Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shaban Allai vs State Of J&K; And Another. on 11 October, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.1589/2014
MP No.2514/2014
Date of order: 11.10.2017
Mohammad Shaban Allai v. State of J&K and another.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing Counsel:
For Petitioner(s) : Mr. A. Haqani, Advocate.
For Respondent(s) : Mr. Sajad Geelani, Dy. AG.
(i) Whether to be reported in Yes
Law Journals etc.
(ii) Whether approved for publication Yes/No
in Media/Press.
1. The facts, which are not in dispute, are that the petitioner being a diploma holder in Civil Engineering was appointed as Junior Aquaculture Engineer in the Fisheries Department in the year 1979. He was, however, promoted as Assistant Aquaculture Engineer w.e.f. 11.01.1999 vide Government Order No.428-FST of 2003 dated 10.09.2003. He was thereafter promoted as Aquaculture Engineer notionally w.e.f. 11.01.2003 and on regular basis from 19.07.2004 vide Government Order No.211-FST of 2005 dated 24.05.2005 and ultimately vide Govt. Order No.19-FST of 2011 dated 25.01.2011, he was promoted as Senior Aquaculture Engineer retrospectively w.e.f. 09.06.2005 on the ground that he had been holding the aforesaid post in incharge capacity since that date. He was, however, assigned the charge of Chief Aquaculture Engineer (S.E.) in addition to his own duties as Senior Aquaculture Engineer, vide Fisheries Order No.127 of 2013 dated 09.11.2013 issued by the then Director, Fisheries. There is no dispute that the petitioner is presently Senior Aquaculture Engineer, holding the aforesaid post since 09.06.2005. It is pleaded by the petitioner SWP No.1589/2014 Page 1 of 13 and not denied by the respondents that the post of Chief Aquaculture Engineer fell vacant in the year 2001 when one Sh. G.L.Koul, who was holding it on deputation from PW(R&B) department, was repatriated on his promotion and posted as Chief Engineer in his parent department. It is further submitted that the aforesaid post has thereafter remained vacant and has not been filled up till date.
2. The petitioner claims to have made several representations seeking promotion to the post of Chief Aquaculture Engineer but the same have fell in the deaf ears of the respondents. As stated above, the petitioner was, however, asked to hold the additional charge of the post of Chief Aquaculture Engineer vide order dated 09.11.2013 issued by the Director, Fisheries. It is contended by the petitioner that instead of according consideration to his genuine claim for promotion as Chief Aquaculture Engineer, respondent No.1 has initiated process to fill up the post by way of deputation, as is evident from the communications of respondent No.1 dated 01.07.2014, 07.07.2014 and 08.07.2014 (copies whereof are appended with the writ petition as Annexure P-5, P-6 and P-7 respectively). The petitioner appears to have felt threatened by the aforesaid communications and has filed the instant writ petition seeking, inter alia, a writ of certiorari quashing the aforesaid communications of respondent No.1. The petitioner has also sought for a direction to the respondents to accord consideration to the claim of the petitioner for his promotion to the post of Chief Aquaculture Engineer in terms of The Jammu & Kashmir Fisheries (Gazetted) Service Recruitment Rules, 1999 (for brevity, the Rules of 1999).
SWP No.1589/2014 Page 2 of 133. The petitioner has assailed the impugned communications primarily on the ground that respondent No.1 in the aforesaid communications has sought deputation of an eligible person from PW(R&B) department to be posted as Chief Aquaculture Engineer on the ground that there was no eligible person available in the department.
4. The petitioner submits that the aforesaid communications are factually incorrect, inasmuch as, the petitioner is holding the post of Senior Aquaculture Engineer w.e.f. 09.06.2005, therefore, has acquired the requisite eligibility to be promoted as Chief Aquaculture Engineer w.e.f. 09.06.2005 itself and therefore, was entitled to be promoted as Chief Aquaculture Engineer in terms of the Rules of 1999, which were in vogue when the vacancy became available and the petitioner had acquired the requisite eligibility.
5. The respondents have filed their objections. The stand taken by the respondents in the objections is that the petitioner was not substantively holding the post of Senior Aquaculture Engineer till 25.01.2011, when his incharge promotion as Senior Aquaculture Engineer came to be regularized pursuant to the recommendation of the PSC/DPC vide Govt. Order No.19- FST of 2011 dated 25.01.2011. It is, thus, averred in the objections that on 25.01.2011 when the petitioner was accorded substantive promotion to the post of Senior Aquaculture Engineer, the new Rules, i.e., the Jammu & Kashmir Fishers (Gazetted) Service Recruitment Rules, 2009 had been promulgated vide SRO 172 of 2009 (for brevity, "the Rules of 2009") and as per the Rules of 2009, the petitioner being a diploma holder engineer was not eligible to be promoted to the post of Chief Aquaculture Engineer. The further stand of the respondents is that the process for filling up the SWP No.1589/2014 Page 3 of 13 post of Chief Aquaculture Engineer was initiated in the year 2014, therefore, the Rules, which were in vogue in the year 2014 i.e., the Rules of 2009 were to govern the promotion to the post of Chief Aquaculture Engineer. It is, thus, contended that since no eligible candidate with requisite qualification as prescribed in the Rules of 2009 was available, therefore, vide impugned communications the process was initiated to fill up the post by alternate mode prescribed in the Rules of 2009, i.e., by way of deputation from the PW(R&B) department. It is, thus, submitted that in the aforesaid context the impugned communications came to be addressed by respondent No.1.
6. Heard learned counsel for the parties and perused the record.
7. As stated above, the facts are not in dispute. The only question that calls for determination in the admitted factual background is:-
"Whether the eligibility of a candidate to be promoted against the vacant post is to be seen with reference to the recruitment rules, which were prevalent at the time of accrual of the vacancy or is to be regulated/governed by the Rules in force at the time the process for filling up the vacancy is initiated."
8. Admittedly, the vacancy of Chief Aquaculture Engineer accrued in the year 2001 when one G.L.Koul, who was holding the post on deputation came to be repatriated to his parent department on his promotion and was posted as Chief Engineer. In the year 2001, the petitioner was holding the post of Junior Aquaculture Engineer and therefore was not eligible even in terms of the Rules of 1999. He, however, became Assistant Aquaculture SWP No.1589/2014 Page 4 of 13 Engineer in the year 2003 but was given effect of promotion from 11.01.1999. He was thereafter promoted as Aquaculture Engineer w.e.f. 11.01.2003. He was though working as Senior Aquaculture Engineer since 09.06.2005 but his promotion came to be regularized on 25.01.2011 with retrospective effect. In terms of the Rules of 1999, the post of Chief Aquaculture Engineer was provided to be filled up by promotion from amongst Senior Aquaculture Engineers with 15 years' experience in aquaculture engineering or by deputation. For facility of reference, relevant extract of the Rules of 1999, which provided for method of recruitment to the post of Chief Aquaculture Engineer is reproduced here under:-
Class Category Designation of Grade Minimum Method of Recruitment.
Posts Qualificati
on for
direct
recruitmen
t
1 2 3 4 5 6
I. Chief 12000- By promotion from
Aquaculture 16500 Class-II with fifteen
Engineer(Civil years experience in
R&B) ( S.E.) Aquaculture Engineering
or by deputation from
Public Works Deptt.,
amongst Civil
Engineering (R&B
Wing) of the rank of S.E.
and having experience in
Aquaculture
Engineering.
9. The aforesaid Rules of 1999, however, came to be replaced by a new set of Rules promulgated vide SRO 172 of 2009. In terms of the Rules of SWP No.1589/2014 Page 5 of 13 2009, the post of Chief Aquaculture Engineer was provided to be filled up in the following manner:-
"By promotion from Class-II amongst members of Service possessing B.E. Civil or Degree in Aquaculture Engineering or AMIE Part A and B from a recognized University having 17 years substantive service in the Gazetted Cadre and three years substantive service in Class-II or by deputation from PWD, Civil Engineering/Hyd. Wing having the rank of S.E."
10. It is, thus, clear that under the Rules of 1999, the petitioner can be deemed to have acquired eligibility to be promoted to the post of Chief Aquaculture Engineer w.e.f. 09.06.2005 when he came to be substantively promoted to the post of Senior Aquaculture Engineer and was also having 15 years of experience in aquaculture engineering, having been appointed as Junior Aquaculture Engineer in the year 1979.
11. If the contention of the petitioner that the eligibility of the candidate to be promoted to the higher post is to be seen as per the Rules prevalent on the date of occurrence of vacancy is to be accepted, then the petitioner is to be held entitled to be promoted as Chief Aquaculture Engineer w.e.f. 09.06.2005 or atleast immediately with effect from the date he completed the period of probation as Senior Aquaculture Engineer. On the other hand, if the plea of the respondents-State that the date of occurrence of vacancy is not relevant for determining the eligibility in terms of the Rules then in vogue but is to be determined in terms of the Rules in force at the time the process for filling up the vacancy is initiated, is accepted then admittedly, the petitioner lacks the basic eligibility to be promoted to the post of Chief Aquaculture Engineer. This is apparent from a bare perusal of the Rules of 2009. It is in this context, determination of question of law framed above, assumes importance.
SWP No.1589/2014 Page 6 of 1312. Learned counsel for the parties have addressed elaborate arguments on the aforesaid aspect. Learned counsel for the petitioner has submitted that the eligibility is required to be seen with reference to the Recruitment Rules, which were in force on the date of occurrence of vacancy and not on the date, the vacancy is sought to be filled up by the respondents. In support of his submission, learned counsel for the petitioner has relied on Y.V. Rangaiah And Ors. vs J. Sreenivasa Rao And Ors, ;AIR 1983 SC 852 and State of Rajasthan v. R. Dayal; (1997) 10 SCC 419.
13. Per contra, learned counsel appearing for the respondents would submit that the eligibility of an individual for promotion to the higher post is governed by the Recruitment Rules, which were in force on the date the process for filling up the higher post is initiated and has no reference to the date of occurrence of the vacancy. In support of his submissions, learned counsel of the respondents has relied on the following judgments of the Supreme Court:-
Deepak Agarwal & another v. State of Uttar Pradesh and others ; 2011(6) SCC 725, State of Triputa and others v. Nikhil Ranjan Chakraborty and others; 2017(3) SCC 646, Nirmal Chandra Sinha v. Union of India and others; 2008(14) SCC 29, and Syed Khalid Rizvi and others v. Union of India and others; 1993 Supp(3) SCC 575.
14. In Deepak Aggarwal's case (supra), the Supreme Court in paragraph No.17 held thus:-
"17. The short question that arises for consideration is as to whether the appellants were entitled to be considered for promotion SWP No.1589/2014 Page 7 of 13 on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 1983 Rules on 17th may, 1999. Under the unamended 1983 Rules, the petitioners would be eligible to be considered for promotion by virtue of Rule 5(2). Bye virtue of the Note to Rule 8, a combined eligibility list has to be prepared by arranging the names of Assistant Excise Commissioner and Technical Officers in order of seniority as amended by the date of their substantive appointment. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. There is no statutory duty cast upon the Sate to complete the selection process within a prescribed period. Nor is there a mandate to fil up the posts within a particular time. Rather the proviso to Rule 2 enables the State to leave a particular post unfilled."
Similarly in paragraph No.22, it is held thus:-
"22. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the 'rules in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment. The judgments cited by learned counsel for the appellants namely B.L.Gupta v.MD (supra), P.Ganeshwar Rao v. State of Andhra Pradesh (Supra) and N.T.Devin Katti and Ors. V. Karnataka Public Service Commission & Ors (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra)."
15. In view of the clear dictum of law laid down in the aforesaid decision, which position of law was reiterated by the Supreme Court in its latest judgment in the case of Nikhil Ranjan Chakraborty's case (supra), paragraph No.10 whereof reads thus:-
SWP No.1589/2014 Page 8 of 13"10. In the present case, appellant Nirmal Chandra Sinha was promoted as General Manager on 29.11.1996, but he claims that he should be deemed to have been promoted w.e.f. 13.3.1996 with consequential benefits. We are afraid this relief cannot be granted to him. It is settled law that the date of occurrence of vacancy is not relevant for this purpose."
16. The position of law is, thus, well settled that no employee has a right of promotion but he has only right to be considered for promotion according to the Rules. The chances of promotion are not the conditions of service and are therefore, defeasible in accordance with law. This is so held by the Supreme Court in the case of Syed Khalid Rizvi's case (supra). It is also now equally well settled that a candidate has a right to be considered for promotion in terms of the Rules in force on the date of consideration and there is no Rule of universal or absolute application that the vacancies are required to be filled up invariably in accordance with the Rules prevalent on the date when the vacancies arise. However, this Rule is subject to exception, i.e., if there is statutory duty cast upon the State/employer to hold DPC or complete the exercise for promotion within a prescribed period. Unless, there is statutory mandate to fill up the vacancies within a prescribed period, it is always left to the wisdom and discretion of the employer to fill up the vacancies as and when it deems fit and proper and the employee, who has a right of consideration for promotion cannot dictate to his employer that available vacancy should be filled up immediately on its occurrence. The judgments rendered by the Supreme Court in the cases of Deepak Aggarwal (supra) and Nikhil Ranjan Chakraborty (supra) have amply clarified the position of law in this regard.
17. An employee has a right to be considered for promotion according to the Rules prevalent on the date the consideration takes place. Chances SWP No.1589/2014 Page 9 of 13 of promotion are not the condition of service, therefore, defeasible in accordance with law.
18. That being the position, unless there is a statutory mandate to fill up the vacancies within the prescribed period, employer/State is well within its right to decide about the time, it would choose to fill up the vacancies. For good reasons it can defer the filling up of the vacancies/vacancy that may have accrued from time to time.
19. Viewed in this context, it is to be held that ordinarily a post is required to be filled up in accordance with law i.e. prevalent on the date it is sought to be filled up and not the law that was prevalent on the date of occurrence of such vacancy. This is, however, subject to exception that if, there is a statutory mandate to fill up the vacancy within the prescribed period the person, who is eligible and suitable to be promoted against such vacancy can be said to have acquired right of promotion. In that eventuality, the eligibility of such candidate is required to be determined in terms of the Rules in force when vacancy accrued and when the same ought to have been filled up under the statutory rules. The question of law formulated herein above is therefore, answered, accordingly.
20. Although, the petitioner has not set up his case that the right of promotion had accrued to him on the date of accrual of vacancy of Chief Aquaculture Engineer in terms of the Rules then in force, yet the plea of the petitioner needs to be examined in light of the settled position of law as adumbrated herein above. The Government of Jammu & Kashmir vide SRO 166 of 2005 dated 14.06.2005 had promulgated The Jammu and Kashmir Civil Services (reference of vacancies and holding of meetings of Departmental Promotion Committees) Rules, 2005, which cast a SWP No.1589/2014 Page 10 of 13 mandatory duty on all the departments to refer all the available vacancies to be filled up by direct recruitment/promotion to the concerned recruiting agency/DPC/PSC respectively at least twice a year. For facility of reference relevant Rule, which relates to reference of vacancies is reproduced herein hereunder:-
"2. Reference of vacancies:- (1) The Departments shall refer vacancies falling under direct recruitment quota to Public Service Commission and Service Selection Board, as the case may be, by 15th of January every year;
Provided hat the reference of vacancies under Combined Competitive Services shall continue to be governed as per the existing procedure.
(2) The Departments shall refer vacancies in the promotion quota to Public Service Commission and Departmental Promotion Committees, as the ease may be, at least twice a year preferably in the month of January and July and also take necessary steps for having the meetings convened."
21. From the bare perusal of the extracted Rule, it is abundantly clear that there is a statutory mandate to fill up the vacancies by the departments by referring the same twice to PSC and DPC in a year. Had the respondents carried this mandate of law then the petitioner would have a right of consideration for promotion to the post of Chief Aquaculture Engineer after he acquired eligibility in the year 2005 and his promotion would have been regulated by the Rules then in force, i.e., the Rules of 1999. This accrued right of the petitioner, therefore, could not have been taken away by subsequent amendment of Rules effected vide SRO 172 of 2009, which prescribed eligibility for promotion to the post of Chief Aquaculture Engineer different than the one prescribed under the Rules of 1999.
22. Although, in terms of Rules of 1999, the respondents were well within their powers to fill up the vacancy by way of deputation from SWP No.1589/2014 Page 11 of 13 PW(R&B) department, yet from the pleadings, it is apparent that right from the year 2001, till the impugned communications were addressed, no steps were taken to fill up the post by resorting to alternate mode, i.e., by way of deputation. The petitioner, though, acquired eligibility in the year 2005 itself in terms of the Rules of 1999, was not considered despite the petitioner having made several representations in this regard. The plea of the respondents that the petitioner was substantively promoted as Senior Aquaculture Engineer only in the year 2011 when pursuant to the recommendations of the DPC/PSC, his promotion was confirmed also cannot be accepted for the simple reason that the petitioner, who was holding the post of Senior Aquaculture Engineer since 09.06.2005 in incharge capacity and was ultimately substantively promoted, though, notionally w.e.f. 09. 06.2005. Had the respondents adhered to the mandate of The Jammu and Kashmir Civil Services (reference of vacancies and holding of meetings of Departmental Promotion Committees) Rules, 2005, the petitioner being the only eligible candidate available in the feeding cadre would have been promoted to the post of Chief Aquaculture Engineer.
23. Viewed thus, the writ petition is allowed. Accordingly, the communications impugned dated 01.07.2014, 07.07.2014 and 08.07.2014 are hereby quashed. The respondents are directed to consider the claim of the petitioner for his promotion to the post of Chief Aquaculture Engineer in terms of the Rules of 1999, which were holding the field when the post of Chief Aquaculture Engineer became vacant and also on the date when the petitioner acquired eligibility to be promoted to the post. It is further provided that in case the petitioner, upon consideration, is found entitled SWP No.1589/2014 Page 12 of 13 for promotion to the post of Chief Aquaculture Engineer, the same shall be granted to him in substantive capacity with prospective effect and notionally from the date he has been holding charge of the post.
(Sanjeev Kumar) Judge Srinagar 11/10/2017 Vinod.
SWP No.1589/2014 Page 13 of 13