Girdhari Lal vs State

Arun Kumar Goel, J.—Petitioner in this case was initially appointed on the recommendation of Divisional Level Board of the department of

Technical Education as Junior Grade Instructor against the available post at ITI Reasi. Vide order No. 62 of 1990 dated 14.2.1990 he was

transferred and posted against available post of Instrument Repairer at Government Polytechnic Jammu. Prior to it he was working as an

Electrician Instructor (Junior Grade) ITI at R.S. Pora.

While the petitioner was posted at Government Polytechnic Jammu, he was ordered to be transferred somewhere in the year 1993 in the office

of Deputy Director Technical Education Jammu for suitable posting. This order became subject matter of SWP No. 121/1994 wherein on

22.4.1994 interim order was passed allowing the petitioner to continue as Electrician Instructor (Junior Grade) in the Government Polytechnic

Jammu, if not already relieved. This writ petition was disposed of vide order of this Court passed on 27.5.1998.

Further case of the petitioner is that he stood confirmed as Instrument Repairer vide order AnnexureD dated 23.5.1995 issued by the Principal,

Government Polytechnic Jammu. Whether the Principal had any authority or competence to have passed the said order will be dealt with

hereinafter.

It may be worthwhile to notice that so far service of the petitioner is concerned, it is governed by the Jammu & Kashmir Industrial Training

(Subordinate) Services Recruitment Rules, 1979 (hereinafter referred to as the Rules). Petitioner claims that since the post of Instrument Repairer

exists in Government Polytechnic Jammu and it does not exist in the office of Deputy Director Technical Education as such his transfer cannot be

ordered to be effected to the later office. On the basis of abovenoted confirmation order petitioner claims that he has a right to get further

promotion to the post of Workshop Instructor. Not only this but he further pleads that he was eligible for promotion to the post of Workshop

Instructor with this confirmation, because Instrument Repairer is the feeder channel to the next promotional post of Workshop Instructor. By

means of office order No. 437 of 1998 dated 29.9.1998 petitioner was transferred from Government Polytechnic Jammu to the office of Deputy

Director Technical Education Jammu (Parent Service). As a consequence of this order petitioner was relieved by the Principal Government

Polytechnic Jammu on 7.10.1998 (AnnexureG to writ petition).

Petitioner claims that the order of this transfer is bad in the eyes of law and while urging this plea he reiterates that he was already a confirmed

employee in the Government Polytechnic Jammu which provided him an avenue to the next higher post as detailed hereinabove.

It may also be worthwhile to notice another fact here that the petitioner was required to furnish an undertaking on 25.8.1998 on the subject

shifting of lien from ITI to Polytechnic Services in the format attached with this communication addressed by Director Technical Education J&K

Srinagar to the Principal Government Boys Polytechnic Jammu. Petitioner also claims in this petition that before he could furnish undertaking the

impugned order of transfer has been passed.

The claim of the petitioner has been controverted by the respondents in their objections filed to the maintainability of the writ petition. According

to them service of the petitioner is governed by the Rules and the Principal had no authority to have passed the order of alleged confirmation vide

AnnexureD. In this behalf it was pleaded that as far back as on 8.8.1995 vide Annexure R1 the Principal, Government Boys Polytechnic Jammu

was asked to clarify how the incumbent was confirmed against an excadre post that too without knowledge of this Directorate when he was under

transfer to his parent cadre (ITI's Cadre). Further Shri Girdhari Lal does not possess the requisite qualification for the post of Instrument Repairer.

The incumbent should possess ITI in Instrumentation Trade while Shri Girdhari Lal possesses ITI in Electrician trade, as such his conformation

stand invalid in view of the Rules in force.

Further case of the respondents is that the Parent Service of the petitioner is ITI which is governed by the Rules. There was no appointment

order of the petitioner as Instrument Repairer. Filing of SWP 121/94 was admitted. Transfer of the petitioner was rightly ordered to his parent

service and thus it was prayed that writ petition deserves to be dismissed.

What seems to be the situation in the present case is the petitioner in the circumstance of this case and in the background of this admitted plea

that he was initially appointed as Junior Grade Instructor in terms of his appointment order, AnnexureA with the writ petition, as far back as in

1985. Thereafter somewhere in 1990 while the petitioner was working as Electrician Instructor (Junior Grade) ITI at R.S. Pora he was transferred

and posted at Government Polytechnic Jammu against an available post of Instrument Repairer, then he claims his confirmation in this post, which

seems the hub of his case in the present writ petition.

It appears that after he was transferred and posted as aforesaid, the Principal of the Government Boy Polytechnic Jammu issued an order of

his confirmation as Instrument Repairer. Under what authority of law he had issued this order, learned counsel for the petitioner could not explain.

This order is the basis for filing the present writ petition and wherefrom the Principal assumes on himself to have issued the confirmation order,

there is neither anything on the record nor when persistently asked learned counsel for the petitioner could show the authority by reference to Rules

governing the same. The entire mischief in this case same to have been created by the Principal Government Boys Polytechnic Jammu when he

issued the aforesaid order of confirmation of the petitioner. Once this order falls the entire case of the petitioner must fall like the house of Cards.

The plea of the petitioner that vide AnnexureH, the communication from Director, Technical Education J&K, Srinagar addressed to the

Principal, Government Boys Polytechnic Jammu, he was required to furnish the undertaking for shifting his lien from ITI to Polytechnic Services.

This communication was addressed as far back as on 25.8.1995. Admittedly, petitioner has not furnished this undertaking in the format attached

with this communication. There is specific reason for not doing so because petitioner has to undertake not to claim seniority over the existing staff

members working in the Polytechnic on the cadre in case his lien and other services prospects were shifted to Polytechnic cadre besides other

things detailed in the undertaking. Petitioner also does not seem to be fulfilling the requisite qualification essential for holding the post of Instrument

Repairer. It is not the case of the petitioner that he either possesses the basic qualification or he was recruited/confirmed against this post under the

Rules governing the same. Entire case is built on the socalled letter of confirmation issued by an incompetent person having no authority in law

which fact is elaborately dealt with in the reply of the respondents.

It may not be out of place to mention that the petitioner has somehow managed to remain at Government Boys Polytechnic, Jammu by abusing

the judicial process, firstly in the shape of SWP No. 121/1994 and thereafter by filing the present writ petition. In fact the then Principal of the

Government Boys Polytechnic, Jammu in the circumstances of this case, this Court is constrained to believe, has created the whole problem for

respondents 1 to 3 as well as with a view to do out of way favour of petitioner by issuing the confirmation order. Unfortunately, respondents have

not produced anything on record as to what action they had taken after the issuance of AnnexureR1 dated 8.8.1995 addressed to the Principal

Government Boys Polytechnic, Jammu.

Learned counsel appearing for the petitioner persisted that his client has got vested right to continue to remain posted as a confirmed

Instrument Repairer at Government Boys Polytechnic, Jammu and for being further prompted to the next higher post as detailed hereinabove. He

further urged that in case the impugned transfer order is allowed to be given effect to it will result in causing prejudice to his client because such job

is not available with the Deputy Director Technical Education Jammu where he has been directed to report. Petitioner was well aware when in his

capacity as Electrician Instructor (Junior Grade) from ITI R.S. Pora he was transferred and posted against the available post of Instrument

Repairer. As already noted, by filing frivolous litigation in this court petitioner has successfully managed to remain posted at Jammu.

No other point is urged.

As a result of the aforesaid discussion it is clear that there is no merit in this writ petition, which is accordingly dismissed with costs.

Before parting it is considered just and proper to direct CommissionercumSecretary to Government Technical Education Department, J&K

Civil Sectt. Jammu/Srinagar to hold an enquiry against the then incumbent of the office of Principal of Government Boys Polytechnic, Jammu, who

had issued order No. 100 of 1995 dated 23.5.1995 (AnnexureD to writ petition) and complete the same within a period of six months from today.

He will file affidavit regarding compliance with this part of the order and for this limited purpose this case will be listed before this Court on

20.2.2000. Direction regarding filing of affidavit within the stipulated period is pre emptory to be carried out by the officer concerned. In case for

any reason beyond his control needful is not done, then well before the date of expiry, time will be got extended by making out a proper case in

that behalf.

A copy of this judgment will be sent by the Registry to respondent No. 1 for his compliance and report.