Mohd Ayoub Naikoo @APPELLANT@Hash State Of Jammu & Kashmir & Ors

In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioner has craved the

indulgence of this Court in granting him the following relief(s):

a. “Issue an appropriate Writ, direction or order, for quashment of impugned order No. 328-E of 2018 dated 02.08.2018, issued by the respondent

No.2.

b. Issue a Writ, direction or order in the nature of Mandamus commanding the respondents not to disturb the petitioner’s status and posting which

he is holding at present, without following due procedure of law.

c. This Hon’ble court may take suo-moto cognizance in the matter and punish the Respondent No.3 for violating the orders passed by this

Hon’ble court.

d. Issue a Writ of prohibition, prohibiting the respondents from replacing the petitioner from the present assignment.â€​

The background facts leading to the filing of the instant petition, briefly and as stated by the petitioner in his petition, are that the petitioner claims

to be a Diploma holder and after participating in the selection process through the State Recruitment Board came to be appointed as Section

Officer/Junior Engineer(Civil) in terms of Government order No. PW-736 of 1982 dated 1st of December, 1982. Thereafter, the petitioner came to be

promoted as Incharge Assistant Engineer (Civil), Hydraulic Wing, vide Government order No. 04PW9Hyd) of 2014 dated 3rd of January, 2014 and

was posted as I/C Assistant Engineer, ISD Dooru of Irrigation Division, Anantnag. By order No. IDA/381419 dated 6th of February, 2017, one Nisar

Ahmad Kar, Incharge Assistant Executive Engineer was relieved by the respondent No.4 from his office, to join his duties in the office of Executive

Engineer, PHE Division, Awantipora and the petitioner was directed to take over the charge of the Assistant Executive Engineer, Irrigation, Sub

Division, Dooru. In pursuance of the above directions, the petitioner took over the said assignment from the aforesaid person on the 14th day of

February, 2017. It is stated that since the respondents were contemplating to accommodate some of their blue-eyed person in place of the petitioner,

the petitioner was constrained to approach this Court by medium of a writ petition, being SWP No. 1604/2017. In the said writ petition, this Court, on

consideration of the matter, in terms of order dated 11th of August, 2018, while disposing of the same, directed as under:

“….. The writ petition is treated as representation on behalf of the petitioner and respondents are directed to consider the same strictly in

accordance with rules and Government orders occupying the field. The consideration order be passed within a period of two weeks from today. Till

then status quo as on date be maintained regarding position of the petitioner. Learned counsel for the petitioner to serve a copy of this order alongwith

complete paper book to the respondents.â€​

 Pending decision on the said representation of the petitioner, the respondents have issued order No. 328-E of 2018 dated 2nd of August, 2018,

whereby one Mukhtar Ahmad Bhat, Incharge Assistant Executive Engineer, Bijbehara, has been directed to look after the charge of Sub Division,

Dooru, Irrigation Division, Anantnag, in addition to his own duties. This order has been impugned herein this petition by the petitioner.

Heard the learned counsel for the petitioner, perused the record and considered the matter.

Mr Naik, the learned counsel for the petitioner, submits that in the earlier round of litigation, the respondents were directed to consider the case of

the petitioner strictly in accordance with the rules and the Government orders occupying the field with a further stipulation that till such consideration is

accorded, status quo, as on date, be maintained as regards the position of the petitioner, however, the respondents, without complying with the

direction passed by this Court and in a contemptuous manner, have issued the impugned order.

Admittedly, the petitioner has been performing his duties as Assistant Executive Engineer, Sub Division, Dooru, on Incharge basis on the asking of

the respondents in terms of order dated 6th of February, 2017. Thereafter, on the concern of the petitioner to the effect of him being displaced from

his posting projected by way of a writ petition before this Court, the respondents were directed to consider the claim of the petitioner in accordance

with the rules and the Government orders occupying the field within two weeks. It was also provided by this Court that till such consideration is

accorded to the case of the petitioner, status quo as regards the position of the petitioner be maintained. However, the respondents, without complying

with the directions passed by this Court, earlier in point of time, have issued the order impugned, whereby some other Incharge Executive Engineer

has been assigned the charge held by the petitioner. Apparently, no consideration order has been passed with respect to the case of the petitioner, as

was directed by this Court.

It is well settled that a person holding higher post on incharge basis cannot be replaced by another employee on incharge basis, unless there are

some cogent reasons provided for the said course. In the case on hand, the petitioner, performing his duties as Assistant Executive Engineer,

Bijbehara, Sub Division, Dooru, on incharge basis, has been replaced by another Incharge Assistant Executive Engineer, without disclosing any reason,

much less a cogent one, for such course of action. The respondents ought to have filled up the post in question on substantive basis in terms of the

recruitment rules governing the field and, if for any reasons whatsoever, the same was not practicable in the near future, then, ordinarily, there was no

occasion for the respondents to replace an Incharge arrangement with another arrangement on incharge basis.

Needless to mention that the order, in terms whereof the writ petition was disposed of was passed in presence of Ms Moksha Kazmi, the then

Additional Advocate General.Â

In the past, the approach of the Government while making adhoc and incharge promotions/ appointments has been seriously viewed by the

Hon’ble Supreme Court in the judgment rendered in the case of ‘Suraj Prakash Gupta v. State of JK’, reported in ‘AIR 2000 SC

2386’, wherein it has been enjoined upon the State Government to ensure regularization of the posts functioning on incharge/ adhoc/ temporary

basis. In such view of the matter, the Government of Jammu and Kashmir was required to implement their own rules while dealing with the subject of

appointments/postings / promotions in the gazette/ nongazetted services of the State.

In order to proceed further in the matter, it has become necessary to seek response from the respondents.

Notice.

Mr Shah Aamir, the learned Additional Advocate General, waives notice on behalf of the respondents.

List on 20th of August, 2018.

Meanwhile, in view of the preceding analysis, it has become necessary to issue the following directions:

I. The Commissioner/ Secretary to Government, PHE/I&FC Department/ respondent No.1 herein, shall provide the information as

regards the availability of the gazetted posts lying vacant in the engineering services of his wing along with the dates from which such posts have

become vacant. The information shall be furnished on affidavit within one week;

II. The respondent No. 1 shall ensure that the stop gap, incharge, adhoc arrangements made in respect of the gazetted posts in the Engineering

services of his wing shall not be allowed to go beyond the prescribed period as provided in terms of the rules governing the field, however, if any such

arrangement has gone beyond that period, then, in such eventuality, the said arrangement shall cease to be in vogue after a gap of three months from

today;

III. The respondent No.1 shall ensure filling up of all the gazetted posts in the Engineering services of his wing within three months’ time. In the

event, the process is not already initiated for filing up the posts mentioned above in accordance with the rules, same should be initiated and taken to its

logical conclusion in consultation with the DPCs concerned and the J&K Public Service Commission; andÂ

IV. Till next date of hearing before the Bench, the arrangement made in terms of the impugned order No. 328-E of 2018 dated 2nd of August, 2018,

shall stay.Â

Registry to furnish a copy of this order to Mr Shah Aamir, the learned Additional Advocate General, for compliance.