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2000 DIGILAW 157 (JK)

Ab. Qayoom Banday v. State Of J. &K.

2000-08-09

R.C.GANDHI

body2000
JUDGMENT 1. Petitioners seek issuance of writ of Mandamus directing the respondents to regularise the services of the petitioners against the post of Sr. Lecturers, DIET (HOD) w.e.f. 04-10-1994 and 30-03-1995 respectively the date when the petitioners were directed to work against the posts. 2. The petitioners while working as Sr. Lecturers in the Department of Education, petitioner No. 1 vide Govt. Order No. 430-Edu of 1994 dated 04-10-1994 and petitioner No 2 vide Govt. Order No. 638-Edu of 95 dated 30-03-1995, were adjusted as Senior Lecturers DIET on the terms and conditions stipulated in the order extracted portion whereof reads as under:- "Sanction is accorded to the adjustment of following Lecturers/Sr. Lecturer DIET in the various District Institute of Education and Trainings for a period of six months or till the posts are filled up by the DPC/PSC whichever is earlier. The adjustment of these Sr. Lecturers shall be purely on stop gap arrangement and it shall not confer any preferential claim or right to the incumbent at the time of selection by the DPC/PSC. They will be entitled to the charge allowance as admissible under rules....." 3. The petitioners seek regularisation on the ground that they have been continuing against the posts of Sr. Lecturers DIET since their adjustment in the year 1994 and 1996 respectively, and not for the reason that they being the senior most as Lecturers are required to be considered for promotion again in the higher post of Senior Lecturers DIET. It has been admitted by the learned counsel for the petitioners that the post of Senior Lecturer in Adult Education Wing and the School Education Wing form the same cadre The petitioners seek their regularisation against the posts only on the ground that they have been working against the posts since 1994 and 1995, relying upon the judgment delivered in case Vijay Kumar Vs. State and others, SLJ 1994. 165. Perusal of the judgment reveals that the posts of Research Officers in the Department of Education were created and the said petitioners being already in Government Education Gazetted Services, were directed to hold the posts of the higher pay scale in their own pay and grade. State and others, SLJ 1994. 165. Perusal of the judgment reveals that the posts of Research Officers in the Department of Education were created and the said petitioners being already in Government Education Gazetted Services, were directed to hold the posts of the higher pay scale in their own pay and grade. They continued for more than ten years, but were not considered to hold the posts substantively No senior to those petitioners was to be effected and admittedly, those petitioners were promoted in their own pay and grade, in accordance with rules. The respondents objection to the appointment of those petitioners to the post of Research Officers in the higher pay scale, was that the posts have never been referred to the Public Service Commission or Departmental Promotion Committee for selection of the petitioners. Under such circumstances, the court granted the relief to those petitioners observing that the formality of seeking approval of Public Service Commission/Departmental Promotion Committee can be dispensed especially when the petitioners are working as Research Officers for a period over ten years. 4. Mr. Qayoom has also relied upon the judgment delivered in case "Secretary-cum-Chief Engineer. Chandigarh vs. Hari Om Sharma and others." reported in AIR 1998 SC. 2909, wherein the stop-gap arrangement was continued against the post of Junior Engineer-l and the court held the petitioner entitled to promotion. The facts of the case are that the promotee-respondent was the senior most person in the cadre of non-diploma holders and has also put in ten years of service which is the requirement of the rules. The Supreme Court while upholding the judgment of the Tribunal observed in para 6 of the petition that: - "Having regard to these facts, we are of the view that the Tribunal was fully justified in ordering that the respondent should be promoted on the basis of quota" fixed for non-diploma holders with 10 years of service and not on the basis of integrated seniority. The Tribunal was also justified in ordering payment of salary to the respondent for the post of Junior Engineer-l with effect from 1990 when he was made to work on that post. It is true that the respondent, was promoted in stop-gap arrangement as Junior Engineer-l but that by itself would make no difference to his claim of salary for that post. It is true that the respondent, was promoted in stop-gap arrangement as Junior Engineer-l but that by itself would make no difference to his claim of salary for that post. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer-I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement." 5. The promotion, considering the long stop-gap arrangement was within the respective quota of non-diploma holders and no senior to the promotee was effected or superceded. The Apex Court has not held that the public servant put in higher pay scale stop-gap arrangement is entitled to seek promotion/regularisation superceeding his seniors. Both these judgments relied upon by the learned counsel for the petitioners are-distinguishable on facts for the reason that no senior member of the service belonging to the said cadre was to be effected on account of the seniority. 6. In the present case, if the prayer of the petitioners is allowed, the senior persons waiting to seek consideration for promotion to the next higher post, are likely to be effected. The petitioners merely because of their adjustment against the posts of Senior Lecturers in stop-gap arrangement for a period of six months or till the posts are filled up by Public Service Commission/Departmental Promotion Committee, cannot build any right to seek regularisation in view of the law laid down by the Supreme Court in AIR 1991. SC. 1145. holding that:- ".... Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot betreated as a promotion. In such a case-he does not get the salary of the higher post: but gets only that in service parlance is called a "charge allowance� Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continued to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement." It is further held - ".... The person continued to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement." It is further held - ".... This contention ignores the fact that an ˜in charge arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, equities or expectations could be built upon it....." 7. For the aforesaid reasons, petitioners are not found entitled to the relief, prayed for. However, the petition is disposed off directing the respondents to consider all the eligible candidates, including the petitioners, to fill up the posts in question within a period of four months.