AI Structured Summary
Not yet generated for this judgment
Judgment
Ali Mohd. Magrey, J.—The sole prayer made in this petition filed by the petitioners - Class IV Orderlies and Chowkidars of Ministerial
Cadre of Forest Department - is to command the respondents to promote them to the post of Forest Guard within their ratio of 20% with effect
from the date the Class IV employees from Executive Cadre have been promoted with all consequential benefits. It is averred in the petition that
the petitioners are on the ministerial cadre of the establishment of the Jammu and Kashmir Forest Department, working on Class IV posts as
Orderlies, Chowkidars etc. They are stated to have completed five years of service on their respective posts. It is stated that though the number of
employees in the Ministerial Cadre is lesser than those in the Executive Cadre, but they have more chances of promotion available to them.
However, they have been discriminated against for mala fide reasons and ulterior motives, whereby their rights under Articles 14 and 16 of the
Constitution have been violated. Citing the rules governing the promotion to the post of Forest Guard, it is stated that vide Forest Order Nos. 502
dated 31.12.2009 and 42/2010 dated 23.1.2010, 124 Class IV employees in the Executive Cadre have been promoted to the post of Forest
Guard; while as, in terms of Forest Order Nos. 501 of 2009 and 41 of 2010 dated 23.1.2010 only 9 promotions have been made from amongst
the members of Ministerial Cadre. It is stated that the petitioners made representations for redressal of their grievances, but the same were not
considered. The petitioners have, accordingly, filed the writ petition on the legal grounds taken in the petition for the relief first above mentioned
hereinabove.
The respondents have filed their reply. In paragraph 3 of the preliminary objections it is stated that petitioners are junior to the officials who got
promoted against the utilized 58 vacancies; therefore, they have no locus standi to claim that discrimination has been meted out to them. It is further
stated that the petitioners are even junior to the Helpers whose encadrement/re-designation is under consideration of the Government. One of the
petitioners, namely, Muhammad Ashraf Mir, Chowkidar, is stated to be only a Primary Pass and, therefore, not possessing the prescribed
qualification for promotion as Forest Guard. It is admitted that the number of employees in the Ministerial Cadre are lesser; however, promotion
prospects of each category are well defined in the Rules. It is also submitted that the post of Forest Guard is a District Cadre post and normally the
seniority of the employees is required to be maintained at district level, but the department functions through administrative units of Forest Divisions
which do not correlate with district boundaries of a particular revenue district. As a result of this, maintaining of seniority at district level is not
possible; therefore, the seniority of Class IV employees is being maintained at Circle level. It is stated that the final seniority list of
Ministerial/Executive Cadres was issued vide No. CCF (K)/Admn/2009/3628-40 dated 14.11.2009 and that as per the aforesaid final seniority
list there were only 09 Class IV employees belonging to Class XII of Schedule II, i.e., Orderlies/Farashes/Chowkidars possessing the prescribed
qualification of middle or above. It is further stated that in the Divisional Level Departmental Promotion Committee held on 25.11.2009 as many as
67 Forest Guard vacancies got worked out for promotion of Class IV employees belong to Class XII of Schedule III, but, in view of availability of
only 09 candidates, the DPC utilized the remaining 58 vacancies for promotion of Class IV employees belonging to Class XII Category (A) of
Schedule II, i.e., Mali, Cattle Pond Keeper, Boat Mazdoor, Mapper, Watcher and Gardner within the same Circle. As to the representation filed
by the petitioners, it is stated that the same was considered and disposed of.
The petitioners have also filed their rejoinder to the reply filed on behalf of the respondents. Therein, it is stated that during the pendency of the
writ petition, the respondents have circulated the final seniority list of the Ministerial Cadre wherein petitioners figure upto serial No. 52. It is also
stated that despite court orders passed from time to time in various applications, mentioned in the rejoinder, to consider the petitioners, the
respondents have not considered them for according of such promotions.
I have heard learned counsel for the parties, perused the material on record and considered the matter.
It is not in dispute that the petitioners are governed by the Jammu and Kashmir Forest (Subordinate) Service Recruitment Rules, 1991
(Recruitment Rules, for short). In fact, both, the petitioners as well as respondents have quoted a part of the Schedule II appended to the aforesaid
Rules in their respective pleadings, but the real point has been missed inasmuch as Rule 5 of the Recruitment Rules has been omitted by both. Rule
5 of the Recruitment Rules provides the qualifications and method of recruitment. It reads thus:
Qualifications and method of recruitment
(1) No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he possesses the
qualifications as laid down in the Schedule II & III and fulfils other requirements of recruitment as provided in the rules and orders for the time
being in force.
(2) Appointment to the service shall be made -
(a) by direct recruitment which will include appointment by transfer;
(b) by promotion; and
(c) partly by direct recruitment and partly by promotion;
(d) by deputation from other departments in the ratio and in the manner mentioned against each post in the Schedules II & III.
(3) In case suitable candidates are not available for promotion, the post shall be filled up by direct recruitment and vice versa.
(4) Candidates recruited direct to the post of Junior Assistant...
As seen above, Sub-rule (1) of Rule 5 of the Recruitment Rules begins with the words ""No person"". It uses the negative language. When a
provision of law begins with a negative language in the manner as it is contained in the aforesaid provision of the Rules, it amounts to a complete
embargo and prohibition on what the Rule relates to. In the instant case, the Rule relates to method of recruitment - both direct as well as
promotions. It, therefore, puts a complete embargo and prohibition on promotion of any member of service not possessing the prescribed
qualifications. In other words, non-possession of the prescribed qualification renders the employee concerned ineligible and creates a prohibition
for promotion.
Rule 5 of the Recruitment Rules itself does not lay down the qualifications. The qualifications are laid down in Schedules II & III appended to
the Rules. The post of Forest Guard is shown to be Class X post in Schedule II. In column fourth of the Schedule II, the minimum qualifications for
direct recruitment to the post are shown to be (i) Matric; and (ii) Physical Fitness as prescribed in Class VI. Column fifth of Schedule II prescribes
the method of recruitment. Against the post of Forest Guard, it provides as under:
50% by direct recruitment and 50% by promotion in the following manner/ratio:
(i) 20% from Class XII Category (A) of Schedule II with five years of service in that category;
(ii) 20% from Class XII of Schedule III with five years minimum service in that category;
(iii) 10% from Graduates from Class XII Category (A) of Schedule III and Class XII of Schedule III with five years' service in that category.
As seen above, the qualifications prescribed for the post of Forest Guard in column fourth of Schedule II only relate to direct recruitment. As per
method of recruitment prescribed in the fifth column, 50% posts have to be filled in by promotion of the members of service from amongst the
Class XII Category (A) of Schedule II and Class XII of Schedule III in the ratio of 20% each
Class XII Category (A) of Schedule II comprise of Mali, Cattle Pond Keeper, Boat Mazdoor, Chainman, Water Carrier, Road Mazdoor,
Mapper, Watcher and Gardener. The method of recruitment to the post is shown to be only by direct recruitment and the qualification prescribed
is Middle Pass.
Similarly, Class XII of Schedule III comprise of Orderlies, Farashes and Chowkidars. The method of recruitment to the post is again shown to
be only by direct recruitment and the qualification prescribed is Middle Pass.
As a necessary corollary, a person belonging either to Class XII Category (A) of Schedule II or Class XII of Schedule III for being eligible to
be promoted as Forest Guard necessarily is required to have the minimum qualification of Middle Pass. It is not the case of the petitioners, barring
one, that they possess the qualifications as are prescribed by the Rules for promotion to the post of Forest Guard. As already mentioned above,
Rule 5 of the Recruitment Rules prescribes promotion of such persons as do not possess the prescribed qualifications and, in fact, creates a
disqualification and ineligibility for promotion of such members of the service. Therefore, being ineligible, the petitioners, except petitioner No. 17,
cannot claim promotion on the post of Forest Guard unless they acquire the requisite qualification. Consequently, it cannot be said that they have
been discriminated against or that any of their rights, muchless the rights of equality guaranteed under Articles 14 and 16 of the Constitution of
India, have been violated by the respondents.
Though the above discussion on the rule position should clinch the controversy raised in the petition, but given the fact that the respondents
have stated that the petitioners are junior to those of the employees who have been promoted, it becomes necessary to mention here that the
question of seniority would not come in the way of the petitioners to be considered and promoted to the post of Forest Guard, if they had been
otherwise eligible. Since the two Class/Category of employees have fixed ratio for promotion to the post of Forest Guard, their entitlement to
consideration for promotion to the post of Forest Guard is not dependent upon their inter-class seniority and such seniority has no role to play in
determination of their eligibility or entitlement to promotion to the post. Class XII Category (A) of Schedule II employees (i.e., Malies, Cattle Pond
Keepers, Boat Mazdoors, Chainmen, Water Carriers, Road Mazdoors, Mappers, Watchers and Gardeners), in terms of the rule position,
constitute a separate Class and Category for purposes of promotion to the post of Forest Guard to the extent of 20% of available posts; and Class
XII of Schedule III (i.e., Orderlies, Farashes and Chowkidars) constitute a separate Class and Category of employees for purposes of promotion
to the post of Forest Guard to the extent of 20% of available posts. This is further borne out from Schedule I appended to the Recruitment Rules
whereunder Malies, Cattle Pond Keepers, Boat Mazdoors, Chainmen, Water Carriers, Road Mazdoors, Mappers, Watchers and Gardeners are
shown to be borne on Class XII Category (A) of on the Executive side of the Cadre of the Service; whereas Orderlies, Farashes and Chowkidars
are shown to be borne on Class XII on Ministerial side of the Cadre of the service. It may, however, be mentioned that the Recruitment Rules do
not recognize the two groups of employees, namely Ministerial and Executive, as forming two different Cadres, since in terms of Rule 2(b) read
with Rule 4 of the Rules the Service as a whole constitutes one Cadre. Nonetheless, the two groups constitute two different Classes and
Categories and fall on the two different nature of nomenclatures of the Service. Therefore, they have two separate ladders of promotion.
Consequently, the plea of inter-class seniority is inconsequential.
That fact that the seniority of the two sets of employees is to be determined separately in their respective Classes/Categories is further fortified
by Rule 24 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 (CCA Rules, for short) which are applicable
to the service in terms of Rule 10 of the Recruitment Rules. It hardly needs a mention here that in terms of Rule 24 of the CCA Rules, seniority has
reference to the service, class, category or grade with respect to which the question has arisen. Here the question of seniority would not arise with
respect to service, but would arise with respect to Class and Category in two different wings of the service. Since the petitioners belong to a
Class/Category of their own, they would have nothing to do with the seniority of the employees working in the other Class/Category, moreso when
the two belong to two different wings of the Service, namely, Ministerial and Executive Wings.
However, the petitioners, except petitioner No. 17, did not possess the requisite qualification and were thus disqualified and ineligible for such
promotion, they are not entitled to the relief prayed for by them in this writ petition. The question whether or not the respondents could have filled
in the remaining posts of Forest Guard to the extent of the quota of 20% fixed by the Rules for Class XII of Schedule III on the Ministerial side by
the employees borne on the Class XII Category (A) of Schedule II on the Executive does not arise here, inasmuch as the petitioners have not
challenged the same. They have neither sought writ of certiorari nor impleaded any of such selectees or appointees as respondents in the petition.
During the course of these proceedings, the petitioners have filed an application, CMP No. 1582/2011 enclosing therewith photocopies of two
certificates issued by the Jammu and Kashmir State Board of School Education. The first certificate bearing serial No. 590580 and Roll No. P
530408 November-December 1995 certifies that Mohd Ashraf Mir son of Habibullah Mir in the faculty of Arts passed the Part Two examination
of the board with 3rd Division. This Mohd Ashraf Mir is said to be the petitioner No. 17 in the present petition. The application, part from bringing
the aforesaid fact on record, also sought action for perjury against the concerned respondent for filing wrong affidavit. However, such a vital fact
ought to have been pleaded either in the writ petition or the rejoinder affidavit, which has not been done. Nonetheless, there seems to be some
confusion inasmuch as the respondents have in paragraph 3 of the preliminary objections stated that ""one of the petitioners, namely, Mohammad
Ashraf Mir, Chowkidar, does not possess the prescribed qualification for promotion as Forest Guard as he as per his appointment order issued
vide Forest Order No. 45 of 1996 dated 11.04.1996 is only Primary Pass"". The petitioners, on the other hand, in the aforesaid application, CMP
No. 1582/2011, have stated that petitioner No. 17 was appointed vide order No. 384/97 dated 06.08.1997. A copy of the said order has, in
fact, been placed as annexure to the aforesaid application. Obviously, therefore, the matter needs to be looked into by the respondents insofar as
petitioner No. 17 is concerned.
Resultantly, this petition together with the connected CMPs, is dismissed insofar as petitioners 1 to 16 are concerned. In so far as petitioner No.
17 is concerned, the respondents are commanded to look into the matter and if it is found that petitioner No. 17 really possesses the 10+2
qualifications, he shall be considered and promoted as Forest Guard retrospectively from the date his equivalents were promoted and he shall be
extended all his benefits, including arrears of pay, seniority, increments etc., the same way as he would have earned had he been promoted on the
due date alongwith similarly placed persons. The needful shall be done within 15 days from the date of receipt of a copy of this judgment.
No order as to costs.