Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Bhat & Ors. vs State Of Jk & Ors. on 10 August, 2017
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No.1280/2014
MP No.2044/2014 c/w
SWP No.1302/2014
Date of Order: 10th August, 2017
Ghulam Mohammad Bhat & Ors.
Vs
State of JK & Ors.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Appearing Counsel:
For the Petitioner(s): Mr. Hilal Ahmad Wani, Advocate.
For the Respondent(s): Mr. M. W. Wani, AAG.
i. Whether approved for reporting in
NET Yes/No
ii. Whether approved for reporting in
Digest/Journal Yes/No
1. With the consent of learned counsel for the parties, this writ petition is admitted to hearing and is taken up for final disposal along with other connected petition, being SWP No.1302/2014.
2. The writ petition, which is of the year 2014, has been filed for the following relief(s):
"(i) By allowing the writ petition, by issuance of writ of Certiorari the Government order No.190-RD & PR of 2014 dated 18.06.2014 issued by respondent no. 1 be quashed and set aside.
(ii) By allowing the writ petition, by issuance of writ of Mandamus directing respondents not to disturb the present position of petitioners and allow them to discharge their duty against the posts they are working pursuant to Govt. order no. 70-Rd & PR of 2014 dated 27.02.20104 and consider them for further promotion."
3. At the very outset, Mr. Hilal Ahmad Wani, learned counsel for the petitioners in both the connected writ petitions, states ________________________________________________________________________ {SWP No.1280/2014 c/w SWP No.1302/2014} Page 1 of 8 that in so far as writ petition bearing SWP No.1280/2014, he only presses the said writ petition qua the petitioner Nos. 1, 9, 10, 11, 15, 16, 18, 23, 24, 25, 30 and 34, and in so far as writ petition bearing SWP No. 1302/2014, he only presses the same qua the petitioner Nos. 12, 14, 27, 28, 29 and 30. In this regard, he has given a chart explaining the aforesaid position, which is taken on record. He, thus, states that both the aforesaid writ petitions may be dismissed qua the rest of the petitioners. Ordered accordingly.
4. The petitioners claim that they were working in the respondent-Rural Development and Panchayat Raj Department as helpers. They claim that some of them were graduates, some 10 + 2 qualified, some matriculate and some were under matriculate. The petitioners were regularized in the year 1994. By virtue of Government Order bearing No. 70-RD&PR of 2014 dated 27th February, 2014, the petitioners were re-designated as Plantation Supervisors, Plantation Watchers, Mallies, Orderlies, etc. The aforesaid Government order dated 27th February, 2014, as such, does not state as to what is the re- designated post except the annexures. It is not correct on part of an Officer of the rank of the Commissioner Secretary to Government to pass such vague Government orders. If the annexures mentioned in the aforesaid Government order, for some reason, are changed by any person, then it will lead to a very awkward position for the Government. The aforesaid Government order dated 27th February, 2017 reads as under:
________________________________________________________________________ {SWP No.1280/2014 c/w SWP No.1302/2014} Page 2 of 8 "Sanction is hereby accorded to the re-designation of 945 ( nine hundred and forty five) Helpers of Rural dev.
Kashmir showed against each as per the annexure A, B, C, D & E of this Government Order subject to condition that the posts shall be co-terminus with the service tenure of present incumbents. As and when such a person is appointed to any other posts or the incumbent resigns or removed/ dismissed or voluntarily retires the posts shall automatically terminate.
This issue with the concurrence of Finance Department vides their UO No. A/63(2007)-492 dated 24.02.2014.
By order of the Government of Jammu and Kashmir.
Sd/ (Farooq Ahmad Peer) Commissioner/ Secretary to Government Department of Rural Dev. & PR"
5. Now coming to the merits, the tentative seniority list was drawn on 12th June, 2014 in so far as these re-designated Helpers as Plantation Supervisor, Plantation Watcher, Malies, Mirabs/etc. of the concerned District.
6. The re-designation in question, as per the reply filed by the respondents to the SWP No.1302/2014, came to be issued in the following manner:
"Ref.:- UO. GDC-185/2012 dated 14-2-2013. "Returned: Agreement of the Finance Department conveyed vide UO No. A/63(2007)-386 dated 17-5-2012 is hereby modified. Finance Department conveyes agreement to the change of designation of Helpers to the proposed designations as shown in the below given matrix with the conditions given here under:-
S. Designation with pay band and No.
No. grade pay of
posts
1 Plantation Supervisor Grade_II (off 46
cadre) PB 4440-7440 + 1300
2 Plantation Watcher Grade-II (off 23
cadre) PB 4440-7440+ 1300
3 Junior Mali PB 4440-7440+ 1300 226
(off cadre)
________________________________________________________________________ {SWP No.1280/2014 c/w SWP No.1302/2014} Page 3 of 8 4 Chowkidar PB 4440-7440+ 1300 322 (off cadre) 5 Orderly PB 4440-7440+ 1300 (off 328 cadre) Total 945
1. The posts shall be co-terminus with the service tenure of present incumbents and shall cease to exist when the incumbents holding such post are appointed to any other post, resign, removed dismissed from service or retire.
2. The department amends the Service Recruitment Rules accordingly.
3. Orders are issued with the approval of the competent authority."
7. Based on this approval, subject to the aforesaid conditions, the Government Order No.70-RD&PR of 2014 dated 27th February, 2014, came to be issued. But this order was directed to be kept in abeyance vide Government Order No. 190-RD & PR of 2014 dated 18th June, 2014, stating therein that there is an enquiry pending in relation to the Government Order No.70-RD & PR of 2014 dated 27th February, 2014, as such, the earlier Government order dated 27th February, 2014, shall be kept in abeyance.
8. Thereafter, the Government wanted the General Administration Department to appoint an Inquiry Officer to conduct a detailed/ full-fledged enquiry into the matter. Consequently, in terms of Government order No.729-GAD of 2014 dated 7th July, 2014, the Government appointed Mr. Shailendar Kumar, IAS and the then Divisional Commissioner, Kashmir as the Inquiry Officer with Mr. Nissar Ahmad Wani, KAS, Special Secretary to Government Rural Development Department and Panchayati Raj as the Presenting Officer in the case. The said enquiry was ordered against the officers ________________________________________________________________________ {SWP No.1280/2014 c/w SWP No.1302/2014} Page 4 of 8 responsible for issuing the Government order No.70-RD & PR of 2014 dated 27th February, 2014 without the concurrence of the competent Authority. This enquiry resulted in a finding against the delinquent officers and they have been properly visited with punishment. The punishment imposed on these officers is not the subject matter in the present writ petition. The writ petitioners have approached this Court consequent to issuance of Government order No.190-RD & PR of 2014 dated 18th June, 2014, challenging the same, whereby their re- designation ordered in terms of Government order bearing No. 70-RD & PR of 2014 dated 27th February, 2014 has been kept in abeyance.
9. The primary contention of the petitioners is that they have already been confirmed as Helpers in the year 1994 and were, subsequently, re-designated as Plantation Supervisors/ Plantation Watchers, Mallies, Orderlies, etc., in terms of Government order No. 70-RD & PR of 2014 dated 27th February, 2014. The petitioners plead that seniority list was also issued in this regard. At this stage, their position is sought to be tempered with in the guise of inquiry. Therefore, violation of principles of natural justice is pleaded, besides it is stated that the whole exercise is arbitrary and capricious.
10. Mr. M. A. Wani, the learned AAG, appearing for the respondents, while relying upon the reply affidavits filed by the respondents in opposition to both the writ petitions, states that there has been a gross violation of the conditions imposed ________________________________________________________________________ {SWP No.1280/2014 c/w SWP No.1302/2014} Page 5 of 8 while re-designating the petitioners on various posts in terms of Government order dated 27th February, 2014. He further states that the authority has not followed the procedure prescribed and the orders have been issued without the approval of the competent Authority.
11. The core issue that arises for consideration is whether these Helpers, who were re-designated as Plantation Supervisor Grade-II, Plantation Watcher Grade-II, Junior Mali, Chowkidar, Orderly, as the case may be, are qualified to be so appointed. If there is a breach by the individual in not holding the requisite qualification, then there is enough justification for the Department to proceed against the Helpers re-designated by the impugned Government order No.70-RD & PR of 2014 dated 27th February, 2014. However, if the present petitioners are qualified to be re-designated as Plantation Supervisor Grade-II, Plantation Watcher Grade-II, Junior Mali, Chowkidar, Orderly, as the case may be, their case can be verified and the benefits that flow to them out of order dated 27th February, 2014 does not require to be disturbed.
12. The other issue is whether the respondent Department proceeded in the manner as prescribed by the Finance Department. For this issue, action has been taken against the delinquent Officers, who have been punished also. It is nowhere stated in the reply affidavit that the petitioner or other Helpers were responsible or connived with the officers of the Department to get undue or unfair advantage based on ________________________________________________________________________ {SWP No.1280/2014 c/w SWP No.1302/2014} Page 6 of 8 erroneous eligibility certificate. If that be the case, all that remains is that the certificates of each one of these writ petitioners or that or all Helpers can be verified as to whether they qualify to be re-designated as Plantation Supervisor Grade-II, Plantation Watcher Grade-II, Junior Mali, Chowkidar, Orderly, as the case may be, in relation to their eligibility certificate that they hold for the said post. That exercise can be completed since the Government has already completed the inquiry as against the delinquent Officers for not following the procedure prescribed. No fault is attributed to these individual Helpers who have been re-designated. The authority has to proceed with enquiry as stated by the learned counsel for the Respondents.
13. In that view of the matter, the abeyance order bearing Government No.190-RD & PR of 2014 dated 18th June, 2014, which is under challenge, shall stand withdrawn. The Government and the Department shall proceed for individual verification of the certificates of these Helpers re-designated as Plantation Supervisor Grade-II, Plantation Watcher Grade-II, Junior Mali, Chowkidar, Orderly, as the case may be, and deal with irregularity as per law. If the petitioners' certificates are found genuine and re-designation is correct, then the consequential benefits following their re-designation in terms of Government Order bearing No. 70-RD&PR of 2014 dated 27th February, 2014 shall be granted to them. There is no requirement to quash the impugned order dated 18th June, ________________________________________________________________________ {SWP No.1280/2014 c/w SWP No.1302/2014} Page 7 of 8 2014 because of the subsequent events which have been brought to the notice of the Court by Mr. M. A. Wani, the learned AAG, by way of relevant record, clarifying the position. The aforesaid exercise be completed in terms of Government order No.213-RD & PR of 2017 dated 27th July, 2017, operative portion whereof reads as under:
"......Whereas, The General Administration Department has ordered to review the issue of re-designation of "Helpers" in such a manner that the same is in sync with the requirements of the department, which may also call for certain amendments to recruitment rules.
Now therefore, sanction is hereby accorded Constitution of Committee, comprising following Officers who will do the above exercise for the purpose:
1. Additional Secretary to the Government Chairman Department of Rural Development and PR
2. Financial Advisor/ CAO Member Department of Rural Development and PR
3. Joint Director/ Dy Director Member Directorates of Rural Development Jammu/Kashmir (As the case may be)
4. Public Law Officer, Member Department of Rural Development and PR The Committee shall submit the report within two months.
By order of the Government of Jammu and Kashmir."
14. With the aforementioned directions, both the writ petitions, being SWP No.1280/2014 and SWP No.1302/2014, along with connected MP(s) shall stand disposed of.
( Ramalingam Sudhakar ) Judge Srinagar August 10th, 2017 "TAHIR"
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