Sh. Abdul Matin Tak and Others vs State and Others

All these appeals two by private respondents and one ( LPASW No. 29/2006) by the State arise out of judgment dated 23.12.2005 passed in

writ petition, SWP No. 1226/2005, and are disposed of by this order.

Appellants in LPA No. 3/2006 and 19/2006 as also private respondents 2 to 4 were all working as Assistant Engineers in the Hydraulic Wing

of PHE, Irrigation and Flood Control Department. While private respondents 2 to 4 came to be directly appointed as Assistant Engineers in 1979,

private appellants in the two appeals aforesaid were promoted to the post of Assistant Engineers some time in 1985. These private respondents

herein, admittedly, rank senior to the private appellants, (who belong to reserved category) in the re-designated category of Assistant Executive

Engineers. Meanwhile private appellants were placed as in-charge Executive Engineers and so were private respondents 2 to 4 later and all these

contenders are now working as in-charge Executive Engineers.

It all seems to have started with a Communication No. PW/Hyd-G/170/2004 dated 25.8.2005 issued by Under Secretary to Government,

PHE, Irrigation and Flood Control Department to the Chief Engineers of PHE, I&FC, RTIC & UEED, Jammu/Srinagar and The Managing

Director, PDC, J&K, Kashmir, seeking information regarding the service particulars of ten Incharge Executive Engineers (Hydraulic Wing), named

in the communication, has generated the present litigation, which, originating from SWP No. 1226/2005, has landed in this Court in three original

side appeals, LPASW Nos. 3/2006, 19/2006 and 29/2006.

Three petitioners, namely B. B. Sharma, Ashwani Kumar Sharma and 0. P. Dubey, filed SWP No. 1226/2005 against the State of Jammu and

Kashmir and four others, who, like the writ petitioners, were Incharge Executive Engineers, seeking reliefs, which read thus:

(i) Writ, order or direction in the nature of Writ of Mandamus commanding the Respondent No. 1 not to consider and promote the Respondent

No. 2 to 5 or any other candidate belonging to the reserved category against the post of Superintending Engineer by granting the reservation in

promotion;

(ii) Writ, order or direction in the nature of Writ of Mandamus commanding the Respondents No. 1 to consider the petitioners for promotion to the

post of Superintending Engineer over and above the head of the Respondents No. 2 to 5;

With a further direction to the Respondent No. 1 to treat the petitioners as senior to the Respondents No. 2 to 5 and to fix the seniority of the

petitioners against the post of Executive Engineers after their confirmation by applying the Catch Up Rule as propounded by the Hon'ble Supreme

Court of India in case titled ""Ajit Singh and Ors. (ii) v. State of Punjab and Ors."" reported in 1997-Vol. 7-SCC-209;

(iii) Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be

issued in favour of the petitioners and against the respondents along with cost of the petition.

These reliefs were claimed by the writ petitioners on the ground that they were recruited as Assistant Engineers against direct recruitment quota

in the year 1979, whereas the private respondents/appellants before us in two appeals, were promoted as Assistant Engineers in 1985. The

petitioners asserted that they were senior to the private respondents in the cadre of Assistant Engineers, which cadre was later re-designated as

Assistant Executive Engineers. Adjustment of the private respondents as In-charge Executive Engineers by the State-respondent prior to the

adjustment of writ petitioners as In-charge Executive Engineers, would not clothe them with superior seniority over the writ petitioners, assert the

writ petitioners Relying heavily on Ajit Singh and Ors. v. State of Punjab reported as (1997) 7 SCC 209 the petitioners submit that private

respondents cannot claim providence of their earlier adjustment as In-charge Executive Engineers in the matter of determination of j seniority of the

petitioners, direct recruits vis-a-vis the promotees. This stand of the petitioners was controverted by State-respondent and other private

respondents saying that the petitioners were not entitled to rank senior to the private respondents additionally in view of SRO 110 dated

14.9.2000 and SRO 186 dated 30.05.1997

This writ petition was contested by appellant-state and also by the private appellants. The stand of the appellant-state was that private

appellants (reserved category candidates), who had been promoted earlier then respondents 2 to 4 (general category candidates) shall be,

considered as senior for all purposes in the promotion category, class and grade etc. and that these private respondents 2 to 4 shall be treated

junior as in-charge Executive Engineers.

The private appellants also contested the contentions raised by these private respondents 2 to 4 (writ petitioners) in their writ petition.

Stand taken by the State and other respondents that petitioners had to rank junior to the private respondents, seems to have furnished a basis to

the writ Court to survey the legal position enunciated by Supreme Court in its judgment involving the determination of seniority between General

Category and Reserved Category contenders and persuaded the Court to apply ""Catch Up Rule"" to the facts and circumstances of the case to

declare second to fourth respondents herein senior to the private appellants in appeal before us.

Aggrieved by the judgment of the writ Court, The State Government as also the private respondents have appealed before us.

Shri Sunil Hali, learned Counsel for the private respondents, submitted that the exercise undertaken by the writ Court in determining the assumed

seniority dispute between the appellants and the respondents, was premature, in that, the posts of Executive Engineers having not been filled up

substantively, would not warrant determination of seniority in the cadre of Executive Engineers. He further submitted that the private respondents

had no cause of action to approach the Court on the basis of Communication dated 25-08-2005, which had only sought information regarding the

service particulars often In-charge Executive Engineers.

Shri S.C. Gupta, learned Additional Advocate General, while supporting Shri Hali, submits that the question of determination of seniority would

not arise unless State had undertaken an exercise for determining seniority of the Executive Engineers after they were so promoted as such.

Learned Additional Advocate General submits that the State is ready and prepared to complete the exercise of finalization of seniority of Executive

Engineers after considering them for promotion as such within a given period of time.

Shri A.V. Gupta, learned senior Advocate, on the other hand, submits that the State Government was planning to go ahead with its earlier

Policy of giving promotion to the appellants by disguising promotions as adjustment of the respondents as In-charge Superintending Engineers

without considering the claim of the private respondents, who were senior to them having been appointed much prior to them in the cadre of

Assistant Executive Engineers. Learned Counsel submitted that the stand taken by the State Government that respondents were junior to the

appellants was sufficient for the writ Court to undertake the exercise of determining the seniority vis-a-vis the appellants and the respondents.

During the course of hearing, learned Counsel for the parties were not at variance that till date there has not been any substantive appointment

of Executive Engineers. In view of this admitted position of there being no substantive promotion against the posts of Executive Engineers, the

dispute raised by the private respondents, appears to us to be misconceived, besides being unnecessary. Section 24 of Jammu and Kashmir Civil

Services (Class, Control and Appeal) Rules, 1956, prescribes the mode and method of determination of seniority, inter alia inter se promotees and

direct recruits. For determining the seniority of the promotees, the sine-quo-non is the substantive promotion of such contenders against the

promoted post. Such being the case, the adjudication of the dispute by the learned Judge becomes wholly unnecessary and rather premature

additionally because it was primarily the function of the employer to initiate process for determination of seniority of persons belonging to a

particular class, category and grade and in the process to invite objections from those who object to their tentative placement in the seniority list. It

is only after inviting objections from the objecting members of the service that the employer, going by the Rules on the subject, determines the

seniority of the members of a particular class, category or grade.

Determination of seniority of Executive Engineers, without any substantive promotions thereto and without any exercise having been

undertaken by the State Government, leaves no option with us except to hold that the question raised by the respondents/writ petitioners regarding

the determination of seniority between the appellants and the respondents was premature, besides being unnecessary.

We, thus, set aside the determination of the learned Single on the seniority dispute between the appellants and the respondents.

This notwithstanding, we do not see any reason in the State-respondent's taking the stand that the respondents were junior to the appellants,

when the seniority of the Executive Engineers had yet to be finalized in accordance with the Rules after the substantive promotions to the posts of

Executive Engineers were made by the State Government. The State, while taking its stand on the seniority position, had not referred to any Rule

position on the basis whereof such stand had been taken and stand so taken by the State Government, appears to be casual and cursory, little

realising that the matter of determination of seniority rests with the employer, who is required to take an impartial decision in this regard having due

regard to the Rules on the subject and law on the point.

All said, we cannot blink at the adhocism being perpetuated by the State Government, in resorting to stop-gap/In-charge arrangement rather

than filling up the promotional posts on substantive basis. Enough is enough and we think that appropriate directions are required to be issued to

the State Government to set the records straight and allow Rules of the Game to prevail in accordance with law.

All this leaves us with no option but to set the record straight and to reject the rival stand of both the state-appellant as also private

respondents 2 to 4 herein and consequently to set aside the impugned Writ Court judgment dated 23.12.2005, which has proceeded on an

assumption as if the seniority determination in the category of Executive Engineers was suffering from some infirmity or breach of rules.

These appeals are accordingly disposed of by providing that:

The impugned Writ Court judgment shall stand set aside;

The state-appellant and all its functionaries as also the Public Service Commission are directed to take immediate steps to make promotion to

the post of Executive Engineers within four months from the date of receipt of this order. Thereafter it shall take steps to determine the seniority in

the category of Executive Engineers under rules and law and complete the process within three months from the date of making promotions to the

post of Executive Engineers.

Meanwhile, no stopgap/in-charge arrangement shall be made to the post of Superintending Engineer.