Jammu & Kashmir High Court - Srinagar Bench
Mukhtar Ahmad Mir & Ors vs State And Ors on 8 October, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 471 of 2009 CMP No. 261 of 2009 Mukhtar Ahmad Mir & Ors. Petitioners State and ors. Respondents !Mr. A. Haqani, Advocate ^M/s S. A Naik, AAG, Advocate F. A Parray, Advocate Honble Mr. Justice Ali Mohammad Magrey, Judge Date: 08/10/2013 : J U D G M E N T :
In the instant writ petition, petitioners have challenged order No.97 DE of 2009 dated 26.02.2009, whereby respondent No.5 has been promoted on officiating basis as Junior Assistant against available post in his own pay and grade with charge allowance.
Brief facts.
Petitioners claim to be working as class-V employees in Estates Department, J&K Government, Kashmir Division, Srinagar. It is submitted that they are qualified persons and have passed matriculation examination through J&K Board of School Education. It is submitted that in terms of the seniority list issued by the respondents vide order no. 396 DE of 2006 dated 22.08.2006 the petitioners figure at serial nos. 43, 61 and 63. The respondent No.5 did not figure in the aforesaid seniority list in asmuch as he was posted in the office of Executive Engineer, Estates Division, Srinagar.
The respondent No.5 was initially engaged on 24.10.2002 in terms of SRO 43 of 1994 on compassionate basis.
It is submitted that in terms of type test conducted by a committee constituted by the official respondents the petitioners were adjudged of having a typing speed of 50 words, 41 words and 47 words per minute. On the contrary the respondent No.5 was found as having 30 words of typing speed per minute. It is submitted that both on the basis of seniority as also the typing test as displayed by the petitioners, they continue to rank far superior than respondent No.5. The respondents were required to issue the order of their promotion against the available posts of Jr. Assistants. Respondents instead of performing the legal duty have chosen the policy of pick and choose and placed the respondent No.5 on the post of Junior Assistant on Incharge basis with benefit of charge allowance. The petitioners feeling aggrieved of the order dated 26.02.2009 challenged the same in the instant petition on the grounds detailed out as under :
a) That as has been stated hereinabove, pursuant to their regularization in the Class-IV posts, the petitioners are far senior to the respondent No. 5 on the basis of their prior date of initial substantive appointment. The petitioners in terms of the type test conducted by the Committee constituted by the respondents have as well been assessed and found to be possessed of far superior merit viz-a-viz respondent No. 5. It is submitted that both on the count of superior seniority as also their interse merit, the petitioners were entitled to preferential right of consideration for promotion to the posts of Junior Assistants, be that on Incharge post or on substantive post. It is submitted that acting according to their own whims and caprice, without any reason, rhyme or justification, the respondents by arbitrarily exercise of their authority and abuse of power have proceeded to pitch fork the respondent No. 5 over the head of petitioners by ordering his placement in the post of Junior Assistant vide order impugned. The said order reflects gross violation and transgression of the legal and constitutional rights of the petitioners. The respondents have indulged in unjust, unfair and arbitrary exercise of power by bestowing superior benefit upon the respondent No. 5 while ignoring the preferential rights of the petitioners. The order impugned is thus infested with grave and serious fatal errors of arbitrariness and is violative of mandate contained in Article 14 and 16 of the constitution of India. The said order, obviously, is required to be struck down by the Honble Court to the extent it relates to respondent No. 5;
b) That the order impugned dated 26.02.2009 is based on abuse of power, misuse of authority. It is submitted that in pursuance of superior legal and constitutional rights of petitioners, based on their seniority as also the outstanding performance in the typing test, the petitioners were and are entitled to preferential right for consideration for promotion to the post of Junior Assistants viz-a-viz respondent No. 5 . The respondents have on the contrary elevated respondent No. 5 on the said post by indulging in colourable exercise of authority which is impermissible under law and runs in derogation of the legal and constitutional rights of the petitioners;
c) that the order impugned is also suffering the vice of discrimination inasmuch as without any rationale reason or justification, the petitioners have been singled out for hostile treatment viz-a-viz respondent No. 5 the order impugned is thus violative of Article 14 and 16 of the Constitution of India;
d) that the order impugned is also suffering from non application of mind. The respondents appear to have acted mechanically without adhering to the relevant considerations which in the facts and circumstances of the case related to superior seniority of the petitioners coupled with their higher merit in the typing test. On that count as well the order impugned is liable to be set aside;
e) that the order impugned also suffers the vice of legal menace inasmuch as the same is outrageous in nature and has been issued without any lawful excuse;
f) that the order impugned is incompetent in nature inasmuch as the respondents have exercised the powers vested in them in a manner which is not countenanced by law;
g) that the order impugned dated 26.02.2009 is as well in serious violation of the well established rules and principles of natural justice, equality, good conscience and fair play. The petitioners have been condemned unhurt behind their back. Heard learned counsel for parties. Perused the record and considered the matter.
On examination of the pleadings, it has become necessary to find out, as to whether the Government could make the temporary promotion of private respondent for a indefinite period?
Law in that regard is not res integra. It has long since been settled that an officiating promotion cannot be made beyond six months.
There is yet another striking factor involved in the matter. Rule 25 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1957 deals with promotions. Sub-Rule (1) thereof says that all promotions shall be made by the appointing authority; Sub-rule (2) says that promotions 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. Sub-rule (4) provides that where it is necessary in the public 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, but such temporary promotion shall in no case exceed three months on each occasion.
As a sequel to the aforesaid discussion, I am of the considered view that the impugned order cannot be allowed to remain in force for indefinite period.
In view of this the writ petition is disposed of, and respondents are directed to fill up the post(s) on regular basis after considering all eligible persons within a period of three months from the date copy of this order is served. The present arrangement shall cease to operate after three months.
(Ali Mohammad Magrey) Judge Srinagar 08.10.2013 ayaz