Abdul Gani Dar vs State of Jammu & Kashmir and Others

Bashir A. Kirmani, J.—Claiming to be working as Inspector in the respondent/Corporation on substantive basis the petitioner maintains that

in view of rules governing his services he is due for promotion to a post in the next higher cadre of Assistant Registrar which is presently lying

vacant and for which his name alongwith one B.S. Manhas stands already recommended by Director to the administrative Department for

relaxation of requisite academic qualification who in response sought their service record and APRs, but while the matter was pending as such,

respondent No. 3 was promoted to the post of Assistant Registrar under order No. DHP/216 of 2004 dated: 1.11.2004 to the determent of

petitioner's rights. Aggrieved thereby he seeks quashment there of along with direction for fulfillment of vacancies in the cadre of Assistant Registrar

in accordance with rules etc. on the ground that under rules the said order is totally bad particularly because 3rd respondent does not belong to the

feeding cadre for promotion to the post of Assistant Registrar and that as a result thereof the process of petitioners promotion along with other

person aforementioned has been stalled etc. Materials appended with the memo of petition include Directors recommendation to Government

relied upon by the petitioner along with a copy of the impugned order etc.

In their objections the official respondents 1 and 2 have pleaded that the order impugned in writ petition has been passed pursuant to directions

of Civil Court (2nd Addl. Munsiff, Srinagar) dated: 22.6.2004 in a suit purported to have been filed by 3rd respondent, which has not been

challenged by the petitioner. Admitting that third respondent is not eligible for promotion to the post of Assistant Registrar under rules the said

respondents further maintain that since she has been promoted against the post in her own pay and grade on temporary basis and of course subject

to out come of her civil suit, any of petitioner's right was, therefore, not violated. Material appended with the memo of objections include a

photocopy of the relevant rules.

In her separate objections the 3rd respondent has, among other things pleaded that petitioner not being eligible to the post of Assistant Registrar

has not been affected by her adjustment against the post, while she being technically trained and senior, has rightly been so adjusted, particularly

because it was done in compliance to the civil court directions, even while in her own right she was entitled to claim right of promotion to the higher

post of Assistant Director. During course of their submissions the counsel appearing for parties have reiterated the contents of their respective

pleadings.

I have heard learned Counsel and considered the matter. In terms of rules governing the matter as notified under SRO 64 of 1993 the post of

Assistant Registrar in terms of schedule IV appended thereto carrying the scale of Rs. 1760-3200 required to be filled up, 33% by promotion

from Class II having minimum qualification as graduates, preferably holding a higher diploma in co-operation with at least four years service in that

category and 67% by deputation from co-operative department. Under same schedule the post of Inspector to which cadre petitioner belongs is

categorized as Grade II with the scale of Rs. 1400-2600 on that basis he claims a right to promotion. As against this is the 3rd respondents claim

of belonging to the cadre of Assistant Extension Officers having high academic qualification and diploma to her credit and thus eligible to claim

promotion to the posts of Assistant Director like others who have been given such promotions. As per Schedule II attached to the aforementioned

rules, an Assistant Extension Officer, the category to which 3rd respondent claims to belong presently on substantive basis, is a feeding cadre for

the post of Extension Officer, to the extent of 33% with five years service in the cadre. Thus on her own showing the 3rd respondent could have a

claim to the post of Extension Officer carrying pay scale of Rs. 2000-3200 and not to that of Assistant Registrar for which the cadre to which she

belongs is not a feeding line. In that view of the matter her claim as against that of petitioner, subject of course to his eligibility, who belongs to the

feeder cadre appears to be hollow. During submissions her counsel has contended that she has been promoted to the post of Assistant Registrar in

her own pay and grade against one of the two posts available for being filled up by deputation from Cooperative Department and as such her

promotion despite alleged short coming does not affect petitioners rights in any manner whatsoever. This position is however not adopted by the

official respondents expressly.

In view of what has been said above, the position obtaining is that while 3rd respondent had admittedly been adjusted against one of the

available posts of Assistant Registrar albeit in her own pay and grade, under rules she does not appear to be eligible therefore in terms of her

placement as not being in the feeder line for promotion to the post of Assistant Registrar. That she is there under the civil court order is perhaps not

a sound contention for the simple reason that in terms, the order only directs consideration of 3rd respondent against the post of Assistant

Registrar; which can obviously not be deemed to mean consideration dehors the rules. Civil Courts direction to consider and only mean a

consideration under rules, and not otherwise, much less against the rules. At the same time however Government counsel for official side admits

that presently three vacancies are available in the cadre of Assistant Registrars, one to be filled up through promotion as aforesaid and the two on

deputation. That the case of petitioner along with another person for relaxation of academic qualifications for their promotion to the post of

Assistant Registrar is pending with the administrative department too is not denied.

In over all circumstances catalogued above, the writ petition is disposed of with following directions, that:

(a) petitioner's case purporting to have been recommended by the Director to concerned Administrative department for relaxation of age for his

promotion to the post of Assistant Registrar, be considered on its own merit, and a decision thereupon taken within three months from now.

(b) Adjustment of 3rd respondent against one of the posts of Assistant Registrar claimed by her counsel to have been made against one of the

vacancies available in deputation quota albeit under Civil Court orders may be contested by aggrieved parties before the Court where the matter is

reportedly pending. But her adjustment as such shall in no case affect the promotion prospect of petitioner, whether on his own eligibility or in

relaxation of criterion.

(c) Nothing contained herein shall be deemed to mean a legal acknowledgement, acceptance or approval of 3rd respondents adjustment against

the post of Assistant Registrar, which shall be subject to outcome of the civil litigation going on thereabout.

The petition is accordingly disposed of along with connected CMPs.