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2001 DIGILAW 153 (JK)

Shiekh Riyazul Haq v. Union Of India

2001-07-26

B.L.BHAT, H.K.SEMA

body2001
1. The appeal No. 336 of 1998 is directed against the order recorded on 09.09.1998 by the learned Single Judge in SWP No. 5255 of 1996 whereby the Learned Single Judge came to dismiss the same writ petition or merits, however, with a direction to the respondents to take lenient view and try to consider the case of the writ petitioner/appellant afresh for his promotion as Upper Division Clerk. 2. The appeal No. 291 of 1998 is also directed against the order recorded by the learned Single Judge on 12.08.1998 in SWP No. 4330 of 1997, whereby the writ petition was dismissed. 3. Since both the matters arise out of the service matters of the appellant, therefore, this single order shall dispose of both these appeals. 4. Heard learned counsel for the parties. 5. The facts leading up to these appeals are that in the year 1984, the writ petitioners/appellant came to be appointed as Lower Division Clerk in Marketing and Service Extension Centre Anantnag, when in the year 1987 as per the appellant, in addition to his job, he was assigned the job of the investigation; that the appellant/ writ-petitioners came to be transferred to the Marketing Service Extension Centre Baramulla, but he challenged the said transfer order before the civil court I.e. Sub Judge, Anantnag, wherefrom he was successful in obtaining order of status-quo and thereafter continued to remain at Anantnag Marketing Service Extension Center; that in the meanwhile by virtue of order No. Mark/ECSA/4 (8) Adm-lll dated 02.09.1994, the appellant/writ-petitioner came to be, promoted as Upper Division Clerk and posted at itanagar, with a direction to the promotees covered by this order to assume charge of the post of Upper Division Clerk in the offices mentioned against their names latest by 30.09.1994, failing which it would be presumed that they are not interested in their promotion and they will be debarred for regular promotion for a period of one year; that after the receipt of said promotion order the Appellant represented before the respondent Assistant Director Handicrafts, for the sanction of Rs. 5000/- as advance I.E. enabling him to join at his new place of posing i.e. Itanagar; that as per the appellant/writ petitioner the respondent denied the disbursement of I.E. advance as well as his legitimate salary due to him from the date of order of status-quo issued by the Civil Court at Anantnag. 5000/- as advance I.E. enabling him to join at his new place of posing i.e. Itanagar; that as per the appellant/writ petitioner the respondent denied the disbursement of I.E. advance as well as his legitimate salary due to him from the date of order of status-quo issued by the Civil Court at Anantnag. Through the medium of SWP No. 5255 of 1996 the Appellant/ writ petitioner invoked the extra-ordinary jurisdiction of this court, wherein, inter-alia he came to seek direction against the respondents to extend all service benefits of order No. Mark/E&A/4 (8)/Adm III dated 02.09.1994 alongwith all consequential benefits of promotion and seniority and a further direction to the respondents to pay him salary which he earned as on investigator with effect from July 1993. Through the medium of SWP No. 4330 of 1997 the Appellant/writ petitioner came to invoke the jurisdiction of this court for the issuance of writ of mandamus directing the respondents to consider his representation for promotion as Investigator. The learned Single Judge, as mentioned above, came to dismiss both the writ petitioners by virtue of the impugned orders. 6. As indicated, the appellant/writ petitioner by virtue of order No. Mark/E&A/ 4 (8)/Adm III dated 02.09.1994 came to be promoted as Upper Division Clerk and was posted in Marketing and Service Extension Centre, Itanagar. However, this order was subject to the rider that in case the promotees not joining in the offices mentioned against their names latest by 30th September 1994, it shall be presumed that they are not interested in their promotion and would be debarred from regular promotion for a period of one year. It is admitted by the appellant/writ petitioner that he did not join at his new place of posting i.e. Itanagar, because of the fact that despite his submissions for the sanction of Rs. 5000/- to enable him to join at Itanagar his new place of posting and the interim direction of this court for disbursing traveling allowances to him, he was never paid advance travelling expenses. This assertion of the appellant/writ petitioner is vehemently denied by the respondents in their objections to the CMP arising out of SWP No. 5255/96, wherein it is inter-alia stated that advance salary for one month and an amount of Rs. This assertion of the appellant/writ petitioner is vehemently denied by the respondents in their objections to the CMP arising out of SWP No. 5255/96, wherein it is inter-alia stated that advance salary for one month and an amount of Rs. 1150/- was drawn pursuant to order of Assistant Director No. DCH/Mark/Ang/94-95 (105-107) dated 19.10.1994 which was refunded back vide challan No. 125 dated Feb. 1995 after the writ petitioner had shown disinterestedness to take over the new assignment at Itanagar, despite various communications addressed to him. These objections are supported with the affidavit of respondent Assistant Director. 7. All this goes to show that whatsoever the cause, the remains that the appellant writ petitioner by not joining deliberately in the office of Marketing and Service Extension Centre, Itanagar by 30th September 1994 as Upper Division Clerk pursuant to the said order No. Mark/E&A/ 4 (8)/Adm-lll has forfeited his right of promotion for a period of one year together with all its service benefits. He has not also produced any record indicating that he was assigned the job of Investigator from July 1993 despite the direction of the learned Single Judge. 8. In view of the afore-discussion we find that the appellant/writ petitioner does not have any indefeasible right to claim service benefits of order No. Mark/E&A/A (8)/Adm III dated 02.09.1994 nor has he any enforceable right to claim his salary as Investigator from July 1993. And in the light of the fact that the post of investigator is a higher post than the Upper Division Clerk the prayer for directing the respondents to consider the representation of the appellant/writ petitioner for promotion as Investigator is misconceived because the foundation of the writ of mandamus is existence of a legally enforceable right. 9. In the totality of circumstances we find that there is no merit in these appeals which are accordingly dismissed alongwith all CMPs. However, in the facts and circumstances of the case the parties are left to bear their own costs.