Mohammad Abbas Lone vs State of J & K

Ad interim direction passed on the motion laid by the petitioner may be noticed:

''Issue notice. Issue notice in the CMP also. Till objections are filed the impugned Government Order No. 205PW (R and B) of 06 dated

19.05.2006 shall remain in abeyance so far it affects the interests of the petitioner.

Contention of the learned counsel for the respondents is that the petitioner is a Manager whereas posting of the respondent 5 is made against the

post of a Deputy General Manager, therefore, interests of the petitioner are not affected, accordingly seeks clarification of the ad interim direction

to that effect. Regard being had to the nature of the controversy I deem it appropriate to dispose of the writ petition itself. Heard. Admit. Notice

afresh. M/S Dar and Bhat accept notice. Reply filed in opposition to the maintainability of the writ petition is adopted as counter by learned

counsel for the respondents. Heard learned counsel for the parties finally.

Writ petitioner, Mr. Muhammad Abass Lone being aggrieved of deputation of Shri S. K. Sethi, Executive Engineer, R and B to JK PCC Leh as

Deputy General Manager (respondent 5 herein) vide Government Order No. 205PW (R and B) of 2006 dated 19.05.2006, therefore, this writ

petition, filed on 01.06.2006, apparently subsequent to its implementation as is evident by the fact that charge of the post of the Deputy General

manager (for short DGM) stands already handed over by the then DGM, J and K PCC Ltd. to Shri Sethi respondent 5 on 22nd of May 2006. To

appreciate the challenge thrown to the impugned order, ScheduleI appended to the draft service rules assumes significance which may be noticed:

SCHEDULE I

ENGINEERING SERVICE: (State Cadre).

Category Designation Graded Min. Min. Method of

of post. Scale quali Experience recruitment

fication overall and ratio Overall betweencorporation Cadre and deputation.

Graded Deputy 3000 Graduate 15 yrs i. 75% by depu

General 4650 Eng. tation from the

Manager state Govern ment of the Cadre rank of Executive Engineer, ii. 25% by promotion from the post of Corporation cadre Sr. Managers with

minimum experience of 10 years as Sr. Manager. For Diploma holders minimum experience as Sr. Manager shall be 14 years and ratio between

graduate Engineers and Diploma's shall be 4:1.

Elaborating the challenge it is contended by the learned counsel for the petitioner that it is the schedule aforementioned which has to govern the

promotion to the post of the General Manager. Although official respondents have taken a stand that the schedule finds place on the draft service

rules, yet they have not disputed application of the same. In that view of the matter, I am proceeding on the assumption that the schedule is

attracted for the purposes of appointment to the post of the DGM. How far schedule helps the petitioner, it is apposite to notice that 75% quota is

earmarked for the Executive Engineers of the State Government. The respondent 5 has attained the said position by order of his posting to Leh

and does hold the charge of the rank of Executive Engineer with an overall experience of more than 15 years, therefore, eligible for deputation,

conversely, the petitioner is disentitled to consideration for the post of the DGM against 75% deputation quota, for the simple reason, that he is

borne on the establishment of the Corporation. As per schedule 25% quota of promotion is identified for the Senior Manager of the Corporation

against the post of DGM having a minimum experience often years. As regards eligibility of the petitioner under 25% quota, same when tested on

the basis of order No.8582 dated 31.10.1997 (Annexure 'D' to the writ petition) fails the petitioner, because even inclusion of his stop gap service

as Manager does not make him through. It is manifest that by dint of service rendered on stop gap arrangement, he will be completing ten years in

October, 2007, thus ineligible for consideration. Yet another legal impediment for the petitioner traceable to the schedule which restricts zone of

consideration to the extent of Senior Manager and admittedly the petitioner is not the one, so also ineligible for consideration. It goes without

saying that writ can be sought for enforcement of a constitutional or a legal right but no such right is available to the petitioner because he does not

qualify for consideration for the post of DGM and absence of an enforceable right is bound to render the writ petition liable to dismissal. In taking

this view I am fortified by judicial pronouncements handed down by the apex Court in Dr. Rai Shivendra Bahadur v. Governing Body of the

Nalanda College (AIR 1962 SC 1210) and Dr. Umakant Saran v. State of Bihar (AIR 1973 SC 964).

Apart from ineligibility of the petitioner for the post of the DGM it needs to be understood as to whether deputation of Mr. Sethi does violate

any of the rights of the petitioner. To have the answer it is apt to reproduce the orders favoring the petitioner issued by Government, the Managing

Director and the General Manager of the CorporationRespondent.

Government of Jammu and Kashmir

Civil Secretariat: Public Works (R and B)

Department.

The Managing Director,

J and K Project Construction Limited.

No: PW(RandB) G/94/2004 Dated: 22.02.2006 Subject: Posting of officers in Leh/Kargil. Reference: MD, JKPCC's No: 2293 dated:

07.01.2006

Sir,

I am directed to convey the approval of Hon'ble Minister of State for RandB (Chairman, JK PCC Limited) to the posting of S/Shri Mohammad

Abbas Lone and Suresh Kumar Rekhi (Corporation borne Managers) as Managers, SubUnit, Leh and Kargil respectively, without any elevation.

This shall be subject to the outcome of the writ petition pending in any Court of Law.

You are accordingly requested kindly to take further necessary action in the matter accordingly.

Yours faithfully,

Sd/(Kuldip Sharma)

Under Secretary to Government Public Works(RandB)Department.

ORDER. Sub: Posting of officers in Leh/Kargil.

Consequent upon the instructions of the Administrative Department /conveyed vide letter No: PW (RandB) G/94/2006 dated: 22.2.2006, on the

subject issued by the Under Secretary to Govt. PW (RandB) Deptt. Shri Mohammad A bass Lone Manager J and KPCC Unit 3""1 Srinagar and

Shri Suresh Rekhi Manager J and KPCC Unit Vth Kathua Jammu are hereby posted to Leh and Kargil respectively. This order shall have

immediate effect.

Sd/

Managing Director, J andK PCC Ltd. Jammu.

NO: PS/MDJKPCC/71828 Dated: 23.2.2006

J and K Projects Construction Corporation Ltd.

Sub: Posting of Officers in Leh and Kargil. Ref Managing Director's Order No. 71828 Dt: 23022006 based on the letter No:

PW(RandB)G/94/2004Dt: 22.02.2006 from Administrative Department.

Sh. Mohd Abbas Lone and Sh. Suresh Rekhi have been placed as Managers respectively for Sub Units at Leh and Kargil vide above mentioned

references and both the officers have submitted their joining reports to this office on 25.02.2006. In order to make the Sub Units as defined above,

workable the designated functions need to be defined and instructions in this behalf may please be issued.

SdJ

General Manager, J and K Projects Const. Corp. Ltd. Jammu.

Managing Director,

JKPCC Ltd.,

Jammu.

Copy to:

1) Sh. Mohd Abbas Lone and Sh. Suresh Rekhi for information. They should immediately take stock of the works in the respective districts and

establish Sub Unit offices so that execution of works starts right in the earnest.

On the basis of the above said orders the petitioner seeks the following reliefs:

;'/ Writ in the nature of Certiorari or any other appropriate Writ to quash impugned Government Order No: 205PW (RandB) of2006dated 19'1'

of May, 2006 in so far as it under the cloak of posting or Respondent No. 5, as Incharge Executive Engineer, JKPCC, Leh, ousts/dislodges

Illegally, arbitrarily, petitioner from the post/ position of Incharge, Sub Unit, JKPCC, Leh, be issued in favour of the petitioner and against the

Respondents;

ii/ Writ in the nature of Mandamus or any other appropriate Writ to command the Respondents 1 to 4 to desist and refrain from giving effect to or

carrying into execution the impugned Government Order dated 19lfl of May, 2006 in so far as it, under the cloak of posting of Respondent No. 5

as Incharge Executive Engineer, JKPCC, Leh ousts/ dislodges the petitioner, from the post/position of Incharge, Subnit, JKPCC Leh held by the

Petitioner under and in terms of the orders of the competent authority dated 22.2.2006 and Order dated 23.2.2006, be also issued in favour of the

petitioner and against the Respondents;

iii/ Writ in the nature of Mandamus or any other any appropriate Writ to command the Respondents 1 to 4 to allow the petitioner to continue to

hold and function as Incharge, SubUnit JKPCC, Leh, under and in terms of the Orders of the competent authority Government Order No. dated

23.2.2006, as if the impugned Government Order NO: 205PW (RandB) of 2006 dated 19lh of May, 2006 in so far as it relates to the

Respondent No. 5, had not come into being at all and to admit the petitioner to all the consequential Service benefits accruing due in law by virtue

of position assigned to the petitioner as Incharge, Sub Unit JKPCC, Leh under and in terms of Orders of the competent authority dated 22.2.2206

and Order dated 23.2.2006, be also issued in favour of the petitioner and against the Respondents;

A perusal of the reliefs prayed for reveal that a restraint is sought by the petitioner against his dislodgement from the sub unit Leh which stands

answered by the official respondents in many words that sub Unit will continue in the charge of the petitioner and he will not be disturbed. Such

stand of the respondents makes it clear that the writ petition emanates from sheer apprehension, hence not maintainable. It is also seen from the

Government order reproduced above that while according approval to the posting of the petitioner it was specifically provided that the order shall

not elevate the petitioner and the said order besides other two orders are unambiguous on the score that the petitioner's appointment is as a

Manager of a sub unit and endorsement to the address of the petitioner by the General Manager defines the petitioner's responsibilities which

require him to establish a sub unit. These orders leave no scope for any doubt that the petitioner has been appointed as a Manager whereas

challenge to the impugned order of deputation of the respondent 5 is mainly on the ground that it is going to divest him of the charge of sub unit.

How could petitioner conceive of such a situation, even pleadings are wanting. Be that as it may, there remains no scope for confusion in view of

the averment made in the reply filed by the official respondents that the appointment of the petitioner as a Manager will be allowed to go unaltered.

The stand so disclosed should satisfy the petitioner, yet with a view to do substantial justice between the parties, respondents are directed not to

divest the petitioner of the charge of sub Unit unless exigencies of services do call for such an order.

I will be failing in my duties if I don't place it on record that the respondents have disputed the genuineness of the very basic entry of the

petitioner. They have also placed reliance on the order of die writ Court in SWP No. 1533/2004 dated 30.11.2004 to canvass that one of the

coordinate benches of this Court has already stayed the operation of the order of petitioner's confirmation against the post of Manager but having

allowed the deputation of the respondent 5 to go uninterfered with, I choose to refrain from expression of opinion in respect of the controversy so

raised.

In the light of the aforementioned observations writ petition is disposed of along with all connected CMPs. Interim direction is vacated. No

order as to costs.