Gh.Mohammad Parray vs State

Syed BashirudDin, J.—Mr. M.H. Attar, AAG, who is appearing after notice at this preadmission stage is not desirous to file

reply/objections.

Heard.

PetitionerMedical Officer (ISM) Government Unani Dispensary, Shonlipora, Beeru Budgam has challenged Order No. DISM : 134852 dated

3.8.2001 of Director ISM J&K Srinagar (AnnexurePC), whereunder Respondent No. 4 also a Medical Officer (ISM) of Government Unani

Dispensary, Utligam, Beeru Budgam is ordered to look after the routine work of ADMO Officer at Budgam in addition to his own duties till

posting of ADMO Budgam is made by the administrative department. It is further stated that the arrangement is consequent to retirement of one

Dr. P.L. Kandru, ADMO Budgam.

The petitioner claims he is seniormost Medical Officer holding substantive post. His junior Respondent No. 4 has been for all practical purposes

promoted as ADMO after ignoring his strong claim. He has been sidelined.

Mr. Hagroo too submits that respondent No. 4 is promoted as ADMO after ignoring the claim of petitioner, far senior Medical Officer with

eligibility. In any case this arrangement cannot last beyond three months, as provided by Rule 25 of Jammu and Kashmir Civil Services

(Classification, Control and Appeal) Rules, 1956.

Mr. Attar, AAG submits that by the impugned order Respondent No. 4 is not promoted but only made Incharge to look after the routine work

of ADMO Budgam. This is a stop gap arrangement consequent on retirement of the then DMO to last with appointment of a DMO on regular

basis.

Both parties are agreed that Civil Services (Classification, Control and Appeal) Rules, 1956 apply to this case and the question raised in this

case is governed by these rules.

Rule 2(h) with explanation reads as under :

(h) `Promotion' means the appointment of a member of service or class of a service in any category or grade to a higher category or grade of such

service or class.

Explanation : The appointment of a member of a service or class of service in any category to hold additional charge of a post included in a higher

class category in the same service or class or to discharge the current duties thereof does not amount to promotion to the latter category.

Rule 25 reads as under :

Promotions. (1) All promotions shall be made by the appointing authority.

(2) Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and

shall be subject to the passing of tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are

approximately equal.

(3) All other promotions shall be made in accordance with seniority and subject to any tests or special qualifications prescribed by Government

unless

(a) the promotions of a member has been withheld as penalty; or

(b) a member is given special promotion for conspicuous merit and ability.

(4) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a

vacancy by promotion from a lower category and where promotion in accordance with these rules would involve undue delay or expenditure or

cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules temporarily until

a person is promoted in accordance with these rules, but such temporary promotion shall in no case exceed three months on each occasion.

(5) A person promoted under subrule (4) shall not be entitled by reason only of such promotion to any preferential claim to future promotion.

The reading of the impugned order would show that the petitioner has been ordered to look after the routine work of ADMO and is given

additional charge for the purpose as a stopgap arrangement to last with appointment of ADMO on regular basis. Consequent on retirement of the

incumbent of the post of ADMO Budgam, this appointment without any change in the membership of the Respondent No. 4 as MO is not a

promotion to the post/category of ADMO. Once so, the provisions of Rule 25 CSSR (ibid) to restrict/limit an ordered promotion, otherwise than

under rules, on conditions applying thereto, to last for three months, is not applicable to this case.

In result, the Writ Petition is dismissed. But while doing so, the Respondents/competent authority shall do well to fill up the post(s) of ADMO

Budgam as per rules governing the terms and conditions of the service/category in question with possible expeditious despatch to avoid the blame

of resorting to pick and choose while allegedly ignoring the seniority and merit of the eligible candidates.

Disposed of.