Mushtaq Ahmed Wani vs State and others

Syed BashirudDin, J.—This case has been admitted on 29.9.98. Official respondents 1 to 3 despite opportunity have not filed reply. Reply

on behalf of respondent No. 4 and 5 is on record. On request of counsel for parties, the matter was taken up for final disposal. Heard.

Petitioners appointed orderlies in the Engineering Department R&B, claim separate seniority as Class IV Orderlies and promotion to posts of Jr.

Assistant based on such seniority, in so far as they aver the eligibility for their appointment as Jr. Assistant qualificationwise and typewise.

Respondents 4 and 5 are alleged to be Chowkidars who cannot claim seniority with Class IV Orderlies so far as Chowkidars are a separate cadre

and cannot claim promotion to the post(s) of Jr. Assistants. The respondent No. 4 and 5 have been shown senior to petitioners in violation of

Rules and shown as such in seniority list of qualified Class IV employees of the Department annexure P1. They have been given promotion under

order No. 250 of 1994 dated 12.1.94.

Mr. Attar submits that after the J&K Engineering Subordinate Service Recruitment Rules of 1997 (SRO 180 dated 25.5.97) were enforced, the

feeder for the appointment to the posts of Jr. Assistant is rota quota based on 75% by direct recruitment and 25% by promotion from Class V and

VI having typewriting speed at least 30 words per minute with further eligibility of matriculation or equivalent or above, from any recognised

institute/university. The schedule II ""B"" (Ministerial) to the said J&K Engineering Subordinate Service Recruitment Rules, 1997 provide Class V

and VI (specified as Jamadar, Orderly, Chowkidar, Helper Office posts) as feeder for appointment and promotion to the posts of Jr. Assistant.

Obviously, after the enforcement of the above rules, both orderlies as well as Chowkidars are entitled, subject to eligibility, for consideration for

appointment by promotion against the post(s) of Jr. Assistants.

In the impugned order dated 12.1.94, respondents 4 and 5 with others have been allowed to officiate against available Jr. Assistant posts ""till

proper arrangements are made"" by the Chief Engineer and further the arrangement ""shall however be purely on temporary basis without prejudice

to the seniority of others and subject to reversion at any time without officiating charges under J&K CSR"". This obviously shows that the

arrangement is subject to the conditions provided thereto and is not an unqualified appointment by promotion. It can at the behest (best ?) be

arrangement without prejudice to the rights of the others having superior claim to the post, who can be even the petitioners.

The consideration shall have to be accorded to the case of petitioners as also to the cases of other eligible candidates including respondents 4

and 5 in terms of the applicable rules subject to eligibility and fulfilment of other norms provided under rules. For the purpose, the respondents

would do well in case seniority list is drawn, if not already in place, in accordance with rules so that those eligible and falling within the

consideration zone get chance of consideration as a matter of right on their own turn as part of built mechanism of the system, against the posts of

Jr. Assistants. By building and allowing such mechanism to operate, the Competent authority would in the process absolve itself of the charge of

pick and choose while according promotions to scheduled Class IV and V employees against the posts of Jr. Assistants.

It is brought to the notice of the Court that respondents 4 and 5 had filed a writ petition 2412/98 in the Court which came to be disposed of on

7.12.1998 with direction to the officials of Engineering Wing R&B to consider the case of these two persons for regularisation against the post of

Jr. Assistants/Typists. While taking the above order into consideration, respondents shall also consider the case of petitioners for appointment by

promotion alongwith these two persons respondents 4 and 5 against available post of Jr. Assistant in accordance with rules and in terms of the

observations made herein above.

Writ petition is accordingly disposed of.

Order accordingly.