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Judgment
R.C. Gandhi, J.—These two Letters Patent Appeals have been directed against the judgment dated 12.7.1999 delivered by the learned
Single Judge in SWP No. 279/1990 titled Mohammad Afzal Mukhdoomi v. State and Ors. whereby while allowing the writ petition, direction has
been issued to re-determine and assign the seniority to the writ petitioner, Mohammad Afzal Mukhdoomi respondent No. 1 herein, vis--vis
respondents 4, Farooq Ahmad Zargar and respondent No. 5 Bashir Ahmad Bhat, appellant herein, for purposes of promotion to the post of Head
Assistant and Section Officer ahead of them. A further direction has also been issued that after considering the seniority in the grade of Senior
Assistant, the respondent Director Fire Services, will consider Mohammad Afzal Mukhdoomi for promotion to the post of Head Assistant and
Section Officer ahead of the respondents, whose promotion to the said posts being de hors the Rules shall be deemed as non est. Aggrieved of this
order, the State of J&K and Bashir Ahmad Bhat, respondent No. 4, in the writ petition, have challenged the legality and correctness of the
judgment under appeal.
The facts necessary for disposal of the appeals are that respondent No. 1, Mohammad Afzal Mukhdoomi writ petitioner, was appointed as
Typist by the Chief / Fire Officer vide his order dated: 2611-14/GB dated: 1.7.1966. He was confirmed as Junior Assistant vide order dated
26.5.1972 by the same Officer. He was promoted as Senior Assistant by the Additional Inspector General of Police amongst others vide order
No. 519 of 1977 dated 29.7.1977 in the Fire Services Department (hereinafter called ""Fire Service""). By virtue of order No. 523 of 1977 dated
29.7.1977 issued by the Addl.Inspector General of Police he was transferred from Fire Services to the Police Range Kashmir. On the same day
i.e.29.7.1977. Chief Fire Officer, Srinagar addressed a letter to the Inspector General of Police that instead of respondent No. 1 Mohammad
Afzal Mukhdoomi, Ghulam Mohammad Matoo Senior Assistant may be transferred to Police Range. Respondent No. 1 also made a
representation on 25.1.1979 for his repatriation to his parent department being borne on the establishment of Fire Service. His representation
appears to have considered and the Inspector General of Police vide his letter No. Estt.D3/79-14932/PHQ dated: 11.7.1981 conveyed no
objection of the Police Department for his transfer to the Fire Service. Vide letter No. Home-Misc./P-case/80/Fire dated: 14.7.1981. Addl.
Secretary to Government, Home Department directed the Director Fire Services to issue necessary orders of adjustment of the petitioner in Fire
.Service Department. Prsuant thereto, the Director Fire Services vide his order No. 44 of 1982 dated 2.3.1982 adjusted him against the post of
Steno-Typist.
During this intervening period, Respondent Farooq Ahmad Zargar, Senior Assistant, was transferred from Armed Police Range Office, Srinagar
to the Fire Service, Srinagar by the Inspector General of Police vide his order No. 496 of 1978 dated: 28.7.1978. He was further promoted as
Head Assistant vide order No. 352 of 1979 dated: 5.6.1979 by the Director Fire Services. The Government vide order No. 531 of 1978 dated:
7.12.1978 sanctioned re-organization scheme for the J&K Fire Services and in consequence thereof creation of some posts in Ministerial Cadre
was sanctioned. Respondent, Director Fire Services, adjusted Bashir Ahmad Bhat, Fireman as Senior Assistant one of such posts vide his order
No. 193 of 1979 dated: 19.3.1979.
Bashir Ahmad Bhat Fireman who was brought on the Ministerial Cadre as Senior Assistant was promoted as Head Assistant by the Director
Fire Services vide order No. 77 of 1982 dated: 3.3.1982. The respondent No. 1 filed representation dated: 3.5.1982 immediately after his joining
in Fire Service against the promotions of Farooq Ahmad Zargar and Bashir Ahmad Bhat to the posts of Head Assistants. Considering and
accepting his representation the Commissioner, Fire Services promoted respondent No. 1 also as Head Assistant vide his order No. 222 of 1982
dated; 18.10.1982, but did not decide his seniority.
Thereafter, the Director, Fire Service issued Tentative Seniority List on 31.12.1982 showing the respondent No. 1 as junior to Farooq Ahmad
Zargar and Bashir Ahmad Bhat in the category of Head Assistants. Respondent No. 1 filed the objections to the tentative seniority list on
2.2.1983. His objections were not considered and decided by the respondents and final seniority list as on 1.5.1990 came to be issued by the
Director Fire Services under his No. GC/97/3826-35 dated: 26.5.1990. On the basis of the said seniority list Farooq Ahmad Zargar was
promoted as Section Officer by the Director Fire Services vide Order No. 256/90 dated 7.6.1990.
Grievances of the respondent No. 1 having not been redressed, he moved the court by means of SWP No. 279 of 1990 setting up therein
specific grounds that the promotion of Farooq Ahmad Zargar to the post of Head Assistant and Section Officer in the Fire Services Department is
illegal as he was member of the Police Service and not of the Fire Service. It was pleaded on the strength of Council order No. 29-C/42 that the
services of ministerial staff of the J&K Police Department has been qualified a separate service known as Kashmir Police Subordinate Service.
Therafter, under Cabinet Order No. 1296-C of 54 dated: 17.9.1954, the classification assigned under Council Order No. 29-C of 42 was
superseded and new classification was assigned whereby the Kashmir Fire Brigade Subordinate Service was classified as a separate, independent
and distinct service. Despite that till 1978 the post of Head of the Department of the Fire Brigade Service remained to be manner by a Police
officer for administrative convenience. Farooq Ahmad Zargar being member of the Police Service thus was not entitled to earn any promotion in
the Fire Service and the transfer of Farooq Ahmad Zargar from his parent department of Police could at the most be treated as deputation to the
Fire Service. The promotion of Bashir Ahmad Bhat has been challenged on the ground that he belonged to the executive cadre of the Fire Service
and could not have been shifted to the ministerial cadre by the Director Fire Services who is not competent to pass such an order without the
concurrence of the Government, therefore, his change of cadre and promotion as Head Assistant is illegal.
The official respondent took a stand before the learned Single Judge in their counter affidavit that the Fire Service was not a different service and
is a wing of the police department and the posts are inter transferable from Fire Service to the Police Service and vice versa. The claim of the
respondent No. 1 that Fire Service is a distinct and separate service is incorrect, therefore, the promotion of Farooq Ahmad Zargar is justified in
law. With regard to the transfer of cadre of Bashir Ahmad Bhat and his further promotion is concerned, the respondents have pleaded that these
do not suffer from any illegality.
The learned Single Judge after hearing the learned counsel for the parties has written a detailed judgment and allowed the writ petition with the
directions as stated above. The State of J&K has filed the appeal on similar grounds as set out in their Counter affidavit; Bashir Ahmad Bhat has
filed the appeal on the grounds that the Director, Fire Services was competent to change his cadre and alternative plea is taken that his adjustment
as Senior Assistant by way of change of cadre is protected in law, as an appointment by transfer from one cadre to another of the same service.
His second ground is that the judgment of the learned Single Judge declaring his promotion to the post of Head Assistant as non est is bad and
erroneous. His another ground that the writ petition should have been dismissed being hit by delay and laches.
We have heard the learned counsel for the parties and perused the record.
The admitted facts coming out of the pleadings are that:
i. Mohammad Afzal Mukhdoomi, respondent No. 1 was initially appointed in the Fire Service and promoted as Senior Assistant and Head
Assistant in Fire Service. He did not accept his transfer to Police Department being outside the parent cadre. His request for repatriation to the
parent Service was accepted and repatriated.
ii. Bashir Ahmad Bhat Fireman was borne on the executive cadre of the Fire Service and has been adjusted as Senior Assistant in the ministerial
cadre.
iii. Farooq Ahmad Zargar was originally a member of the Police Service and was transferred to the Fire Service. He was promoted as Head
Assistant and Section Officer in the Fire Service Department.
iv. Mohammad Afzal Mukhdoomi, respondent No. 1, is senior to Bashir Ahmad Bhat as Senior Assistant being promoted on 29.07.1977 whereas
Bashir Ahmad Bhat was adjusted as Senior Assistant on 29.3.1979.
Mr. Rathore, learned AAG sticking to the stand pleaded in the counter affidavit has submitted that the Police Service and Fire Service are one
Service, that the Fire Service was being headed by a Police Officer and the posts were inter transferable. Therefore, the promotions of Mr. farooq
Ahmad Zargar and Mr. Bashir Ahmad Bhat do not suffer from any illegality.
Mr. Quarashi, learned counsel has submitted that the petitioner is neither questioning nor accepting the stand of the State of J&K with regard
to the separate identity of the Fire Service and rightly so because his client has not in any way on facts raised such a dispute to be resolved by the
Court. His client was a member of the Fire Service and secured promoted in the Fire Service.
The points for consideration before the court are:
i. Whether the promotion of respondent Farooq Ahmad Zargar in the Fire Service Department is bad in law as he was not a member of Fire
Service.
ii. Whether Police Service and Fire Service are two distinct services since the coming into force of Council Order No. 29-C/42 and Cabinet
Order No. 1296-C of 54 dated: 17,9.1954.
iii. Whether the adjustment of Bashir Ahmad Bhat Fireman as Senior Assistant by change of his cadre from executive to ministerial is valid.
iv. Whether the petition should have been dismissed on account of delay and laches; and
v. Whether the finding of the learned Single Judge that the promotions of Mr. Bashir Ahmad Bhat after considering Mr. Mukhdoomi ahead of him
will be non-est, is justified.
So far the promotion of Farooq Ahmad is concerned, he has not contested and we need not to dilate on his rights. He has accepted the
judgment under appeal passed by the learned Single Judge.
We deal with the first proposition as to whether the Police and Fire Service are two distinct services or a Single Service as pleaded by the
State. The pleadings reveal that the Council Order No. 29-C of 1942 whereby classification of Police Service and Fire Service ministerial staff
was provided. Therafter, Council Order was superseded vide Cabinet Order No. 1269-C of 1954 dated: 17.9.1954 whereby new classification
of service was assigned under Council Order. Cabinet Order envisaged a new classification whereby the Fire Brigade Subordinate Service was
classified as a separate, independent and distinct service.
His attention was drawn on the counter affidavit filed by the respondents represented by him, SWP No. 682/92 where the stand taken by
them is that the Council Order No. 29-C/42 and Cabinet Order No. 1296-C of 54 dated:17.9.1954 provided classification of Fire Brigade
Service and that by these orders Fire Brigade Subordinate Service was treated as distinct and distinct and different service from the Kashmir
Police Subordinate Service. His attention was also drawn to the observation made by the learned Single Judge that the Inspector General of Police
has addressed a letter No. 10213 dated:26.5.1980 to the Director Fire Services to take the stand before the Court that Fire Services was a part
of the Police Department. He could not rebut this fact. The contrary stand appears to have been taken on the directions of the Inspector General
of Police contained in his letter dated: 26.5.1980 forgetting that in another writ petition legal and justified stand has been taken. State cannot taken
a different stand as per its choice and cannot be permitted to plead double standards, in terms that in one petition to plead in favour of the
petitioner and in another petition, in similar dispute, to plead against the petitioner by taking quite diametrical and opposing stand. Taking into
consideration the Council Order, Cabinet order and the stand taken by the State in SWP No. 682/92. We have no doubt in our mind to hold that
Fire Service has been classified as a separate Service and is not a wing of the police Service as pleaded by the State. We uphold the findings of
the learned Single Judge to this extent.
We take up the claim of Bashir Ahmad Bhat who has brought on the ministerial cadre of the Service and his promotion as Head Assistant has
been declared as non est by the learned Single Judge. It is admitted position on facts that Mohammad Afzal Mukhdoomi is senior to Basher
Ahmad Bhat as Senior Assistant being promoted prior in time. His adjustment as Senior Assistant and promotion to the post of Head Assistant has
been challenged on the ground that he could not have been brought on the ministerial cadre by the Director, Fire Service, without the concurrence
of the Government. In rebuttal, Mr. Qureshi, learned counsel has submitted that Bashir Ahmad Bhat has been rightly appointed by adjusting him
against the post of Senior Assistant by the Director, who is the major Head of Department and the appointing authority of the post of Senior
Assistant. The mode of appointment to a civil post of the State is recognized by law, viz: by direct recruitment or by transfer from another service,
partly by promotion and direct recruitment u/s 2(J) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter called
the Rules 1956""). The appointment/adjustment of Mr. Bashir Ahmad Bhat, therefore, is in accordance with law. Section 2(J) is extracted below
and reads as :
Section 2 (j): Recruited by transfer:- A candidate is made to be recruited by transfer to a service when at the time of his first appointment thereto
he is either a member or a probationer in an other service;
This provision of law envisages that a Government employee can be appointed by transfer to another service. It does not postulate such
appointment by transfer within the service. The appointment/adjustment has not been made as required by law being bereft of concurrence of
Government. We need not to ponder over it for the reason that even if such adjustment is set aside, the respondent No. 1 will not get any service
benefit except seniority in the category of Head Assistants. Shri Bashir Ahmad Bhat stood appointed by change of his cadre in the year 1979 and
it will not be in the interest of justice to dislodge him now in the year 2004 while none is going to be benefited. Law is not in his favour but equity is
tilting the balance in his favour.
We deal with the direction issued by the learned Single Judge to re-examine the seniority in the category of Senior Assistants vis--vis Bashir
Ahmad Bhat and Farooq Ahmad Zargar and thereafter to consider Mohammad Afzal Mukhdoomi ahead of them for promotion to the next higher
post and their promotion being de hors the rules shall be non est, is correct and justified.
Having held that Fire Brigade Service is distinct and separate service, Mohammad Afzal Mukhdoomi, Senior Assistant and Bashir Ahmad
Bhat are the members of the Fire Service. Mr. Mukhdoomi is senior to Bashir Ahmad Bhat as Senior Assistant. He has prior right of consideration
on the strength of seniority which is a condition of service. A public servant who is senior and not considered prior to his juniors, tantamounts to
violation of his fundamental right as guaranteed under Article 14 and 16 of the Constitution of India. Respondent No. 1 being senior had the right
of his consideration ahead of Bashir Ahmad Bhat against the post of Head Assistant. The direction of the learned Single Judge to this extent cannot
be said to be faulty and warrants no interference. So far as the observation of the learned Single Judge that promotion of Bashir Ahmad Bhat being
de hors the rules shall be deemed as non est appears to be not sustainable. Promotion of Bashir Ahmad Bhat per se is not bad in law. He was
considered according to his seniority position assigned in the tentative senority list. Therefore, the appointment of Bashir Ahmad Bhat cannot be
said to be non est or suffering from any illegality except it should have been after consideration of Mohammad Afzal Mukhdoomi being junior.
The dispute is now much narrowed down as there are two posts of Head Assistants and only two are the contesting parties for these posts.
Both have been promoted and are working as Head Assistants. The question to be determined is only with regard to seniority at the stage of
Senior Assistant. Mohammad Afzal Mukhdoomi being promoted on 29.07.1977 as Senior Assistant is senior to Bashir Ahmad Bhat who was
adjusted as Senior Assistant on 19.3.1979. He has to be assigned seniority ahead of Bashir Ahmad as Senior Assistant. Since both have been
promoted as Head Assistants, therefore, the direction of the learned Single Judge has to be classified and modified. Mohammad Afzal Mukhdoomi
was to be shown in the Seniority List issued in the year 1982 above to Bashir Ahmad Bhat. The respondent did not assign the correct seniority
position of Mohammad Afzal Mukhdoomi. Even in the final seniority list, the respondent No. 1 could not be reflected correctly, above Bashir
Ahmad Bhat. Had the respondents decided the objection of Mohammad Afzal Mukhdoomi filed by him in the year 1982, if accepted his claim, he
would have been shown above to Bashir Ahmad Bhat. Respondent No. 1 being senior to Bashir Ahmad Bhat was having prior right of
consideration to that of Bashir Ahmad Bhat to the post of Head Assistants, which has been denied by the respondent, on account of the wrong
placement of respondent No. 1 in the seniority list. The respondent No. 1 has established that he is senior to Bashir Ahmad Bhat. He is declared
so. Being senior his promotion to the post of Head Assistant has to be declared to take place notionally prior to the promotion of Bashir Ahmad
Bhat as Head Assistant. The final seniority list issued in the year 1990 by the Director, Fire Service is set aside to that extent. Fresh seniority list
shall be prepared and circulated by the Head of Department in accordance with the aforesaid observations.
The last issue to be addressed by the court as raised by Mr. Qureshi, learned counsel is that the writ petition should have been dismissed by
the learned Single Judge being hit by delay and laches. He in support of his plea has relied upon the judgments reported in State of Orissa Vs.
Pyarimohan Samantaray and Others, . And Gian Singh Mann Vs. High Court of Punjab and Haryana and Another, There is no doubt that if a
person who has a cause of action does not come to the court within reasonable time, he in law waives or looses his right by his conduct. But there
is exception to it that if the aggrieved person is prevented by some circumstances to approach the court and submits therefore the plausible and
convincing explanation which prevented him to come to the court, in that event, his right does not die and if the Court accepts that explanation he
can agitate and enforce his right. The respondent No. 1 against his consent was transferred to Police Department. He reacted to it and the order of
his repatriation to the Fire Services was issued on 2.3.1982. On that date he was working in a far flung area of District Leh. On 3.3.1982 Bashir
Ahmad Bhat was promoted as Head Assistant. On his joining and coming to know about this disputed promotions, the respondent No. 1 made a
representation to the Director Fire Service on 3.5.1982 questioning the disputed promotions. The respondents did not decide his representation.
The respondents issued tentative senority list in the year 1982 showing him junior in the category of Head Assistants. He filed objections to the
tentative seniority list. His objections were not decided by the respondent which was not within his competence. The objections of respondent No.
1 should have been decided by the respondents within reasonable time. The respondents without deciding the representation against the
promotions and the objections to the tentative Seniority List issued the final seniority list in the year 1990, wherein the respondent No. 1 was again
shown below to them. It has thus provided a fresh cause of action to the petitioner to challenge the final seniority list and the promotions which
have been made operating the tentative seniority list. Under these circumstances we feel that instead of blaming the petitioner, the respondents
should have decided the grievances of the petitioner before issuance of final seniority list. Therefore, it cannot be said that the respondent No. 1 is
alone responsible and blameworthy for delay and laches which is contributory because of the inaction of the respondents. It is also the proposition
of law that delay and laches should be considered before admission of the writ petition. The petition has not been admitted subject to delay and
laches, which were not pressed at the time of its admission. Therefore, the writ petition under such circumstances cannot be dismissed on account
of delay and laches.
For the aforesaid reasons we dispose of the appeals with the aforesaid observations. No order to as to costs.