Jammu & Kashmir High Court - Srinagar Bench
Parveez Ahmed vs State & Ors Has Been on 29 April, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No.1350 of 2006 SWP No. 1537 of 2008 SWP No.1608 of 2008 SWP No.1649 of 2008 SWP No. 135 of 2009 SWP No. 1415 of 2008 CMP No. 48 of 2010 49 of 2010 50 of 2010 51 of 2010 53 of 2010 54 of 2010 55 of 2010 56 of 2010 57 of 2010 Parveez Ahmed Sartaj Ahmed Manzoor Ahmed Bashir Ahmed Gh. Mohd M. Mubark Reshi Petitioners State & Ors Respondents !M/s M. A. Qayoom, Advocate M. Y. Bhat, Advocate ^M/s A. Haqani, Advocate Mr. M. A. Thakur, Advocate Shabir Ahmed, Advocate Honble Mr. Justice Hakim Imtiyaz Hussain, Judge Date: 29/04/2011 :J U D G M E N T:
SWP No. 1350 of 2006 Parvaiz Ahmad Kirmani & ors. vs. State & ors has been filed by about 35 petitioners. The petitioners were appointed in Gazetted Cadre against Agriculture Extension Officers/ Equivalent posts w.e.f. 1978. In the final seniority list issued by the respondents vide Government Order no. 12-Agri of 2003 dated 17-01- 2003 their name figures at S. No. 555,736,708,357 ii, 244,602, 548, 572, 643, 237, 715, 717,352, 371, 547, 565, 535, 481, 508, 505, 473, 615, 545, 720, 343, 355, 347, 568, 635, 499, 546, 550, 705, 566 and 672 in the AEOs cadre.
Private respondents ( No: 5 to 56) ( Agriculture Graduates) were appointed at Rehbar-i-Zirrat on consolidated salary of Rs. 400 p.m. under Govt. Order No: 305-Agri of 1984 dated 25.5.1984. Subsequently they were designated as Village Extension Workers ( VEW) on 18.10.1984. Later on vide Government orders dated 2.9.1985 and 25.101985. they were transferred and posted as Agriculture Extension Officers ( Gazetted Cadre posts) in the National Agriculture Extension Programme ( T&V Programme) on temporary basis. Respondents under Order NO: 622 Agri of 1988 dated 21.9.1988 promoted 50 VEWs/Agriculture Assistants and released the grade of Rs. 1700-2900 in favour of all those VEWs who were working as AEOs/Agriculture Assistants. Vide Government Order NO: 200 Agri of 1998 dated 23.4.1998 sanction was accorded to the deemed promotion of 213 VEWs( including the private respondents) to the cadre of J&K Agriculutre ( Gazetted) Service w.e.f. 2.6.1988. On 18.5.1998 a seniority list of AEOs/AAs of the Agriculture Department was issued vide Order NO: 224-Agri of 1998 dated 18.5.1998 in which these VEWs were also shown in the Gazetted cadre.
Petitioners felt aggrieved of all such Government orders which granted various benefits to the private respondents including grant of 1700-2900 grade in their favour and bringing them on the gazette cadre. Hence the petition. They state that the Government is in the process of granting confirmation in favour of these respondents in terms of communication no: Agri-E/40/200-DPC dated 27.6.2006. They pray for following reliefs:-
I. That by issuance of a writ of certiorari the process of confirmation initiated in favour of respondents in terms of communication No. Agri-E/40/200-DPC dated 27.6.2006 may be quashed being illegal and violative of rules and the respondents be directed to finalize the process already initiated in terms of communication No. Agri-E-40/2011 dated 14.11.2005 ( Annexure P-17). The Government order No. 31 dated 18.2.2005 , and consequently government order No. 160 dated 9.7.2004, government order No. 200/Agri dated 23.4.1998, may be quashed so far as fixation of VEWs who are respondents herein with effect from 2.6.1988 in AEOs/equivalent cadre may be quashed.
II. The respondents be directed to make promotions to SDAO/equivalent posts which were available upto 2.6.1988 as per old rules of 1978. And be further directed to make promotions to SDAO/equivalent posts, which were available upto 18.10.1993 in accordance with the rules by ignoring the respondents who were not eligible till then the respondents be directed ti fill up DAO/equivalent posts in accordance with rules which were available upto 1999 by ignoring the respondents herein who were not eligible till then.
The respondents be further directed to make promotions in strict compliance to directions of Honble Supreme Court given in Suraj Prakash judgment and consequently the respondents be directed to consider and promote the petitioners to higher posts retrospectively from the dates they have been holding the higher posts in accordance with rules and mandate of Suraj Prakash judgment. Respondents in reply to the averments made by the petitioners stated as under:-
Answering respondents would like to submit that number of the arrayed private respondents were initially appointed as Rehbari-Zirat on consolidated basis of Rs. 400/P.M. in 1984 under National Agriculture Extension programme ( NAEP) commonly known as Trainings and Visits Programme ( T&V) , which was started in the State of Jammu and Kashmir as a Policy decision in 1984 and in pursuance to cabinet decision No. 223 dated 16.8.1984 through which sanction was accorded to the implementation of NAEP ( T&V) in the state and creations of SMS posts . Subsequently all the Rehbari- Zirat appointees were designated as Village Extension Workers ( V.E.Ws) vide Govt. Order No. 608-Agri of 1984 dated 18.10.1984 and were placed in the regular pay scale of Rs. 825-1240 under the provisions of T&V Programme.
Due to implementation of ( NAEP) Scheme 1984 in the State, new posts as envisaged in NAEP were created i.e. V.E.Ws, subject Matter Specialist ( SMS) SMS-I SMS-II, SMS-III ( at Regional level, District Level and sub Divisional Level) respectively, Besides, posts of Sub Divisional Agriculture Officer ( SDAOs) and number of other posts of higher cadres were created. As a matter of fact that the ( T&V) programme was already launched in many states of this country and in year 1984 it was also introduced in J&K State with uniform set up as in the other states of country.
However, it is admitted fact that at the introduction of ( T&V) Scheme the Agriculture Department was governed by J&K Agriculture Gazetted Recruitment Rules 1978 and the said rules envisaged recruitment of AEO ( Agriculture Extension Officer) or equivalent 100% by direct recruitment. Since the commencement of T&V Programme in 1984 and Recruitment Rules 1978 were running parallel and the aforesaid rules could not accommodate the new created posts and therefore the need for introduction of new Gazetted Service recruitment rules with the objective to synchronize the J&K Gazetted Rules 1978 and NAEP Scheme, the J&K Agriculture Gazetted Service Recruitment Rules 1988 were issued SRO 179 of 1988 dated 2.6.1988. Hence there was no violation of rules but the objective was to boast the Agriculture Production of the state with the introduction of T&V Scheme.
I have considered the matter.
During arguments it was brought to my notice that this court has already dealt with the issues in SWP NO. 184 of 2005 Mohammad Qasim Ganie v. State of J&K & Ors decided on 19.2.2007, where the court directed the respondents to frame a fresh seniority list of the officers in accordance with the rules. While referring to the grievance of the petitioners as projected in SWP NO: 184 of 2005 the Court said:-
The petitioners are aggrieved of the orders dated 18.12.2005. They have challenged the same through the medium of the present writ petition as they feel that the Government order whereby initial constitution in respect of Class-VII AEOs/equivalent officers/tentative seniority list of Class-VII PR/DR officers has been finalized is bad as the order has been issued in violation of Rule 32 of 1988 Recruitment Rules. The petitioners are aggrieved that the final seniority list of officers of Class- VII/AEOs/Equivalent (PR/DR) beyond 2.6.1988 till 29.7.1991 is also contrary to the law and the Rules 1988. The private respondents, according to the petitioners, have illegally and improperly shown ahead of the petitioners in the final seniority list, while doing so the official respondents have not taken into consideration the objections filed by the petitioners from time to time the initial constitution of the service in terms of Rule 32 of 1988 Recruitment Rules. The petitioners contend that the Government Order No. 38- Agri of 2005 dated 18.2.2005 is illegal and improper being violative of Article 14 & 16 of the Constitution as in terms of the said order private respondents have been placed as Class-VII officers who are junior to the petitioners. The petitioners allege that they are senior to these officers as such the official respondents were under law obliged to consider the case of the petitioners first for such placement in class-V and only thereafter had to consider the case of private respondents for such a benefit. The petitioners have prayed for a writ of certiorari for quashing Govt. Order No. 31-Agri of 2005 dated 18.2.2005 and Government Order No. 38 Agri of 2005 dated 18.2.2005 in so far it relates to the private respondents. The petitioners have further prayed for a writ of mandamus directing the respondents not to treat the private respondents as deemed appointed to the Agriculture Gazetted Service but to treat them as VEWs and not to consider them for grant of any benefit in Class-VII of the Agriculture Gazetted Service. They have further prayed for a direction to the respondents not to consider the private respondents for grant of any promotion from Class-VII to Class VI onwards either on temporary basis or regular basis.
The Court on consideration of the matter observed and held as under:- In the present case the respondents were promoted to the posts of A.As in contravention of the rules. Under the 1978 Rules the posts of A.As were meant only for direct recruits. Since no quota was fixed for the in service candidates, appointment by promotion on these posts was not permissible under the rules. Thus the promotion and posting of the respondents against such posts was dehors the rules. This being the position they cannot be treated to have been validly appointed against the post. In such circumstances it cannot be said that the respondents were holding the posts validly and they cannot be treated to form the initial constitution of the service. Their appointment to the posts shall take place as from the date the posts became available for them. Since they claim the promotional posts they shall get substantive appointment on the posts when such posts became available for them. Official respondents action in this behalf cannot be justified. The action amount to clear violation of the rules and settled legal position in this behalf. Such an action if allowed will defeat not only the rights of the petitioner but will amount to gross violation of the 1978 rules.
In such circumstances I find force in the petition, the same is allowed and the impugned orders/seniority list are hereby quashed. The official respondents are directed to reconsider the matter and refix the seniority of the petitioners and private respondents in accordance with the rules and observations made above. The judgment would show that all the basic issues arising in the present case have already been considered and decided by the Court in SWP No. 184 of 2005 . That the case is covered by the said petition ( Mohammad Qasim Ganies case) is also admitted by the petitioners herein. In para XXIV ( G) of the petition it is stated as under:-
The above referred government orders issued in favour of VEWs are not only violative of settled principles of law but are also violative of directions given by Honble Supreme Court in Suraj Prakash judgment. The process initiated as is evident from the communication letter dated 27.6.2006, is also illegal and violative of rules. The PSC has not been given full details including service bio-data of senior officers, which includes petitioners as well, but pick and choose method has been applied in gross violation of rules. Though in terms of the directions of Honble court passed in writ petition titled Mohammad Qasim Ganai v. State no such process could be initiated in favour of respondents who are parties to the said writ petition also but in total disregard to the said directions of Honble Court the said process has been initiated. Hence this writ petition is filed before this Honble Court. Since all the basic issues arising in the present case have been settled by the court in SWP NO. 184 of 2005, I find the present petition will also be governed by the said judgment. No new/further adjudication is required in the matter.
This petition is disposed off accordingly.
SWP NO.1415 of 2008 M. Mubarak Reshi & Ors. v. State & Ors. SWP NO. 135/09 Gh. Mohd. Dand v. State, SWP 1537/08 Sartaj Ahamed v. State , SWP 1649/08 Bashir Ahmed v. State & SWP No. 1608/08 Manzoor Ahmed v. State.
Petition SWP No. 1415 of 2008, under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir has been filed by four petitioners namely M. Mubarak Reshi, Ghulam Hassan Guroo, Sajad Ahmad Shah and Farooq Ahmad Mandoo. The petitioners are aggrieved of Government Order No. 279- Agri of 2008 dated 7.10.2008 in so far it relates to the grant of status of Chief Agriculture Officer ( and equivalent) to respondents No: 5 to 22 while as the petitioners have been deprived of such a benefit. The petitioners allege that the order is unconstitutional and bad in law, therefore, seek its quashment.
The brief facts are as under:-
The petitioners have entered into the Agriculture Gazetted service as direct recruits as Agriculture Assistants ( Class 7 officers) in the years 1978,1979,181,1982 & 1983. At the time of their entry into service they were governed by the Jammu & Kashmir Agriculture (Gazetted) Recruitment Rules ) 1978. The petitioners further state that respondents 5 to 7, 9 to 11, 13 & 14 & 21 and 22 entered the Agriculture service as village extension workers. They were subsequently re-designated as Jr. Agriculture Assistants which is non-gazetted post. They were promoted as Agriculture Assistants and equivalent subject to clearance by DPC/PSC but till date no such DPC has met. Presently they are also members of Agriculture Gazetted service and their year of entry into the said service is 1988 and 1989. The 1978 rules were replaced by Jammu & Kashmir Agriculture (Gazetted) Service Recruit Rules 1988. After coming into force of these rules the Govt. issued various orders whereby seniority of the members of Agriculture Gazetted Service was notified. Persons who were working on certain posts at the commencemt of rules were deemed to have been appointed to the service. These seniority list and various orders issued by the respondents in this behalf from time to time were challenged before this court in SWP No.184/05 titled Mohd. Qasim Ganai v. J&k State. Said writ petition got decided on 19.2.2007 in the following terms:
In such circumstances I find force in the petition, the same is allowed and the impugned orders/seniority list are hereby quashed. The official respondents are directed to consider the matter and re-fix the seniority of the petitioners and private respondents in accordance with the rules and observations made above. Though various LPAs were filed against the said judgment but later on with the availability of more posts the respondents proceeded with framing a seniority list of the Agriculture Extension Officers (Class VII). Accordingly a tentative seniority list of Agriculture Officer ( Class VII ) was published vide circular bearing No. Agri/E-8/2008 dated 19.8.2008 in which the petitioners were shown at Serial Nos. 204,264,229 and 47 whileas respondents 5 to 22 were shown at S. Nos. 446,482,563,334,378,506,362, 192, 350, 572, 373, 377 379, 391, 407,359,579 and 434. Later by means of Govt. Order No. 279-Agri of 2008 dated 7.10.2008 a final eligibility list of officers was published in terms of Agriculture Gazetted Recruitment Rules, 1988 from Class VII, VI, V, IV and class III which served as base for promotion of the officers to the next higher class and category as per the eligibility on a particular date of occurrence of the vacancy. Respondent No. 1 has accorded sanction to the release of pay scale in favour of the officers of Agriculture Production Department as per details contained in Annexures A B C & D to the said order and consequent upon the establishment of eligibility in pursuance to the Recruitment Rules of 1988 to different classes and categories, sanction has also been accorded to the placement/posting of officers on the places/posts as per Annexure-E to the said order. The order supersedes all the previous Govt. orders on the subject and all the interim arrangements made by respective Directors have been dispensed with.
The petitioners have stated that on the aforesaid eligibility list of Class-VII officers for promotion to Class-VI, respondents in terms of annexure-D to the said Govt. Order have indicated the officers falling in class-VI ( Sub Divisional Agriculture Officers and equivalent) and release of grade to them in the pay scale of Rs. 7500-12000. In the list the petitioners have been shown at S. Nos. 31,36,68,64 and 60 and their date of clearance in Class VI has been shown as 15.4.1988, 25,9,1989, 3.6.1993 and 1.1.1992 respectively. The respondents 5 to 22 have, however, been shown in the said list at Serial Nos. 66,70,72, 74. 75, 76, 81, 84, 91, 92, 100, 101, 103, 104,105,107,109 & 113 and the date of their clearance in the said class has been shown as 3.6.1993, 1.11.1993, 2.6.1994, 1.9.1994 and 25.9.1994. The petitioners have further stated that in terms of annexure-C to the Government order dated 7.10.2008, the respondents have indicated officers falling in Class-V ( District Agriculture Officers and equivalent) and release of grade thereof to them in the pay scale of Rs. 8000-12950. In this list, the petitioners have been shown at S. Nos. 180,185,216,214 and 210 and the date of clearance in the said class has been indicated by them as 15.4.1994, 25.9.1994 , 3.6.1998, 2.9.1999 and 1.1.1998 respectively. On the other hand, respondents 5 to 22 have been shown in the said list at S. Nos. 223, 224, 233, 239, 220, 240, 218, 247,230,248,250, 251,252,253,254,257, 215 and 222 and their date of clearance has been shown as 1.5.2002,1.10.2002,1,3,2003, 3.6.1998, 1.5.2003, 1.11.2001, 1.9.2003, 1.12.2001, 1.12.1999, 1.12.1999 and 1.7.2003.
The order further shows that in terms of Annexures A & B to the Government order dated 7.10.2008 the respondents have indicated status of officers falling in Class- III ( Chief Agriculture Officers and equivalent) and the release of grade thereof ( 10000- 15200) in the said list. The petitioners do not figure anywhere but respondents 5 to 22 have been shown in the said lists at Serial Nos.
43,44,53,54,55,57,50.,65,62,66,67,68,69,70,71,73 ( Annexure-A) and 13 and 14 ( Annexure-B) respectively and their date of clearance in Class-III has been shown as 1.5.2007, 1.11.2007, 1.10.2007, 1.3.2008, 1.9.2008 and 1.4.2007 and 1.11.2007. The respondents in terms of annexure-E to the Government order dated 7.10.2008 have ordered posting and adjustment of these officers.
The petitioners state that respondents figure in the said order at S. No. 16 onwards and by their transfer and posting they have been to the post of Chief Agriculture Officers and equivalent in supersession of the rights and interests of the petitioners. The petitioners have not been shown by the respondents in annexure-A to the Government order dated 7.10.2008 with reference to the release of grade of the post to them instead they have shown respondents 5 to 22 in the said list which, according to the petitioners, is in total derogation of law. The petitioners are aggrieved that they have been ignored while granting a higher grade to the respondents and have in the circumstances prayed for the following reliefs:-
1. By issuance of a writ of certiorari or any other appropriate writ, order or direction, the impugned government order No. 279-Agri of 2008 dated 7.10.2008, in so far it relates to giving of status of class-III officers to the respondents 5 to 22 and releasing of grade thereof to them be quashed; and
2. By issuance of a writ of mandamus or any other appropriate writ, order or direction, respondents be directed to consider the case of petitioners for giving status of class-III officers and releasing of grade thereof to them in preference to the respondents 5 to 22 on the basis of their merit, seniority and suitability.
SWP No. 1537/08 titled Sartaj Ahmed Shah v. State & Ors. has been filed by about 16 petitioners they plead the same facts and have sought almost similar reliefs as prayed by the petitioners in SWP NO. 1415/08 they have prayed for the following reliefs:-
1. By issuance of a writ of certiorari or any other appropriate writ, order or direction, the tentative seniority list issued vide circular No. Agri/E-8/2008 dated 19.8.2008 as also Government order No. 279-Agri of 2008 dated 7.10.2008 so far it relates to the private respondents 6 to 48 be quashed;
2. By issuance of a writ of mandamus or any other appropriate writ, order or direction, respondents be directed:
a) To fix frame and finalize the seniority of Class VII officers of the Agriculture Gazetted Service, who have entered the said service from 2.6.1988 onwards and to show the petitioners in the said seniority list at their appropriate place.
b) Without fixing and finalizing seniority of all the class VII officers of the Agriculture Gazetted Service, respondents be directed not to consider the case of any member of the Agriculture Gazetted Service to any further promotion, adhoc or otherwise.
The petitioners, like the petitioners in SWP No. 1415/08 are aggrieved of Government Order No. 279-Agri of 2008 dated 7.10.2008 so far it relates to private respondents 6 to 48 and have prayed for its quashment. They are also aggrieved of the tentative seniority list issued vide circular No. Agri /E-8/2008 dated 19.8.2008. They have stated that in SWP 802/08 this Court directed the respondents to frame and finalize the seniority list of Agriculture Extension Officers/Agriculture Assistants/Research Assistants appointed in the Agriculture Gazetted Service from 2.6.1988 till date in accordance with rules within a period of three months but the respondents without taking notice of the directions of the court have issued a tentative seniority list on 7.10.2008. The petitioners state that the respondents without taking any cognizance of the objections filed by the petitioners to the tentative seniority list have issued Govt. Order No. 279-Agri of 2008 dated 7.10.2008, by virtue of which sanction has been accorded to the release of pay scale in favour of the officers of the Agriculture Production Department as per annexures A.B.C& D to the said Order including private respondents 6 to 48 and they have also been transferred from their present place of posting as per annexure-E to the said Govt. Order . The order dated 7.10.2008, according to the petitioners has been issued by the official respondents in supersession of all the previous Government Orders on the subject and it has also been stated in the said order that all the interim measures made by the respective Directors shall be deemed to have been dispensed with and those officers who are holding the post on interim measure and not regularized by this Government Order shall report to the respective Directors till further orders.
SWP No. 1608/08 has been filed by one Manzoor Ahmed Mir. He states that he was selected and appointed as Agriculture Assistant by the respondents and figured at S. No. 1 in the selection list. He has qualified in M. Sc. Olericulture which is post graduation degree in Horticulture discipline. He was on the basis of his higher qualification, promoted as SMS III in the year 1991 and was promoted as SMS-II in the year 1994. He was transferred as Floriculturist because of having post graduation. In the year 2008 he completed three years experience as Floriculturist after a long dispute a tentative seniority list was issued on 19.8.2008 where the petitioner figured at S. No.
73. The petitioner is aggrieved of Government Order No. 279-Agri of 2008 dated 7.10.2008 so far it relates to the private respondents and seeks its quashment. He states that respondents be directed to confirm him as SMS-III 3.6.1991, and CAO with effect from 2002 with all consequential benefits.
In SWP No. 1649/08 Petitioner Bashir Ahmed Wani is also aggrieved of Government Order No. 279Agri of 2008 dated 7.10.2008. He states that the respondents be directed to promote and allot slot to the petitioner under RBA category on the basis of his experience and Soil conservation training in Soil Conservation wing and in consequence to same promote the petitioner retrospectively and issue promotion order also in his favour against the post of Assistant Soil Conservation Officer Command Area Development Sub Division Pulwama with all consequential benefits and give due place in lower cadre also to the petitioner retrospectively.
In SWP NO. 135/09 Petitioner Gh. Mohd. Dand S/o Late Gh. Rasool Dand R/o Mohalla Shahsahib Anantnag seeks a writ of certiorari to quash Govt. Order No. 279 Agri of 2008 dated 7.10.2008, so far as it relates to private respondents . He also prays that the respondents be directed to confirm the petitioner as CAO with effect from 2002, with all consequential benefits and be given promotion in all cadres over the head of his juniors retrospectively with all consequential benefits.
Heard. I have considered the matter.
As would appear from the averments made in the above mentioned writ petitions the dispute in these petitions relate to promotions to the various posts in the Agriculture Production Department. The petitioners in almost all these writ petitions are aggrieved of Govt. Order. 279-Agri of 2008 dated 7.10.2008. Before considering the said order certain developments which have taken place since the commencement of recruitment rules governing the field, are required to be taken note of.
The service of which these petitioners were members, was governed by the Jammu & Kashmir Agriculture ( Gazetted) Service Recruitment Rules, 1978. These rules remained in force till 1988 when by means of SRO 179 dated 2.6.1988 new rules namely J&K Agriculture (Gazetted) Service Recruitment Rules 1988 came into force.
Vide Govt. Order No. 472-Agri of 2000 dated 10.12.2000 initial constitution of Agriculture Gazetted Service and final seniority list of Gazetted Officers as it stood on 2.6.1988 was issued. Subsequently the initial constitution was modified vide Govt. Order No. 10-Agri of 2002 dated 25.10.2002.
Vide Govt. Order No. 12-Agri of 2003 dated 17.1.2003 final seniority list of Agriculture Officers was issued.
Vide Govt. order No. 14-Agri of 2005 dated 17.1.2005 revised Schedule-I of Agriculture Gazetted services recruitment rules of 1988 was issued.
Vide Govt Order No. 31-Agri of 2005 dated 18.2.2005 the seniority list was updated till 29.07.1991. The Govt. Order was challenged before this Court in SWP titled Mohd. Qasim Ganie versus State & Others while quashing the seniority list this court has passed the following orders:-
In such circumstances I find force in the petition the same is allowed and the impugned order and seniority list are quashed the official respondents are directed to reconsider the matter and re-fix the seniority of the petitioners and private respondents in accordance with the rules and observation made above. Govt. Order No. 279-Agri of 2008 dated 7.10.2008 was passed in the background of the said directions and in view of the judgments of this court in 2051 of 2004, 9 of 2006, 394 of 2006 and 2047 of 2006, the Court directed as under:-
In view of the position, these writ petitions are disposed of with the directions with the respondents to fill up the available vacancies in promotional cadres substantively within a period of 6 months from today by strictly adhering to the J&K Agriculture Gazetted Service Recruitment Rules, 1988. Connecting CMPs shall also stand disposed off. Interim directions, if any, shall stand vacated. The order has been issued on the basis of tentative seniority list, issued in the shape of circular.
There is a dispute between direct recruits and Rehbar-e-Ziraat (REZ) of 1984 Direct Recruits who have come directly through PSC plead that REZ candidates (promotees) cannot be shown senior to them as they have neither been confirmed by the PSC nor appointed through due process of law. The Promotees (REZ) on the other hand state that they have been originally appointed as Rehbar-e-Ziraat in May 1984 and have worked as such till the posts of REZ were converted into the post of VEW and were given a regular grade of AEO from 09/1988.
Various orders on file would show that vide Govt. Order No. 305-Agri of 1984 dated 25.5.1984 sanction was accorded to the:-
Appointment of candidates listed in the annexure to this order as REZ on a consolidated salalry of Rs. 400/- per month Subsequently vide Govt. Order No. 600-Agri of 1984 dated 18.`10.1984 it was ordered that:
The Agriculture graduate appointed as REZ are hereby designated as Village Extension Workers under the National Agriculture Extension Project (Trainings and Visits Programme) and placed in the pay scale of 825-1240 plus usual allowances with immediate effect. It is stated that they hold right to be the constituents of Agriculture service from 02/06/1988 from the date of issuance of Recruitment Rules, but the clearance of PSC has not been obtained.
The Government initiated the process of conducting DPC during the year 2000- 01 but the same could not be concluded and before that a seniority list of all Gazetted officers was updated and issued vide Govt. Order No. 472-Agri of 2000 dated 18.12.2000 including the candidates appointed under Rehbar-e-Zirrat and direct recruit.
The seniority list on receipt of various representations was further modified and in view of the directions of this Court in SWP No. 719/2002 titled Mohd. Qasim Ganai and Others, initial constitution with final seniority list was issued vide Govt. Order No. 12- Agri of 21003 dated 17.01.2003. In 2004 one more tentative seniority list was issued vide Govt. order No. 160-Agri of 2004 dated 09-07-2004 in which all the left out AEO of 1985 were also included.
After the recruitment rules of 1988 came into force, the department issued initial constitution/final seniority list. Vide Govt. Order No. 31-Agri of 2005 dated 18.2.2005, the officers falling in Annexure-A of the Govt. Order were declared as initial constitution in respect of class-VII AEO/equivalent w.e.f. 2.6.1988 giving an edge to those who were not eligible on the said date as they have been regularized without consultation of PSC. Placement assigned to these officers in the initial constitution of the services have been declared as final seniority list as on 2.6.1988. Accordingly in Annexure-B of the said Govt. order, final seniority list of class-VII AEO/Equivalent PR/DR beyond 2.6.1988 till 29.7.1991 has been notified on the basis of entry in service.
The Department conducted a DPC/PSC in the year 2003 and a number of officers were cleared on substantive basis in different class and category upto class-V i.e. District Level posts and necessary orders for their regularization have been issued vide Govt. Order No. 32-Agri of 2005 dated 18.2.2005. Further one more DPC was conducted in 2005 in which 124 officers of class VI category were promoted to Class-V category and necessary orders were issued vide Govt. Order No. 359-Agri of 2005 dated 7.12.-2005.
In 2006, the Deptt; made one more effort for conducting DPC/PSC of officers from class VII to class I. Accordingly a proposal was moved to PSC for conducting a DPC in consideration of the revised sanctioned strength notified vide Govt. Order No. 14-Agri of 2005 dated 17.01.2005. On the basis of final seniority list/initial constitution issued vide Govt. Order No. 12-Agri of 2003 dated 17.1.2003 and Govt. Order No. 31- Agri of 2005 dated 18.2.2005 in accordance with of rules in force giving preference to post graduate candidates against the post of SMS. In the meanwhile the PSC has been restrained due to various court orders and the cases are sub-judice.
Govt. Order No. 279-Agri of 2008 dated 7.10.20008 which is impugned in all these petitions reads as under:
Whereas a tentative seniority list of Class-VII ( Agriculture Extension Officers) in Agriculture Production Department was issued vide No. Agri/E-8/2008 dated:
19.8.2008 in compliance to orders passed by the Honble High Court J&K in SWP NO:
184/05 titled Mohd. Qasim Ganie Vs. State of J&K and others which reads as under:
In such circumstance I find force in the petition, the same is allowed and the impugned orders/seniority list are hereby quashed. The official respondents are directed to reconsider the matter and re-fix the seniority of the petitioners and private respondents in accordance with the rules and observations made above. Whereas, the Honble High Court of J&K in SWP No. 205/04, 9/2006, 394/06, 2047/06 ( clubbed has passed the following judgment:
in view of the position, these writ petitions are disposed of with the directions with the respondents to fill up the available vacancies in promotional cadres substantively within a period of 6 months from today by strictly adhering to the J&K Agriculture Gazetted Services Recruitment Rules, 1988. Connecting CMPs shall also stand disposed off. Interim directions, if any, shall stand vacated.
Whereas, objections from some officers were received regarding the dates of birth, dates of notification of plost graduate degree and dates of appointment and corrections in the records were made wherever found genuine. However, where objections contrary to the spirit of the Court directions, were received the same could not be considered .
Therefore after due consideration of the objections received a final eligibility list of officers got established in pursuance to Agriculture Gazetted Recruitment Rules of 1988 from Class-VII to Class VI ( Category 1 and 2), Clkass-V ( Category 1 ( a to 0) category 2 a & b category 2 (c ) category 2 ( d& e) category 3 ( a to e) category 4,5,6 & 7 (a), Class-IV ( category 1,2,&3) & Class-III ( category 1 & 49a), Category 2,3,5 & 6) which served as a base for elevation to the next higher class and category strictly as per the eligibility on a particular date of occurrence of vacancy or other rotational available vacancy in the particular class.
Whereas, due and lawful course of action to regularize all Gazetted appointments in different classes and categories would be through DPC/PSC but in the present case the officers have to be regularized at different levels on different dates and requirement of APRs and other supporting documents in favour of the officers for that particular time would be highly called for inevitable. Therefore officers would have to be given sufficient time for completion of this process.
Whereas, slots for various categories viz: RBA, Sopcial Casts and ALCs have been reserved at their due roster points till verification from concerned Deputy Commissioners is received by the Administrative Department and accordingly shall be filled subject to their eligibility in different classes and categories.
Whereas, Government has released grades in favour of some officers falling in Class-VI earlier to their due dates of eligibility. Accordingly in case of those officers who have been regularized by this Government orders, protection of pay is also given for the period for which they have drawn the pay prior to the date of their eligibility by virtue of this Government Order.
Therefore, subject to the outcome of SWPs pending before the Honble High Court and any suit pending before any other Honble Court and also subject to the withdrawal of SWPs/OWPs/LPA from the Honble High Court and confirmation by PSC/DPC, sanction is hereby accorded to the release of pay scales in favour of the officers of Agriculture Production Department as per the details in Annexure-A,BC&D to this Government Order. However, confirmation to the subject Matter Specialists Grade- III(Class VI) elevated on the basis of post graduation shall be subject to the production of notification of their post graduate degree before their D.D.Os for verification of dates of notification of the post graduate degrees and accordingly for report to the Administrative Department.
Consequent upon the establishment of eligibility pursuance to the Recruitment Rules of 1988 to different classes and categories sanction is hereby accorded to the placement/posting of officers on the places/posts as per the Annexure-E to this Government Order.
However, if any officer placed in a particular category of a particular class feels aggrieved by way of promotion/placement of his Junior Officer from same category and class, he may exercise his right to make representation before the Administrative Department within a period of 60 days so that matter could be disposed off on the merits of the case.
This order shall superceed all the previous Government Orders on the subject and all the interim arrangements made by the respective Directors shall be deemed to have been dispensed with. Such officers holding posts on interim arrangements and not regularized by this Government Order shall report to respective Directors till further orders.
Before proceeding further it would be appropriate to refer to the relevantrules on the subject. Under the 1988 rules there are seven categories for class-V which are: category 1 ( a-o); category 2 ( a,b,c,d,&,e), Category 3 ( a,b,c,d,&,e) Category 4,5,6,7 ( a,b). These categories though constitute same class but have different method of recruitment. Basis for selection is higher qualification regardless of seniority. The determining factor to accord consideration for promotion under Recruitment Rules by and large is higher qualification in a particular specialty. The Rule envisages a position that a person with higher qualification, as against graduate in Agriculture sciences is entitled to promotion not withstanding his seniority. The Rule position for class-IV and class-III are as under:
Rule Position for Class-IV Plant Protection Officer (category-1) By selection from class V categories 1,2,3,4,5,6 & 7 ( a) possessing M.Sc. degree in Entomology/Plant Pathology/Plant Protection having at least 3 years service in that class.
Floriculture Dev.
Officer ( category-2) By selection from Class V Categories 1,2,3,4,5,6&7 possessing M.Sc. degree in Horticulture ( Floriculture) with at least 3 years service in that class.
Project Officer Dry land ( Dev) (Cat-3) By selection from Class V categories 1,2,3,4,5,6,&7 (a) from officers having at least 3 years service in that class.
Rule position for Class-III CAO/Dy. Director Agriculture ( cat 1 & 4 a) By Selection from Class IV with at least two years experience in that class. However in case number of vacancies available are more than the number of eligible officers than the posts shall be filled up by selection of officers in class V category 1 (a) to (o) with at least 5 years experience in that class.
Soil Survey Officer/Agriculture Chemist ( Cat-2) By selection from Class V category 3 from amongst officers having at least 5 years experience in that class.
Mushroom Splst/Sr. Scientist/Seed Pathologist ( Cat-3) ____________________________ SMS (Grade-I) Extension Category 4(a) SMS ( Farm Machinery) Grade-I ( Ext) Agri-Res. Engineer.
Category 4(b) By selection from Class V category 4 from amongst officers having at least 5 years service in that class.
_____________________________ By selection from class IV with at least two years experience in that class. In case, however, the number of vacancies available are more than the member of eligible officers the post shall be filled up by selection from officers in class V(a) to (o) with at least five years experience in that class.
By selection from Class V, Category 7 (b) with at least five years service in that class.
Agrostologist/Agronomist ( Cat-5) By selection from Class V category 1,2,&5 from amongst the officers possessing M.Sc.
Agrostology/Agronomy having at least 5 years service in that class.
Agri. Economist ( Cat-6) By selection from Class IV categoiry 3 with at least three years experience in that class. Incase however the number of vacancies available are mdore than the number of eligible officers then the post shall be filled up by selection from Class V from amongst officer having M.Sc.
Agri. Economics qualification with at least 5 years service in that class.
Various Government Orders and annexures placed on file and from the written submissions submitted by the respondents, it would appear that petitioner Mohd. Mubarak Reshi in SWP NO. 1415/08 is holding the post of Subject Matter Specialist ( District level) which falls under category V2 (d) . He was initially appointed in the year 1981 in Class-Viii and appeared at S. No. 266 in Govt. Order No. 12-Agri of 2003 . He appeared at S. No. 204 in the tentative seniority list but due to higher qualification/post graduation in Soil Conservation and Water Management acquired by him in the year 1988 he was promoted to Class-VI as SMS-II, category I (a) on 15.4.1989 against available vacancy vide Govt. Order No. 279-Agri of 2008. Before that he was elevated as SMS-III category 1(a) in the year 1994 vide Govt. Order No. 376 -Agri of 1991 and subsequently grade was released to him vide Govt. Order No. 511 of 1992 retrospectively w.e.f. 3.6.1991, therefore his elevation to Class-VI has been preponed by two years. He was elevated as SMS-II Class V category 2 (d) in pursuance to Govt. Order No. 409-Agri of 1994 dated 26.7.1996 . The order No. 279-Agri of 2008 re- confirm his position in Class-V ,Category 2 (d) on 15.4.1994 due to his having acquired post graduation. He superceeded senior graduate Class-VI officers who were already working in Class-VI w.e.f. 2.6.1988.
Similarly petitioner No. 2 in the said writ petition namely Ghulam Hassan Guroo hold the posts of SMS-II Class-V, Category 2 (d) he was initially appointed in the year 1983 in class-VII. He completed his post graduation in the year 1988. He was elevated to Class-VI category 1 (a) as SMS-III vide Govt. Order NO. 376-Agri of 1991 and subsequently grade was released in his favour w.e.f. 3.6.1991 vide Govt. Order No. 511 Agri of 1992. The petitioner under Order No. 279-Agri of 2008 has been found eligible for promotion to Class-VI, category 1 (a) SMS-III on 25.9.1989 though he was Jr. to other officers. He was elevated to class-V category 2 (d) vide Govt. Order No. 409-Agri of 1994 . Order No. 279-Agri of 2008 is only reconfirmation his position in Class-V category 2 (d) w.e.f. 25.9.1994 strictly as per Recruitment Rules. The officer under the Recruitment Rule of 1988 is not eligible to Class-IV and Class-III as he possess M.Sc. Agronomy which is not required discipline for promotion to Class- IV,category 1,2,and to Class-III Category 1,2,34 (a) 6 but is eligible for Class-IOII category 5 where he is too Junior for consideration to said class and category from the feeding cadre.
Petitioner No. 3 namely Sajad Ahmad Shah was initially appointed in the year 1982 in Class-VII he acquired post graduation during the year 1990 which made him eligible for the post of SMS-III, Class-VI , Category 1 (a) w.e.f. 3.6.1993 in preference to his senior colleagues in Class-VII who did not have higher qualification/post graduation degree. He was promoted to Class-V category 5 as Water Use Specialist w.e.f. 3.6.1998. He has been promoted to Class-V category 5 because of subject speciality after superceeding some graduate Class-VI Officers who were already working in the class w.e.f. 2.6.1988.
Petitioner No.4 in the said writ petition Farooq Ahmad Mandoo was appointed in Class-VII during the year 1978. He completed his plost graduation in Plant breeding and genetics during the year 1992 and has subsequently been promoted to Class-VI category 1 (a) due to possession of higher qualification vide Govt. Order No. 791-Agri of 1994 w.e.f. 30.4.1993 in preference to his senior graduate Class-VII officers. Under Govt. Order No. 279-Agri of 2008 he has been promoted as SMS-III Class-VI, Category 1 (a) w.e.f. 3.6.1993 against the available vacancy. Under the same order he was promoted and found eligible to Class-V category 2 (d) w.e.f. 2.9.1999 against the available vacancy too by superceeding some of his graduate Class-VI officers who were already working in that class w.e.f. 3.6.1988.
Petitioner in SWP NO. 1608/08 namely Manzoor Ahmad Mir was appointed in Class-VII in the year 1979. He acquaired higher qualification/post graduation in olericulture )(Vegetable Sciences) during the year 1991 and was therefore promoted to Class-VI, Category 1(a) SMS-III on 3.6.1991. He was promoted to SMS-II Class-V, Category 2 (d) on 26.7.1994 much earlier to his exact date of eligibility in Class-V, category 2 (d). IN terms of Order No. 279-Agri of 2008 the said petitioner was found eligible for promotion against the available vacancy on 1.1.1992 to Class-VI category 1(a) and on 1.1.1999 to Class-V ,category 2(d) respectively years before his senior officers were elevated to ClassVI and Class-V with B.Sc. Agriculture degree. The petitioner is post graduate in Olericulture which is not required subject for promotion to Class-IV category 1 &2 and Class-III is therefore ineligible for promotion under Recruitment Rules 1988. The facts would show that his beneficiaries of recruitment rules upto Class-V but has not been found eligible for promotion to Class-IV and Class- III according to the same recruitment rules.
Petitioner in SWP No. 135/08 namely Ghulam Mohammad Dand was appointed in Class-VII during the year 1979 . He has completed his post graduation in Agronomy during 1994 and was therefore found eligible in Order No. 279-Agri of 2008 for promotion to Class-VI, Category 1(a) as SMS-III well before his senior batch-mates who are B.Sc. Agriculture only. He was promoted to Class-VI, category 1 (a) as SMS-II on the basis of possessing post graduation degree in Agriculture Science. He was also found eligible to Class-V, Category 2(d) as SMS-II on 1.4.2003 against available vacancy. He has not been eligible for promotion to Class-IV ,category 1 and2 as he is post graduate in Agronomy which is not required discipline for promotion to Class-IV, Category (1 & 2) and Class-III, Category ( 1,2,34 (a) and 6 but is too junior to seek consideration for promotion in Class-III, category 5.
These facts would show that the petitioners in all these petitions have not submitted the correct facts and are aggrieved that they do not get promotion under the impugned order whileas the facts read in light of the recruitment rules would show that there isevery justification for not to grant promotion on the basis of the seniority of the petitioner. The facts would show that initial constitution of the service was required to be notified before the repeal 1978 Recruitment Rules but belated exercise was made in the year 2000 and the initial constitution of service was notified vide Govt. Order No. 472- Agri of 2000 dated 17.12.2000. It was later on modified and declared absolute vide Govt. Order No. 11 and 12 of 2003 dated 17.1.2003. Seniority list for left out class-VII was notified vide Govt. Order No. 31-Agri of 2005. A DPC was held during the year 2003 for class-IV,III and II and notified vide Govt. Order No. 32-Agri of 2003 dated 17.1.2003. Another DPC for Class-V was held during the year 2005 notified vide Govt. Order No. 395-Agri of 2005 dated 7.12.2005 but the State Public Service Commission received series of representations against the said order for non-inclusion of 22 posts of SMS-II Class-V, category 2(d) in the DPC thereby forced Govt. and the Commission to put Order No. 395-Agri of 2005 on review.
In the year 2007 the judgment came in SWP Nop. 184/05 in which the initial constitution of service was quashed with the directions to the official respondents to re- fix the seniority for Class-VII between the petitioners and private respondents in accordance with the rules. A tentative seniority list was thereafter notified vide No. Agri/E/8/2008 dated 19.8.2008. Meanwhile the judgment came from Jammu Wing of this Court in clubbed petition in SWP NO. 2051/04, 9/06, 394/06 and 2047 of 2006 which were disposed of with the direction to the respondents to fill up the available vacancies in promotional cadre substantively within a period of six months from the date of order strictly adhering to the Jammu & Kashmir Agriculture( Gazetted) Service Recruitment Rules, 1988. The facts would further reveal that adhoc promotions granted by the respondents from time to time and dealing with the issue casually from time to time has resulted in chaos which the Government Order No. 279-Agri of 2008 dated 7.10.2008 has tried to remove it. It would be pertinent to note here that while processing of the Govt. Order No. 279-Agri of 2008 when the file went to Advisor ( T) to His Excellency the Governor He observed as under:-
..I feel that the steps taken by the Prpl. Secy ( Agri) were only way out of an impossible impasse. I had failed to deal with this issue in the 1 = years I spent as FC ( Agri and RD) and the subsequent 5 years as Chairman PSC. Today we have only three confirmed Jt. Dirs. Of Agriculture ( posted as I/C Directors). All the rest of the Gazetted cadre ( other than 2 Dy. Dirs) are not confirmed by DPC/PSC and the functioning has been queered by orders in a number of writ petitions. The present exercise has been arrived at after the Prpl. Secy ( Agri) managed to get a consensual agreement to the course of action proposed from various associations representing different categories of officers. Persons agitated against the orders and believed to number more than 15 who prospered under a regine where there was no regular seniority On this His Excellency the Governor observed as under:-
Para 14-16 ante endorsed.
Separately, CS should conduct an exercise to ascertain information, similar problem exist in other Deptts and if so, same appropriate guidelines/directions to concerned Administrative Secretaries for time bound rectifications.
On careful consideration of Order No. 279-Agri of 2008 I find the order is only an interim measure and that no ground at all is made out to interfere with the said Govt. Order. A comprehensive exercise has been undertaken while preparing this Govt. Order. The petitioners if feel aggrieved have the course open to file objections to the order and in the circumstance also I find no ground is made out to allow the present writ petitions. I order accordingly.
It may be observed that while dealing with SWP No. 44/09 titled Chiran Jeewan Razdan v. State & Ors. SWP No. 728/09, 1404/08,1507/08,1626/08,COA(SW) No. 119/2009, SWP NO. 1526/08, SWP No. 1593/08, Caveat No. 1085/08, SWP No. 1723/08, SWP 1724/08, SWP No. 695/10, CMP No. 201/2010 and CMP No. 202/10 alongwith CMP No. 602/10 in SWP No. 44 of 2009, this Court on the consensus of the learned counsels at Jammu passed certain directions as under:-
In these circumstances I find it just and proper to direct the Administrative department to place the matter before Public Service commission/DPC for its examination and final orders. Accordingly, all these petition are disposed of on the consensus of learned counsel for the parties, with the direction to the official respondents to place the matter along with final seniority list of all the Gazetted Officers prepared by the official respondents who are in the zone of coinsideration before the State Public Service Commission/DPC within a period of two weeks from the date copy of this order is served upon them. The State Public Service Commission/DPC shall finalize the matter within a period of six weeks from the date it is placed before it. The State Public Service Commission/DPC shall on finalization, make recommendation to the Government for appropriate orders. Meanwhile, Govt. Order NO: 279-Agri of 2008 dated 7.10.2008 impugned in these petition shall remain subject to out come of the finalization of the matter by the Public Service Commission/DPC.
CMP Nos. 201/2010, 202/10 and 602/10 have been filed seeking extension of time to finalize the seniority list and for clarification of the order in so far as the part of judgment dealing with the operation of Order No. 279-Agri of 2008, dated 7.10.2008 is concerned. The applicants in all these CMPs have informed the Court that the Government had constituted an enquiry committee to look into the Govt. Order No. 279-Agri-of 2008 and on the submissions of the enquiry committee report the said Government Order has been kept in abeyance. It has been also stated that all those employees who are petitioners are trying to take advantage of an ambiguity in the order of the Court and are interpreting in their own way. The applicants therefore pray to clarify the order so that the Order No. 279-Agri of 2008 is kept in abeyance and the status-quo remains in force to avoid any confusion.
It may be observed here that admittedly no appeal has been filed against the order dated 8.4.2010. The order still remains in force and should be complied with. This being the position there was not justification for the Government to go for re- consideration of the order dated 8.4.2010 without seeking modification of this Courts order. Since the Court has directed that the Government Order No. 279-Agri of 2008 dated 7.10.2008 will remain in force subject to outcome of the consideration accorded by the Commission, I do not find any ground to review this order. The order has been kept in force only for a short period till the Commission finalizes the matter and on this count there should be no grievance either on the part of the petitioner or on the part of the State. It is better to expedite the matter pending with the PSC/DPC and get the main issue settled so that the controversy is settled once for all. It is again made clear that Government Order No. 279-Agri of 2008 dated 7.10.2008 shall remain in force till finalization of the matter by the State Public Service Commission/DPC only and shall remain subject to its outcome.
In the circumstances I direct as under:-
1. Respondent Principal Secretary Agriculture Production Department shall refer the matter to the State Public Service Commission within two weeks from the date copy of this order is served on the respondents.
2. The Commission shall consider the matter. The matter shall be taken up on priority basis and shall be finalized within a period of four weeks from the date it is received by the commission. Recommendations in this behalf shall be made by the Commission within the said period.
3. The Government shall on receipt of the matter from the Commission pass appropriate orders in terms of the recommendation within two weeks from the date recommendation in this behalf is received from the Commission.
4. Govt. Order No. 279-Agri of 2008 dated 7.10.2008 shall remain in force subject to outcome of the final decision to be taken by the Govt as above.
This, however, shall not give/confer any benefit to/on the beneficiaries of the order. It shall remain as an interim arrangement only.
Petitions/CMPs disposed of accordingly.
(H. Imtiyaz Hussain) Judge Srinagar 29/04/2011