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2002 DIGILAW 405 (JK)

Ab. Rashid Dar v. State

2002-12-28

SYED BASHIR-UD-DIN

body2002
1. By order No. 343 of 1987 dated: 12-11-1987 respondent No. 2 General Manager Govt. Press, Srinagar ordered promotion of respondents 3 and 4 as Katib in the pay scale of Rs. 900-1830 from the posts of time keeper and inker-feeder (carrying grade of Rs. 745-1025) in Kitabat Section of Press. This order is challenged by petitioner who too lays claim to the promotional post of Katib on eligibility and merit. Relief is also sought for fixing seniority of petitioner in the promotional post of Katib over and above respondents 3 and 4. Petitioner alleges that he alone as ˜sangsaz™ was entitled to promotion as the ˜sangsaz™ falls within the feeder category of promotion to the post of ˜Katib™. Time Keeper is not at all included in the feeder category for the promotional post of Katib. While petitioner and respondents appeared in the practical test conducted by the Department and the petitioner alongwith others qualified for the post but his claim was ignored and other two respondents were taken in violation of rules. The J&K Press Subordinate Service Recruitment Rule, 1980 issued vide SRO 354 of 1985 (hereafter for short Rules) is applicable to Kitabat Section of the Govt. Press. Schedule (ii) to these rules under the caption "Kitabat Section", provides the method and mode of recruitment to non-gazetted posts in the press. It among other things provides eligibility and qualification for promotion to the post of Katib. In the Rules under ˜Kitabat Section™ at S.No. II, the post is to be filled up 100% by promotion from Class-III among persons having three years experience as such. Class-III post is of "sangsaz. The post of ˜sangsaz™ though shared by direct recruits and promotees in the ratio of 2:3 is to be filled so far as in-service people are concerned from the category of inker-feeder. The post of inker-feeder falls within class of General Section. The only promotion which can be given to inker-feeder is to the post of "sangsaz™ and not as Katib. The time keeper in terms of the above rules is not at all covered by the promotional post of Katib. Petitioner in terms of rules alleges that he had the eligibility and experience to be promoted to the post of Katib. The only promotion which can be given to inker-feeder is to the post of "sangsaz™ and not as Katib. The time keeper in terms of the above rules is not at all covered by the promotional post of Katib. Petitioner in terms of rules alleges that he had the eligibility and experience to be promoted to the post of Katib. Accordingly writ of certiorari for quashing the impugned promotional order is prayed for and mandamus for putting respondent No. 2, General Manager under command to promote the petitioner, with release of consequential benefits is also prayed for. 2. Respondents No. 2 has contested the case and filed counter. Application of J&K Press Subordinate Service Recruitment Rules of 1980 with annexed schedules, is not disputed. It is not also disputed that the petitioner initially substantively appointed as inker-feeder in 1982, was on promotion appointed to the post of ˜sangsaz™ in September, 1987 on consideration of his eligibility with prescribed experience. It is not also denied that when the DPC considered the promotion to the post of "Katib. petitioner alongwith respondents 3 and 4 passed written test. However, while the two respondents were appointed, in petitioner™s case it is stated that the petitioner lacked the qualification and prescribed experience for the post of ˜Katib™ Respondents 3 and 4 who held the post of timekeeper and Sr. Scale inker-feeder at the time of their promotion, were reckoned senior to petitioner and promoted. The order is stated to be just and not in contravention of law. 3. During the course of hearing it is contended (not denied on otherside) that as per the Rules as applicable to the posts of "Katibs™ in Kitabat Section the post is to be filled up 100% by promotion from feeder posts of "sangsaz™ with three years experience as such sangsaz. There is no other category or categories of posts to serve as feeder category for promotion to the post of Katib. In service inker-feeders with matric proficiency in calligraphy can be promoted in the ratio of 40% to the available posts of sangsaz, leaving the other 60% to be filled by direct recruitment. Admittedly in this case respondents 3 and 4 holding the post of time keeper and inker-feeder could not have been promoted to the post of Katib™, as per the rules. Admittedly in this case respondents 3 and 4 holding the post of time keeper and inker-feeder could not have been promoted to the post of Katib™, as per the rules. At best prescribed criteria being met, they could have been promoted to the post of ˜sangsaz™. Petitioner alone was holding the post of sangsaz at the time of promotion and not the respondents 3 and 4. Obviously using the up staged words Sr. Scale inker-feeder, not envisaged by above rules and schedule cannot change the rule position as the inker-feeder and the time-keeper could have been only promoted to the post of ˜sangsaz™ and not Katib. Initial appointment and counting of seniority on that basis is wholly alien to the prescribed rule position so far as promotion to the post of Katib, is concerned. 4. Having said so, the question arises that after long 9 years relief can be given to petitioner and would it be just to quash the promotion order of the two respondents. However, petitioner has been also promoted as Katib on 16-07-2001, so the question of promoting petitioner at this stage is not to be dewelt on any further, but yet in the promotional post of Katib, his seniority is to be fixed/ determined. 5. Petitioner as per his own case has been promoted as sangsaz in October 1987 and the order of promotion does provide that the petitioner had been already working in Kitabat Section for over 4 years and had successfully passed the prescribed test. The respondents 3 and 4 came to be promoted as Katibs in November, 1987 and obviously as observed above against the rules. Rules only provide petitioner was required to have gained three years experience as sangsaz. When the experience is thus reckoned, then in any case against available vacancy, he could have been considered and promoted as Katib soon after Nov. 1990. Yet respondents 3 and 4 who neither were promoted to posts of sangsaz nor possessed any such experience, were in violation of rules directly appointed as Katibs. So by allowing them to be senior to the petitioner in the post of Katib is to allow the respondents to keep the benefit on pain of Commission of illegality in having reached the position and the post after by-passing the recruitment rules. This cannot be allowed. So by allowing them to be senior to the petitioner in the post of Katib is to allow the respondents to keep the benefit on pain of Commission of illegality in having reached the position and the post after by-passing the recruitment rules. This cannot be allowed. Though at this distant time it appears unjust to quash the appointment of the two respondents to the post of Katib (subsequently stated to have been further promoted as Chief Katibs) but all the same to deny the promotion to the petitioner on due date to reach the position and earn the promotional post within parameters of rules, would be for more unjust and inequitable. 6. Having regard to the totality of facts and circumstances of the case and to keep the scales of justice even a direction is issued that the seniority of petitioner even to the post of Katib shall be above two respondents. The promotion from due Date ahead of respondents 3 and 4 shall be notional till the petitioner has been actually promoted to the post of Katib. The promotional benefits consequent on such seniority as Kalib, shall flow to petitioner in accordance with rules. The respondents shall work out subject to eligibility and norms, the service benefits accruing to the petitioner. 7. In the above view of the matter, while refraining to quash the promotions of respondents 3 and 4 as Katibs, respondents are directed to treat the petitioner promoted to the post of Katib on the date earlier to the Date on which two respondents were promoted as Katibs. Their seniority shall be accordingly worked out and petitioner shall be assigned the seniority placement above the two respondents in the category/class of Katibs in Kitabat Section of the Govt. Press. This promotion of petitioner till Feb. 1993 when petitioner is actually promoted as Katib shall be notional. The promotional benefits to posts above that of Katib, if any, to petitioner, shall be worked out on his placement in the seniority list as above and the further promotion to which petitioner is found entitled (subject to eligibility and rules) shall be given to him ahead of respondents 3 and 4. However, it is made clear that petitioner shall not be entitled to any back wages i.e. monetary benefits for the period petitioner is to be treated as notionally promoted. The costs are qauntified at Rs. However, it is made clear that petitioner shall not be entitled to any back wages i.e. monetary benefits for the period petitioner is to be treated as notionally promoted. The costs are qauntified at Rs. 3000/ - to be payable by the respondents. Petition is accordingly disposed of.