Jai Gopal vs State and Others

Gh. Hasnain Massodi, Judge

The petitioner, through medium of instant writ petition, seeks a direction to the respondents 1 and 2 to re-fix the date of petitioner's promotion

as Senior Assistant and to order his promotion as Head Assistant and Section Officer with effect from 20th April, 1998 and 6th January, 2006

respectively. The petitioner further prays for a direction requiring respondents to pay allowances, other dues and arrears in consequence of

promotions to be ordered in his favour. The petitioner also seeks quashment of order whereby the respondents 3 and 4 - junior to the petitioner,

have been promoted as Head Assistants, Section Officers and Junior Legal Assistants.

The petitioner claims to have been appointed as Clerk-Cum-Typist in Pay Scale of Rs.200-320 vide Order No.19-LD(A) of 1974 dated 15-

04-1974 against the post created vide Government Order No.122-LD(A) of 1974 dated 15.03.1974 and directed to work in the Office of

Additional Public Prosecutor, Jammu. It is pleaded that the respondent no.3 was appointed as Junior Assistant in Law Department vide Order

No.542-GD of 1981 dated 03-03-1981 and the respondent no.4, working as orderly in the Office of Public Prosecutor, Jammu, was vide

Government Order No. l-LD(A) of 1985 dated 01-01-1985 appointed on promotion as Junior Assistant in the Office of Advocate General,

Jammu.

The petitioner's case is that he, though having been appointed as Junior Assistant way back in the year 1974 and admittedly senior to

respondents 3 and 4 appointed as Junior Assistants in the years 1981 and 1985, has not been considered for promotion to the next higher post,

yet respondents 3 and 4 have been favoured with promotion after promotion. It is averred that respondent no.4 was promoted as Senior

Assistant-cum-Typist (Record Keeper) in the pay scale of Rs.900-1830 vide Order No. AG/16 of 1991 dated 18.05.1991 and thereafter as

Junior Legal Assistant in the Pay scale of 5000-8000 vide Order No. AG/394 of 2004 dated 22nd June, 2004 and the respondent no.3 was

promoted as Senior Assistant in the Pay scale of Rs.900-1830 vide Government Order No.1394-LD(Estt) of 1987 dated 03.12.1987, thereafter

to the post of Head Assistant in the grade of Rs.5000-8000 vide Government No. 276-LD(Estt) of 1998 dated 20-04-1998 and as Office

Superintendent / Section Officer vide Government Order dated 06.01.2006.

It is pleaded that the petitioner, though senior to both respondents 3 and 4, has been promoted as Senior Assistant and thereafter allowed to

stagnate on the said position, while respondents 3 and 4 have been favoured with two further promotions and allowed to steal a march over

petitioner. The petitioner claims to have voiced his grievances in a writ petition registered as SWP No.61/1988 and thereafter SWP No.26/1992

and the Court to have held the petitioner entitled to promotion to the post of Senior Assistant with effect from the date other persons - juniors to

the petitioner, were promoted as also entitled to all consequential benefits.

The petitioner's case is that the respondents 1 and 2, in compliance of judgment dated 25.07.2000 in Writ Petition - SWP No.26/1992, vide

Government Order No. 4368-LD(A) of 2004 dated 17th December, 2004, ordered re-designation of the post held by petitioner as Senior

Assistant notionally in the Pay scale of Rs.4000-100-6000 from the date petitioner's juniors were promoted as Senior Assistants and thereafter

vide Government Order No.407-LD(A) of 2007 dated 15-02-2007 partially modified Government Order No. 4368-LD(A) of 2004 dated 17th

December, 2004 omitting the word ""notionally"" from the order dated 17.12.2004. The petitioner's seniority, it is pleaded, was directed to exist in

the cadre of Junior Assistant. The petitioner's case is that during the period the petitioner clamoured for implementation of judgment dated 25th

July, 2000 in SWP No.26/1992 and filed the petitions complaining disobedience of Court order registered as COA(s) 57 C of 2001 and

COA(SW) 48 C of 2003, the respondents 1 and 2, unmindful of the judgment, favoured respondents 3 and 4 with further promotions to the post

of Head Assistant and thereafter Office Superintendent/Section Officer and Junior Legal Assistant respectively.

The petitioner, alleging violation of fundamental rights guaranteed under the Constitution by the respondents by promoting his juniors and

ignoring petitioner's claim, seeks reliefs set out above.

The petition is opposed on the grounds that petitioner and respondents 3 and 4 are born on different cadres and thus have different promotional

avenues available to them. It is pleaded that while the petitioner was selected by a Divisional Recruitment Board and appointed against the

Divisional Cadre Post, the respondents 3 and 4 were selected by State Recruitment Board against the State Cadre Post and belong to the State

Cadre. Reliance in this regard is placed on:

(a) The select list of Junior Assistants issued by Divisional Recruitment Board, wherein petitioner finds place at S.No.4.

(b) Government Order No.122-LD(A) of 1974 dated 15.03.1974 whereby sanction was given to creation of posts of Junior Assistants.

(c) Government Order No.1-LD(A) of 1985 dated 01.01.1985, directing appointment by promotion of respondent no.4 as Junior Assistant in the

Office of Advocate General, Jammu.

(d) Government Order No.542-GD of 1981 dated 03.03.1981 whereby the respondent no.3 was appointed as Junior Assistant-cum-Typist in the

pay scale of 200-320 in the Civil Secretariat.

The respondents' case is that as the petitioner and the respondents belong to two different cadres, the petitioner cannot claim parity, in the

matter of promotion with the respondents 3 and 4. It is insisted that as the petitioner did not question the Government Order No.276 LD(Estt) of

1998 dated 20.04.1998 whereby the respondent no.3 was promoted as Head Assistant, either by incorporating necessary amendment in SWP

No.26/1992 or through medium of a fresh petition, the petitioner can no more assail the Government Order and that also after the period of more

than nine years. The Contempt petition COA(SW)-48 C of 2003, complaining disobedience of Writ Court judgment dated 25.07.2000 in SWP

No.26/1992 is said to have been dismissed on 15.04.2005 on the statement of the petitioner contradicting the assertion of the petitioner that the

delay in filing the instant petition was attributable to the other remedies pursued by the petitioner.

The petitioner in his rejoinder, filed on 27th September, 2010, has disputed the claim set out in the reply/objections filed by respondent no.3 that

the petitioner and respondents 3 and 4 belong to two different cadres and that the respondents 3 and 4 were entitled to the promotion ahead of the

petitioner notwithstanding their initial appointment seven years after the appointment.

Heard and Considered.

The official respondents in their counter affidavit/ reply and the respondent no.3 in her objections, filed at the pre-admission stage, have not

controverted the factual aspects of the case. The only ground urged in the counter affidavit/reply to oppose the reliefs claimed in the writ petition is

that as the petitioner and respondents 3 and 4 are borne on two different cadres, the petitioner cannot claim parity in promotion or for that matter,

other service benefits available to the respondents 3 and 4; that the petitioner and respondents 3 and 4 have to tread separate promotional avenues

that are available in their respective cadres and that the petitioner can neither claim promotion to a particular post or question the promotion given

to the respondents 3 and 4 on the ground that as respondents 3 and 4 have been promoted, the petitioner is also entitled to such promotion.

The case set up by the respondents in opposition to the petitioner's case is destined to fail for the following reasons:-

i) The Writ Court in SWP No.26 of 1992 wherein the respondents 3 and 4 figured as respondents 3 and 7 laid down that the post of Senior

Assistant in the grade of 900-1830 in terms of Jammu and Kashmir Law Officers (Subordinate) Service Recruitment Board Rules 1990 notified

vide SRO 250 of 1990 Was to be filled up by promotion in the ratio of 50:50 from amongst the Junior Assistants working in the Office of

Advocate General and Public Prosecutors and held that the petitioner and his other colleagues who joined him as petitioners, were entitled to be

promoted to the post of Senior Assistant with effect from the date, other persons junior to them were promoted. The judgment has assumed finality

and has not been questioned by the official respondents or the respondents 3 and 4. In the circumstances, it is no more open to the respondents to

insist that the petitioner and respondents 3 and 4 belong to two different cadres and have to follow different tracks in the matter of promotion.

ii) The respondents 1 and 2 vide Government Order No. 4368-LD(A) of 2004 dated 17th December, 2004, have accorded sanction to re-

designation of the posts of Junior Assistants held from time to time by the present petitioner and other petitioners in SWP No.26 of 1992 as Senior

Assistant notionally in the pay scale of 4000-100-6000 from the date their juniors have been promoted as Senior Assistants. In the circumstances,

the respondents 1 and 2 have treated the petitioner at par with respondents 3 and 4. It is pertinent to point out that grievance set out by the

petitioner in SWP No.26 of 1992 was that respondents 3 and 4 in the present petition (respondents 3 and 7 in SWP No.26 of 1992) though

junior in service to the petitioner were promoted as Senior Assistants vide Government Order No.1394-LD(Estt) of 1987 dated 03.12.1987 and

Order No.AG/16 of 1991 dated 18.05.1995 whereas the petitioner notwithstanding his seniority was forced to stagnate in the post of Junior

Assistant in the grade of 410-700. It was in this context that the Court vide judgment dated 25.07.2000 in SWP No.26 of 1992 held the petitioner

entitled to promotion to the post of Senior Assistant with effect from the date his juniors i.e. respondents 3 and 4 were promoted as Senior

Assistants and Government later vide Order No.4368-LD(A) of 2004 dated 17.12.2004 re-designated the posts of Junior Assistants held by the

petitioner as Senior Assistant notionally in the pay scale of 4000-100-6000 from the date his juniors i.e. respondents 3 and 4 were promoted as

Senior Assistants.

iii) The respondents 1 and 2 vide Government Order No.407-LD((A) of 2007 dated 15.02.2007 in partial modification of Government Order

No.4368-LD(A) of 2004 dated 17.12.2004 ordered that the word ""notionally"" shall and shall always be deemed to have been omitted from the

said Government Order. This Government Order dispelled all doubts, if any, regarding parity in status of petitioner and respondents 3 and 4.

iv) The petitioner in terms of judgment dated 25.07.2000 in SWP No.26 of 1992 vide Government Order No. 4368-LD(A) of 2004 dated

17.12.2004 and Government Order No. 407-LD(A) of 2007 dated 15.02.2007 is to be taken to have been promoted as Senior Assistant with

effect from the date the respondent no.3 who joined Government service as Junior Assistant seven years after the petitioner (15.04.1974 and

03.03.1981), was promoted as Senior Assistant in the grade applicable on the date of said promotion. It follows that the petitioner thereafter

deserved to be considered for promotion to the next higher post alongside if not ahead of respondents 3 and 4 and also for all the promotions that

would come his way. The petitioner against the said backdrop was to be accorded consideration for his promotion to the post of Head Assistant

on 20.04.1998 when respondent no.3 was promoted as Head Assistant and thereafter accorded consideration for his promotion as Section

Officer on the date such promotion was given to the respondent no.3. It is pertinent to point out that the petitioner as a matter of fact in view of the

judgment dated 25.07.2000 and Government Order No.4368-LD(A) of 2004 dated 17.12.2004 because of his initial appointment as Junior

Assistant was to be first accorded consideration for promotion to the next higher post. Unmindful of the aforementioned Government Orders,

respondents have ignored the petitioner and on the other hand given promotion after promotion to the respondents 3 and 4.

v) The petitioner though alive to the developments subsequent to filing of his writ petition registered as SWP No.26 of 1992 neither took steps to

amend the writ petition and seek quashment of the promotion Order No. 276-LD(Estt) of 1998 dated 20th April, 1998 in favour of the

respondent no.3 as Head Assistant nor did he file any fresh writ petition to question the aforementioned order. The petitioner woke up after a long

interval of nine years to seek quashment of Order No.276-LD(Estt) of 1998 dated 20th April, 1998. The petitioner though conscious of his rights

and alive to the omissions and commissions made by the official respondents to defeat his rights, has slept over the matter at the cost of loosing his

right to question the aforementioned order dated 20th April, 1998. However, though delay may come in the way of petitioner to seek quashment

of the Government Order No. 276-LD(Estt) of 1998 dated 20th April, 1998, yet it does not deprive the petitioner of right to seek promotion to

the post of Head Assistant on the date, if not before, respondent no.3 was promoted as Head Assistant or his right to be considered for the

subsequent promotions that would come his way because of his seniority as against vis-a-vis respondents 3 and 4.

It is pertinent to point out that seniority is only one of the considerations, though an important one, to weigh with the Authority Competent while

according consideration to promotion of an employee. In the circumstances, while the petitioner is held senior to respondents 3 and 4 and thus

entitled to have been promoted when the respondents 3 and 4 were promoted, the respondents are only to be directed to accord consideration to

the promotion of the petitioner to the post of Head Assistant with effect from the date 20.04.1998 when respondent no.3 was promoted and

thereafter promotion to the post of Office Superintendent / Section Officer with effect from 06.01.2006 i.e. the date, respondent no.3 was

promoted as Office Superintendent / Section Officer. For the reasons discussed, the writ petition is allowed and by a writ of mandamus, the

respondents 1 and 2 are directed to accord consideration to the promotion of petitioner as Head Assistant and Section Officer with effect from

20th April, 1998 and 6th January, 2006 respectively. Respondents 1 and 2 in any case, having regard to long pending grievance of the petitioner

shall accord such consideration having regard to the observations made, within a period of four weeks from the date, copy of the order is served

on them. This petition is accordingly disposed of alongwith connected CMP(s), if any.