Jagan Natn Bhan and anothers vs State of J & K

O.P. Sharma, J.—The petitioners are Head Assistants of the Directorate of State Motor Garages. They have challenged the order dated

22.7.1995 issued by respondent No. 2 by virtue of which respondent No. 4 (the private respondent) has been promoted to the post of Senior

Scale Stenographer from the post of Senior Assistant. The case of the petitioners is that respondent No. 2 has arbitrarily promoted the private

respondent ignoring their seniority.

The plea of the respondent is that there being no Recruitment Rules the private respondent was found suitable for the post by the Departmental

Promotion Committee.

Mr. Lehar, the learned counsel appearing for the petitioners, argued that the order impugned has been passed in a most arbitrary manner

because the 2nd respondent who was about to demit office on superannuation by the end of July, 1995 filled the post which was to become

available only on 31.8.1995. His contention is that the post of Senior Stenographer could not have been filled by promotion because it is a

technical post. However, if it was to be filled up by promotion then all those eligible for the post ought to have been considered. Since they also

possess the requisite qualifications for the post, therefore, it was wrong for the respondent to pick up a person figuring at Si. No. 13 of the

seniority list by ignoring the rest. Mrs. Seema Shekhar, on the other hand, has conceded that there are no Recruitment Rules. According to her, the

draft rules provide that 50% posts of Senior Scale Stenographers would be fied up by direct recruitment, while the remaining by promotion.

However, according to her, since the private respondent alone knew shorthand, therefore, he was selected by the Departmental Promotion

Committee.

The order impugned reads as under :

As approved by the Departmental Promotion Committee sanction is hereby accorded to the appointment by promotion of Shri Abdul Majid Sr.

Assistant who is shorthand knowing and is in possession of National Trade Certificate in Stenography as Senior Scale Stenographer (PA to

Director) in the pay scale of 20003000 with immediate effect.

He will, however, draw the pay against the vacant post of Stores Officer till 31.8.1995 AN when he will take over from Shri Bansi Lal Dhar

present PA to Director who is retiring on superannuation on that date.

So the private respondent was a Senior Assistant and has been promoted to the post of Senior Scale Stenographer which could be filled up by

promotion only either from the post of Junior Stenographer or by selection if the qualification was prescribed. Admittiouly, no qualifications for the

post have been prescribed. Since it was an isolated post, the official respondents should have advertised the post inviting applications from all

eligible candidates if the appointment was to be made by direct recruitment. The qualifications for appointment to the post of stenographers, as

prescribed by different departments are that the candidate should possess minimum speed in typewriting and shorthand. However, in case the

official respondents decided to make appointment to the post from inservice candidates, the same could have been done only after giving equal

opportunity to the class or category of service from which the Senior Scale Stenographer was to be appointed, since the private respondent was a

Senior Assistant so all the Senior Assistants and Head Assistants had to be provided an opportunity to compete with him because the grade in

which he has been appointed is higher than that of the grade of a Head Assistant also. He has been straightway put in the grade of a Section

Officer or Transport Officer without considering the other persons who may or may not qualify but were entitled to be considered if the post was

to be advertised. The law is well settled that even in the absence of Recruitment Rules prescribing the mode of recruitment, the procedure for such

recruitment should be fair and reasonable as observed by the Apex Court in J & K Public Service Commission v. Narinder Mohan, AIR 1994 SC

1808 : 1994(1) S.C.T. 626, holding that :

.......The rules or instructions should be in compliance with the requirements of Arts. 14 and 16 of the Constitution. The procedure prescribed

shall be just, fair and reasonable. Opportunity shall be given to eligible persons by inviting applications through the public notification and

recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or

office under the State......

In the ministerial cadre of service the promotion from Junior Assistant upto the level or Head Assistant and Section Officer could be made by

the Departmental Promotion Committee on the basis of their performance and service record. But the post of Senior Scale Stenographer is a

technical post which can be offered only to a person who has the qualification of stenography. Even if the post is to be filled up by promotion,

every person who possesses that qualification, either by experience or by academic qualification, has to be given an opportunity to compete. But

this opportunity has been denied to the petitioner (sic) the Constitutions of India. Moreover, the promotion can be made only within the class and

category of the cadre of service. The post of Senior Scale Stenographer is certainly in the ministerial service, but the qualifications being different, it

cannot be categorised with the Senior Assistant or Head Assistant. A Stenographer is expected to know stenography and type with minimum

speed of words. So unless a person is holding the post of Junior Stenographer, he could not be promoted to the post of Senior Scale

Stenographer. Since the private respondent was holding the post of Senior Assistant, the question of his promotion to the post of Senior Scale

Stenographer did not arise. The Departmental Promotion Committee constituted under Govt. Order dated 18.8.1972 had thus usurped the power

not vested in it because it could make promotions only within the class or category of the service in terms of Rule 25 of the J & K Civil Service

(Classification, Control and Appeal) Rules, 1956. Even under Rule 8 of the J & K Civil Services (Decentralisation of and Recruitment to

NonGazetted Cadres) Rules, 1969, it is provided that in case of nongazetted posts, the promotion has to be made on the basis of merit with due

regard to seniority. Promotion means considering all eligible candidates in the particular class or category of service. Since the petitioners were

Head Assistants, their merit could be considered on the basis of record only if the promotion was to the post of Section Officer. Their record of

service could not be determinative of their qualification for the post of Senior Scale Stenographer. So the Departmental Promotion Committee and

the Director concerned have acted in a most arbitrary manner in picking up the private respondent from the post of Senior Assistant appointing him

to the post of Senior Scale Stenographer, thereby giving him the benefit of pay scale which is equivalent to the post of Transport Officer or Section

Officer. Moreover, it is a misnomer to call appointment a promotion when it in fact and substance is being not the same class and category out of

which he has been picked. It is an arbitrary action which offends Article 14 of the Constitution of India.

It is, however, unfortunate that petitioners 1 and 4 have retired during the pendency of the writ petition and consequently have lost any

opportunity to compete for the post with other eligible candidates. However, the other two petitioners (2 and 3) are still available and in case the

respondents decide to fill up the vacancy from inservice candidates, though it will be quite unusual in the absence of Recruitment Rules prescribing

qualification and eligibility. However, the post can be offered to the inservice candidates after prescribing minimum qualifications and by affording

opportunity to every person possessing such eligibility and holding such test as may be prescribed to select the best.

Before parting, it may be pointed out that the then Director State Motor Garages did hurry by convening the meeting of Departmental

Promotion Committee of which he was the Chairman only to see that decks are cleared for appointment of the private respondent before his

retirement. It is an unusual act where the private respondent was cleared for promotion in July, 1995 when the post was to become available by

the end of August, 1995. The inference in such a case is clear that he wanted to confer undue benefit upon the private respondent and did succeed

in it because of the delay involved in the disposal of the petition.

Accordingly, this petition is allowed, the order impugned quashed and the official respondents are directed to fill up the vacancy either by direct

recruitment or by promotion, provided all those eligible possessing the qualifications required for the post are given the opportunity to compete

with each other. Costs to abide the result.