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2002 DIGILAW 143 (JK)

Syed Rafiq Ahmad v. State Of J. &K.

2002-05-13

NISAR AHMAD KAKRU

body2002
By medium of a CMP the respondents have sought vacation of an ad interim direction accorded in favour of the petitioner on 10/12/1998. The reply filed in opposition thereto is adopted as rejoinder by petitioners counsel. The pleadings being complete it will be appropriate to take up the main petition for disposal which course is opted by consent of LC for the parties. 2. The petitioner came on the establishment of the respondents as Assistant Manager vide order No. JKHPC/82/p8A/l767-72 dated 16/06/1982. He was promoted by order No. 9 PER of 1994 dated 15/12/1994 to the post of Deputy Manager subsequently designated as Manager vide Order No. 1 PER of 1996 dated 03.02.1996. To establish suitability for the post of General Manager, the petitioner has appended ad hoc orders of his appointment on the posts of Lecturer in Anantnag College, Technical Officer in the Industries Department, besides the order positioning him as District Manager for a brief spell (refer to annexures P1, P2 & P3 to the writ petition). What bearing these orders have on the issues involved in the writ petition in view of the fact that the petitioner does not stake claim for regularisation on any of these posts appearing counsel for the petitioner has no answer yet he claimed entitlement of the petitioner for regularisation on the strength of judicial pronouncement reported In 1994 SLJ 165 titled Vijay Kumar v. State. Perusal of the judgement reveals that there was an order of appointment in favour of the petitioner therein. Terms of the said order were observed in breach consequently interference by the Court. Reliance is also placed on Secretary Cum Chief Engineer Chandigarh v. Hari Om Sharma Ors. (1998) 5 Supreme Court cases 87. It was a case of a senior most in-service employee who had continued for more than ten years on a higher post and was the only person available for promotion to the post of Junior Engineer I, therefore, a direction for his consideration against the post. No doubt judicial pronouncements have to apply but in what circumstances, guidance is readily available from the judgement of the apex Court in Regional Manager v. Pawan Kumar, AIR 1976 SC 1766 para 7, wherein the Court has held : "7... No doubt judicial pronouncements have to apply but in what circumstances, guidance is readily available from the judgement of the apex Court in Regional Manager v. Pawan Kumar, AIR 1976 SC 1766 para 7, wherein the Court has held : "7... It is the rule deducible from the applications of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts." 3. The settled law being that ratio decidendi is applicable where facts are similar, therefore, similarity of facts has to be ascertained before applying the law. Whether the facts are similar to the judgements relied upon by learned counsel for the petitioner needs to be appreciated in the light of the events and circumstances of the case in hand. The petitioner was assigned the control of the apple juice plant vide order No.68 PER of 1998 dated 24.07.1998 forming annexure v8 to the CMP No. 3021/2001 which may be extended : "Syed Rafiq Ahmad, Manager zonal office Sopore ordered to look after the working of Apple Juice Plant Sopore additionally, shall henceforth look after the work of Apple Juice Plant Sopore exclusively. The field work at Sopore Zone shall be looked after by Mr. Muhammad Ramzan Bhat, Deputy Manager Zonal Office Sopore. 4. It is clear that the petitioner was asked to lookafter the plant may be because of non availability of a suitable officer of the rank of General Manager at the relevant point of time or for any other administrative reason which may include temporary rationalisation and the admitted position is that he has not been promoted to the post of General Manager. A mere direction to lookafter the plant does not entitle him to regularisation nor has he any right for change of his designation from Manager to General Manager, obviously, there is no ground to restrain the respondents from appointing an eligible officer on the post of General Manager, be it by transfer or by promotion because law is no more res integra that asking an officer to work on a higher post cannot be termed to be a promotion. In taking this view I am fortified by judgement of the apex Court in Ramakant Shripad Advalpalkar v. Union of India, AIR 1991 SC 1145 relevant para may be extracted : "... 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..." 5. Reverting to the facts of the case it needs to be observed that the language used in the order is plain enough and there is no difficulty to select its true meaning that it assigns the control of plant to the petitioner but does not assign the charge of the post of General Manager and even proceeding on the assumption that it is an order of assignment of the charge of the post yet it does not confer a right of regularisation on the petitioner. 6. It was next contended that the respondents have allowed the petitioner to lookafter the plant for last several years, therefore, they cannot dislodge him. This argument needs to be appreciated in the light of the fact that the petitioner was asked to lookafter the plant by order dated 24.07.1998. It was only after a couple of months thereafter that the respondents had initiated his replacement to have the post of the General Manager manned by an eligible officer but they could not do so because the petitioner sought indulgence of the Court and obtained an ad interim direction 10.12.1998 by sheer suppression of material. I say so because when the direction was passed in favour of the petitioner he had not produced the copy of the order of assignment which is true even as on date and fact of the matter is that it is the respondents who have brought it on the record as annexure to their CMP seeking vacation of order. Had the petitioner appended it with the writ petition possibly the view taken by the Court would have been against the grant of relief. Thus longevity of the assignment on the strength of the directions of the Court in the circumstances of this case does not help the petitioner. Had the petitioner appended it with the writ petition possibly the view taken by the Court would have been against the grant of relief. Thus longevity of the assignment on the strength of the directions of the Court in the circumstances of this case does not help the petitioner. As a corollary the respondents are free to fill up the post by a mode prescribed under rules including adjustment by transfer of an officer who holds the post of General Manager substantively. Nonetheless if they contemplate to fill up the post by promotion they shall have to consider the petitioner with all other eligible candidates provided he falls within the consideration zone in terms of the rules governing the field and in such eventuality, he shall be allowed to hold the post till it is filled up on regular basis. 7. Disposed of in the light of aforementioned observations along with CMPs. Interim direction dated 10.12.1998 is vacated. However, no order as to costs.