G.M. Dar vs The State and Another

J.N. Bhat, J.—This is a Letters Patent Appeal against the order passed by Mr. Justice Ali, as his Lordship then was, dated 4-8-1966

dismissing the writ petition of the appellant for the issue of a writ of certiorari quashing the order of the State of Jammu and Kashmir No. T.R. 85

of 1965 dated 6-12-1965 whereby the respondent No. 2 had been appointed as the Administrative Officer in the grade of 400-700. The

allegations of the appellant in the writ petition were that he had entered the service of the Transport Department on 16-9-1953 as Head Clerk,

held various gazetted posts in the Department both on the operational and administrative units of the Department and that his record of service in

the Department was creditable and there was no adverse remark against him, that the respondent No. 2 who was far junior to the petitioner had

been appointed temporarily as Administrative Officer in the Government undertaking on the post which was temporarily created by the

Government for one year in the first instance. This appointment was challenged on the ground that the petitioner was senior to the respondent No.

2, the record of service of the petitioner was splendid and that the post was not a selection post; it had to be filled up by promotion and thus the

appointment of the respondent No. 2 violated Rule 24 of the Jammu & Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956

(hereinafter referred to as 'the Rules' in this judgment for brevity) and further on the ground that the case of the petitioner had not been considered

at all.

To this writ petition, objections were filed by the respondent No. 2 who controverted the allegations of the petitioner and submitted that the

respondent No. 2 had undertaken three months' training at Bombay, Poona in Maharashtra State Government undertakings, while promoting

respondent No. 2, the comparative merits and claims of the employees concerned were considered by the concerned authority as will be obvious

from the perusal of certain letters quoted in Paragraph 4 of the reply affidavit; that the respondent No. 2 had been after due consideration found

better qualified for the post to which he was promoted; that the post of Administrative Officer could not be filled up on the consideration of

seniority alone, comparative merit, qualifications and suitability had been considered while promoting the respondent No. 2, that the post was

newly created in order to assist the Officer in administrative matters in view of the expanded works of the Department and a candidate who on the

basis of merit and ability could be appointed to that post was in fact appointed to that post.

Mr. S.A.S. Qadiri, the then Secretary to Government, Transport Department, also put in an affidavit and controverted the allegations made by

the petitioner. He quoted from certain letters written by the Addl. Transport Commissioner to the Secretary to Government Transport Department

about the petitioner. He stated on oath that the petitioner had not given a satisfactory account of himself whenever he was given a chance to work

on a responsible post; that time and again he was removed from such posts and kept under supervision or attached to some senior officer and that

the respondent No. 2 had been appointed because of his merit, ability, administrative skill and aptitude towards labour and administrative

problems. The affidavit further stated that only a very capable, energetic person with outstanding merit and ability like respondent No. 2 could be

appointed to the post; that for the post of an Administrative Officer the question of seniority or juniority was not relevant, that the post was a newly

created one and only an energetic and suitable candidate would suit the post.

A further rejoinder affidavit was put in by the petitioner. It stated that there had been no adverse reflections about the petitioner's work; on the

other hand he had been always selected to work on different posts on basis of merit and efficiency, that the petitioner had worked on different

posts of responsibility and the allegations that he had to be removed from post to post because of his not giving good account of himself, was not

correct; that whatever the Addl. Transport Commissioner had said was without the knowledge and at the back of the petitioner; that the transfer

orders of the petitioner would show that there never was a stigma attached to the petitioner, that he had worked most efficiently in various

capacities in the Department: that he was allowed to cross the efficiency bar; that this Mr. Jamwal, who as Addl. ""Transport Commissioner was

alleged to 'have made some adverse remarks against the petitioner, had all along praised the word of the petitioner who worked under him while

the former was Deputy Transport Commissioner (Operation); that these adverse remarks were made by Mr. Jamwal when he was holding the

post of Addl. Transport Commissioner for a brief period of ten clays only and were made by him in order to unduly favour the respondent No. 2

who was a relation of the Chief Minister; that the petitioner had been recommended for the post of a Dy. Transport Commissioner.

The learned Judge after hearing the counsel for the parties dismissed the writ petition towards the close of his judgment remarked that

...As, however, the petitioner has been in service for a pretty long time, and has been holding posts of responsibility from time to time, the Govt.

may consider the desirability of accommodating him also in a similar grade if and when a vacancy arises.

Aggrieved by this order, the petitioner has preferred this Letters Patent appeal.

We have heard the learned Counsel for the appellant petitioner Mr. Bhasin at very great length and we must at the outset remark that he argued

the case exhaustively and ably.

The points raised by Mr. Bhasin were that the judgment of the learned Single Judge did not at all touch the points in controversy in this case; that

the petitioner appellant had submitted a rejoinder in the shape of a detailed affidavit, this was not at all considered by the learned Single Judge, no

reference to this rejoinder as such or to any of its contents is made by the learned Judge. He further argued that the petitioner had put in two

applications dated 6th June 1966 and 16th June 1966 for summoning of the record; but no notice even was taken of these applications and no

orders were passed thereon nor was the Government made to produce the said record; Mr. Bhasin argued that in a writ of certiorari it was

necessary for the Government to place the entire record before the Court; that had not been done and the learned Judge had not taken any steps

to secure the record from the respondent No. 1, therefore, the judgment of the learned Single Judge was bad. Mr. Bhasin further argued that it

was a case of promotion, the post of an Administrative Officer was not a selection post and therefore the promotion should have been made on the

basis of seniority. Assuming the verdict of the learned Single Judge as correct, it appears that the Government sought to justify this appointment of

the respondent No. 2 to the post on conspicuous merit and ability on the part of the respondent No. 2 and if it was so, it would mean that the

appellant had been denied this well-deserved promotion as a result of his bad performance, that the petitioner was not given time to show cause

against this refusal to promotion. This violated the principles of natural justice and therefore also the order of the learned Single Judge as well as the

impugned order No. T.R. 85 of 1965 dated 6-12-1965 was bad in law.

Mr. Bhasin further argued that a temporary appointment could be made only for three months, therefore, the creation of the post as well as the

appointment of the respondent No. 2 was against the provisions of the Rules and lastly, argued Mr. Bhasin, the latest Full Bench decision of this

Court namely Lal Chand Pargal v. Director NES decided on April 24, 1969 (reported in 1969 SLR 761 (FB) (J & K)) and the decision of the

Supreme Court reported as 1969 Ser LR 445 (SC) , the orders promoting the respondent No. 2 to the post of the Administrative Officer and

ignoring the claims and seniority of the appellant were not speaking orders and were in violation of the principles of natural justice, the scope of

which has been very much extended as laid down in the Supreme Court authority referred to above, the order of the appointment of the

respondent No. 2 to the post of the Administrative Officer as well as the order under appeal was bad and should be set aside. Mr. Bhasin referred

to a number of authorities in support of the various contentions raised by him.

The learned Advocate General, Mr. Raina. on the other hand argued that the petitioner's case had been considered very very carefully and even

exhaustively. There had been a lot of correspondence right from the date the post was sought to be created and upto the time the respondent No.

2 was appointed thereto by means of the impugned order. He referred to the remarks of the Addl. Transport Commissioner wherein the cases of

both the claimants had been considered and he had clearly held the respondent No. 2 as more suited to this job. This order was not only a

speaking order but showed a detailed analysis of the comparative merits and claims of the two contestants. Mr. Raina further argued that there

were many other people who were senior to the respondent who were also considered from time to time for this newly created post but none

according to the estimate of the appointing authority suited the said post better than the respondent No. 2; that the name of the Hon'ble Chief

Minister had been dragged in only to fling mud, otherwise a more dispassionate view of the whole situation could not be had in the case of any

appointment. Therefore whether the appointment was considered to be promotion under Rule 25(2) or even (3) the tests laid down by the Full

Bench authority of this Court or by the Supreme Court in the above referred case were fully satisfied.

The learned Advocate General further said that the appellant had not given a good account of his performance at the various jobs held by him; on

the other hand he stoutly denied the allegation of Mr. Bhasin that there were any allegations of defalcation of amounts by the respondent No. 2. He

could place the whole record before the court, argued the learned Advocate General, and no allegations of any defalcation had ever been made

against the respondent No. 2. About Mr. Bhasin's two applications dated 6th June 1966 and 16th June 1966 he said that the whole record was

before the learned Single Judge and he after perusing the same passed the order under appeal. The affidavit of the petitioner and the counter

affidavit of one Bashir Ahmed, Record Keeper of the Transport Deptt. were also subject of comment. Mr. Bhasin said that certain papers had

been removed from the file of the appellant whereas this Bashir Ahmed had deposed that nothing of the sort had been done. The learned Advocate

General further pointed out that this temporary post of Administrative Officer had since been abolished by the Government by means of its order

No. FST-38/69 dated 21-2-1969, therefore the whole proceedings were misconceived and the writ had become infructuous.

In our opinion this appeal can be disposed of on one or two simple points. As these points are sufficient to dispose of this appeal, we do not

propose to enumerate in detail the argument of Mr. Bhasin, his criticism of the judgment of the Hon'ble Chief Justice and the ingenious propositions

of law put forward by Mr. Bhasin.

In the first place, as was argued by the learned Advocate General and he has placed a copy of the Government, order also on the file that this

post was created for a period of one year and has been now reduced. Naturally the appointment of the respondent No. 2 to this-post also has

come to an end. This order reads like this:

Sanction is hereby accorded to the:

(a) Reduction of the temporary post of Administrative Officer in the scale of Rs. 400-700 sanctioned under Government order No. T.R.-32 of

1968 and the consequent revival of the post of Deputy TPT. Commissioner, (Admn.) in the Govt. Transport undertaking in the scale of Rs. 500-

1100....

Mr. Bhasin has however argued that this order is simply a ruse to defeat the case of the appellant though the post of the respondent No. 2 the

Administrative Officer and his appointment as such has come to an end, yet he has been appointed as Deputy Director (Administration) in a rather

higher scale and therefore his writ and the present appeal should succeed. But this appointment of the respondent No. 2 is to a different post with a

different scale of pay. If we adjudicate upon the new appointment of the respondent No. 2 in this appeal, or in the writ petition, it would be

introducing a totally new case which would require a further hearing from the very beginning. The whole case has to be reopened. The petitioner

has to put in a new petition and the' respondents have to be given time to put in new rejoinders etc. That would be what is not at all proper and

cannot be permitted in this appeal. We are concerned with the appeal as it is. Even if we accept the appeal, the order we pass would be

infructuous. All that we can say in this appeal is that the appointment of the respondent No. 2 to the post of the Administrative Officer is bad and is

therefore set aside but when the respondent No. 2 does not at all hold any such post or job or does not occupy any such post, the writ that we

may issue, even if we do so, will be infructuous and meaningless. Therefore, on this point alone the writ petition as well as the present appeal

become infructuous.

Furthermore the case can be decided on an entirely new point, which is so clear. It was put to Mr. Bhasin while he argued the case but Mr.

Bhasin in our opinion had no explanation to offer. His case was that a temporary appointment can be made only for a period of three months. In

this behalf he referred to Rule 14(1) of the Rules which runs as under:

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

in a post borne on the cadre of a service, class, or category and the making of an appointment to such vacancy in accordance with these rules

would involve undue delay, excessive expenditure, or administrative inconvenience, the appointing authority may appoint a person otherwise than in

accordance with these rules temporarily until a person is appointed in accordance with these rules but such temporary appointment shall in no case

exceed three months on each occasion.

But clearly this provision does not apply to this case. No emergency had arisen which could not be foreseen. The post did not exist on any cadre

or service, class or category, the post was a newly created post. Therefore the appointment of the respondent No. 2 to this post would not be

covered by this sub-rule. On the. other hand a temporary post was created which did not at all exist, in a new cadre of the service and in our

opinion clearly Rule 16(2) of the Rules would apply. This sub-rule is in the following words:

Notwithstanding anything contained in these rules, if and when a temporary post is created as an addition to the cadre of any service and the holder

thereof is required by Govt. to possess any special qualifications, knowledge or experience, any person who possesses such qualifications,

knowledge or experience and who is considered to be best fitted to discharge the duties of such post may, irrespective of other considerations, be

appointed to that post. But the person so appointed shall not by reason only of such appointment, be regarded as a probationer in such service,

class or category....

What this sub-rule lays down is (1) that the post to be filled must not be already existing in the cadre of any service; (2) it must be a temporary

post; (3) must be created as an addition to the cadre of any service. The second part of it requires (a) any person possessing special qualifications,

knowledge or experience, may be appointed; (b) the person must be considered to be best fitted to discharge the duties of such post; (c) he can

be appointed irrespective of any other consideration and (which is most important); (d) notwithstanding anything contained in these rules. This

clearly means that while filling such a temporary post, the questions of seniority or juniority as are covered by Rules 24 and 25 of the Rules are not

at all relevant and no other consideration except the opinion of the appointing authority counts, but the appointing authority must be satisfied that

the person appointed possesses the special qualifications, knowledge and experience and is otherwise best fitted to discharge the duties of the job.

There are no other limitations on the power of the appointing authority. In the instant case, the post was created in the following words by means of

Government Order No. TR-85 of 1965 dated 6-12-1965.

Sanction is accorded to the creation of a temporary post of the Administrative Officer in the scale of Rs. 400-700 in the Government Transport

Undertaking for a period of one year in the first instance and to the temporary appointment of Shri G.R. Ashai, Manager, Passenger Service,

thereto....

It clearly shows that a special post of a temporary nature of the Administrative Officer was created in a particular scale. Therefore, when

appointment to any such post was to be made, Rule 16(2) of the Rules empowered the appointing authority to ignore all the rules including rules of

seniority, promotion and Ors. and; to appoint anybody best suited in its opinion for the job and all other considerations had to be ignored. But the!

only limitation on the power of the appointing authority was that the person appointed should possess the special qualifications, knowledge and

experience requisite for the said post. In this case it is nobody's case that the respondent No. 2 did not possess the requisite qualifications,

knowledge or experience. The petitioner himself has given a tabular statement of the experience of this officer as well as of himself and it is

nowhere the case of the petitioner that the respondent No. 2 did not possess the necessary qualifications, experience or knowledge required for

the job. His actual and main grievance has been that he was senior to the respondent No. 2 and therefore, he should have been promoted. The

argument of Mr. Bhasin also centered primarily and principally around Rule 25 of the Rules and as a second argument he took recourse to Rule 14

of the Rules which pertain to temporary appointments which we have stated does not apply to the facts of this case.

In our opinion neither Rule 25 nor Rule 14 of the Rules apply to this case and the question of principles of natural justice and other such

doctrines do not at all come into play. Therefore, there is nothing wrong with the impugned order in appointing the respondent No. 2 to this post

which has since been abolished also. Therefore, we dismiss this appeal without any order as to costs.

Mian Jalal-Ud-Din, J.

I agree.