Kaisar Ahmad Dr. vs State of J&K and Others

The controversy involved in the writ petition is with regard to seniority between Dr. Kaisar Ahmad, writpetitioner, and Dr. Javaid Ahmad

Chowdhry, respondent No. 3, in the cadre of Assistant Professor.

In brief the facts are that on the recommendation made by Jammu and Kashmir Public Service Commission, the petitioner and respondent No.

3 were appointed as Lecturers in the month of January 1991. In order of merit, respondent No. 3 was placed above the petitioner and this

position is not disputed by the petitioner.

Vide Order dated: 18051998, respondent No. 3 and the petitioner were promoted to the post of Assistant Professor in Government Medical

College, Srinagar. However, this promotion was made subject to the confirmation by Departmental Promotion Committee/J and K Public Service

Commission. The order of promotion dated: 18051998 also contained a condition which is reproduced as under.

It is further ordered that in case the promotees/transferees do not join their new places of postings within 21 days from the date of issue of this

order irrespective of the fact that they are not interested in their promotion and their promotion orders shall be deemed to have been cancelled

without any further notice to them and replacement by suitable candidates shall be made.

Respondent No. 3 instead of joining his duly at the new place of posting within 21 days challenged the order in SWP No. 776/ 1998 by staling

that other Doctors who belong to Jammu area have not been posted and transferred to Srinagar, but he atone has been singled out. He staled that

he cannot be asked to lake over the new assignment at Srinagar. The writ petition was disposed of on 27051998 by directing the competent

authority to take note of the submission made by the petitioner and treat the writ petition as representation and pass appropriate orders. During the

period the matter was to remain under consideration, the order of promotion of respondent No. 3 was kept in abeyance. Vide Order dated:

18071998 the Competent Authority rejected the representation and by Order No. 531HME of 1998 dated: 03081998 promotion of respondent

No. 3 made vide order dated: 18051998. was cancelled. These two orders gave rise to two writ petitions, i.e. SWP No. 1276/98 and SWP No.

1378/98 and by a common judgment dated: 06072001, both the writ petitions were allowed and it was ordered that in case respondent No. 3 has

joined at new place of posting then he would be free to continue at that place or may exercise his option to join at Jammu. Respondent No. 3 was

also held entitled to the consequential benefits of the higher post with effect from the date the order of promotion was passed by the State. Since

Government Order dated: 03081998, by which the order of promotion of respondent No. 3 was cancelled, was not specifically quashed,

respondent No. 3 filed review petition. (CMP No. 44C/200I) seeking clarification in this regard by slating that because of the omission in not

quashing Govt. Order dated: 03081998. the State is treating order dated: 03081998, to be operative. Vide Order dated: OH102001 the review

petition was disposed of and the official respondents were directed not to interpret the judgment passed in the two writ petitions in a manner which

would defeat its purpose.

Petitioner in the present writ petition has averred that in pursuance of the recommendations of Jammu and Kashmir Public Service Commission,

vide Order dated: 24042000 he was regularly promoted to the post of Assistant Professor with effect from 01021997 and vide Order dated:

25042001 respondent No. 3 was promoted as Assistant Professor in the department of Paediatrics. Government Medical College. Srinagar. with

effect from 01021997 on regular basis from the dale he actually joined on higher post in the Govt. Medical College, Srinagar. Petitioner has further

averred that he wrote to the Principal Government Medical College. Srinagar, that promoting respondent No. 3 notionally with effect from

01021997 is totally illegal as it goes against Order dated: 03081998 under which promotion of respondent No. 3 as Assistant Professor, was

cancelled. The Principal was also told that since Government Order No. 316HME of 2001 dated: 28042001 was in suppression of the order

dated: 03081998, so the seniority is to be reckoned by the length of service in the cadre of Assistant Professor and in this manner he is senior to

respondent No. 3. The Principal Government Medical College, Srinagar, referred the matter to the Government and the Government vide Memo

No. MeGM/ 115/2001 dated: 16052001 informed the Principal that respondent No. 3 is senior to the petitioner. Principal on the basis of the

letter, passed Order dated: 17052001 asking respondent No. 3 to function as Head of Department of Paediatrics till further orders.

Petitioner is aggrieved of order dated: 25042001, whereby respondent No. 3 has been notionally promoted with effect from 01 021997 and

also the Memo dated: 16052001 whereby Government informed (lie Principal that respondent No. 3 is senior to petitioner and also Order dated:

17052001 whereby the Principal has directed respondent No. 3 to function as Head of Department of Paediatrics till further orders. The challenge

to these orders is on the ground that respondent No. 3 by not joining on the promoted post within 21 days of the order dated: 18051998, had

forfeited his entitlement to the promotion for the post of Assistant Professor. Further, according to the petitioner, giving promotion to respondent

No. 3 notionally with effect from 01 021997 is clearly against the Recruitment Rules, because the promotion of petitioner was not only on regular

basis but was also prior in time. It is averred that treating respondent No. 3 to be senior to the petitioner is totally illegal, arbitrary and against the

Rules.

Against this, the case of respondent No. 3 on affidavit is that in pursuance of the recommendations of Jammu and Kashmir Public Service

Commission dated: 01011991 lie as well as the petitioner came to be appointed as Lecturers and in the merit list he ranked higher to the petitioner.

Further, according to him. order promoting the petitioner on regular basis against the post of Assistant Professor, was made on the basis of

recommendations dated: 23101998 of the Jammu and Kashmir Public Service Commission and the order of promotion clearly provided that the

promotion of writ petitioner is ""without prejudice to the seniority of the other seniors"". In regard to order dated: 25042001. whereby he was given

notional promotion with . effect from 0 1021997. it is submitted that this order too is based on the recommendation dated: 23101998 made by the

Jammu and Kashmir Public Service Commission, but only the order in favour of petitioner was issued, whereas order in his favour was kept in

abeyance. On an inquiry made by him. it was revealed that during the mouth of April 2001 one Shri Yadullah was functioning as Additional

Secretary, Health and Medical Education Department and he being the brotherinlaw of the writ petitioner, raised artificial controversy with regard

to the earlier Adhoc promotion of respondent No. 3. It is also averred that after Sh. Yadullah was removed as Additional Secretary Health and

Medical Education Department. Government Order dated: 25042001 promoting him with effect from 01021997 was issued. Precisely, the case of

respondent No. 3 is that at no stage in the matter of promotion he was superseded by the writ petitioner.

Official respondents No. 1 and. 2 in their reply have taken the same stand as taken by respondent No. 3 in his counter affidavit. They have also

slated that promotion of writ petitioner as well as respondent No. 3 was in pursuance of recommendations dated: 23101998 made by the Jammu

and Kashmir Public Service Commission, but the order promoting respondent No. 3 was not issued because some queries were required to be

cleared and for that matter latter on he was promoted with effect from 01 021997. i.e. the dale when petitioner was promoted as Assistant

Professor. Thus according to official respondents, petitioner is not entitled to be given sonority over and above respondent No. 3.

Mr. R.A. Jan, learned counsel appearing on behalf of the petitioner, referred to Rule 10 of the Recruitment Rules of 1997 and Rule 24 of the

Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, thereafter referred to as Rules of 1956) and submitted that

Rule 24 clearly mandates that the seniority of a member of the services has to be reckoned by the date of first appointment on the post borne in the

category which according to him, is the post of Assistant Professor Paediatrics. Learned counsel also submitted that since the promotion of

respondent No. 3 and the writ petitioner was subject to the joining within 21 days and respondent No. 3 having failed to join, cannot claim

seniority over and above petitioner in the category of Assistant Professor.

On the other hand, Mr. Z. A. Shah. Senior Advocate, appearing for respondent No. 3 and Mr. M.H. Attar, learned Additional Advocate

General appearing on behalf of official respondents 1 and 2, submitted that regular promotion of the petitioner and respondent No. 3 is based on

the recommendation made by Jammu and Kashmir Public Service Commission and respondent No. 3 being senior to petitioner had to be given

retrospective promotion from the date petitioner was promoted against the post of Assistant Professor. Learned counsel submitted that in terms of

Rule 24 of the Rules of 1956, respondent No. 3 did not lose seniority at any point of time.

I have heard the learned counsel for the parties and carefully gone through the record of the case.

It is not in dispute that appointment and promotion to the posts borne on the cadre of Jammu and Kashmir Medical Education Gazetted

Service is regulated, governed and circumstanced by the Jammu and Kashmir (Gazetted) Service Recruitment Rules. 1979. thereinafter referred to

as the Recruitment Rules of 1979). Rule 5 of the Recruitment Rules of 1979 provides for the recruitment to the service in the manner as indicated

against each post in ScheduleIll. Rule 5 of the Recruitment Rules of 1979 reads as under:

Rule 5. Recruitment to the Service.

Appointment to the Service shall be made

(a) by direct recruitment, or

(b) by promotion by selection, in the manner as indicated against each post in ScheduleIll. ScheduleIll

Class Category Designation Grade Method of

of the post Recruitment

A. Teaching Wing Assistant 7501350 By promotion

Professor from Class V.

IV Lecturer 6001350 By direct

including Clinical recruitment.

Psychotogist

(NonMedic.il)

In the matter of fixation/determination of seniority of the members of Medical Education Gazetted Service, Rule 10 of the Recruitment Rules of

1979 provides that the seniority of the service shall be regulated under the provisions of Rules of 1956. Rule 10 further states that the

Administrative Department in the Civil Secretariat shall maintain an upto date seniority list of the Sen1 ice.

Rule 24 of the Rules of 1956 in so far as relevant and germane for the purpose of matter in issue, is extracted as under:

Seniority. (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to

which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as

the case may be. Note. 1. The rule in this clause will not affect the seniority on the date on which these rules come into force of a member of any

service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force.

Interpretation. The words ""date of first appointment"" occurring in the above rule will mean the date of first substantive appointment meaning

thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being

subject to good work and conduct and/or passing of any examination, or examinations and/or tests.

Provided that the interse seniority of two or more persons appointed to the same service, class, category or grade simultaneously will,

notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being posted to different stations, be

determined:

(a) in the case of those promoted by their relative seniority in the tower service, class, category or grade,

(b) in the case of those recruited direct except those who do not join their duties when vacancies are offered to them according to the positions

attained by and assigned to them in order merit at the time of competitive examination or on the basis of merit, ability and physical fitness etc. in

case no such examination is held for the purpose of making selections.

(c) as between those promoted and recruited direct by the order in which appointments have to be allocated for promotion and direct recruitment

as prescribed by the rules.

The combined reading of the Rules, especially Rule 24 (1) makes it clear that in the case of direct recruitment seniority is determined in order

of merit at the time of competitive examination and in case no such examination is held for the purpose of making selection then on the basis of

merit, ability and physical fitness etc., and in the case of promotion the seniority is to be determined by the relative seniority in the tower service,

class, category or grade. Rule 24(1) also provided that the words ""date of first appointment"" occurring in the rule will mean the date of first

substantive appointment.

In the present case, it is not in dispute that in the competitive examination held by the Jammu and Kashmir Public Service Commission for the

post of Lecturer, respondent No. 3 being higher in merit was ranked senior to the writpetitioner. Both of them were substantively promoted on the

basis of recommendations dated: 23101998 of the Jammu and Kashmir Public Service Commission. However, in the case of petitioner. Order

dated: 24042000 promoting him with effect from 01021997 was issued, whereas in the case of respondent No. 3 order was not issued

simultaneously, though the Jammu and Kashmir Public Service Commission had recommended the promotion of petitioner and respondent No. 3

on the same date, i.e. 23101998. indicating date of promotion as 01021997. The clear stand of the official respondents in this regard is that certain

queries were required to be cleared and on clearance of the queries, respondent No. 3 was promoted with effect from 01021997. i.e. the date

when petitioner came to be promoted Rule 24 (I) provides that in the case of inter sc seniority of two or more persons appointed to the same

category would be determined by the relative seniority of the person in the tower service, class, category or grade. Admittedly, respondent No. 3

was senior to the petitioner in the tower service of Lecturer and on promotion as per clause (a) of Rule 24, was rightly ranked senior to the

petitioner on his promotion to the post of Assistant Professor.

The omission on the part of respondent No. 3 not to join on his promoted post with 21 days as stipulated in the promotion order dated:

18051998. was of no consequence as the promotion made vide Order dated: 1805 1998 was adhoc promotion and was not on substantive basis.

This order clearly slated that promotion will be subject to confirmation of the Jammu and Kashmir Public Service Commission, and the Jammu and

Kashmir Public Service Commission recommended the substantive promotion by common recommendation made on 23101998 in the case of

petitioner as well as respondent No. 3.

In the case of Masood Akhtar Khan and Others Vs. State of Madhya Pradesh and Others (1990) 4 Supreme Court Cases 24. the Supreme

Court held that the seniority is to be reckoned from the date of regular appointment in accordance with the order of merit determined by the Public

Service Commission and not from the date of making the stopgap emergency appointment.

Otherwise also, respondent No. 3 successfully challenged order dated: 03081998, whereby he was promoted as Assistant Professor, subject

to the confirmation by the Jammu and Kashmir Public Service Commission. The learned Judge by order dated: 08102001 passed in review

application in SWP No. 1276/98 and SWP No. 1378/98, made it very clear that the official respondents therein would not interpret the judgment

passed in two aforesaid writ petitions, in the manner which would defeat its purpose. Therefore, in view of the above clear finding of the learned

Judge, order dated: 03081998 had lost its significance and cannot be used against respondent No. 3.

In view of the above, the writ petition being without any merit is to be dismissed, and it is so ordered.

No costs.