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2002 DIGILAW 88 (JK)

Raman Kumar v. State Of J. &K.

2002-04-07

MUZAFFAR JAN

body2002
1. This writ petition has been filed for issuance of a writ of Certiorari for quashing letter No: PWD (R&B)Jl/37-2000/JE dated: 07-06-2000 whereby no objection certificate has been issued in favour of respondent No. 4 for his permanent absorption in the Estates Department. The petitioners further seek a direction that in case of permanent absorption is contemplated, then other eligible persons be also considered for such absorption in the Estates Department as per seniority. 2. The main submissions made in the writ petition are that the petitioners are Junior Engineers (Civil), working in Public Works Department and are presently posted in Estates Department, except petitioner No. 5, who is posted in Vigilance Organisation. It is further submitted that all the petitioners are senior to respondent No. 4 who figures at S. No. 686 in the seniority list of 1997. It is also submitted and petitioner No. 5 has been on deputation in the Estates Department that there is no post of Junior Assistant in the Estates Department and services of Engineers are taken on deputation form Public Works Department as per Schedule II of Jammu and Kashmir Estates (Subordinate) Service Recruitment Rules, 1997. It is also submitted that petitioners 1 to 4 are presently on deputation in the Estates Department on earlier occasions. Respondent No. 4, who belongs to Public Works Department, is governed by the rules of Public Works Department and under the rules seniority is the relevant consideration for promotion to the post of Assistant Engineer. In order to steal a march over the petitioners and manage out of turn promotion, respondent No. 4 filed an application on 28th April, 2000, seeking his permanent absorption in the Estates Department and consequent promotion as Assistant Engineer, in abject disregard of the Rules, which do not permit permanent absorption or promotion as Assistant Engineer in Estates Department because there is no cadre post of Junior Engineer or Assistant Engineer in the Estates Department. Respondent No. 1 accorded no objection to the permanent absorption of respondent No. 4 in the Estates Department vide letter dated 7th June, 2000. This letter of "no objection™ is asserted to have been issued in violation of the principles of natural justice and without considering all other eligible persons for absorption, therefore, it is prayed to be quashed in the present writ petition. This letter of "no objection™ is asserted to have been issued in violation of the principles of natural justice and without considering all other eligible persons for absorption, therefore, it is prayed to be quashed in the present writ petition. The stand taken and submissions made by the respondents in their counter affidavit are that the petitioners do not have any right to ask for permanent absorption in the Estates Department and, since no rights of the petitioners have been infringed, as such, the writ petition is not maintainable. It is further submitted that the State Government vide Order No. 1452-GAD of 2000 dated: 12-12-2000 has accorded sanction for shifting of lien of respondent No. 4 in the office of Executive Engineer, Estates, Jammu and, as such, respondent No. 4 does not belong to the Public Works Department. On these grounds it is submitted that the writ petition be dismissed. 3. Heard learned counsel for the parties and considered their lucid submissions made. 4. The facts which are not denied but are admitted are that there is no cadre post of Junior Engineer in the Estates Department and under rules the Engineers are brought on deputation from Public Works Department. It is also not denied that petitioners 1 to 4 are also on deputation in the Estates Department and petitioner No. 5 has also worked in the Estates Department. The submissions of learned counsel for the petitioners, that in the facts and circumstances, issuance of no objection certificate vide letter dated 7th June, 2000 by respondent No. 1 in favour of respondent No. 4, is only in violation of the rules but also discriminatory against the petitioners, is an argument which has substantial basis and has to be accepted for multiple reasons. 5. The rules governing the services of the employees of the Estates Department are the Jammu and Kashmir Estates (Subordinate Service Recruitment) Rules, 1997. Under Rule 5 of the Rules, it is provided as under: "5. 5. The rules governing the services of the employees of the Estates Department are the Jammu and Kashmir Estates (Subordinate Service Recruitment) Rules, 1997. Under Rule 5 of the Rules, it is provided as under: "5. Qualification and method of recruitment:(I) No person shall be eligible for appointment or promotion to any post in any class, category™ or grade in the service unless he possesses the qualifications as laid down in Schedule-11 and fulfills other requirements of recruitment as provided in the rules and orders for the time being in force; (2) Appointment to the service shall be made: (a) by direct recruitment (which will include appointment by transfer); (b) by promotions; and (c) partly by direct recruitment and partly by promotion in the ratio and in the manner mentioned against each post in Schedule-II." From the perusal of Rule 5, it is manifestly clear that appointment/promotion is to be made by three modes, i.e. by direct recruitment. by promotion and thirdly, partly by direct recruitment and partly by promotion. There is no provision of appointment or promotion by deputation. Under Schedule-11, in the technical field, the services of Junior Engineers (Civil and Electrical) have to be arranged by deputation from Jammu and Kashmir Engineering (Subordinate) Service. In Schedule-11, no cadre post of Junior Engineer is provided and it is specifically laid that the technical assistance of a Junior Engineer shall be secured by deputation from Jammu and Kashmir Engineering (Subordinate) Service. 6. In view of the admitted factual and settled legal position, the aspect which has to be considered is whether respondent No. 4 can be permanently absorbed in the Estates Department, when there is no cadre post of Junior Engineer in the Estates Department and without considering the absorption of other eligible persons, who are senior to respondent No. 4 in their parent department. There is nothing on the file to show as to what exercise was conducted respondents 1 to 3 to come to the conclusion that services of respondent No. 4 are required to be permanently shifted in the Estates Department, without considering the absorption of other eligible persons, who were senior to respondent No. 4 in their parent department and would be discriminated by being deprived of an opportunity of being considered for promotion to next higher post. In the absence of any acceptable explanation; rational or legal basis, the order of permanent absorption of respondent No. 4 on deputation appears to be arbitrary, discriminatory and in abject violation of the principles of natural justice. The no objection certificate vide letter dated 7th June, 2000, in the present circumstances, therefore, cannot be sustained. 7. Learned counsel for the respondents submitted that the lien of respondent No. 4 has been shifted to the Estates Department vide order dated: 12-12-2000 and this order has not been challenged by the petitioners. The submissions, though attractive, is subversive of rules and violative of principles of natural justice and has to be disallowed. 8. As it is admitted that there is no cadre post of Junior Engineer in the Estates Department and the posts in the Estates Department under rules, cannot be filled by deputation under rule 5 of the Jammu & Kashmir Estates (Subordinate Service Recruitment) Rule, 1997, therefore, the shifting of lien of respondent No. 4 would be an act in violation of rules and, as a natural consequence, the order dated: 12-12-2000 also requires to be quashed. It may be kept on record that after the order dated: 12-12-2000 was passed, another order dated: 14-12-2000 was issued in which the shifting of the lien of respondent No. 4 has been kept, subject to the out come of the present writ petition, therefore, merely by issuance of order dated: 12-12-2000, which has been kept subject to the result of the writ petition, no right has accrued to respondent No. 4 by virtue of shifting of the lien because the order of shifting his lien was conditional. Further, in view of the finding that permanent absorption on deputation has been held as bad, the question of shifting of lien would not arise. 9. Learned counsel for respondent No. 4 has cited AIR 1990 SC 1132 and AIR 2000 SC 2076. Further, in view of the finding that permanent absorption on deputation has been held as bad, the question of shifting of lien would not arise. 9. Learned counsel for respondent No. 4 has cited AIR 1990 SC 1132 and AIR 2000 SC 2076. The Apex Court, these authorities has held that no person can claim right of permanent absorption on deputation, which precisely is the case of the petitioners, in so far as the petitioners claim that respondent No. 4 is not entitled to claim absorption on the basis of deputation and, in case absorption on deputation has to be permitted, then in that eventuality all the person eligible for absorption must be considered in order to comply with the requirement of principles of natural justice and to ensure eligible and the meritorious candidates are absorbed in the department if and when there is a cadre post. 10. For the reasons given above, the writ petition is allowed. The impugned letter No. PWD (R&B) J/37-2000/JE dated 7th June. 2000 is quashed. Consequently, Government order No. 1452-GAD of 2000 dated: 12-12-2000, whereby the lien of respondent No. 4 has been shifted to the Estates Department, shall also stand quashed, being illegal and against rules. However, there is no order as to costs.