State of Jammu & Kashmir and Another vs Khurshid Ahmad Bhat

Mansoor Ahmad Mir, J.—This Letter's Patent Appeal is directed against the Judgment dated 2nd of June, 2006, passed by learned Writ

Court in SWP No. 361/1993, for short impugned Judgment, whereby and where under writ petition of the respondent/writ petitioner came to be

allowed.

It is necessary to notice the brief facts of the case herein:

Writ petitioner-respondent sought relief on the ground that he was holding a cadre post in the year 1986 in terms of Government Order No. 1074-

GD of 1986 dated 24th of December, 1986, thus was entitled to the relief prayed for in terms of Rule 5 of the Jammu & Kashmir Administrative

Service Rules 1979, for short Rules.

Appellants-writ respondents resisted the claim of the petitioner on the ground that the writ petitioner-respondent belong to Labour Gazetted

Service and was holding post of Assistant Labour Commissioner carrying pay scale of Rs. 2000-34000 (pre-revised) in the year 1986. He was

transferred and posted a Assistant Commissioner Development, Srinagar in his own pay and grade vide Government Order No. 1074-GD of

1986 dated 24th December, 1986. The respondent-writ petitioner was junior in his parent department at that particular point of time and was not

at all eligible for the said post. He remained posted as such only till 21st of January, 1987 i.e., for a period less than a month. That posting was

purely fortuitous posting and was transferred immediately. His induction in Jammu & Kashmir Administrative Services with effect from 1993 would

adversely affect his senior colleagues who were holding, at the relevant point of time, the post of Assistant Labour Commissioner in the pay scale

of Rs. 2000-3400 (pre revised). Further, they have pleaded that in terms of Rules only those officers who were carrying pay scale of Rs. 2125-

3600 (pre-revised) in different feeding services were eligible for induction in to the service.

The induction to Kashmir Administrative Service of eligible officers of feeding services was first time and in 1997 and prior to that induction the

cases of eligible candidates were considered by the Committee constituted by the Government at the relevant point of time for purpose of initial

constitution of the service. The writ petitioner was not eligible and accordingly was not included in the list.

The writ petitioner has averred in the writ petition that similarly situated officers were given the benefit of initial constitution services. Writ

respondents-appellants in reply to para-10 of the writ petition have stated that the writ petitioner has not named single officer with whom he

claimed similarity. The officers senior to him in his parent department came to be inducted into KAS in the year 1997 along with respondent-writ

petitioner vide Government Order No. 1532-GAD dated 23rd of September, '1997 and in case the writ petition is granted it will disturb the

seniority and will affect the rights of the other persons/officials who are not parties to the writ petition and virtually granting of the relief will result in

superseding those officers who are otherwise senior to him.

It is profitable to reproduce Rule-6 of the Rules herein:

Rule 6 of K.A.S Rules of 1979 (as amended up-to-date)

Notwithstanding anything containing in these rules an officer, who on the commencement of these rules is either as a member of the Jammu and

Kashmir Administrative Service constituted under the Jammu and Kashmir Administrative Service Rules 1965 in the senior scale of selection grade

of that service, or is holding any post in its schedule appended to these rules and has passed the Departmental Examination, if any, prescribed, shall

be deemed to have been appointed to the corresponding scale of the service under these rules and their seniority shall be determined under the

rules which were applicable to them immediately before commencement of these rules. An order listing the names of these officers shall be issued

by the Government:

Provided that all Officers of different services, who are holding or but for their postings on foreign services would have held by the posts now

borne on the cadre of the Service, shall be deemed to be the members of the Service and shall be placed in terse in order of their

appointment/promotion to the grade of Rs. 1300-2030 (Rs. 750-1350 old scale). An order listing the names of these officers shall be notified by

the Government.

Explanation: For the purpose of this proviso the expression ""all Officers of different Departments/Services"" means the officers belonging to any of

the Jammu and Kashmir Administrative Service Rules, 1979, who were holding or but for their foreign posting would have held the posts on or

after 7.12.1983 but not later than 18.10.1988.

The word 'holding' means that official holding the post must be eligible one. If by mistake or by error an ineligible officer is posted against the

cadre post though was belonging to the lowest cadre it could not be said that he was holding post in order to claim benefit in terms of Rule 6 of the

Rules. The writ petitioner-respondent for less than one month was holding the post in his own pay and grade but after detecting the mistake came

to be transferred and posted against the post as per his entitlement.

On interpretation of Rule 3(6) of the Rules as reproduced above it appears that to get the benefit of the rule, the officer must have held the post

(or would have held the post had he not been on deputation on foreign service or leave) between the period mentioned. To claim the benefit of the

Rule the officer must also have the right to hold the post en-cadered in KAS in his parent department. It means that he must be eligible for the post

in his own department also. There is a purpose behind the condition. The officer must have attained the seniority and experience in his parent

department so that he can properly discharge the duties of a KAS officer. Holding of a post en-cadered in KAS either in his own department or in

any other department on ex-cadre basis by way of transfer or due to exigencies of service will not confer on him any benefit for the purpose.

Posting the officer on en-cadred post must be a conscious decision of the competent authority to appoint him on the cadre post in order to give

him such a benefit on the basis of his own standing in the parent department.

Post of the respondent as Assistant Commissioner/Development Commissioner, Srinagar, appears to be just an exigency of service as such he

was not 'holding the post' as required under Rule 3(6) and will not confer any benefit on the respondent. The said posting was at the best fortuitous

in nature. Apex Court in the case titled as D. Ganesh Rao Patnaik and Others Vs. State of Jharkhand and Others, held as under:

The learned Counsel for the appellants has also submitted that the appointment of the contesting respondents was not only contrary to the

Rules but was fortuitous in nature and they can get no advantage of such fortuitous appointment until a substantive vacancy was available in their

quota which in fact becammse available much later some time in the year 1993-94, which is long after the appointment of the appellants. What is a

fortuitous appointment has been explained in a Constitution Bench decision of this Court in Rudra Kumar Sain v. Union of India. After observing

that the Rules in question did no define the terms ""ad hoe"", ""stopgap"" and ""fortuitous"", which are in frequent use in service jurisprudence, the Court

referred to several dictionaries. The meaning given to the expression ""fortuitous"" in Stroud's Judicial Dictionary is ""accident or fortuitous casualty"".

This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation, such appointment obviously

would not continue for a reasonably long period. In Black's Law Dictionary the expression ""fortuitous"" means ""occurring by chance"", ""a fortuitous

event may be highly unfortunate"". If thus indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. In

Oxford Dictionary the meaning given to the word ""fortuitous"" is, happening by accident of chance rather than design. In our opinion it will not be

proper to hold that the promotion of the contesting respondents was fortuitous as contended by the learned Counsel for the appellants....

Apex Court held in case titled Rudra Kumar Sain and Others Vs. Union of India and Others, as under:

The three terms 'ad hoc', 'stopgap' and 'fortuitous' are in frequent use in service jurisprudence. In the absence of definition of these terms in the

Rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The

meaning given to the expression ""fortuitous"" in Stroud's Judicial Dictionary is ""accident or fortuitous casualty"". This should obviously cannot that if

an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long

period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the

appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the

same cannot be held to be ""fortuitous"". In Black's Law Dictionary, the expression ""fortutious"" means ""occurring by chance"", ""a fortuitous even may

be highly unfortunate"". It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression

ad hoc"" in Black's Law Dictionary, means ""something which is formed for a particular purpose"". The expression ""stopgap"" as per Oxford

Dictionary, means ""a temporary way of dealing with a problem or satisfying a need.

In Oxford Dictionary, the word ""ad hoc"" means for a particular purposes; specially. In the same dictionary, the word ""fortuitous"" means

happening by accident or chance rather than design.

The meaning to be assigned to these terms while interpreting provisions of a service rules will depend on the provisions of that rule and the

context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority

of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be

necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment

order. If the appointment under itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the

order, then the appointment to such a post can be aptly described as ""ad hoc"" or ""stopgap"". If a post is created to meet a situation which has

suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as

fortuitous"" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular

recruitment to the post due to any reason and it is not possible to leave the post vacant till them, and to meet this contingency an appointment is

made then it can appropriately be called as a ""stopgap"" arrangement and appointment in the post as ""ad hoc"" appointment. It is not possible to lay

down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or

stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situa lions in which appointments of officers can

be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions

of inter se seniority of officers in the cadre.

In terms of the Rules a committee was constituted by the Government for considering the case of eligible candidates who were eligible for

induction for purposes of initial constitution of the service. The selection committee examined the cases but writ petitioner was not figuring in the

said list. With respects the learned writ Court has discharged the functions of selection committee while passing the impugned Judgment. The

petitioner has not challenged the list of those officers who were named and figuring in the list of officers for induction for the purpose initial

constitution services. The writ petitioner admittedly was holding the post as Assistant Labour Commissioner in the grade of Rs. 2000-3400 at the

relevant point of time and was not in the grade of Rs. 2125-3600. Only those officers who were in the grade of Rs. 2125-3600 were eligible for

consideration for the purposes of initial constitution of the service.

The six officers from the Labour Services came to be inducted into Kashmir Administrative Services in the year 1997 vide Government Order

No. 1532-GAD of 1997 dated 23.09.1997. The impugned Judgment affects rights of those six officers despite of the fact that they are not parties

in the writ petition. Thus, only on this count the writ petition was to be dismissed.

Apex Court in case titled Indu Shekhar Singh v. State of U.P. reported as AIR 2006 SC 2582 held that if a necessary party/parties is/are not

arrayed parties the writ petition is to be dismissed. It is profitable to reproduce para-55 of the said Judgment herein:

There is another aspect of the matter. The Appellants herein were not joined as parties in the writ petition filed by the Respondents. In their

absence, the High Court could not have determined the question of inter se seniority. See Prabodh Verma and Others Vs. State of Uttar Pradesh

and Others, . In Ram Janam Singh (supra) this Court held:

...It is how almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service which will be

consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons, can be

treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority. But, whether such group of persons

belong to a special class for any special treatment in matters of seniority has to be decided on objective consideration and on taking into account

relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules

framed under Article 309 of the Constitution. The far-reaching implication of such rules need not be impressed because they purport to affect the

seniority of persons who are already in service.

Learned writ Court held that A.S. Gupta, A.R. Sheikh, P.I. Sharma, M.I. Sadiq and Khalid Hussain, who have been given the benefit of initial

constitution service, were similarly situated with the writ petitioner. With respects the writ Court has fallen in an error for the reasons that those

officers were, belonging to Employment Gazette Services and, not belonging to Labour Gazetted Services and, holding the cadre post on the cut of

date, as given in the Rules, and they were eligible for consideration on the strength of being otherwise senior officers in their feeding services.

The impugned Judgment would disturb the settled position and would create chaotic situation and that too when writ petitioner-respondent has no

legal right.

Having glance of the above discussion, we are of the considered view that writ petitioner was not entitled to the relief's sought. Accordingly, LPA

is allowed and the impugned Judgment is set-aside and writ petition is dismissed.