, Archives, Archaeology and Museums, as recommended by Establishment-cum- Selection Committee, petitioner's claim for promotion to the post of Director, Archives, Archaeology and Museums, was held devoid of merit and rejected vide Government Order No.113-Cul of 2012 dated 27.09.2012. This was followed by Government order No.114-Cul of 2012 dated 27.09.2012, according sanction to promotion of respondent No.3 as Director, Archives, Archaeology and Museums, on officiating basis initially for a period of six months.
18. The petitioner, as already pointed out, throws challenge to two Government Orders dated 27th September 2012 and seeks their quashment. He further seeks writ of Mandamus commanding respondents to promote him to the post of Director, Archives, Archaeology and Museums, having regard to his merit and suitability as directed in Writ Court judgement dated 30th December 2011 in SWP No.385/2011.
19. The main plank of petitioner's case is that respondent No.3 through senior, does not fulfil prescribed eligibility criteria for the post of Director, Archives, Archaeology and Museums, and therefore does not deserve consideration muchless promotion to the said post.
20. Before proceeding any further, it would be appropriate to reproduce herein relevant part of J&K Archives, Archaeology and Museums (Gazetted) Service Recruitment Rules, 1995:-
"Schedule-II Class Cate Grade Designa Minimum Method of Recruitment ~ory tion Oualification 1 2 3 4 5 6 1 14300- Director
(i) By promotion from 18300 Class II having at least five years' experience as such.
OR
(ii) By deputation from higher educational department amongst the persons who have done research work in history with 15 years service.
OR
(iii) By deputation from KAS/IAS
21. In terms of Recruitment Rules, Deputy Director, Archives, Archaeology and Museums, having at least five years' experience, as such, is eligible for promotion to the post of Director, Archives, Archaeology and Museums. The petitioner's case is that respondent No.3, though promoted as Deputy Director, Archives, Archaeology and Museums, with effect from 02.04.2002, did not discharge duty as Deputy Director, Archives, Archaeology and Museums, and therefore, did not have requisite experience as Deputy Director, Archives, Archaeology and Museums. In the above background, respondent No.3, according to petitioner, did not fulfil the prescribed eligibility criteria and could not have been considered by Establishment-cum-Selection Committee for her appointment by promotion as Director, Archives, Archaeology and Museums. It is pointed out that in terms of Rule 25, J&K Civil Services (Classification, Control & Appeal) Rules 1956, seniority alone is not to be given weight age while according consideration to promotion of government servant and therefore, Establishment-cum-Selection Committee could not have recommended respondent No.3 for promotion to the post of Director, Archives, Archaeology and Museums exclusively on the basis of her seniority ignoring the fact that she did not have requisite experience to her credit and was inferior in merit to petitioner. The petitioner refers to his distinguished and meritorious service career, research papers to his credit, that according to him, help him outshines all others in the Department including respondent No.3 and make him more meritorious than her. It is also pointed out that Annual Performance Reports (APRs) of respondent No.3, that would be in normal course looked into to assess her merit and ability as Deputy Director, Archives, Archaeology and Museums, were not forthcoming and available to Establishment-cum-Selection Committee and the Committee, therefore, had recommended here promotion to post of Director, Archives, Archaeology and Museums, without assessing her merit.
22. Rule 25, J&K Civil Services (Classification, Control & Appeal) Rules, 1956, prescribe mode and manner, in which promotions are to be made. It would be advantageous to extract the Rule hereunder:-
25. Promotion- (1) All promotions shall be made by the appointing authority.
(2) Promotion to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal.
(3) All other promotions shall be made in accordance with seniority and subject to any tests or special qualifications prescribed by Government unless
(a) the promotion of a member has been withheld as a penalty; or
(b) a member is given special promotion for conspicuous merit and ability.
(4) Where it is necessary in the pu bltc interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules temporarily until a person is promoted in accordance with rules, but such temporary promotion shall in no case exceed three months on each occasion.
(5) A person promoted under sub-rule (4) shall not be entitled by reason only of such promotion to any preferential claim to future promotion. "
23. A bare look at the above Rule would reveal that though focus is on "merit and ability", yet "seniority" has a pivotal role to play in promotion to a service or class or to a selection category, grade in such class. Seniority plays a role at the time, zone of consideration is fixed. Once promotion to post, service or class is considered, "merit and ability" of all the officers in the feeding service is not to be considered. The zone of consideration is, therefore, determined on the basis of seniority. Seniority again plays a role when "merit and ability" of all those falling within zone of consideration is approximately equal. The "merit and ability" are adjudged on the anvil of standards of performance, adhered to and followed while according consideration to the promotion to service or class. Promotion to a service or class may, having regard to rules laying down service conditions of a service, be made on the basis of seniority, seniority-cum-merit, or "merit and ability". Where only 'seniority' has to play a role, while making promotions, there is no difficulty at all as seniority will determine the right of an employee to be considered for promotion. In case "senioritycum- merit" is the principle to be followed, a senior employee, satisfying minimum standards of merit would have a right to be considered for promotion notwithstanding superior merit of a junior officer. However, case may be different where senior employee does not even satisfy minimum standard of merit. To illustrate where performance of a senior employee is adjudged "poor" or "below average" his junior in the cadre having higher merit would be considered for promotion. In case "merit and ability" is the norm to be followed in terms of Rules, the seniority would play a role only in determining the zone of consideration and thereafter in the event those falling within zone of consideration have approximately equal merit. Where "merit and ability"
principle is to be followed for promotion, mere fulfilment of minimum standards of merit would not help a senior to claim consideration for promotion. In such a case a junior with higher "merit and ability" would steal a mark over his senior with lesser "merit and ability".
24. The question arises as to how is "merit and ability" of those falling within zone of consideration to be adjudged. The usual mode of evaluation of "merit and ability" is to rely the Annual Performance Reports/ Annual Confidential Reports of the employees falling within zone of consideration for preceding few years. We are aware that APRs/ ACRs are initiated at the end of a Calendar year by an officer under whom an employee works and who exercises supervision over his work and conduct. The officer obviously has first-hand information of work and conduct of the employee. The report is submitted to superior officer, who may approve the grade given by the initiating officer with or without modifications or with or without his comments. In the event any adverse remarks are recorded, same are to be conveyed to the employee so that he is not taken unawares and makes a representation against such remarks and insists on their expunction. It is only thereafter that APR is taken to have been recorded and is acted upon.
25. Let us, after above brief overview of the rule position, deal with the controversy against its backdrop.
26. In the present case "merit and ability" is the principle to be followed while according consideration to the promotion of petitioner and respondent No.3, who fall within zone of consideration, to the post of Director, Archives, Archaeology and Museums.
27. The case in hand is not a simple and straight case where the APRs/ ACRs of two competing officers are available and their comparative "merit and ability" can be determined with least difficulty. In the present case APRS/ ACRs of petitioner admittedly have not been recorded and therefore, are not available.
28. The petitioner and respondent No.3 joined the Department of Archives, Archaeology and Museums on 31.07.1977 and 18.05.1984 respectively. The respondent No.3, while serving the Department, was tragically hit by a bullet in her head that led her to hospitalisation and to a serious neurological problem, resulting in muscle paralysis. She, after her discharge from Hospital, resumed her duty and was promoted as Assistant Director and thereafter Deputy Director in the respondent department. It would be appropriate to reproduce hereunder eligibility for the post of Deputy Director, Archives, Archaeology and Museums:
Schedule II Class Cate gory Grade Desig nation Minimum Qualification Method of Recruitment 1 2 3 4 5 6 II 10000- Deputy By promotion from class 15200 Director III from amongst to the persons having 5 years experience as such.
III 7500- Asstt.
By promotion from Class IV 12000 Director Categories A,B,C&D in the /Registe manner that at each time the ring post is filled from the Officer! category it was originally Antiquit filled provided the incumbent possess the requisite ies qualification as prescribed for that cate zorv
29. Promotion to the post of Deputy Director, Archives, Archaeology and Museums, requires five years' experience as Assistant Director. The petitioner, who was also due for promotion as Assistant Director and Deputy Director, at the time consideration was accorded to respondent No.3 and promotion ordered in her favour, did not question the promotions made in favour of respondent No.3. The respondent department vide Government Order No.59-Cul of 2009 dated 11th December 2009, issued "Final Seniority List" of Officers of Department of Archives, Archaeology and Museums as on 01.01.2009. The respondent No.3 figures at Serial No.02 in the order of seniority in the cadre of Deputy Directors whereas petitioner figures at Serial No.03, i.e. after petitioner. The "Final Seniority List" was not questioned by petitioner and is, therefore, binding on the parties. In the circumstances, there is no dispute as regards seniority of respondent No.3 as against petitioner.
30. Having said so, let us proceed to examine what weighed with Establishment-cum-Selection Committee to recommend promotion of respondent No.3 as Director, Archives, Archaeology and Museums, on officiating basis initially for a period of six months subject to rider that her "performance would be assessed for deciding future course of action".
31. The Establishment-cum-Selection Committee, as is evident from the minutes of meetings dated 8th, 11th June 2012, and 29th August 2012, while taking aforesaid decision, considered following aspects of the matter:
(1) Respondent No.3 was promoted as Deputy Director, Archives, Archaeology and Museums, on 02.04.2002 whereas petitioner was so promoted on 01.10.2003 and respondent No.3 was, therefore, senior to petitioner;
(II) That post of Director, Archives, Archaeology and Museums, was to be filled up by promotion and not by selection;
(III) That respondent NO.3 was not graded as she was not assigned any work;
(IV) That respondent No.3's "superior claim to the post of Director" was not to be rejected only because she was physically challenged and had not been graded; and (V) That Standing Medical Board vide communication No.MB/Misc/220 dated 01.08.2012, declared respondent No.3 fit for routine office work.
32. The question that arises for consideration is whether Establishment- cum-Selection Committee for the reasons spelt out in the minutes of aforementioned meetings and the recommendations made on the basis thereof, was justified to recommend respondent No.3's promotion on officiating basis initially for a period of six months as Director, Archives, Archaeology and Museums. There is no quarrel as regards seniority of respondent No.3. The observations made by Establishment-cum- Selection Committee in this regard cannot be faulted.
33. Respondent No.3 was promoted as Deputy Director, Archives, Archaeology and Museums, with effect from 2nd September 2002 and therefore, held the post of Deputy Director for a period of more than ten years, when her case for promotion to the post of Director, Archives, Archaeology and Museums, was considered by Establishment-cum-Selection Committee. She out of the said period served the Department as Deputy Director for a period a little less than five years. She was, vide Government Order No.162-Edu (Tech) of 2006 dated 28th December 2006, transferred and posted in Government College of Education, Srinagar. She was to retain her lien in the parent cadre/ department and her pay was to be drawn against equivalent and available vacancy in the Government College of Education. The order reads as under:
"GOVERNMENT ORDER NO:-162-Edu (Tech) of 2006 D ATE D: 28 - 12 - 2006 In the interest of Administration, Mtr. Nasreen Khan, Dy. Director Archives Jammu is hereby transferred and posted in the Govt. College of Education Srinaqar, The officer shall retain her lien in her parent cadre/ Department.
The pay of the officer shall be drawn against any equivalent available vacancy in the College. By order of the Government of Jammu and Kashmir."
34. A bare look at the above order would reveal that respondent No. 3 was not transferred to Government College of Education, Srinagar, at her request. True that respondent No. 3, after tragic incident of 1992 that left her bed ridden for quite some time, was given a less onerous and less stressful assignment and such a consideration might have been at the back of her, transfer to Government College of Education. But respondent No.3 cannot be penalized for the decision taken by respondent State on its own without any request or consent from respondent No.3. The respondent No.3 cannot be also penalized for no or less work having been assigned to her on joining the Institution to which she was transferred. In case respondents 1&2, taking a compassionate view of the matter, on humanitarian grounds deputed respondent No.3 to a soft position, without any substantial work and that too without her request and consent, respondent No.3 cannot be accused of having gained no experience and therefore, not eligible for the promotion that otherwise was to come her way in terms of Recruitment Rules. It is not a case where an officer after his promotion to a feeding cadre for the next level, proceeds on leave and stays away from his duty for the period he should have worked in the feeding cadre to be entitled to promotion to next level. In such a case the officer possibly would have been held disentitled to lay claim to the promotional post on the ground that he did not perform any duty and therefore, did not gain any experience by working against the post in the feeding cadre. To illustrate, in case respondent No. 3, after her promotion as Deputy Director, Archives, Archaeology and Museums, would have proceeded on leave and stayed away from her office till she was considered for promotion to the post of Director, petitioner could have very well contend that respondent No.3 had not worked as Deputy Director, Archives, Archaeology and Museums, and therefore, did not have requisite experience in terms of Recruitment Rules. However, respondent No.3, as is evident from above discussion, actually worked as Deputy Director, Archives, Archaeology and Museums, for little less than five years (04 years, 08 months & 26 days to be exact) in the Department and thereafter discharged duties whatever were assigned to her without any change in her status, on her transfer to the Government College of Education, Srinagar. In the said background there is no merit in the petitioners claim that respondent No.3 did not have requisite experience to be eligible for promotion to the post of Director, Archives, Archaeology and Museums.
35. Likewise, respondent No.3 cannot be penalized for failure of respondents 1&2 to grade her for any reason including non-assignment of work to her. The argument that as Annual Performance Reports of respondent No.3 of preceding years, she worked as Deputy Director , Archives, Archaeology and Museums, were not recorded and available, her merit and ability could not be assessed and therefore, petitioner was the only eligible candidate for promotion as Director , Archives, Archaeology and Museums, is for the reasons discussed above devoid of any merit. As already pointed out, respondent No.3 cannot be penalized for failure on part of her superior officers to record her Annual Performance Reports. Reference in this regard may be made to law laid down in Mohammad Tayoub Malla versus State and others [2009(Supp.) JKJ 565 (HC)].
36. It is pertinent to point out that there is no adverse remark as regard performance of respondent No.3 recorded by her superior officers while she worked as Deputy Director in the Department and thereafter in Government College of Education. It is well settled law that where the Annual Performance Reports are not recorded or not available, seniority is to have an edge and promotion to be made on the basis of seniority. Supreme Court in Union of India versus Mohan Lal Capoor and others [1973 (2) SCC 836], has held it is only when merit and suitability are roughly equal that seniority will be determining factor or, if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale. In such a case, competent authority may rely on available Annual Performance Reports and in absence of any adverse remark from the superior officers presume, the officer to have performed upto the level, reflected in available Annual Performance Reports, though anterior in point of time. In the present case respondents No.3, as pointed out earlier, was promoted as Deputy Director without any objection from petitioner and even placed in Final Seniority List of Deputy Directors, above petitioner and her position in the List was at no point of time questioned by petitioner. This apart because of non-availability of APRs, it is not fairly possible as laid down in Mohan Lal Capoors case (supra) to assess the comparative merit of petitioner and respondent No.3 and seniority, therefore, is to play a pivotal role in the matter.
37. It is true that respondent No.3 did not come forward at any stage whenever respondents 1&2 made attempt to fill up the post of Director either by deputation or on substantive basis, resorting to Options (ii) and
(iii) given in Schedule II of the Recruitment Rules. It undoubtedly was the petitioner, who obstructed all such efforts and filed writ petitions, one after another to insist that post, in the first place, was to be filled by promotion from Class II, i.e. Deputy Director, Archives, Archaeology and Museums. However, this does not change the complexion of the matter. If respondent No.3, because of the tragedy that befell her, did not have will and resources to resort to litigation to ensure that Recruitment Rules were adhered to while filling up the post of Director, that by itself would not rob her right to be considered for promotion to the post of Director.
38. It is argued by learned counsel for petitioner that Government Order No. 05 of 2011 dated 19th January 2011, sealed promotion chances of respondent No.3 for all times to come and as respondent No.3 did not find it necessary to question the order, the order was binding on her and disentitled her from consideration for promotion to the post of Director at any stage subsequent to the date of order i.e. 20.01.2011. It is pointed out that petitioner alone successfully questioned Government Order No. 05 of 2011 dated 19.01.2011 and was set aside at his instance and therefore, he alone was to be considered for promotion to the post of Director. The argument is of no avail to petitioner. In the first place, Government Order No. 05 of 2011 dated 19.01.2011 is relevant and effective as on the date the matter was considered and does not block promotional avenues of either petitioner or respondent No.3 for all times to come. The consideration was declined on the grounds that some vital documents, like APRs and integrity certificates prerequisites for both petitioner and respondent No.3, for consideration, were not forthcoming and additionally respondent No.3 did not have experience as Deputy Director, necessary for promotion to the post of Director. The order does not imply that such documents would not surface or become available to the Establishment cum-Selection Committee on any subsequent date. Whether respondent No.3 had any experience as Deputy Director would also have relevance to the date the matter was considered by the Committee. The Government Order No. 05 of 2011 dated 19.01.2011, therefore, essentially deferred consideration and did not close the matter for all times to come. The Establishmentcum-Selection Committee, in the circumstances, acted within its powers while according consideration to respondent No.3 for promotion to the post of Director on 13th September 2012. This apart, Government Order No.05 of 2011 dated 19.01.2011 was set-aside on 30th December 2012 by the Writ Court while allowing SWP No.385/2011. The Writ Court declared Government Order No. 05 of 2011 to have been passed without basis and to be illegal. The observation was not restricted to petitioner alone and so is not quashment of the order. However, even if Writ Court order dated 30th December 2011 is taken to be restricted to petitioner, still for the reasons discussed above, Establishmentcum-Selection Committee was not precluded from according consideration to respondent No.3s promotion to the post of Director on 13th September 2012.
39. The above discussion apart, the matter in my opinion has an element of compassion as well. The respondent No.3 fell victim to a militancy related incident in the year 1992. She in no way is responsible for her plight. It would be compounding her agony if she is denied promotion for the tragedy that has befallen her and in which she had no role to play. Her plight must evoke sympathy from one and all, including her colleagues in the Department and not deny her rights and lead to an effort to drag her to litigation. Needless to emphasize that respondent No.3 would have worked out with zeal, shoulder to shoulder, with her colleagues as petitioner and others in the department, had she not been a victim of cross- firing incident. Everyone in the society has shown compassion, in one way or other, for the victims of turbulence that has taken the Valley in its grip during last two decades. The State has not lagged behind and has come up with welfare measures like J&K Compassionate Appointment Rules, ex gratia relief and like packages, to provide succour and relief, to the victims of turmoil. Nothing can be more unethical than to, even make an effort to let alone, deny right to a person that would in normal course come in his/ her way, except for the reason that such person has been a victim of turmoil. How painful it would be for the victim of turbulence to deny him/her whatever is due to him/her only because he/she has been such victim, is to be experienced to be understood and realized.
40. For the reasons discussed, I do not find any merit in the petition. Petition is, accordingly, dismissed. However, nothing stated herein shall stand in the way of respondents 1 and 2 to make an objective appraisal of performance of respondent No.3 as Director, Archives, Archaeology and Museums, during the period of six months commencing from 27th September 2012 in terms of Government Order No.114-Cul of 2012 dated 27th September 2012, to decide about future course of action.
( Hasnain Massodi ) Judge Srinagar 22/05/2013 Aijaz Ahmad