Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 195 (JK)

Sheikh Fayaz Ahmad v. State Of J. &K.

2002-06-07

NISAR AHMAD KAKRU

body2002
The Petitioner having become a member of the Jammu and Kashmir Administrative Service (for short Administrative Service) by dint of, Rule 9 read with Rule 5(1)(c) of the Jammu and Kashmir Administrative Service Rules, 1979 (for short KAS Rules) is positioned as Regional Transport Officer (for short RTO), a post borne on the cadre of the Administrative Service. He has been posted as Secretary, Srinagar Development Authority an ex-cadre post and is sought to be replaced by respondent 3 who happens to be a member of the Jammu and Kashmir Hospitality and Protocol (Gazetted) Service vide Government Order No. 757-GAD of 2002 dated 26.04.2002. The challenge thrown to the order gives rise to substantial questions of law which may be summarised: (i) Whether respondent 3 is ineligible to man the post of RTO because; (a) he is a non cadre officer, (b) the post of RTO is a cadre post and respondent 3 is not in the select list prepared in terms of Rule 8 of the Administrative Service Rules. (ii) The petitioner being a cadre officer within the ambit of rule 2(c) of KAS Rules, can he be posted against an ex-cadre post in view of the mandate of rules 12 and 13 of the KAS rules. (iii) Whether it is permissible for the Government in view of Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 to post a member of a service on a post not borne on the cadre service or class of which he is not a member. 2. To deal with questions Rules 5, 6, 7, 8, 9, 10, 11, 12, 13, 18 of the KAS Rules and Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (for short CCA Rules) may be noticed: "5. Method of recruitment to the Service:- (1) Recruitment to the Service after the commencement of Jammu and Kashmir Administrative Service (Amendment) Rules, 1993 shall be made by the following methods, namely: (a) by competitive examination at the junior scale (b) by promotion to the Time scale of the service from amongst the members of the following services .... 6. Appointment of Selection Committee:- The Government shall on every occasion on which selection has to be made for appointment to the service set up a selection committee for making selections under these rules. 7. 6. Appointment of Selection Committee:- The Government shall on every occasion on which selection has to be made for appointment to the service set up a selection committee for making selections under these rules. 7. Conditions of eligibility:- The Secretary of the Administrative Department concerned shall send to the selection committee set up under rule 6 of these rules, a list of all officers eligible under clause (b) of sub-rule(l) of rule 5 of these rules for selection against the vacancies in the Time scale of the service to the extent of the posts specified in sub-rule (3) of rule 5 of these rules. 8. Preparation of Select List:- (1) The selection Committee shall prepare a list of officers from the Members of the Services mentioned in clause(b) of sub-rule (1) of rule 5 whom it considers on the basis of merit, suitable for appointment to the service. The list shall contain names of not more than twice the number of vacancies existing at the time of selection and those expected to occur until the next selection. (2) The Selection Committee shall classify officers as "Outstanding" "Very Good" "Good" or "Unfit" as the case may be on an overall relative assessment of their service records. (3) Those classified as "Outstanding" "Very Good" and "Good" shall be included in the select list in the same order i.e. those classified as "Outstanding" will appear first and the remaining thereafter according to respective classification. (4) The Selection Committee shall adopt the same procedure as laid down in sub-rules (1), (2) and (3) above while considering the suitability of Officers, referred to in clause (c) of sub-rule (1) of Rule 5 hereinabove, for appointment to the service at its Time scale. 9. Appointment to the Service:- (1) The Government shall on the occurance of vacancies appoint the selected candidates to the service in the order in which their names in the select list. (2) The Government may make appointments in temporary or officiating vacancies from amongst persons included in the select list referred to in rule 8 of these rules and shall not appoint an officer not included in the said list. 10. Period of probation:- (1) All officers appointed to the service under Rule 9 of these rules shall be placed on probation or trial for a Period of two years. 10. Period of probation:- (1) All officers appointed to the service under Rule 9 of these rules shall be placed on probation or trial for a Period of two years. (2) If it appears at any time during or at the end the period of probation or trial, as the case may be, that an Officer has not made sufficient use of his opportunities or if he has failed to give satisfaction he may be reverted to the post, service from which he was appointed to the service. (3) The Government may in the case of any person extend the period of probation or trial up to a maximum of four years. 11. Training and Examination:- Persons appointed to the service will he required to undergo such training from time to time during the course of their service and pass during the period of probation/trial such examination as the Government may prescribe: Provided that the Government may exempt either wholly or partly, from such training or examination persons appointed under rule 9 who have passed a departmental examination or undergone training declared by Government to be equivalent to an examination or training under these rules. 12. Posting of cadre officers:- The cadre officer shall unless appointed to an ex-cadre post or is otherwise not available for holding a duty post owing to the exigencies of public service, be posted against a duty post under the Government. 13. A member of service may be appointed to an ex-cadre post for such period and subject to such conditions as the Government may specify. 18. Residuary matters:- In regard to matters not specifically covered by these rules or orders issued thereunder or by special order, the members of the service shall be governed by the rules, regulations and orders applicable to the State Civil Service in general: Provided that any power exerciseable by the Government under such rules, regulations and orders may be delegated by them to such subordinate authorities subject to such conditions as they may prescribe. Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956: Posting and transfers: (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956: Posting and transfers: (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. (a) All transfers and postings shall be made by the authority prescribed by Government in this behalf." 3. Mr. Jan has laid much emphasis on rule 9 of the KAS Rules to canvass that the posting of an officer on the cadre post, be it temporary or officiating cannot be made unless such officer is included in the select list. Undoubtedly in terms of rule 9 it is a condition precedent that the candidate should be in the select list prepared by the Selection committee on the touchstone of rule 8 but question arises whether at all such selection has relevance to the posting of an officer. If the answer is in the affirmative, the contention of the LC that a cadre Officer cannot be transferred to an ex-cadre post has to sustain irrespective of the fact that it may lead to an anomalous situation. Thus fate of the writ petition centres around the interpretation of the rules and with a view to construe the rules in a harmonious way, scheme of the rules assumes significance which can be aptly appreciated in their sequence. To begin with reference may be made to Rule 5 which gives the mode and method of appointment to the service. Rule 6 envisages constitution of a committee by the government for making selection for appointment to the service. Rule 7 requires the Secretary of the Administrative Department to furnish a list of the officers who are eligible for appointment to the service. Rule 8 confers power on the selection committee to prepare a list of the officers among members of the feeding services who are found suitable on the basis of their merit for appointment to the service. Rule 9 makes it obligatory upon the government to appoint the selected candidates to the service in the order in which their names appears in the select list on the occurance of the vacancies and sub rule (1) of rule 9 postulates appointment on the vacancies in the service. Rule 9 makes it obligatory upon the government to appoint the selected candidates to the service in the order in which their names appears in the select list on the occurance of the vacancies and sub rule (1) of rule 9 postulates appointment on the vacancies in the service. No rule refers to the posting but the categoric expression used is "appointment to the service" which is the Administrative service. Thus it is manifest that scheme of the rules envisages of the officers to the Jammu and Kashmir Administrative Service from other services of the state. What emerges in this backdrop is that the expression "appointment" used in rule 9 is an appointment which is substantive in character and the rule has no relevance to the posting and as a matter of fact it is the first entry of an officer to the Administrative service of the state. The interpretation so placed is as per the literal meaning of the rule without any external aid to the rules. The view so taken receives support from rule 10(1), for, the said rule requires the officers appointed to the service under rule 9 to be on probation for a period of two years which is an attribute of a substantive appointment. Having carefully attended to the scope and scheme of the rules, I am of the considered opinion that the ban imposed by rule 9(2) is on substantive appointment and not on the posting. In fact it will be beyond any non cadre officer on a cadre post in the exigencies of service. However, appointment of an officer to the administrative service on substantive basis is not permissible unless he is brought on the select list prepared by the selection committee in terms of rule 8. Accordingly question (i) is answered in negative. 4. Coming to the next question, reference to rules 12 and 13 becomes imperative. Rule 12 begins with the expression "The cadre officer unless appointed to an ex-cadre post" which makes it manifestly clear that posting of a cadre officer to an ex-cadre post is within the purview of the rule. The position is further clarified by very caption of the rule 12 and may be extracted ; "Posting of cadre Officer". It shows that the rule deals with the posting of the officers and not with the appointment. The position is further clarified by very caption of the rule 12 and may be extracted ; "Posting of cadre Officer". It shows that the rule deals with the posting of the officers and not with the appointment. Rule 13 makes the position more comprehensible that the period and conditions for appointment to an ex-cadre post shall be specified by the government. A combined reading of rules 12 & 13 makes power of the government to make the appointments of cadre officers against ex-cadre posts manifest. That answers question (ii) in the affirmative. 5. This brings me to the question whether it is permissible for the government to post a member of a service on a post not borne on the cadre, service or class of which he is not a member. The argument is based on rule 27 of CCA Rules. Suffice it to say that article 52(B) of the Jammu and Kashmir Civil Regulations which empowers the Government to pass orders of deputation being admittedly to the members of the Administrative Service on the strength of rule 18 of the KAS Rules, there appears no justification for the learned counsel to advance such argument. Accordingly question (iii) is also answered in the affirmative. 6. Being conscious of my duty to notice faithfully what has transpired in the course of arguments, I would like to refer to the judgements relied upon by Mr. Jan notwithstanding the fact that in my opinion the decisions have no application to the case in hand in view of the dissimilarity of the facts. Placing reliance on Union of India v. Sankalchand Himatlal Sheth and Another, 1997 (4) SCC 193 at 222 para 27, learned counsel sought a finding to the effect that word appointment is not synonymous with posting. In this case the apex Court has examined the amplitude of Article 222(1) of the Constitution. Learned counsel for the petitioner has also made reference to J&K Public Service Commission v. Dr. Narinder Mohan, 1994 (2) SCC 630 in support of his submission that the Government cannot relax the rules by falling back to its general power. Lastly reference was made to a judicial pronouncement of the apex Court in J.K. Cotton Spinning and Weaving Mills Co. Narinder Mohan, 1994 (2) SCC 630 in support of his submission that the Government cannot relax the rules by falling back to its general power. Lastly reference was made to a judicial pronouncement of the apex Court in J.K. Cotton Spinning and Weaving Mills Co. Ltd.(Appellant) v. State of Uttar Pradesh and others, (Respondents), AIR 1961 SC 1170 to canvass that in cases of conflict between a specific provision and general provision it is the specific provision which has to prevail over the general provision. No other ground was urged. 6. How far judgements supra help the case of petitioner need to be appreciated in the light of the judicial pronouncement handed down by the apex Court in Regional Manager v. Pawan Kumar, AIR 1976 SC 1766 para 7, in which it was held: "7. It is the rule deducible from the application 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." 7. It is manifest from the mandate of the judgement that the principle of law declared by the Court in the given facts and circumstances of the case has to be applied provided the facts of the case, where application is sought, are similar case of conflict there is no question of application of the judgement. Viewed thus, it is the bounden duty of the party to show similarity of facts. The facts of the judgements pressed into service being quite dissimilar to the facts of the case in hand, same can have no application. 8. Tested on the above and regard being had to the rule position adverted to in the preceding paras, this petition is bound to fail. It is dismissed along with CMPs. Interim direction vacated. However, no order as to costs.