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2001 DIGILAW 343 (JK)

Gh. Ahmad Dar v. State

2001-12-27

NISAR AHMAD KAKRU

body2001
1. The petitioners came on the establishment of the Education Department for a specific spell of 89 days against class IV posts of Gasman and Laboratory Bearer respectively by order of the Deputy Commissioner Budgam. In an attempt to fortify the action of the Deputy Commissioner, the Principal Govt. Higher Secondary School Khanda, Budgam prepared their service Books. The illegality did not end here but it was perpetuated by promoting the petitioners to the posts of laboratory Assistants. The action being quite contrary to law, Mr. Masood Samoon, the Director Education refused to be a party to it and rescinded the order relegating the petitioners to the adhoc assignment vide his order No. DSEK/1103 of 2001 dated 28/06/2001.This order is called in question by medium of this writ petition. 2. To appreciated the controversy in its right perspective it needs to be reiterated that admitted position is that the petitioners have entered the Department for a specific spell under the orders of the Deputy Commissioner and have continued on adhoc basis. The rule position is that the Deputy Commissioner is not the appointing authority for class IV posts of Education Department, therefore, the order of appointment of the petitioners is liable to be quashed but what bales them out is that while rescinding their order of promotion, the Director has not only allowed their ad hoc appointment to go undisturbed but has impliedly maintained it. That apart, the petitioners have been allowed to work by the principal, who has also paid them, that too regularly. These are the events which have persuaded me to keep ad hoc appointment of the petitioners as Gasman and Laboratory Bearer intact till these posts are filled up on substantive basis in accordance with the rules considering all eligible candidates including the petitioners subject to their eligibility. 3. Having allowed the ad hoc appointment of the petitioners to go uninterfered with, does any right accrue to them for promotion to the next higher post. The fate of the proposition shall depend on the answer to a question which may be summarized: Whether an ad hoc appointee can be considered for promotion.� 4. Before adverting to the question, it needs to be appreciated that settled law is that appointment, be it by direct recruitment or by promotion, has to be in conformity with the rules. The fate of the proposition shall depend on the answer to a question which may be summarized: Whether an ad hoc appointee can be considered for promotion.� 4. Before adverting to the question, it needs to be appreciated that settled law is that appointment, be it by direct recruitment or by promotion, has to be in conformity with the rules. A Government employee has undoubtly a right of consideration for promotion provided he is a member of the service which falls within the feeding cadre of the higher post sought to be filled up and the pre-requisite condition is that his appointment is of substantive character. To be crystal clear it needs to be stated that in absence of substantive appointment the employee has no right of consideration. Moreso, the membership of service pre-supposes an order of appointment to the post validly made in the substantive capacity in accordance with the rules and as per eligibility criteria. 5. Thus what emerges is that an adhoc appointment being not a substantive appointment, therefore, such appointee cannot acquire eligibility for promotion to the next higher post by whatever length of service he may have to his credit even if the post held by such appointee falls within the feeding cadre of the promotional post. The question is answered accordingly. In the aforementioned backdrop, promotion accorded to the petitioners is without authority under law, therefore, interference with the order of reversion impugned by this writ petition is not possible. 6. Now a word about the erring officer. Power to accord promotion must be traceable to the rules. Once the power flows from statute, a duty is cast upon the officer to make the promotion strictly in accordance with the rules. Deviation from the rules amounts to dereliction of the statutory duty and unless such dereliction is satisfactorily explained and accounted for the officer is liable to action. By prompting the petitioners, the respondents have on the one hand deprived the eligible persons of promotion and on the other favour has been bestowed on ineligible persons in contravention of law. Had there been any laxity on the part of the Director the petitioners would surely succeed in getting the next higher promotion. No wonder if they would reach higher echelons of the service. Had there been any laxity on the part of the Director the petitioners would surely succeed in getting the next higher promotion. No wonder if they would reach higher echelons of the service. Being manifest that ineligible persons have been pumped up into higher class of service in utter disregard to the rules and the norms, competent authority is at 1iberty to initiate action in accordance with law against the erring officers/officials adhering to the principle of audi alter am partem. Registry to send copies of the judgment to the Chief Secretary of the state and Director School Education, Kashmir. 7. Writ petition is disposed of accordingly along with CMPs.