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2000 DIGILAW 151 (JK)

Ab. Majeed Sheikh v. State

2000-07-28

SYED BASHIR-UD-DIN

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1. Petitioner was initially appointed as Chowkidar in the office of Dy. Financial Advisor and CAO, Srinagar on 20-02-1989 (Annexure PI). Later he was declared quasi permanent under the J&K Civil Service (Temporary Service Rules) 1961 vide order No. 30/9/1995 (Annexure-P4). On 22-07-1991 a Departmental Promotion Committee of the department in its meeting conducted test of petitioner along with other two candidates and the minutes sheets of the type test is on record. Then again on 26-08-1995 Dy. Financial Advisor and CAO Srinagar, Flood Control and Power Projects, Srinagar addressed a communication to concerned indicating that a meeting of Departmental Promotion Committee was scheduled to be held on 2nd of September, 1995 with one of the agenda items proposal for according regular promotion as Jr. Assistant to petitioner along with some other candidates. Petitioner™s case is that despite availability of the post and this eligibility for promotion, he has not been promoted as Jr. Assistant/Jr. Typist on regular basis. He appeared in the test in the year 1991 and then again in 1995 and feared well, yet petitioner is discriminated against and not promoted unjustly despite availability of post. He made several representations but of no avail. He prays for appropriate writ/direction commanding the respondents to regularise the petitioner™s such service and to pay him all consequential benefits on promotion. 2. Respondents in reply have not denied the facts as stated on record. Holding of test for the post of Jr. Assistant/Jr. Typist in the year 1991 is not denied. But petitioner is stated to have not secured the prescribed speed of typing of 30 words p.m. though pursuance to results of this test petitioner™s case for adhoc promotion was recommended from July 1991. Petitioner along with other promotees came to be promoted and appointed as Jr. Assistant on adhoc basis vide order dated 27-07-1991 initially for a period of two months which was extended from time to time. This adhoc promotion was given to petitioner in a migrant arrangement as no clear vacancy was available in the department. The original post of Jr. Assistant held by petitioner is of one Sh. M.L. Bhat, a migrant typist who has a lien on the post. Petitioner continued in the arrangement in absence of said Sh. M.L. Bhat. Petitioner claims for the post of Sr. Assistant, could not be considered as petitioner has not been substantively appointed as Jr. The original post of Jr. Assistant held by petitioner is of one Sh. M.L. Bhat, a migrant typist who has a lien on the post. Petitioner continued in the arrangement in absence of said Sh. M.L. Bhat. Petitioner claims for the post of Sr. Assistant, could not be considered as petitioner has not been substantively appointed as Jr. Assistant for the reason mentioned above. The petitioners case for regular promotion against the post will be considered by the Departmental Promotion Committee at appropriate time when same meets for the purpose. 3. This matter stands already admitted to hearing on 18-07-1996. Heard. 4. Petitioner is initially appointed on 20-02-1989 as Chowkidar in the department of Flood Control and Power Projection (hereafter FC & PP). His subsequent adjustment as adhoc Jr. Assistant/ Jr. Typist on 27-07-1991 following the recommendation of the DPC held on 22-07-1991 is not in dispute. It is not also denied that petitioner is so continuing thereafter till date. 5. Respondents case is that the petitioner could not be adjusted on regular basis as Jr. Assistant/Jr. Typist for the reasons that no clear vacancy was available in the department and the one against which the petitioner has been adjusted, is a migrant vacancy of one Sh. M.L. Bhat typist of the department, who has migrated from the Valley. As the vacancy is not available, therefore, the petitioner could not be adjusted on regular basis as Jr. Assistant/Jr. Typist. This stand may be true and did hold the ground till the Departmental Promotion Committee was to meet on 2nd of September 1995. But cannot be said to be so when DPC was to meet for the reasons that in terms of the note placed before DPC in terms of annexure-P 3, the three clear vacancies of Jr. Assistant have resultantly arisen on promotion of three Jr. Assistants to the post of Sr. Assistant in the department. Obviously, once promotion was given to these Jr. Assistants referred in the fresh agenda note of the DPC meeting, the three resultant clear vacancies could have been utilized for giving promotion to petitioner and other two employees recommended subject to eligibility and the process for the promotion as Jr. Assistant/Jr. Typist of all three candidates (adjusted/appointed on adhoc basis since July 1991), could have been since completed. Assistants referred in the fresh agenda note of the DPC meeting, the three resultant clear vacancies could have been utilized for giving promotion to petitioner and other two employees recommended subject to eligibility and the process for the promotion as Jr. Assistant/Jr. Typist of all three candidates (adjusted/appointed on adhoc basis since July 1991), could have been since completed. The failure of competent authority to regularise the long pending appointments in question, in the facts and circumstances of the case, is wholly unjustified. 6. The observations of Supreme Court in case titled Council of Scientific & Industrial Research and another Vs. K.G. S. Bhat and another (AIR 1989 SC 1972) may be quoted with benefit as under:- It is often said and indeed, adroitly, an organisation, public or private, does not hire a hand but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career one must therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. 7. The policy and practice of adhocism, for a long period negates and infringes articles 14 and 16. Prolonged adhoc appointments are unreasonable and discriminatory. It violates constitutional protection. Continuance of such prolonged appointment jeopardizses the rights of eligible employees governed by Rules. Such adhoc appointment on a post by promotion is on no different footing than such direct appointment on lower cadre of service. In State of Haryana & others Vs Piara Singh and others (1992) 4 SCC 118) it is observed:- As regards the temporary/adhoc employees in Govt. Services, the normal rule is regular recruitment through the prescribed agency but exigencies of administration may some times, call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory. If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory. Persons continuing in service over a number of years have a right to claim regularisation and the authorities are under an obligation to consider their case for regularisation in a fair manner.� 8. Respondents have partially admitted the case of petitioner for promotion on regular basis as Jr. Assistant/Jr. Typist. The inaction and long delay over a decade or so to take a decision in the matter speaks for itself but at the same time a legal duty is cast on respondents to give benefit of promotion to petitioner and for the purpose to convene Departmental promotion Committee for consideration of his case (if not already considered and cleared for regularisation as Jr. Assistant/Jr. Typist against the post petitioner is holding and on which post he is working for last over nine years. Process shall be initiated promptly and the decision in the matter taken within a period of four months unless on cause shown time is extended. Petitioner shall be entitled to all the benefits once he is regularised on promotion as Jr. Assistant/Jr. Typist. Competent authority shall not lose sight of the fact that the basis of petitioner™s case for retrospective promotion on regular basis, subject to availability of the post, has its roots in the recommendation of the DPC constituted previously. After all the respondents/competent authority has a legal obligation to act in a fair, just and reasonable manner while dealing with its employees, of course within parameters of law.