Qazi Aftab Ahmad vs State Of J&K & Ors

M.A.Chowdhary, J

Through the medium of the present petition the petitioner prays the following reliefs:

i) By issuance of a writ of mandamus or any other appropriate writ, order or direction, respondents be directed to promote the petitioner to the post of General Manager with effect from the date, he was eligible for such promotion and to give him all the consequential benefits of such promotion in preference to the proforma respondent, keeping in view his rank, status and seniority in the Department.

ii) By issuance of a writ of certiorari or any other appropriate writ, order or direction, the decision dated 1.7.2014 of the Senior Selection Committee, SKICC Srinagar be quashed.

It has been pleaded in the petition that this court vide Judgment dated 16.05.2007 passed in SWP No. 1251/2005 directed the respondents to place the petitioner in the pay scale of 10,000-15200 w.e.f. 18.06.2005 and pay his emoluments and also promotional benefits be worked out accordingly. Respondents challenged the said judgment in appeal (LPA NO. 164/2007) before a Division Bench of this Court. The appeal was, however, dismissed by the Division Bench vide order dated 01.09.2007.

Learned Senior counsel for the petitioner submits that in light of the judgment dated 16.05.2007, the petitioner was to be placed in the pay scale of Rs. 10,000-15200 w.e.f. 18.06.2005 and besides paying him the emoluments, his promotional benefits had also to be worked out and paid to him but instead of complying with the judgment in its letter and spirit, the respondents issued Order No. 19 of 2007 dated 19.11.2007 whereunder sanction was accorded to the release of pay scale of Rs. 10,000-15200 in favour of the petitioner w.e.f. 18.6.2005. However, no steps were taken by the respondents to implement the other part of the judgment relating to the promotional benefits of the petitioner and paying the same to him. Therefore, the judgment was partly implemented by the respondents and part thereof remained unimplemented.

It is further stated by learned Sr. counsel for the petitioner that in terms of Order No. 84 of 2007 dated 20.7.2007 proforma respondent was promoted to the post of General Manager in the pay scale of Rs. 12000-16500. However, the said respondent and petitioner have joined as Managers in SKICC on the same date viz 18.6.2005. The petitioner was holding the pay scale of Rs. 7500-12000 and the proforma respondent was working as a subordinate officer to the petitioner in the pay scale of Rs. 6700-10700. The said respondent was promoted to the post of Dy. Manager Operations and placed in the pay scale of Rs. 8000-12950. All officers senior to her, who were working in the pay scale of Rs. 7500-12000 represented against her placement in the pay scale of Rs. 8000-12950 and as result of these representations two officers viz. Mr. Ghalib Mohi-ud-din and Javid Bakshi were placed in the pay scale of Rs. 12000-16500 and their seniority was protected. In so far as petitioner is concerned he was discriminated and was not given any benefit. However, respondents placed the petitioner in the pay scale of Rs. 10,000-15200 in terms of order dated 19.11.2007 but they have not worked out his promotional benefits and have not placed him ahead in rank and grade as provided in the judgment ( supra).

The petitioner had filed a representation to the respondents, to implement the judgment in letter and spirit and promote him to the post of General Manager in the pay scale of Rs. 12000-16500 from the same date from which proforma respondent had been promoted to the said post so that his seniority and status is protected. Respondents have not considered the representation of the petitioner till date. Therefore, the petitioner was left with no option but to again seek indulgence of the Court through the medium of the present petition. Further it is contended that the respondents had placed the case of the petitioner before the Senior Selection Committee of SKICC in its meeting held on 01.07.2014 under the Chairmanship of respondent No.1. The committee, however, did not agree to promote the petitioner to the post of General Manager as petitioner’s post was not the feeding category for the post of General Manager as per existing Recruitment Rules. The Committee however, observed that a revision in the relevant Rules is called for so as to include the case of Manager (Admn) in the feeding cadre for the post of General Manager.

It is pertinent to mention here that in the meeting of the Senior Selection Committee held on 24.07.2013 under the chairmanship of Commissioner/Secretary to Govt. Tourism and Culture Department, it was agreed that necessary amendment/correction shall be made in the Recruitment Rules where certain posts have not been shown/projected as a feeding cadre for next higher post i.e. the post of Manager Administration ( 15600-39100 + GP Rs. 6600) has not been shown as feeding cadre for the next post of General Manager (15600-39100 +GP 7500) in the Service Recruitment Rules of 2005, and such correction, wherever, required shall be made. However, while considering the claim of the petitioner for his promotion to the post of General Manager on 01.07.2014 the decision taken on 24. 07.2013 had not been kept in mind by the members of the Senior Selection Committee, rendering the decision dated 01.07.2014 liable to be set aside.

On the other hand, learned counsel for respondents state that the relief(s) prayed for by the petitioner including one that he be placed in the pay scale of Rs. 8000-12950 w.e.f.20.7.1999 from the date proforma respondent No. 4 was placed in the said pay scale is legally impermissible as respondent No. 4 was in fact working as Dy. Manager (Operation) in pay scale of Rs. 8000-12950 w.e.f. 20.7.1999 as compared to the post of Administrative Officer in the Grade of Rs. 7500-12000 and her promotion from the post of Dy. Manager to the post of Manager Operation in the grade of Rs. 10000-12500 was only one step promotion. It is submitted that petitioner pursuant to the court judgment has been placed in the pay scale of Rs. 10,000-12500 w.e.f. 18.6.2005, however it is not mentioned in the judgment to give the effect to the grade of Rs. 8000-12950 w.e.f.1999 as claimed by the petitioner i.e. from the date Yasmeen Khan and her junior were placed in the said pay scale.

It is also submitted that the post of Administrative Officer in the pay scale of Rs. 7500-12000 which is below the post of Dy. Manager as the post of Dy. Manager carries the pay scale of Rs. 8000-12950 has been upgraded and after abolishing the post of Administrative Officer the petitioner has been adjusted as Manager Administration which involves two step promotions. Petitioner has been benefited by abolishing the post of Administrative Officer, as for question of discrimination is concerned, petitioner has not been subjected to any discrimination.

Respondents further submit that the Manager Administration is not the feeding cadre for the next higher post of General Manager in the SKICC Service Recruitment Rules of 2005. However, Service Recruitment Rules of SKICC came to be revised in 2005 vide order dated 18.6.2005, where some omissions/mistakes in the printing were reported. The Senior Selection Committee headed by the Commissioner Secretary to Govt. Tourism Department in its meeting held on 24.7.2013 agreed to make amendments wherever necessary. However, the decision of the Senior Selection Committee directed to be placed before the Board of Governors in its next meeting for accord of approval.

In pursuance of the directions of the Board of Governors in light of Agenda Item No. 18.08, the post of Manager Administration will constitute to be feeding cadre for promotion to the post of General Manager, SKICC which was not there in the Service Recruitment Rules of 2005 with effect from the date issue of Order No. 45 SKICC of 2021 dated 11.01.2021.Copy produced by Ld. Counsel for the respondents is taken on record.

In rebuttal learned counsel for the petitioner states that the meeting of the Senior Selection Committee ( SSC) was held on 24. 7.2013 wherein after realizing the mistake committed it was decided to incorporate the post of Manager Administration as feeding cadre for the next higher post and subsequently the next meeting held on 1.07.2014 proposal for promotion of the petitioner was also submitted before the SSC which was not agreed for the reasons that the post is not the feeding cadre. It is also stated that respondents be directed to promote the petitioner from the same date when proposal of promotion was submitted i.e. 01.07.2014, as decision of amendment was already taken by the Committee on 24.7.2013 and same decision confirmed by the Board. Incorporation of Manager Administration as feeding cadre for the next higher post is not a fresh addition but incorporation to rectify the mistake which had crept in 2005, therefore, petitioner cannot be penalized for the mistake so committed in omitting to mention the said post as feeding cadre post.

Learned Senior counsel for the petitioner submits that in case the official respondents are directed to consider the case of the petitioner for promotion to the post of General Manager, in view of the amendment of the SKICC Service Rules by including the post of Manager (Administration) held by the petitioner as feeding cadre to the promotion of General Manager, the petition be disposed of at this stage.

Learned counsel for the official respondents and the private respondent do not resist this plea, to accord consideration to the claim of petitioner for the post of General Manager, in case the same is done in accordance with the SKICC Service Rules. Learned counsel for the private respondent, however, submits that the amended rule cannot be given retrospective effect, detrimental to the interest of private respondent, who has also filed a petition separately.

On keen perusal of the pleadings, and having regard to the rival submissions made at the bar, this court is of the opinion that there shall be no harm to disposal of this petition, in case the same is disposed of with direction to the official respondents to accord consideration to the claim of promotion by the petitioner alongwith other eligible candidates, to the post of General Manager strictly in accordance with rules.

For the foregoing reasons, this petition is disposed of with a direction to the respondents to consider the claim of the petitioner for promotion to next higher post of General Manager strictly in accordance with the rules occupying the field as of now, in case there is a vacancy to be filled up by promotion.

Writ petition is disposed of accordingly.