Jammu & Kashmir High Court
Veena Kumari vs State Of J&K; And Others on 2 February, 2018
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.1405/2006
MP No.1731/2006 and
MP No.1938/2006
Date of order:02.02.2018
Veena Kumari
v.
State of J&K and others
Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge
Appearance:
For petitioner(s): Mr. Rahul Pant, Advocate
For respondent(s): Mr. Sanjeev Padha, Dy. AG for R-1 and 2.
Mr. MeenuKoul, Advocate for R-3.
Whether approved for reporting? Yes/No
1. Instant writ petition was filed way back in the year 2006. Petitioner had questioned respondent No.3's promotion to the post of Junior Scale Stenographer that has been granted in his favour retrospectively w.e.f. 14.02.2004.Besides this, she also seeks a direction to respondents promoting her as Junior Scale Stenographer w.e.f. June, 2003, i.e. the date, she was working as Junior Scale Stenographer in her own pay and grade with benefit of charge allowance.
2. Respondents 1&2, as well as respondent no.3, in their respective Replies, filed by them in opposition to writ petition on hand, maintained that respondent No.3 was promoted as Steno-Typist in the pay scale of Rs.4000-6000 and that only a Steno Typist was eligible for promotion to the post of Junior Scale Stenographer.
3. Having confronted with Order No.179-AHG of 2003 dated 24.04.2003,appended by respondent No.3 with his Reply, SWP No.1405/2006 Page 1 of 9 promoting him as Steno-Typist w.e.f. 12.11.2002, petitioner sought amendment of writ petition, so as to question the said order as well. Writ petition was amended with following relief:
"a. Certiorari quashing Order No.327-AHJ of 2005 dated 30.11.2005 passed by the respondent No.2 whereby respondent No.3 has been promoted against the post of Junior Scale Stenographer in the pay scale of Rs.5000-8000 retrospectively w.e.f. 14th Feb.2004 b. Mandamus commanding the respondents to consider and promote the petitioner against the post of Junior Scale Stenographer in the pay scale of Rs.5000-8000 retrospectively w.e.f. June, 2003 i.e. the date she has been working as Junior Scale Stenographer in her own pay and grade with the benefit of charge allowance;
c. Certiorari quashing Office Order No.179/AHJ of 2003 dated 24.04.2003 whereby respondent no.3 has been promoted as Steno-Typist in the pay scale of Rs.4000-6000 w.e.f. 12th Nov., 2002; or d.In the alternative mandamus commanding respondent no.1 and 2 to promote the petitioner also as Steno-Typist in the pay scale of Rs.4000-6000w.e.f. the same date, from which respondent no.3 has been promoted, with all consequential benefits of seniority and promotion"
4. Respondents have filed counter affidavits to amended writ petition. Petitioner has filed Rejoinder to controvert the stand taken by respondents in their counter affidavits.
5. Heard learned counsel for parties and perused the record.
6. What is gatherable and discernible from the record and pleadings of parties, is that petitioner had been appointed as Junior Assistant in Government Medical College, Jammu, in the year 1989.The grade of Rs.4000-6000 in pursuance of J&K Civil Services (Higher Standard Pay Scale Scheme) Rules 1996, commonly known as In Situ Promotion, was granted in her favour in the year 1998. She holds National Trade Certificate in the trade of Stenography, obtained by her from Government Industrial Training Institute, Jammu. In the year 2002, Principal, Government Medical College, sought data of such Junior Assistants, who had undergone Diploma in Stenography from ITI SWP No.1405/2006 Page 2 of 9 or any other recognized Institution. After considering her case, petitioner, vide Order No.273/AHJ of 2003 dated 07.06.2003, had been promoted as Junior Scale Stenographer in the pay scale of Rs.5000-8000 against available vacancy in Government Medical College and adjusted in Forensic Medicine Department of Government Medical College, Jammu, in her own pay and grade with charge allowance as admissible under rules.
7. A Final Seniority List of Junior Assistants as it stood on 30.05.2001, placed on record by petitioner, portrays petitioner's placement at S.No.9 with date of appointment as Junior Assistant on 11.09.1989. Insofar as respondent no.3 is concerned, he is shown and placed below petitioner, at S.No.23 and his date of appointment as Junior Assistant is shown as 25.02.1997. Thus, there is no hesitation in saying that petitioner was senior to respondent no.3. The seniority position of the petitioner vis-à-vis respondent no.3 has also not been denied by any of the respondents. Petitioner claims to have submitted various representations for her regularization as Junior Scale Stenographer and she has also placed on record a communication dated 20.10.2004 issued by the Head of the Department Forensic Medicine, Govt. Medical College, Jammu, recommending confirmation of petitioner as Junior Scale Stenographer w.e.f. 07.06.2003.
8. The case as projected by petitioner is that respondent no.3 being junior to petitioner was promoted as Junior Scale Stenographer w.e.f. 14.02.2004 by respondent No.2 vide his Order No.327/AHJ of 2005 dated 30.11.2005 and simultaneously vide Office order No.202/AHJ of 2006 dated 20.07.2006, petitioner was promoted as Senior Assistant in the pay scale of Rs.4000-6000. Petitioner's SWP No.1405/2006 Page 3 of 9 grievance is that she is entitled to promotion against Junior Scale Stenographer post but her junior has been promoted over and above her.
9. While issuing notice in writ petition on 29.08.2006, a Bench of this Court passed interim order, directing respondents to allow petitioner to hold the post of Junior Scale Stenographer without any interference and subsequently the interim order was continued when writ petition was admitted to hearing on 01.05.2008.
10.In the counter-affidavit filed by respondent no.1 to amended writ petition, a plea has been raised that petitioner substantively holds the post of Junior Assistant and she cannot claim promotion to the post of Junior Scale Stenographer because Steno-Typist is the exclusive feeding cadre for the post of Junior Scale Stenographer. Another plea raised by respondents is delay and laches as it is contended that petitioner has challenged promotion of respondent no.3 as Steno Typist, which was issued in the year 2003.Respondent no.3 has also in his counter affidavit raised similar pleas. In addition, respondent no.3 has relied upon Government Order No.26-HME of 2006 dated 19.01.2006, to contend that only Steno Typist is eligible for promotion to the post of Junior Scale Stenographer.
11.Petitioner has filed rejoinder to both the counter affidavits separately and denied the averments made therein.
12.First and foremost admitted position of the case in hand is that respondent no.3 was junior to petitioner by about eight years as Junior Assistant. The said seniority of petitioner has not been denied by any of respondents. It is also not denied that petitioner was promoted as Junior Scale Stenographer vide order dated SWP No.1405/2006 Page 4 of 9 07.06.2003 in her own pay and grade with charge allowance. If petitioner was senior to respondent no.3 then by what means and method she was ignored, singled out and not considered for promotion as Steno Typist and different yardstick was adopted vis-à-vis respondent no.3, when he was considered and confirmed by the DPC vide Office Order no.179/AHJ of 2003 dated 24.04.2003. No answer much less reasonable is coming to fore from the pleadings of respondents in adopting different yardsticks in promotion. There is no reason as to why petitioner was not considered for subsequent promotion to the post of Steno Typist.
13.Petitioner, as is conspicuous from the record, had been given the grade of Rs.4000-6000 w.e.f. 01.10.1998 after granting in her favour Insitu promotion. This was a non-functional promotion. If functional promotions had to be given against the post of Steno Typist, then case of petitioner was also required to be placed before DPC on the strength of her seniority inasmuch as she was otherwise entitled to be considered for promotion as Steno Typist w.e.f. the date respondent no.3 was promoted. This apparently was not done and no explanation much less plausible is coming forth from respondents for singling out petitioner and not considering her or placing her case before DPC for her substantive promotion as Steno-Typist. Petitioner, although promoted in her own pay and grade vide office order No.273-AHJ of 2003 dated 07.06.2003, as Junior Scale Stenographer in the pay scale of Rs.5000-8000, but she was not confirmed against the said post as her case was not placed before DPC for such confirmation. It is, therefore, clear that promotion of respondent No.3 as Steno Typist was illegal and arbitrary and in violation of the rights of the petitioner.
SWP No.1405/2006 Page 5 of 914.That now coming to question of promotion to the post of Junior Scale Stenographer, the stand taken by respondents not to consider petitioner is that she is not eligible for such promotion as feeding cadre for the post of Junior Scale Stenographer is Steno Typist and reliance in this behalf has been placed by respondents on Government Order No.26-HME of 2006 dated 19.01.2006. Perusal of said order reveals that it provides for grade, minimum qualification and method of recruitment for various non-gazetted posts in the Medical Colleges till Recruitment Rules for non- gazetted service of Government Medical Colleges, Srinagar/Jammu, are finalized. It also envisages that Junior Scale Stenographer can be filled up 50% by direct recruitment and 50% by promotion from Class 1 Category G with Five years' service as such. If that be the situation, then Government Order No.26- HME of 2006 dated 19.01.2006 also prescribes method of recruitment for the post of Steno Typist in the pay scale of Rs.4000-6000. The post of Steno Typist, therefore, is to be filled up 100% by direct recruitment. In such circumstances, respondent no.3 was not at all eligible for promotion, to the post of Steno Typist. However, Government Order No.26-HME of 2006 dated 19.01.2006 is prospective and cannot be applied retrospectively. It is for this reason only that respondent no.3 was promoted as Steno Typist. In view of above factual position, Government Order No.26-HME of 2006 dated 19.01.2006 cannot be pressed into service selectively to deny petitioner's promotion to the post of Junior Scale Stenographer.
15.In support of petitioner's claim, learned counsel representing petitioner has also placed reliance on judgments rendered in SWP No.320/2006 and connected matters titled Rajni Gupta v. State SWP No.1405/2006 Page 6 of 9 and others; SWP No.874/1992 titled Munish Kumar Chando v. State of J&K and others; LPASW No. 246/94 titled Munish Kumar Chadha v. State and others, to bring home the point that there were no recruitment rules prior to issuance of Government order No.26-HME of 2006 dated 19.01.2006, as such, she had a right to be considered for promotion as Junior Scale Stenographer with effect from the date she was promoted as such in her own pay and grade.
16.Next question, which has been raised by respondents, is with respect to delay and laches. Petition came to be filed in the year 2006 and stands already admitted, as such, petitioner cannot be non-suited on the ground of delay and laches after a decade, more particularly when explanation of delay has been properly given by petitioner. In this regard, learned counsel for petitioner has relied on judgments passed by this Court in SWP No.21/2009 titled Shahsi Kala v. State and others;2010 (2) JKJ 66 (HC) titled Gh. Nabi Parray v. State and others;2006(1) JKJ 205 (HC) titled Habib Ullah Dar v. Chairman and others; and 2013(2) JKJ 140 (HC) titled Abdul Gani v Union of India and others. Otherwise also, petitioner has fully explained the reasons for delay in the rejoinder, thus, she cannot be non-suited at this stage on the ground of delay and laches especially when illegality committed by respondents, in not considering her for promotion, is writ large on the face of record.
17.To support of his claim, respondent no.3 has also placed reliance on judgments viz. 2007(9) SCC 278 titled New Delhi Municipal Council v. Pan Singh and others;2001 SLJ 303 titled Masood- ur-Rahim v. State of J&K; and 1991 (Supp.2) SCC 733 titled Ramakant Shripad Sinai Advalpalkar v. Union of India. I SWP No.1405/2006 Page 7 of 9 have gone through the said judgments and same do not help the case of respondent no.3.
18.This is not a case that petitioner was asked to look after the post of Junior Scale Stenographer but perusal of order in this regard passed by respondents unequivocally signifies petitioner promoted as Junior Scale Stenographer in her own pay and grade and she also given charge allowance as admissible under rules. Otherwise also, if petitioner was not to be promoted as Junior Sale Stenographer then she could not be ignored for the post of Steno Typist and on this ground also, the stand taken by respondents is not sustainable. Judgments relied upon by the respondents to seek dismissal of the writ petition on the ground of delay and laches are also of no help to respondent. As the petitioner has successfully explained the delay in approaching the Court vis-s-vis order of promotion of respondent No.3 as Steno Typist. The petitioner has categorically stated that said order was not served upon her and she was not aware of any such order. In my opinion, in view of the explanation given by the petitioner, present writ petition cannot be dismissed on the ground of delay and laches that too after more than a decade. Petitioner has also placed with rejoinder a copy of order, whereby again one more employee/similarly situated person, namely, Gurmeet Devi, Senior Assistant, has been promoted as Junior Scale Stenographer on the recommendation of DPC, which again reveals different yardsticks adopted by respondents in granting promotions. In such circumstances, petitioner cannot be singled out and discriminated. Be that as it may, there is a merit in writ petition.
19.Based on the reasons and discussions made herein above, writ petition is allowed. Respondents 1 and 2 are directed to consider SWP No.1405/2006 Page 8 of 9 the petitioner for promotion to the post of Junior Scale Stenographer in the pay scale of Rs.5000-8000 with effect from the date respondent no.3 was so promoted and fix seniority of the petitioner accordingly, i.e., over and above respondent No.3. Let relevant orders giving retrospective effect of promotion to the petitioner against the post of Steno Typist in the pay scale of Rs.4000-6000 over and above respondent No.3 and thereafter promotion against the post of Junior Scale Stenographer with effect from the date respondent No.3 was so promoted be issued within a period of eight weeks from today.
20.Disposed of as above along with connected MP(s).
(Tashi Rabstan) Judge Jammu 02.02.2018 'Madan' SWP No.1405/2006 Page 9 of 9