Shahnaz Mughal vs State

Syed BashirudDin, J.—Petitioner allegedly posted as Junior Assistant with three years Certificate Course in Calligraphy in J&K Academy of

Art, Culture and Language Srinagar prays for consideration to promotional post of Calligrapher occupied by Respondent No. 4, a teacher of

School Education Department. He is alleged to hold the post under the order (AnnexureC) of the concerned authorities including respondents,

even though not eligible and qualified to hold the post. The impugned order dated 9.7.2001 (Annexure C) is stated to have been issue without

observing any procedure and in malafide exercise of powers. The matter of appointment of respondent No. 4 has been also objected by the

Employees Welfare Association Directorate of Archeology, Archives and Museum Srinagar. Appointment of Respondent No. 4 is stated to be

unfair and in breach of equality clause of the Constitution.

Official respondents as well as the private respondents have filed reply. In reply on the affidavit of Dy. Director, Archives, Archeology and

Museum Srinagar on behalf of respondents 1, 2 and 3, it is averred that the petitioner is a classIV employee and is not even a Diploma Holder, she

is just having a three years Certificate Course in Calligraphy which is not tantamount to having diploma Course as alleged by her. No rules have

been as yet framed for appointment to the post of Calligrapher, even though the Rules are being finalised. Even so, in terms of the proposed rules,

petitioner is three steps down and cannot claim the post of a Calligrapher. The post of Calligrapher is proposed to be filled up by direct

recruitment. In any case in absence of the Recruitment Rules, the Government is within its rights to adjust the appoint a suitable person like

respondent No. 4 in the post. Respondent No. 4 is MA in History and M. Phil. in Archaeology Topic (Kashmir Architecture from 14th to 17th

Century). He is presently doing Part Time Ph.D. in Influences of Kashmir Architecture from 5th to 17th Century. He has to attend the work of

Research and Documentation in the Department for which none in the department except Respondent No. 4 is qualified. The action of

Government in appointing respondent No. 4 is fair and does not in any manner violate the equality clause. Merely because respondent No. 4 has

been adjusted in Directorate of Archives, Archeology and Museum Srinagar from the School Education Department on mutual agreement of the

Department (with the consent of) the Education Department, the appointment of Respondent No. 4, who possess far superior qualification than

petitioner, cannot be said to be bad. No question of malafide exercise of power arises. The adjustment of respondent No. 4 is in the interest of the

department. Petitioner is not entitled to promotion. Petitioner is not discriminated against.

Respondent No. 4, besides supporting the above averments of the respondents, has additionally alleged that petitioner is facing trial before

Special Judge, Anticorruption in FIR 62/97 in connection with entering service in Directorate of Archeology Archives/Technical Education of the

Department illegally. Petitioner he has herself submitted an undertaking (Annexure) before the Deputy Director Archaeology, Archives and

Museum Srinagar that she has no objection in case the she is adjusted as orderly on regular basis and the period she spent as Junior Assistant may

be considered for seniority notionally. Besides, respondent No. 4 alleges that his father was already working as conservation Assistant in the

Directorate of Archeology Archives and Museum, Srinagar who died on 29.10.1995. He had applied for compassionate appointment to the

Directorate, but in the meantime he was selected and appointed as Teacher, therefore, he made a representation to the department for adjustment

in Archeology Achieves and Museums Department Srinagar After interdepartmental communications and after School Education Department

conveyed `No Objection' he was transferred to and posted in Directorate of Archeology Achieves and Museum Srinagar on 22.10.1999

(Annexure R9). This transfer and posting of the respondent was extended from time to time till the impugned order dated 3.7.2001 (Annexure19)

was passed to communicate the decision of the Government through Special Secretary, Education Department, that the service of respondent No.

4 on deputation to Directorate of Acheology Achieves and Museums Srinagar is adjusted in the said department against the available post of

Calligrapher in his own pay and grade. He was put on probation for a period of one year and during the period he was to retain lien in the School

Education Department and thereafter in the event of successful completion of probation period he was to get the grade of Calligrapher and his lien

in the School Department would discontinue.

The averments made in the replies by the respondents are not refuted to denied. It is apparent on record that the respondent No. 4 possesses

the far superior qualification than petitioner. Petitioner is a class IV employee and the post of Calligrapher is at least three steps above class IV

post. As admitted by both the parties, no recruitment rules have been framed to govern the post of Calligrapher. Respondent No. 4 has the

background and the qualification to hold the post and that too on an arrangement between lending department of School Education and the

borrowing Department (Technical Education). The School Education Department has even given its `No Objection' for adjustment of respondent

No. 4 in the Directorate of Archeology Achieves and Museums, Srinagar. Mere allegation that the powers are exercised malafide, in absence of

necessary pleadings and supporting material, would not sufficient. The exercise of powers, does not in the facts and circumstances of this case,

seem either discriminatory or in any manner to contravene any provision of law.

In the totality of the facts, situation and circumstances of the case, the action of the Competent Authority can be said to be fair and reasonable.

Breach of equality clauses, as alleged, is not borne out by record of this case. The representation of the Archeology Achieves Employees

Association in the context of adjustment of Respondent No. 4 has been taken out of by the Director Acheology Achieves and Museums Srinagar

and stated to be ""simply frivolous"" (Annexure R18). Absorption/adjustment of Respondent No. 4 in this case, appears from record, in the interest

of research and to gain by the experiences of Respondent No. 4 in the connected field. Besides, the absorption/adjustment is averred in the interest

of the administration. In absence of rules, the choice of the Competent Authority to absorb and adjust respondent No. 4 in the Directorate of

Archeology Achieves and Museums Srinagar cannot be said to be unfair, unreasonable or discriminatory. Petitioner's claim of equivalence with

Respondent No. 4 for the post is negatived by facts and circumstances on record.

The contention of Mr. Zahoor A Shah, that transfer in a different and higher cadre cannot be in violation of constitutional guarantees and the rule

of fairness in no case to be bypassed, cannot be taken exception as an addage of law, but as already observed, no constitutional guarantee or rule

of fairness is violated in this case.

K. Narayanan v. State of Karnataka and others with connected Civil Appeals and Writ Petitions (1994 SCC 44) cited by Mr. Shah is of no

avail to petitioner of this case. In this cited case validity of Karnaka Public Works Engineering Department Service (Recruitment) (Amendment)

Rules, 1985 was challenged by the Assistant Engineers recruited directly on the ground of ""Constitutional validity as it trated unequals as equals

and also for giving retrospective appointment to the diploma holders and seniority even prior to the date of their eligibility."" The services of

Karnatka Public Works Engineers of the Department were recruited under the above Rules which provided for

appointment/selection/promotion/deputation etc. Obviously, this is not the position here. No rules are framed to cover the recruitment to the post.

The question of treating equally the unequals and giving retrospective appointment to one as against the other, does not arise in this case.

For the aforesaid reasons, the Writ petition is dismissed in limine.