Jammu & Kashmir High Court - Srinagar Bench
Dr. Gh. Mohi-Ud-Din Ganai vs State Of J&K; And Others on 2 March, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 9900010/2008, MP No.01/2016
c/w
CPSW No.990004/2010
Date of Order: 02.03.2018
Dr. Gh. Mohi-Ud-din Ganai
Vs.
State of J&K and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Rahul Pant, Advocate
For respondent(s): Ms Seema Shekhar, Sr. AAG.
Mr H.A Siddiqui, Sr. AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. In this petition, the petitioner beseeches for the grant of a writ of the mandamus commanding the respondents to induct him in the Kashmir Administrative Services under the Technical Quota as envisaged under Rule 5(1) (c) of the Jammu and Kashmir Administrative Rules, 1979 (for brevity called as Rules of 1979) . As per the Rule 5 of the Rules of 1979, recruitment to the Kashmir Administrative Services had to be made; (a) by competitive examination at the Junior Scale; (b) by promotion to the time scale of the service from amongst the members of the services detailed therein holding the time scale of Rs. 2125-3600 or any other higher grade in the respective departmental service; and (c) by selection to the time scale of the service from amongst the persons of outstanding ability and merit serving in connection with the affairs of the State in Departments/Services other than those covered under Clause (b) above or in autonomous bodies/Government owned public sector undertaking carrying pay scale equivalent or higher than the time scale of KAS, on the recommendations of SWP No.9900010/2008 Page 1 of 7 the concerned department/autonomous body/government owned Public Sector undertaking respectively.
2. Although the Jammu and Kashmir Administrative Services Rules 1979 were repealed on 01.12.2008 by Jammu and Kashmir Administrative Rules, 2008, yet rule 6 of the new Rules did not undergo much of a change in so far as the mode and method of appointment under the technical quota is concerned. Rule '6' of the 2008 Rules added the names of the some service to the feeding category of the posts or changed their nomenclature. It also modified the pay scale required for induction into the service from Rs. 2125-3600 to R. 10,000-15200 or any other higher grade in that service with the rider that only such persons shall be eligible for consideration who had not attained the age of 54 years as on the 1 st day of the January of the year in which the recommendation in this behalf is sought by the General Administration Department. It is contended that the petitioner was/is eligible and had/has a right to be appointed/promoted to the time scale of Kashmir Administrative Services under the technical quota both as per the rules of 1979 and the rules promulgated in the year 2008.
3. The petitioner has seeks the indulgence of this Court in considering him for appointment in the Kashmir Administrative Services under clause (c) of Rule 5 which stipulates that an officer shall be recommended by the concerned department provided he is serving in the pay scale equivalent or higher than the time scale of Kashmir Administrative Services. It needs to be stated here that in the year 2008, the time scale of Kashmir Administrative Services was Rs.10,000- 325-15200. The case of the petitioner was recommended for the first time in the year 2006 as comes to the fore from the recommendation of the Hon'ble Minister made in the year 2006 as contained at para 32 of the writ petition. The case of the petitioner was again recommended in the year 2007 by the then Minister for Education and these recommendations are attached to the petition at page 33. In the same year the government in the General Administrative Department conveyed that the petitioner can be considered for promotion/appointment into SWP No.9900010/2008 Page 2 of 7 the Kashmir Administrative Services under the technical quota as and when a vacancy becomes available in the Kashmir Administrative Services for this source, provided he is otherwise eligible under the Rules and is recommended by his parent department. This is brought to the fore from Annexure 'F' annexed to the petition. On 24.07.2008, when the petitioner was serving in the capacity of the Secretary in the Social Welfare Board, the case of the petitioner was yet again recommended for appointment to J&K Administrative Service (KAS) and he was shown to be holding the grade of Rs. 10,000-325-15200, attached to the post of the Administrative Officer to the J&K State Social Welfare Board. The copy of the communication bearing No. 1054-55 dated 24.07.2008, portraying this position is attached to the petition as Annexure E-10. The Government vide communication No. GAD(SCR) KAS/60/2008 dated 25.06.2008 invited the names of the officers required to be considered for induction into KAS under the technical quota as gets revealed from Annexure-'D' attached to the petition. The case of the petitioner had already been recommended by his parent department, that is, the Law Department, vide No. PS/CSC/2007/765 dated 10.05.2007 attached to the petition as Annexure 'J'. Although the recommendations made in the favour of the petitioner by various departments including his parent department stated that the petitioner was working in the pay scale of 10000-325- 15200, yet the petitioner was not called for the interview in the year 2008. The petitioner has contended that he figured at S.No.4 in the merit list as per the adopted procedure and after the preparation of the merit list the petitioner had to be called for the interview.
4. The respondents have in their counter affidavit stated that the petitioner did not possess the qualifying grade of Rs.10000-325-15200 on substantive basis on the initial date i.e., 01.01.2008 which according to them was the cut off date. The respondents have however, admitted that 11 slots were earmarked under the technical quota for the year 2007.
5. Heard and considered.
SWP No.9900010/2008 Page 3 of 76. The admitted facts as these emerge from the pleadings are that 11 slots were identified in the year 2007 for selection and appointment into the Kashmir Administrative Services under the technical quota i.e., under Rule 5(1) (c) of the Rules of 1997. It is also admitted that 10 per cent of the vacancies of Senior Scale posts occurring in a calendar year are required to be filled up by selection from the persons detailed in clause (C) of Sub Rule 1 in terms of Rule 5(3) (b) of the 1979 Rules. It is also admitted that the case of the petitioner was placed before the selection committee and the selection committee considered his case and placed him at S. No. 4 on the strength of his APRs and other material. This transpires from Annexure 1 attached to the CMP No.772 of the year 2010. It is also admitted that the selection committee did not call the petitioner for interview on the ground that he did not hold the grade of Rs. 10000-325-15200 on 01.01.2008 which as is alleged was the cut off date. On the basis of above, the only question that requires to be decided and determined by this Court in this petition is whether the petitioner was holding the grade of Rs. 10000-325-15200 as on the cut off date i.e., 01.01.2008.
7. The petitioner has attached the copy of the Government Order No. 227-R-2004 dated 27.10.2004 (Annexure 3) with his rejoinder which provides that he has been inducted into the pay scale of 10000-325-15200 w.e.f 01.10.2004. In a subsequent development, vide Government Order No.587/GAD/2003 dated 13.05.2003 attached to the rejoinder as Annexure 2 a decision was taken by the Government that a Special Assistant shall not be below the rank of Deputy Secretary and since the petitioner was working as Special Assistant to the Minister for Rural Development, from the year 2002 therefore, the charge allowance w.e.f the year 2002 to September 2004 was released in his favour and from October 2004 he was placed in the regular pay scale of Rs. 10000-325-15200 on substantive basis. The Government Order No. 227-RD of 2004 dated 27.10.2004 is a composite order whereby the petitioner was granted the charge allowance in the pay scale of Rs. 10000-325-15200 and w.e.f 27th of October, 2004 he was placed in the SWP No.9900010/2008 Page 4 of 7 regular pay scale of Rs. 10000-325-15200. In all the recommendations made in favour of the petitioner including the one made by his parent department, that is, the Law Department, it has been specifically stated and provided that the petitioner has already been working in the pay scale of Rs. 10000-325-15200 i.e., time scale of Kashmir Administrative Services. From the perusal of the service book of the petitioner i.e. Annexure-A, attached to MP No. 01 of 2017, it gets revealed that the grade of Rs.10000-15200 has been released in favour of the petitioner w.e.f. 1st October, 2004 and, thereafter, increments have been released in favour of the petitioner on regular basis. The first increment in the pay scale of Rs.10000-15200 has been released in favour of the petitioner on 1st October, 2005. The second increment has been released in favour of the petitioner on 1st October, 2006 and similarly on 1st October, 2007, the third increment has been released in his favour and in terms of SRO 93dated 15th April, 2009, the pay of the petitioner was re-fixed into the Pay Band-III as is brought to the fruition from his service record. Government Order No.2215-LD (Estt.) of 2009 dated 9th October, 2009 under which the respondents take umbrage and contend that the petitioner was placed in the pay scale of Rs.10000-15200 as Senior Law Officer in the year October, 2009 is totally misplaced and incorrect. Although in October 2009, the petitioner was promoted as Senior law Officer in the pay scale of Rs.10000-15200, yet the said pay scale had already been substantively given to the petitioner in the year 2004. The rule position is that in considering the candidates for induction into Kashmir Administrative Service under the technical quota, it is only the 'grade' which is relevant and not the 'post' as an officer is required to hold the pay scale equivalent to or higher than the time scale of Kashmir Administrative Service. Admittedly the time scale of the pay of the petitioner at the relevant point of time was Rs.10000-15200 and he, as such, was entitled to be considered for the post and the refusal on the part of the Selection committee to invite the petitioner for interview was illegal and arbitrary.
SWP No.9900010/2008 Page 5 of 78. The process of promotion/encadrement into Kashmir Administrative Service, which was initiated in the year 2008, ultimately culminated into issuance of an appointment order of 14 officers under the technical quota i.e. Government Order No.314-GAD of 2012 dated 15th March, 2012, annexed as Annexure-11 to the rejoinder. Out of the aforesaid 14 officers, three officers figuring at Serial No.01, 02 and 08 as alleged by the petitioner did not join. The petitioner, as such, was entitled to selection keeping in view his merit for appointment into Kashmir Administrative Service and was wrongly denied the appointment on illegal and flimsy grounds. Respondents as such, are liable to be directed to consider the case of the petitioner for induction against the available vacancies of the year 2007 as three vacancies under the technical quota are said to have remained unfilled which has not been disputed by the State.
9. A similar controversy arose with respect to an officer namely Mohd. Mehraj-ud- Din Khan, who was seeking his appointment in Kashmir Administrative Service under the technical quota. He was also denied induction on the ground that he was not having the requisite pay scale. A learned Single Judge of this Hon'ble court considered this issue in SWP No. 1693/2000 and directed the respondents to accord consideration to his case for induction into Kashmir Administrative Service w.e.f. 31st August,2000.
10.The respondents however, considered the case of Mohd. Mehraj-ud-Din Khan in terms of the judgement passed in SWP No.1693/2000 and rejected the same, which constrained him to file a writ petition before this Hon'ble Court, which was registered as SWP No.1268/2014. The said writ petition was finally allowed by the Hon'ble court on 26th October, 2016. The judgment dated 26th October, 2016, was assailed in LPASW No. 216/2016, which was dismissed on 6th April, 2017. The state preferred an SLP bearing No. 17621/2017, against the said judgment and in the said SLP the Hon'ble Supreme Court by order dated 10.10.2017 directed that he be placed in the super time scale from the date, it was granted to Mr. M. H. Malik. The Hon'ble Supreme Court as a matter of fact, ensured that SWP No.9900010/2008 Page 6 of 7 Mohd. Mehraj-ud-Din Khan is not victimized and he is accommodated against the post of commissioner/Secretary in case any of his junior was holding such post in accordance with the rules.
11.In view of the preceding analysis, the writ petition is allowed and the respondents are directed to accord consideration to the petitioner's induction into Kashmir Administrative Service against the vacancy of the year 2007 retrospectively w.e.f. the date of the issuance of the Govt. Order No. 314-GAD of 2012 dated 15.03.2012, when the appointment order of 14 officers was issued, with all consequential benefits including the seniority in accordance with the rules. Let a final decision in the matter be taken within four weeks from the date copy of this order is served on them.
Jammu (M. K. Hanjura)
02.03.2018 Judge
"Surinder"
SWP No.9900010/2008 Page 7 of 7