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2001 DIGILAW 143 (JK)

Masood-Ur-Rahim v. State Of J. &K.

2001-07-19

NISAR AHMAD KAKRU

body2001
1. The facts material for disposal of this writ petition may be briefly stated. Mr. G.M. Wani, Special Secretary to Government Agricultural Department Kashmir was assigned the additional charge of Director of Agriculture Department, Kashmir in addition to his own duties. Shri Wani retiring on his superannuation on 30.04.2001 handed over the charge to the petitioner, who happens to be posted at the head quarter as Deputy Director Agriculture (Central). Subsequently, the government issued a communication bearing No. PS/FC/(ARD/167) dated 15.06.2001 directing the Joint Director, (Ext.) Agriculture department Srinagar Kashmir respondent No.5 herein to look after the assignment of the "Director in addition to his own duties till the post of Director is substantively filled up in accordance with the recruitment rules. This order is questioned through this writ petition seeking a writ of mandamus to command the respondents to allow the petitioner to hold the post of Director till the Department Promotion Committee settles the matter with further prayer to restrain the respondents from making any change in the initial constitution of the service so that petitioners seniority is not disturbed. 2. Notice was issued to the respondents. In response to the notice Mr. MH Attar, learned Additional Advocate General has filed the objections on behalf of the official respondents to the admissibility of the writ petition pleading that services of the petitioner pleading that services of the petitioner are governed by the rules called the Jammu & Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1988, published vide SRO 179 of 02.06.1988 (for short rules of 1988). On the strength of these rules, it is contended that the posts of Chief Agriculture Officer/ Deputy Director Agriculture fall within Class III which is the feeding channel for the post of Joint Director Agriculture, a class II post in which the petitioner is yet to step in, therefore, does not fall within the feeding class/category for the post of Director. It is averred that the petitioner lacks even requisite qualification. Placing reliance on the rules eligibility of the petitioner for consideration to the post of director is disputed. It is further averred that the petitioner is facing an inquiry regarding allegations of embezzlement involving about a sum of rupees one crore. 3. The petitioner has prayed for manifold reliefs and I would like to advert to these reliefs successively. Placing reliance on the rules eligibility of the petitioner for consideration to the post of director is disputed. It is further averred that the petitioner is facing an inquiry regarding allegations of embezzlement involving about a sum of rupees one crore. 3. The petitioner has prayed for manifold reliefs and I would like to advert to these reliefs successively. Apprehending change in the initial constitution of the service/seniority a restraint is sought to be placed on the respondents from bringing about an alteration in the seniority of the petitioner, The controversy so raised stands narrowed down by the stand of the respondents who have not only certified the testimony of the initial constitution of service but fact remains that they have based their recommendation made to the Public Service Commission on the said initial constitution of service which fact is reflected at page 12 of the reply filed by the official respondents. This categoric stands of the respondents negates the apprehension of the petitioner urged by him in the writ petition about the probability of change in the initial constitution, therefore, indulgence declined. 4. A relief is also sought to require the respondents to convene a meeting of the Departmental Promotion Committee. To deal with prayer, the reply of the respondents assumes significance wherein it is pleaded that the matter stand already referred to the Departmental Promotion Committee/Public Service Commission for convening the meeting. In view of such explicit stands of the respondent, no direction is called for. 5. It brings me to the main controversy which emanates from the claim of the petitioner for his continuation on the post of Director till appointment in accordance with the rules is made. Before I consider this aspect in the light of the relevant rules pertaining to the assignment of the charge, It is appropriate to notice that Mr. G.M. Wani retired on his superannuation on 30/04/2001. The administrative department of the Agriculture Wing of the State, although in know of the scheduled date of superannuation of Mr. Wani, did not make appointment on the post of director yet it is contended that the department is in a great peril because of ad interim direction granted by the court. G.M. Wani retired on his superannuation on 30/04/2001. The administrative department of the Agriculture Wing of the State, although in know of the scheduled date of superannuation of Mr. Wani, did not make appointment on the post of director yet it is contended that the department is in a great peril because of ad interim direction granted by the court. The contention may work well at times but in the given circumtances it cannot prevail on the court because the concerned functionaries of the state have without any justification left the post unmanned from 30/04/2001 up to 15/ 06/2001. Such inaction on their part has prompted the court to interfere because court cannot hesitate to play its role when it becomes necessary to eliminate the negative impact of an inaction besides, to improve the performance of the public institution. Needless to say that had the authorities at the helm performed their duties according to the law right in time, this litigation could have certainly been avoided and the court would have no occasion to pass the interim direction. What prevented the authorities to fill up the post by an arrangement legally permissible, be it stop gap, adhoc or regular, nothing is stated in the objections. The Government, having miserably failed to discharge its statutory obligation, Mr. Wani the outgoing Director was left with no option but to handover the charge to the petitioner. As a consequence, a claim is staked by the petitioner for his continuation on the post till the selection is made in accordance with the rules merely under the grab of handing over the charge. 6. In this backdrop, a very interesting question arises whether handing over of the charge constitutes assignment of the charge which needs to be appreciated in the light of the mandate of Articles 85(1) and 86 (1) of the Jammu & Kashmir Civil Service Regulations which invests the appointing authority with the power to assign a government servant the additional charge of a post or appoint him incharge of the higher post. The rule does not authorize an outgoing Director to choose his successor but it is only the competent authority which in the case on hand is the government and order of Government has to be reduced into writing and authenticated in accordance with the mandate of Section 45 of the Constitution read with clause 12 of the Jammu & Kashmir Business Rules. Since the order is wanting seeking indulgence of the court on the basis of handing over and taking over the charge is a clear case of abuse of the judicial process, thus petitioner deserves to be burdened with exemplary costs but regard being had to the peculiar circumstances of the case, a lenient view is taken choosing otherwise. 7. It was also canvassed at the bar by Mr. Hagroo that the communication impugned has the effect of divesting the petitioner of the charge of a higher post with out opportunity of hearing. This contention needs to be appreciated in the background that the petitioner has not been assigned the charge by any authority much less the competent authority. In the case in hand, the charge is being assigned on the superannuation of the Director. It is not a case where petitioner could say that he is being replaced by a similar arrangement of assignment. In such a situation how court would deal with the matter depends upon the acts and circumstances of each case. Since that is not the issue, I, therefore, refrain from expression of opinion. Next it has to be borne in mind that the assignment cannot be treated as a promotion which aspect is no more res integra. In this behalf, it is advantageous to refer to the judicial pronouncement handed down by the apex court in Ramakant Shripad Sinia Advalpalkar Versus Union of India (AIR 1991 SC 1145 at 1146). The court has held as under: "........... The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion....." 8. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion....." 8. Considering the averments of the petitioner in the light of the ratio of the judgment supra the conclusion available is that assignment of charge is not a promotion, therefore, it does not imply reduction in rank, thus principle of audi alteram partem has no application. 9. It is stated in the objections that steps have been initiated to consider all eligible members of the agriculture gazetted service against the posts for which they form the feeding cadre. This stand should satisfy the petitioner that he will also receive consideration if eligible under rules. However, it needs to be observed that justice should not only be done but it should manifestly be seen to have been done to which principle the respondents are expected to be fully alive, therefore, petitioner need not register any apprehension of likelihood of bestowing unfair advantage on anyone by the respondents. Needless to say that sooner the government goes for appointment in accordance with the rules better it is for healthy functioning of the department. 10. In the result, writ petition fails. It is dismissed along with CMPs. Interim direction, if any, shalI stand vacated. 11. No order as to costs.