Mohammad Yousuf Dar vs State of J & K

Petitioners who are seven in number challenge the Government Order No: 458Agri of 1996 dated 09.09.1996 (AnnexureP4) by virtue of which

the grade of the post of Assistant Grading and Marketing Officers was released in favour of private/respondents No:3 to 5 with effect from the

date the posts were available or they were placed Incharge of the posts, whichever be the later, on the ground that as per the seniority list the said

private respondents are junior to them. Their grievance is that the seniority list of the service to which petitioners belong was issued by the second

respondent vide his letter dated 28.05.1985{annexurePl) in which the petitioners figure at S.Nos:16, 17, 20, 21, 23, 24 and 35 whereas the

private respondents 3 to 5 were assigned the seniority at S.Nos:33,34 and 36 respectively. The order of releasing the grade of Rs. 20003500 in

their favour, according to the petitioners, being determental to the petitioners seniority, is violative of Articles 14 and 16 of the Constitution of India

and, therefore, liable to the quashed. Petitioners further grievance is that they are being denied promotion on the pretext of being Matriculates in

contravention of the Recruitment Rules by promoting only Graduates, which is contrary to the Rules. They have thus sought the reliefs of:

i). quashing Government order No: 458Agri of 1996 dated 09.09.1996 (AnnexureP4);

ii). directing the respondents 1 and 2 to promote the petitioners to the next higher post retrospectively; and

iii). to restrain the respondents 1 and 2 from implementing the Government order No: 458Agri of 1996 dated 0909.1996 till the claim of the

petitioners is settled.

Although this writ petition was filed in this court in October, 1996 and Shri R.A.Khan, learned Government Advocate appeared for the

respondents on 29.09.1997 when he sought three weeks time to file objections, but no such objections were ever filed. Accordingly, this petition/is

disposed or finally at this stage for the reasons which follow hereafter.

It is an admitted fact that the representation submitted by the petitioners who are undergraduate Grading Inspectothers was referred to the

Administrative Department who after consulting the Department of Administrative Reforms Inspections and Trainings conveyed the following

opinion to the Director of Horticulture, Planning and Marketing J and K, Srinagar vide letter No:Agri/KPH/9/73/RR dated

03.08.1989(AnnexureP2):

I am directed to refer your letter No: 1634KPM/12974 dated 27.11.1988 on the above noted subject. The Department of Adm. Reforms

Inspections Trainings and Grievances who were concluded in the matter had opined as under:

The Rule 13 of the Recruitment Rules issued vide SRO 124 of 7th April, 1982 provides for appeal and savings and it is clear that the intention is

to give legitimacy to those appointed before the Rules come into force. Therefore, the Grading Inspectothers who are senior to others inspections,

but have been denied promotion because they are matriculates, have been and continue to be eligible for promotion in terms of rule 13 of the SRO

124of 7th April 1982....

In response to this the second respondent again approached the commissioner/secretary to Government, Agriculture Production Department

Vide his letter No: DHPM/101/243/3176 dated 19.10.1996 with the proposal that in view of the opinion conveyed to him vide letter dated

23.08.1989, Matriculate Inspectothers are eligible for promotion to the post of Assistant grading and Marketing Officers and as such there is no

justification for not considering the petitioners herein for promotion to the said posts. He also proposed that the grade of Rs. 20003500 may be

released in favour of first two petitioners who have been placed Incharge of the posts since August and November, 1995. The letter of the

Director Horticulture(PandM) Srinagar, a photosate copy of which has been produced by the petitioners and/placed on the file, further reveals that

petitioners were due for promotion in the year 1987 but they were not considered even though the posts were available. This letter also points out

how the Government has acted differently at different time by referring to the case of one Abdul Khaliq Bhat who being a Matriculate was

promoted as Assistant Grading and Marketing Officer in the pay scale of Rs. 20003500 vide Government Order dated 05.12.1991 and

subsequently his representation for retrospective promotion was also accepted vide Government Order No:486Agri of 1995 dated 12.10.1995

whereby this grade was released in his favour with effect from May 08, 1987. so the opinion of the Department of Administrative Reforms

Inspections, Trainings and Grievances conveyed vide letter dated 23.08.1989 was accepted by releasing the grade in favour of Shri Abdul Khaliq

Bhat and this cannot be denied to others because all of them are similarly situated, and the Recruitment Rules have to be uniformally applied,

otherwise it tantamounts to treating equals unequally, which offends Article 14 of the Constitution of India.

It is unfortunate that the respondents inaction to act and implement the opinion with regard to Rule 13 of the recruitment rules, issued vide SRO,

124 Dated 07.04.1982 has led to avoidable litigation by those who are adversely effected. It is also painful that even though the Government have

taken steps to accord consideration on the direction of this court given in S.W.Ps 140/1993 and 150/1995,but without taking final decision on the

recommendation of the second respondent made in his letter dated 10.10.1995 referred in AnnexureP4.

It is a matter of regret that the Government in the Agriculture Department having accepted the interpretation placed on Rule 13 of the

Recruitment Rules and while conveying the same to second respondent and directing him to take further action in the matter accordingly, as per

letter dated 23.08.1989, appears to be vacillating to settle the petitioners claim to promotion. In case the Government in the Agriculture

Department was not in agreement with the aforesaid opinion, it ought to have referred the case back to the Department of administrative Reforms

Inspections, training? and Grievances with its own opinion before acting upon it. Having acted upon the opinion, there is no reason to withhold

consideration to promotion of the petitioners, particularly when the same has been acted upon while promoting Mr. Abdul Kaliq Bhat

retrospectively. (See Govt. order No:486Agri of 1995 dated 12.10.1995).

It is obviously for this reason that the staterespondent avoided to file objections/counter because having accepted the opinion that petitioners

and those similarly situated with them are eligible for promotion, they had nothing to controvert On the contrary, the recommendation made by the

2nd respondent vide his letter dated 19.10.1996 should /be deemed to be the stand of the Department in respect of the petitioner's plea and what

is required is a decision at the level of the Government in the Agriculture Department giving effect to it in view of accepted rule position.

The argument of Mr.Mohd Amin Ahangar, learned Government Advocate that mere releasing grade of the post in favour of the private

respondents on the direction of this court could not be a ground to claim similar treatment, is preposterous because the court order was only to

consider release of the grade. However, as the Government had no justification to reject the claim for release of grade in view of its earlier order in

case of Mr. Abdul Kaliq Bhat based on the opinion held by the Department the grade had to be released. So it is not the court direction, but

Department's own compulsion that resulted in the release of grade in favour of private respondents, the Government did do so in case of the other

who was not entitled to it even though there was a similar direction.

But the main quest on is whether the order impugned in the writ petition is required to be quashed? Admittedly, the grade has been released as

they were placed Incharged of the posts. But they are yet to he promoted which is possible only after they are considered by the Departmental

Promotion Committee, untill then it is only a sropgap arrangement and they ire not even members of the service, in view of the law laid down by

the Apex court in Keshav Chander Joshi and others Vs. Union of India and others, 1992 Supp(l)SCC 272. While referring to the judgment of the

Constitution Bench in case Direct Recruit classII Engineering Officers Association Vs. State of Maharashtra (1990)2 SCC 715, held that:

... The quisitessence of the propositions is that the appointment to a post must he according to rules and not by way of adhoc or stopgap

arrangement made due to administrative exigencies. If initial appointment thus made was de hothers the rules, the entire length of such service

cannot be counted for seniority. In other words, the appointee would become a member of the service in the substantive capacity from the date of

his appointment was made according to rules and seniority would he counted only form that date...

It is admitted that private respondents were placed Incharge of higher posts which is permissible under Article 85 of Jammu and Kashmir Civil

Service Regulations(hereafter referred to as CSR). Petitioners have been placed Incharge of the posts in terms of ARt.85(l)(b) and (3)(1) of the

CSR which reads;

185(1): A Government servant may be..,.

(b) appointed to be in charge of a higher post independently of his own duties......

(3) The cases falling under (1)(b) above may be of one of the following nature:

i). Where for administrative reasons or noncompletion of formalities for appointment to the higher post, a person cannot be appointed to that post

formally and is appointed in his own pay and grade to be in charge of the higher post and required to discharge full duties and responsibilities of the

post either in the same office or in a different office in the same cadre/line of promotion...

So it is only to tide over administrative difficulty when promotion to the posts cannot be made without undue delay that such stopgap arrangement

is made. But the Government Instruction (a) to the Article mandates that only those due for promotion should be placed in charge of the post. The

instruction reads:

(a) It is wrong in principle to appoint a Government servant to a higher post in his own cadre/line of promotion without observing the required

formalities of clearance from Departmental Promotion Committee etc. Where, however, for reasons to be recorded, the administrative authorities

cannot without detriment to public interests wait for formal appointments temporary stopgap arrangements may be made by them against such

post. In making such arrangements the competent authorities will ensure that only such officers are appointed who satisfy all the requirements for

higher appointments and can stand the scrutiny of the Departmental promotion Committee etc. Persons so appointed shall be appointed in their

own pay and grade as incharge of the higher posts and will be required to discharge the full duties and responsibilities of these posts. As soon as

such officers are declared by the Departmental Promotion Committee etc. fit for appointment to higher posts without break in the stopgap

arrangements, they will be allowed full pay of those posts allowance etc. If any drawn to be adjusted in full against the retrospective increases in

pay.

Clearly, therefore, a person placed in charge of higher post has to be cleared for promotion by the Departmental Promotion Committee and will be

entitled to the grade only from the date he was due for promotion and not earlier thereto. So recourse to Article 85 cannot be a ground to release

grade of the post much less regulrisation on the post, except in accordance with rules, because Art. 87(b) provides for grant of charge allowance

to one who is placed in charge of higher post under Article 85(3)(1).

Article 87(b) reads as follows:

A Government servant who is appointed in charge of higher post in his own pay and grade either in a situation covered under subclause (iv) of

Article 85(2) of Subclause(i) of Article 85(3) may be allowed chargeallowance equal to difference of pay of the concerned officer in his own grade

and pay which he would have got had he been formally appointed to the higher post. The charge allowance will vary from time to time as and when

there is an increase in pay of the employee in his own grade or as and when the increment would fall due to the officer in the higher grade had he

been appointed to it formally from the date he was put in charge of it. The amount of the pay in his own grade plus charge allowance shall not at

nay time exceed the amount of pay which the official would have otherwise drawn from time to time in the higher grade had he been appointed to it

formally from the date on which he was appointed to be in charge of higher post or from the date from which he took over its charge in addition to

his own post as per sub. (iv) of Article 85(2).

This shall be deemed to have come into force from 2.08.1985.

So as long as this provision exists, any person placed in charge of higher post in his own pay and grade has no right to seek release of grade

before he is appointed to the post in accordance with rules.

In view of the aforesaid, the conclusion is inescapable that the private respondents having not been appointed on the posts in accordance with

the rules (SIC) they are not holding substantive posts. Their regularisation is dependant upon the outcome of the report of the Departmental

Promotion Committee, which as and when convened shall have to examine the claim of the petitioners on the basis of their seniority and eligibility

and the fact that they are undergraduates will not come in their way for consideration of promotion.

Hence, this writ petition is allowed holding the petitioners eligible to the post of Assistant Grading and Marketing Inspectothers and

respondents 1 and 2 are directed to take necessary steps to fill up the post on substantive basis in accordance with rules. The process of selection,

for which petitioners shall also be considered and appointments made consequent upon such selection against the available posts within a period of

four months. I make the order accordingly.