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2003 DIGILAW 4 (JK)

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

2003-02-04

PERMOD KOHLI, R.C.GANDHI

body2003
Mr. R.C. Gandhi, J. 1. This letters Patent Appeal has been preferred by the State against the judgement dated 4th September, 1998 passed by the learned Single Judge in SWP No. 706/1998 whereby the learned Single Judge has issued a direction to the appellants to consider the case of the respondent (writ petitioner) for promotion to the post of Laboratory Assistant and also to consider his prayer for retrospective benefit of promotion. 2. A few facts necessary for the disposal of this appeal are that the respondent was appointed as a Peon in the Education Department. Vide order dated 12th April, 1983, he was transferred to Zoology and Botany Department to assist as Laboratory Bearer. The respondent made an application to the Principal, Government Higher Secondary School, where he was working, to change his cadre from Peon to Laboratory Bearer. His claim was considered and rejected vide order dated 11th December, 1987 by the Director, School Education, Kashmir, appellant No.2 herein. In the meantime, some promotions were made in the Department to the post of Laboratory Assistant. Aggrieved of the rejection of his claim to change his cadre, the respondent approached the court by means of SWP No.706/89 seeking to quash the communication dated 11th December, 1987 and also issuance of writ of mandamus to adjust him against the post of Laboratory Bearer from the date of his transfer, i.e., dated 12th April, 1983. He also sought a writ of mandamus to promote him as Laboratory Assistant taking into consideration his experience. 3. The appellants herein in their reply to the writ petition have stated that the respondent was appointed as an Orderly and his change of cadre was not accepted by the appellants and that only those employees have been promoted whose cadre has been changed by the competent authority, which is the Government. The Departmental Promotion Committee in its meeting held on 8th August, 1991 scrutinized all such cases and set-aside all the orders issued by the then District Education Officer vide order No.E-I/533-600 dated 27th April, 1991 which were either illegal or had been passed in violation of the provisions of SRO 240 of 1979. It is also stated that the respondent being an Orderly, can be promoted as Junior Assistant on his turn; provided he is possessing typing speed of 25 words per minute. It is also stated that the respondent being an Orderly, can be promoted as Junior Assistant on his turn; provided he is possessing typing speed of 25 words per minute. The respondent will be considered for promotion to the post of Junior Assistant as and when the Departmental Promotion Committee meets. 4. The learned Single Judge after hearing learned counsel for the parties, has allowed the writ petition, directing the appellants to consider the respondent for promotion to the post of Laboratory Assistant, relying on the plea of the respondent that he was working as Laboratory Bearer and falls in the common category of Laboratory Bearer/Chowkidar/Waterman/Mali etc. mentioned in the Rules contained in SRO 240 of 1979. 5. Aggrieved of the order of the learned Single Judge, the appellants have preferred this appeal on the ground that the direction issued is contrary to the provisions of law as under the rules contained in SRO 240 of 1979, the post of Laboratory Assistant can be filled up only from the feeding category of Laboratory Bearers having two years experience with Matriculation as academic qualification. It is also stated in the reply that the respondents cadre has not yet been changed as Laboratory Bearer, therefore, he does not fall in the feeding channel for promotion to the post of Laboratory Assistant. 6. Heard learned counsel for the parties and perused the record. 7. Before we deal with the submissions of the learned counsel for the parties, the relevant provision of law is noticed. (d) Laboratory Assistants (200-320) : Matriculates with science: 75% by direct recruitment and 25% by promotion from Laboratory bearers who are at least matriculates with 2 years experience as such." 8. The promotional post of Laboratory Assistant is to be filled up by a Laboratory Bearer having the eligibility qualification of Matriculation with Science and two years experience. The respondent is claiming promotion to the post of Laboratory Assistant against promotional quota post. Before the respondent asserts his claim, he has to make out that he is a Laboratory Bearer possessing the requisite qualification and experience prescribed by the rules. 9. The respondent, admittedly, is holding the substantive rank of an Orderly. He made an application to the respondents for change of his cadre which has been rejected. Before the respondent asserts his claim, he has to make out that he is a Laboratory Bearer possessing the requisite qualification and experience prescribed by the rules. 9. The respondent, admittedly, is holding the substantive rank of an Orderly. He made an application to the respondents for change of his cadre which has been rejected. He has sought the relief for his adjustment as Laboratory Bearer which means that so far he is not holding the post of Laboratory Bearer substantively. He has been asked to discharge the duties of Laboratory Bearer in public interest as per the contingency and requirement of the service. Such orders, asking an employee to discharge the duties of another post, are required to be passed by the employer or the authority of the employer for smooth working of the institution. These orders do not confer any right or preference for adjustment against such posts. This proposition of law has been settled by the Supreme Court in Ramakant Shripad Sinai Advalpalkar v. Union of India, AIR 1991 SC 1145, holding that where a person is asked to discharge the duties on a post, he does not acquire any right to seek regularisation or promotion against the post. 10. The learned Single Judge has allowed the writ petition granting the relief to the respondent for consideration against the post of Laboratory Assistant only on the ground that the post of Laboratory Bearer has been mentioned in the rules as a common category post, being class IV post, of Malies/Library Bearers/Chowkidars/Ground/Coolies/Waterman/ Chainman/Farm Hands/Laboratory Bearer etc. A perusal of the relevant Rule contained in the Jammu and Kashmir Educational (Subordinate) Service Recruitment) Rules, 1979 reveals that these are class IV posts and have been grouped under one heading as the eligible qualification and method of recruitment of these posts is the same. It does not mean that being placed in one group for convenience, it becomes a promotional source to all the posts which are to be filled up by promotion from class IV employees. The post of Laboratory Assistant under the rules is to be filled up from amongst Laboratory Bearers having two years experience. The respondent may have the experience but is not having the substantive rank of Laboratory Bearer. The post of Laboratory Assistant under the rules is to be filled up from amongst Laboratory Bearers having two years experience. The respondent may have the experience but is not having the substantive rank of Laboratory Bearer. The approach of the learned Single Judge, therefore, is contrary to the rules and no such direction can be issued which is contrary to the law and the rules. This proposition of law has been settled by the Supreme Court in State of UP v. Harish Chandra, AIR 1996 SC 2173 holding that: ...Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction...� (Underlining and emphasis supplied) This view has been reiterated by the Supreme Court in S.P. Shivprasad Pipal v. Union of India, AIR 1998 SC 1882. 11. In substance, the plea of the learned counsel for the respondent is based on the ground that he has been asked to discharge the duties of the Post of Laboratory Bearer. On the strength of the performance of the duty as Laboratory Bearer, he seeks his adjustment and promotion to the next promotional post of Laboratory Assistant. Otherwise, under the rules an Orderly is to be promoted to the post of Junior Assistant; provided he complies with the requirements of the Rules. In Smt. Sanjukta Pattanaik v. State of Orissa, AIR 1997 SC 1922, the petitioner was appointed as Clerk and kept incharge of the teaching post in the School. He sought his adjustment against the post of Teacher. While dealing with this plea, the Supreme Court has held as under: ...Admittedly, she was appointed as a clerk. In Smt. Sanjukta Pattanaik v. State of Orissa, AIR 1997 SC 1922, the petitioner was appointed as Clerk and kept incharge of the teaching post in the School. He sought his adjustment against the post of Teacher. While dealing with this plea, the Supreme Court has held as under: ...Admittedly, she was appointed as a clerk. While working as clerk, the mere fact that she was kept in charge of the teaching post, does not confer any right to appointment to a post, because she was not initially appointed to a teaching post. The Full Bench, therefore, has rightly interpreted that the initial appointment should be to a teaching post and a clerk, though directed to discharge the duties as a teacher, cannot claim the post as a teacher. Consequently, the earlier Division Bench judgement of the High Court was set aside. Resultant operation was that all those cases which had become final were directed not to be reopened and all those cases pending consideration either in writ petition or before the authorities were required to be dealt with in accordance with the Rules. Though the petitioner was provisionally given approval pursuant to the direction issued by the High Court in the said writ petition, that would be only subject to the appointment and since no appointment could be made and was, in fact, not made, the order could not be said to be in accordance with the Rules. The provisional approval granted by the Director cannot be construed to be a ratification of the petitioners appointment as teacher. The view of this Court in Krishna Chandra v. State of Orissa, (C.A. No. 1375596) decided on November 1, 1996, is consistent with the above view and is of no help to the petitioner. Under these circumstances, we do not find any illegality in the order passed by the High Court warranting interference.� 13. In view of the above proposition of law and the observations made in the course of this order, we are of the opinion that the view taken by the learned Single Judge is erroneous in law and cannot be maintained. 14. The appeal is, accordingly, allowed and the order under Appeal is set-aside. The writ petition is dismissed.