Abdul Hamid Mir vs State of J&K and another

The dithering attitude of Director, Rural Development Department to go by the Rules governing the grant of consequential benefits of promotion,

ordered in favour of the petitioner is axiomatic from the contents of this petition.

The petitioner, a Plantation Supervisor of Block B.K. Pora, was temporarily promoted in his own pay and grade against the post of Village

Level Worker vide order No. 128 of 1993 dated 18.9.1993 issued by Director, Rural Development Department, Srinagar. The vacancy of the

aforesaid post is shown to have been caused due to promotion of the incumbent of this post to a higher post. Thereafter, the case appears to have

been placed before the Departmental Promotion Committee of the Department which met on 22.3.1994 and they cleared the petitioner for the

aforesaid promotion. Consequent upon the meeting of the Departmental Promotion Committee, the Director Rural Development, Kashmir issued

an order No.76 of 1994 dated 2.4.1994 ordering the grant of the grade of the post viz Rs. 9501500 with effect from 1.4.1994 in favour of the

petitioner. The wording of the order is of an importance, therefore, its body is quoted hereunder for ready reference:

As approved by the Departmental Promotion Committee of Rural Development Department Kashmir, in its meeting held on 22.3.1994, Shri

Abdul Hamid VLW Narbal, who was promoted as VLW in his own pay and grade vide this office above quoted order is hereby granted the

grade of the post viz. Rs.9501500 we. from 1.4.1994.

Sd/

(B.A. Mir) 1AS Director Rural Development Kashmir

From this order, it appears that the earlier order of promotion of the petitioner had been made subject to the approval of the Departmental

Promotion Committee which has approved the same, as given out by the order. However, while doing so, the Director has given the grade benefit

to the petitioner from 1.4.1994 only, not retrospectively from the date he was promoted to the post. This petitioner has, in fact, been filed for the

limited prayer that the aforesaid order, to the extent it grants the grade benefit of the post form 1.4.1994 only be quashed and respondents be

directed to grant such grade to the petitioner retrospectively form the date he was promoted to the post.

Respondents have chosen not to file any counter. On 17.2.1999 Mr. Attar made a statement before the court that in view of a limited question

being involved, respondents are not desirous of filing the reply and that the petition may be listed for hearing. Consequently the petition was heard

on 8.7.1999.

As mentioned above, the Departmental Promotion Committee has approved the earlier action taken by respondents No. 2 in relation to the

grant of promotion to the petitioner vide order dated 18.1.1993. Word ""Approval"" in the given facts and circumstances, always means

confirmation, ratification or consent given to an act, or thing, done. The petitioner admittedly by virtue of the temporary promotion, was required

and assigned the duties and responsibilities of a post carrying higher scale of pay. Therefore, the petitioner could not have been deprived of or

denied, the emoluments to which he was entitled by virtue of the work extracted from him.

The Government instruction (a) appended to Regulation 85 of the J and K Civil Service Regulations is to the following effect

a. It is wrong in principle to appoint a Government servant to a higher post in his own cadre/line of promotion without observing the required

formalities of clearance from Departmental Promotion Committee etc. Where, however, for reasons to be recorded, the Administrative authorities

cannot without detriment to Public interests wait for formal appointments temporary stopgap arrangements made be made by them against such

posts. In making such arrangements the competent authorities will ensure that only such officers are appointed who satisfy all the requirements for

higher appointments and can stand the scrutiny of the Departmental Promotion Committee etc. persons so appointed shall be appointed in their

own pay and grade as incharge of the higher posts and will be required to discharge the full duties and responsibilities of these posts. As soon as

such officers are declared by the Departmental Promotion Committee etc. fit for appointment to higher posts without break in the stopgap

arrangments, they will be allowed full pay of those posts allowance etc. if any, drawn to be adjusted in full against the retrospective increased in

pay"".

The aforesaid instruction of the Government makes it unambiguously clear that, after a Government servant promoted to the next post in his own

pay and grade, is cleared by the Departmental Promotion Committee, he is entitled to full pay and allowance etc. of the post retrospectively.

Government instructions do not have, of course, the force of law, but these become relevant when the concerned authorities are unable to

understand the import of the Rules. There is a great logic in the aforesaid instruction appended to the Rules. After all, Government is a model

employer. It cannot extract work from its employees without due and proper remuneration, hi case ""Selva Raj vs. Lt. Governor of Island, Fort

Blair and others"" (AIR 1999 SC 838) cited by learned counsel for the petitioner, the Apex Court held as under:

....Consequently, on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in

the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating and not as a regular

promotee. This limited relief is required to be given to the appellant only on this ground.

In the aforesaid case, the Appellant was not due for promotion to the post on which he was asked to officiate. Here the case of the petitioner is

more stronger. He was due, eligible and, therefore, promoted to the post. After the Departmental Promotion Committee accorded their approval

to the action taken, it was not open to the respondentDirector to release the grade benefit only prospectively, when the petitioner had been

discharging his duties on the promotional post right from the date he was promoted thereto.

The argument of Mr. Attar, AAG is that the petitioner could at best claim charge allowance, or officiating allowance since, according to him, the

petitioner was given charge of the higher post in officiating capacity. He has further contended that the promotion given to the petitioner in his own

pay and grade can in no way be called as promotion. The petitioner, according to him, is to be deemed to have held the higher post only in

officiating capacity. These arguments are untenable in law as wet! as on facts. Rule 2(h) of the Jammu and Kashmir Civil Servants (Classification,

Control and Appeal) Rules defines promotion as under:

Promotion means the appointment of a member of service, or class of service, in any category or grade, to a higher category or grade of such

service or class"".

Here in this case the petitioner though has not been promoted to higher grade, yet definitely he was promoted in the category which is higher to the

category of grade he was holding prior to the promotion order dated 18.9.1993. In this context, it would be appropriate to quote hereunder the

relevant portion of the earlier promotion order. It reads thus:

Sanction is hereby accorded to the temporary promotion of Shri Abdul Hamid, Plantation Supervisor of Block B.K Pora to the post of VLW in

his own pay and grade in Block Narbal against available post caused due to promotion of Syed SirajunDin.

It is unambiguously clear from a reading of the aforesaid order that the petitioner was promoted to a post of higher category, though in his own pay

and grade. It is further seen that the promotion of the petitioner was not limited to any particular period of time. Stopgap arrangements, or

appointments on officiating bases, are made short for spells of time. That is not the case here. Petitioner was promoted without any restrictions

visavis the time.

When a Government servant is entitled to the promotion to next higher post and he is given such promotion subject to the approval of the

Selection Committee, the Selection Committee Departmental Promotion Committee also approves such promotion, it cannot be left to the utter

discretion of the competent authority to release the grade from the date he wishes to do so. After all, some method is to be followed which has

reasonableness. Here the power of releasing the grade in favour of the petitioner has been exercised arbitrarily which cannot be countenanced in

law.

For these reasons, therefore, this petition is allowed. Order No. 76 of 1994 dated 2.4.1994 is quashed to the extent it seeks to give the grade

benefit in favour of the petitioner of Rs. 9501500 only with effect from 1.4.1994. The petitioner is held to be entitled to such grade is benefit, from

18.9.1993, the date he was initially promoted to the post of Village Level Worker. Consequently, the respondents are directed to release the

grade benefit in favour of the petitioner with effect from 18.9.1993.

No order, however, as to costs.