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2004 DIGILAW 74 (JK)

Amar Singh v. State Of J. &K.

2004-03-26

PERMOD KOHLI, S.N.JHA

body2004
Per : Permod Kohli, J. Questioning the correctness of order dated 31-5-2001 passed in SWP No. 323/96, petitioner/appellant has preferred this appeal in the back-drop of the factual matrix noticed here-under: -- 2. Pursuant to Notification dated 31-3-1981 issued by the Jammu and Kashmir Public Service Commission for selection to various feeding Services under the purview of Combined Competitive Examination, petitioner/appellant applied being an eligible candidate. At the time of inviting applications vide afore-said notification there were only five services for which the said examination was to be conducted. Before the process could be completed the State Government issuedGovernment order No. 1285 -GAD of 1983 dated 30-3-1983 whereby as many as eleven more Gazetted Departmental Services were brought within the purview of the Combined Competitive Examination. The Public Service Commission completed the selection and recommended the successful candidates to the Government for appointment. Petitioner/appellant being one of such successful candidate came to be appointed vide Govt order No. 1053-GAD of 1984 dated 18-6-1984 in the pay scale of Rs 1000-1560. He was allotted Jammu and Kashmir Tourism (Gazetted) Services and was shown to have been appointed as a Tourist Officer vide the afore-said Government Order. It is relevant to mention that the J&K Tourism (Gazetted) Service to which the petitioner/appellant was appointed was one of the services brought under the purview of Combined Competitive Examination vide Govt Order No. 1285-GAD of 1983 dated 30-3-1983. Petitioner joined the Department. Under-Secretary to Government, General Administration Department vide his communication No. TSM/Estb-9/85 dated 20-6-1986 informed the Secretary to Government, General Administration Department about the joining of the petitioner and one Mr. Anil John, who was also selected alongwith the petitioner and allotted the Tourism Department and stated that no vacancy of Tourist Officer or Asstt Director, Tourism is available in the Tourism Department against which these two incumbents could be adjusted. Based upon the afore-said communication, General Department (Services) vide its letter No. GD(Ser) CSC/HAS/85 dated 24-7-1986 informed the Commissioner/ Secretary to Government, Tourism Deptt that the services of the petitioner/appellant and the other probationer be utilized till the anomaly in the pay scale is removed and their salaries were directed to be paid from another institution. Based upon the afore-said communication, General Department (Services) vide its letter No. GD(Ser) CSC/HAS/85 dated 24-7-1986 informed the Commissioner/ Secretary to Government, Tourism Deptt that the services of the petitioner/appellant and the other probationer be utilized till the anomaly in the pay scale is removed and their salaries were directed to be paid from another institution. The State Government on consideration of the issue, issued Govt Order No. 657-GAD of 1986 dated 22-10-1986 whereby two additional posts of Addl Tourist Officers were created in the Tourism Department in the pay scale of Rs 1000-1560 till the end of Dec 1986. This order further contained a stipulation that these additional posts be utilized for adjustment of direct recruits of 1984 only. Petitioner/appellant was accordingly allowed to perform the duties of Tourist Officer. By a subsequent communication dated 22-2-1989 from the Deputy Secretary to Government, Tourism Department to the Director, Tourism, pay dues of the Tourist Officers were directed to be drawn against the vacant posts of Asstt Directors till further orders. Petitioner/appellant claimed to have made representation for release of higher pay scale. It is relevant to note that at the time of petitioners appointment in the year 1984 the Tourism (Gazetted) Service was governed and regulated by the J&K Tourism (Gazetted) Service revised rules 1978 as notified vide SRO 405 dated 15-7-1978. Under these rules the pay scale for the Asstt Directors was Rs 520-900 and that of the Tourist Officer was 475-850. The Tourist Officer was the entry level post, whereas the post of Asstt Director was to be filled up only by promotion. However, vide Govt Order No. 1285-GAD of 1983 a common pay scale of Rs 1000-1560 was introduced for all the Direct appointees to all the feeding services brought under the purview of Combined Services Competitive Examination at the entry level. So there was an anomaly of pay scale of Tourist Officer as prescribed under SRO 405 and one mentioned under the Govt Order No. 1285-GAD. The pay scale as fixed under Govt Order No. 1285-GAD was the pay scale meant for the Asstt Directors in the Tourism Service (pre-revised 520-900). Since the petitioners appointment was in the pay scale of Rs 1000-1560 he made representation for removal of the anomaly. Consequently, the Government, in the General Administration Department issued Govt order No. 625-GAD of 1983 dated 23-7-1983 whereby the petitioner/appellant and his co-appointee Mr. Since the petitioners appointment was in the pay scale of Rs 1000-1560 he made representation for removal of the anomaly. Consequently, the Government, in the General Administration Department issued Govt order No. 625-GAD of 1983 dated 23-7-1983 whereby the petitioner/appellant and his co-appointee Mr. Anil John, who were appointed as Tourist Officers in the pay scale of Rs 1000-1560 (revised 2125-3600) were declared to have been appointed as Asstt Directors Tourism in the afore-said pay scale with effect from their initial appointment i.e. 18-6-1984. 3. In this manner the petitioner came to be re-designated as Asstt Director. This Government order still holds the field. 4. Though in the writ petition relief claimed was against respondents No.4 to 11 named therein, however, Mr. Thakur while making his submissions before us has confined the relief only in respect to private respondent No.10 (Ajay Khajuria) in the memo of appeal. As per service profile of this respondent is concerned he was also appointed as Tourist Officer in the J&K Tourism (Gazetted) Service in the year 1977 as a Direct Recruit, pursuant to selection/ recommendation made by the J&K Public Service Commission. At the time of his appointment the J&K Tourism (Gazetted) Services was governed and regulated by SRO 349 dated 20-7-1970, known as J&K Tourism (Gazetted) Services recruitment Rules 1970. The entry to the service under these rules was also as Tourist Officer and the post of Assistant Director was a higher post to be filled in by promotion from the category of Tourist Officer, with three years service as such. When SRO 349 was replaced by SRO 405 the position of recruitment to the post of Tourist Officer and the Asstt Director, remained the same. Respondent No.10 was sent on deputation initially to SKICC, another organization where he enjoyed a higher pay scale of Rs 2350-4050. This pay scale was released in his favour w.e.f. 1-9-1986 vide Secretary to Government, Tourism Departments Order No. 80 -TSM of 1990 dated 25-7-1990. This respondent was subsequently recalled from deputation and adjusted as Deputy Director (Tourism) Jammu vide Govt Order No. 191-TSM of 1995 dated 18-12-1995. Petitioner/ appellant herein feeling aggrieved of the adjustment of respondent No.10 in the Tourism Department as Dy. This respondent was subsequently recalled from deputation and adjusted as Deputy Director (Tourism) Jammu vide Govt Order No. 191-TSM of 1995 dated 18-12-1995. Petitioner/ appellant herein feeling aggrieved of the adjustment of respondent No.10 in the Tourism Department as Dy. Director, instituted writ petition SWP No. 325/96 claiming the following reliefs; -- " x xx to quash the following Govt orders by issuance of a writ of certiorari -- (i) Govt order No. 21-TSM dated 29-1-1993 which fixes arbitrarily the date of confirmation of respondents 4 to 11 in the scale of Rs 2125-3600 and shows the petitioner a as having been confirmed in the scale of Rs 2125-3600 with effect from 1-3-1989 instead of 18-6-1988 (after having completed the period of probation of 4 years) (ii) Govt order No. 21-TSM/93 dated 29-1-1993 whereby selection grade of 2500-4000 was released in favour of respondent no.4 to 11 arbitrarily and in violation of rules. (iii) Govt order No. 91-TSM dated 26-4-1993 whereby respondents 4,5,6,7 and 8 were placed in the grade of Rs 3000-4500. (iv) Govt order No. 24-TSM of 1994 dated 18-2-1994 whereby respondent No.9 was placed in the grade of Rs 3000-4500; (v) Govt order No.191-TSM of 1995 dated 18-12-1995 respondent no.11 (Shri Ajay Khajuria has been adjusted as Dy. Director, Tourism and respondent No.6 has further been adjusted as Joint Director Tourism, Govt Order No. 109-TSM of 1997 dated 8-8-1997 to the extent the same notionally promotees respondent No.11 as Asstt Director w.e.f. 29-5-1984. (vi) Govt order No. 80 TSM of 1990 dated 25-7-1990 to the extent the same envisages placement of respondent no.11 in the grade of Rs 2350-4050 (revised Rs 3000-4500) and transfers the respondent No.11 alongwith post from SKICC to the Tourism Department. (vii) Govt order No.110-TSM of 1997 dated whereby the seniority list issued by the respondents has shown the petitioner as junior to the respondents. (vii) Govt order No.110-TSM of 1997 dated whereby the seniority list issued by the respondents has shown the petitioner as junior to the respondents. WITH A further writ of mandamus directing the respondents 1 to 3 to prepare a seniority list in the grade of Rs 1000-1560 (revised Rs 2125-3600) as on 18-6-1984 and to consider the petitioner for promotion to the grade of rs 3000-4500 in accordance with J&K Tourism (Gazetted) Service Recruitment Rules of 1978 and further to treat the petitioner as having been confirmed in the grade of Rs 1000-1560 w.e.f. 18-6-1984 i.e. after the successful completion of the period of probation of 4 years by the petitioner and treat the petitioner as Assistant Director for purposes of seniority as having been appointed w.e.f. 18-6-1984. WITH Such other writ, direction or order to which this Honble Court held the petitioner to be entitled to may also be passed in favour of the petitioner and against the respondents." 5. The main grievance of the petitioner/ appellant in the writ petition is that the respondent alongwith other private respondents named in the writ petition were Junior to him in the category of Asstt Director, on the ground that the petitioner/ appellant was appointed as Asstt Director w.e.f. 18-6-1984 and in the pay scale of Rs 100-1560 and these respondents being in lower pay scale of Tourist officers could not have been placed over and above the petitioner/ appellant in the department and adjusted as Dy. Director and other higher posts. During the pendency of this petition, the Government issued Govt Order No. 109-TSM of 1997 dated 8-8-1997 whereby respondent No.10 was adjusted as Asstt Director (Tourism) w.e.f. 29-5-1984 allegedly being the senior most Tourist Officer in the Department. This order was said to be passed pursuant to the deliberation of the Committee constituted by the Government vide Govt Order No. 234-GAD of 1997 dated 18-2-1997. This Government order further states that Mr. Ajay Khajuria was eligible for promotion against the post of Asstt Director (Tourism) in May, 1984 when the vacancy was available and with a view to set the record right he is notionally promoted as Assistant Director w.e.f. 29-9-1984. This order was followed by Government order No. 110-TSM of 1997 dated 11-8-1997 whereby a final seniority list of the Gazetted Staff of the Directorate of Tourism, J&K in the grade of Rs 2125-3600 (1000-1560 pre-revised) was issued. This order was followed by Government order No. 110-TSM of 1997 dated 11-8-1997 whereby a final seniority list of the Gazetted Staff of the Directorate of Tourism, J&K in the grade of Rs 2125-3600 (1000-1560 pre-revised) was issued. Respondent No.10 was placed at S.No.4 of this seniority list, whereas the petitioner/ appellant figured at S.No.7 thereof. This development persuaded the petitioner to amend the writ petition and challenge the afore-said two orders also. On being accorded leave, the petitioner/appellant filed amended writ petition on 16-11-1998. While this petition was pending, yet another development took place. The eligible officers of the feeding services were considered for their induction into Kashmir Administrative Service (KAS) by the Government. It is admitted case of the parties that both the petitioner/ appellant and respondent No.10 were considered for such induction. Respondent No.10 came to be inducted vide Govt Order No. 1864-GAD of 1987 dated 27-11-1987 and petitioner/ appellant failed to find berth in the induction list. Aggrieved of his non-induction and the induction of respondent No.10 and some other officers of the Tourism (Gazetted) Services, petitioner/ appellant chose to file another writ petition SWP No. 160/98 challenging Govt. Order No. 1864-GAD of 1987 dated 27-11-1987. Petitioner/appellant remained un-successful in this petition which came to be dismissed vide judgment dated3-3-1999. The relevant extract of the judgment is quoted as under: -- "Original record has been produced by Shri Singh on the basis of which cases of respondents 3 to 6 were considered by the respondents. Prima-facie it appears that on the basis of APRs the assessment made calls for no interference. It is also admitted case of the petitioner that he has already filed SWP No. 325/96 which is pending adjudication before this Court, wherein he claims to be senior to respondents 3 to 6. This petition is also before the Court." While dismissing the writ petition, writ Court also observed that in the event petitioner succeeds in writ petition SWP No. 325/96 he will be entitled to all the consequential benefits. 6. We have heard Mr. D.S. Thakur, learned counsel for the petitioner/appellant. Mr. D.S. Thakur, learned counsel appearing for the petitioner/ appellant has vehemently argued that the petitioner/ appellant was appointed as Assistant Director in the higher pay scale of Rs 1000-1560 in view of Govt Order No. 625-GAD of 1993 dated 23-7-1993 and this appointment dates back to 18-6-1984. 6. We have heard Mr. D.S. Thakur, learned counsel for the petitioner/appellant. Mr. D.S. Thakur, learned counsel appearing for the petitioner/ appellant has vehemently argued that the petitioner/ appellant was appointed as Assistant Director in the higher pay scale of Rs 1000-1560 in view of Govt Order No. 625-GAD of 1993 dated 23-7-1993 and this appointment dates back to 18-6-1984. Respondent No. 10 though appointed as Tourist Officer in the year 1977 but being in a lower category and pay scale of Tourist Officer ranks junior to him. His appointment as Dy. Director in the year 1995 in the Tourism Department and grant of retrospective promotion as Assistant Director w.e.f. 29-5-1984 vide Govt. Order dated 8-8-1997 and the seniority of respondent No.10 fixed above the petitioner/appellant vide Govt Order No. 110 dated 11-8-1997, is contrary to law and is result of un-due favour bestowed upon the said respondent who is said to be a beneficiary of his proximity with high-ups in the bureaucracy. It is further argued by Mr. Thakur that respondent No.10 was deputed to different organizations like SKICC and Shri Mata Vaishno Devi Shrine Board with a design to grant him un-due benefit of higher pay scale and promotion on ex-cadre basis and then to bring back him in the department at a higher pedestal to sacrifice the interest, claim and entitlement of the officers in the Department like petitioner. With a view to establish his contention he has referred to a communication dated20-6-1986 whereby Under Secretary to Government, Tourism Department wrote to Secretary to Government, General Administration Department that there is no vacancy of Tourist Officer or Assistant Director, Tourism available in the department against which the petitioner/ appellant and Anil John, two probationers appointed to J&K Tiurism (Gazetted) Services can be appointed. It is further submitted that since there was no vacancy, two vacancies were created by the Government vide Govt Order No. 657-GAD of 1986 dated 27-10-1986 against which the petitioner/appellant and Anil John, two direct recruits were adjusted and in absence of availability of any vacancy of Asstt Director there was no question of appointment of respondent No.10 Ajay Khajuria as Assistant Director notionally w.e.f. 29-5-1984. He has also drawn our attention to a communication dated 28-12-1998 from Commissioner of Inquiries to the Commissioner/Secretary to Government, Tourism Department. This communication is accompanied with a copy of some Note. He has also drawn our attention to a communication dated 28-12-1998 from Commissioner of Inquiries to the Commissioner/Secretary to Government, Tourism Department. This communication is accompanied with a copy of some Note. In para 9 of the afore-said Note following observations were made:- "9. Shri Ajay Khajuria was temporarily appointed as Tourist Officer vide G.O No. 74-TSM of 1977 dated 17-10-1977 in the grade of 475-875, then revised to 2000-3400 (pre-revised) He was taqken as Pvt Secretary to Shri R.S. Chib, the then Honble Tourism Minister vide Govt Order No. 992-GAD of 1986 dated 12-12-1986 and again vide Govt order No. 4745-GAD if 89 dated 24-3-1989. It is here that he worked as Dy. Secretary, Tourism without any orders of objection of GAD/Tourism Deptt. Then he was placed in the grade of 2350-4050 (old) revised to 3000-4500 (pre-revised) against the post of Admn. Manager, SKICC without order was given effect from 1-9-1986. Thus Shri Khajuria was virtually made Dy. Director (T) 3000-4500 (pre-revised) from 2000-3400 (pre-revised) without touching the intermediate post of A/D (T) 2125-3600 (pre-revised) which post was later on assigned to him notionally (meaning presumably) w.e.f. 29-5-1984 i.e. after seven long years of becoming the Dy. Director as vide G.O. No. 109 TSM of 1997 dated 8-8-1997, The Committee which decided his notional promotion had no legality and there was no post of A/D (T) available at the time of this notional promotion. All these arrangements/promotions are a result of influence and made by Tourism Department beyond discretion. Shri Khajuria has since been inducted into KAS ahead of his seniors in class and cadre as vide Govt order No.1864-GD of 1997 dated 27-11-1997." 7. It is accordingly contended that the Commissioner of Inquiry, J&K Government has concluded on inquiry that Ajay Khajuria was illegally appointed as Dy. Director, without touching the inter-mediate post of Assistant Director in the department against all norms and illegally. Mr. Thakur has further referred to Government order No. 21-TSM of 1993 dated 29-1-1993 whereby selection grade was released in favour of respondent No. 10 w.e.f. 10-6-1991 notionally. It is thus stated that respondent No.10 has been granted selection grade of Asstt Director without having been appointed to the said post at any time. 8. We have also heard Mr. B.S. Salathia, learned Addl Advocate General and Mr. J.P. Singh, Advocate on behalf of official respondents and respondent No.10 respectively. It is thus stated that respondent No.10 has been granted selection grade of Asstt Director without having been appointed to the said post at any time. 8. We have also heard Mr. B.S. Salathia, learned Addl Advocate General and Mr. J.P. Singh, Advocate on behalf of official respondents and respondent No.10 respectively. It is stated on behalf of the respondents that respondent No.10 was appointed as Tourist Officer in the Gazetted cadre of the service as a Direct Recruit on 17-10-1977. At the time of his appointment the recruitment to the service was governed by SRO 349 and entry was at the level of Tourist Officer which post was in the pay scale of Rs 475-800. SRO 349 was substituted by SRO 405 of 1978 wherein also the entry to the Gazetted service was at the level of Tourist Officer. This SRO remained in operation even when the petitioner/ appellant was appointed to the J&K Tourism Service in the year 1984 and in view of the anomaly in the pay scale as provided in the service rules and the one indicated in Govt Order No. 1285-GAD of 1983, the petitioner/appellant and another appointee with him to the service were designated as Assistant Directors, because of their appointment in the higher pay scale. It is however, argued that the post of Asstt Director under both these SROs was a promotional post and could not have been filled up by direct recruitment. In respect to respondent No.10, it is stated that the said respondent though appointed as Tourist Officer was entitled to be promoted as Asstt Director on completion of three years service in terms of SRO 349 he thus became eligible for such promotion in the year 1980. However, the vacancy became available in the year 1984 and respondent No. 10 though senior most Tourist Officer was ignored for promotion. Subsequently, he went to a foreign service on deputation on ex-cadre basis and placed in a higher pay scale. On repatriation he was placed in the higher pay scale of Dy. Director. However, the vacancy became available in the year 1984 and respondent No. 10 though senior most Tourist Officer was ignored for promotion. Subsequently, he went to a foreign service on deputation on ex-cadre basis and placed in a higher pay scale. On repatriation he was placed in the higher pay scale of Dy. Director. When the issue of his non-promotion came to the notice of the Government the same was examined by a High Level Committee comprised of officers of the Government and Committee found that a vacancy of Assistant Director was available in May, 1984 and respondent No.10 being senior most Tourist Officer was entitled to promotion as Assistant Director in the Tourism Department against the said vacancy. On the recommendation of the Committee the claim of respondent No.10 for promotion to the post of Asstt Director was settled vide Govt Order No. 109-TSM of 1997 dated 8-8-1997. Respondent No.10 having been promoted from 29-5- 1984 is admittedly senior to petitioner/ appellant, who was appointed to the service as Tourist Officer though re-designated subsequently as Asstt Director on 18-6-1985. It is accordingly contended that the seniority of the officers was rightly fixed vide Govt Order No.110-TSM of 1997. 9. Regarding the question of availability of vacancy in the year 1984 Mr. J.P. Singh has referred to the Recruitment Rules. Under SRO 405-TSM there are three vacancies of Assistant Directors against which the petitioner and respondent No.10 could lay their claim, though there were other vacancies of Assistant Directors which fall in the technical category and these officers have no claim or right against the same. From the Schedule annexed to the SRO, it is apparent that there were three vacancies of Assistant Direcgtors. Two vacancies were occupied by one S.G.H. Hussaini and N.C. Kohli. This position is reflected by the writ petitioner/ appellant himself in para 21 of the writ petition, which reads as follows: "It is submitted that in accordance with the Recruitment Rules of 1978 the following are the categories of Assistant Directors -- (a) Asstt Director Registration/Administration: (i) Sh S.G.H. Hussaini They were promoted (ii) Sh.N.C. Kohli, from the post of Tourist Officers." It is accordingly stated that out of the sanctioned strength of three vacancies only two vacancies were occupied by the officers in the department, leaving one vacancy vacant against which respondent No.10 was appointed w.e.f. 29-5-1984. It has further been stated that a high level committee constituted by the Government considered the issue and found that a vacancy was available in May, 1984 against which respondent No.10 was promoted. 10. In respect to the report of Commissioner of Inquiries, it has been brought to our notice that the document at page No.147 of the paper book is a communication by the Commissioner of Inquiries to the Commissioner/Secretary to Government, Tourism Department seeking his comments in the matter. This was based upon a note of the representing officer before the Commissioner of Inquiries. Mr. Salathia, AAG has produced original record before us where-from it is found that the Commissioner of Inquiries sought comments from the concerned Commissioner/Secretary to Government in respect to the contents of the note of the representing officer. It is further observed from the record produced before us that the issue relating to Mr. Ajay Khajuria was not dealt with. However, there is no finding of Commissioner of Inquiries on the issue of availability of vacancy or appointment of respondent No.10 retrospectively. 11. The issues that can be summarized are -- (i) Whether the appointment of respondent No.10 as Assistant Director w.e.f. 29-5-1984 is illegal and contrary to the rules; (ii) Whether the petitioner/appellant is senior to respondent No.10 in the service; (iii) What relief can be granted to the petitioner/appellant under the facts and circumstances of the case. ISSUE No.1. It is in-disputed that respondent No.10 was appointed as Tourist officer in the Jammu & Kashmir Tourism (Gazetted) Service in the year 1977 through Public Service Commission. That was the only mode prescribed for selection/appointment to the service. As far as the appellant is concerned he was appointed as Tourist officer on 18-6-1984. Both these officers became members of the J&K Tourism (Gazetted) Service at the same level. Respondent No.10 having been appointed about seven years prior in time has to rank senior than the petitioner appellant under the normal circumstances. At the time of recruitment of respondent No.10 as also the recruitment of petitioner/ appellant, the appointment to the service was at the level of Tourist Officer under the Recruitment Rules of 1970 as also 1978 notified vide SRO No. 349 and SRO No. 405 respectively. The post of Assistant Director was promotional post under both these rules. At the time of recruitment of respondent No.10 as also the recruitment of petitioner/ appellant, the appointment to the service was at the level of Tourist Officer under the Recruitment Rules of 1970 as also 1978 notified vide SRO No. 349 and SRO No. 405 respectively. The post of Assistant Director was promotional post under both these rules. The dispute arose because of intervention of Govt Order No.1285-GAD of 1983 dated 20-3-1983, whereby the Tourism service was for the first time brought under the purview of Combined Services Competitive Examination, which was not the position in the year 1977 when respondent No.10 was recruited. Though primarily there was no change in the method of recruitment except the concept of competitive examination was introduced. The only dimension added was the introduction of higher pay scale of 1000-1560 for the recruits after the issuance of Govt Order No. 1285-GAD. Relevant portion of this Govt Order dealing with pay scale is quoted here-under: -- "(ii) In order to provide equal opportunity and facilities for induction into KAS in due course of time all the afore-mentioned departmental services shall have a uniform time scale of Rs.1000-1560 and further that a Selection Grade of Rs.1200-1800 shall be provided equal to 25% of the posts in the time scale in each service. Provided that the existing position will continue in respect of the Gazetted posts belong the rank and pay of Rs 1000-1560, if any in the departmental service." As far as the rule position is concerned, the pay scales of Tourist Officer and the Asstt Director under 1970 and 1978 Rules was as under: -- @Z_TBL_BEG = COLUMNS(3), DIMENSION(IN), ABOVE(.1000), BELOW(.1000), HGUTTER(.0555), VGUTTER(.0555), BOX(Z_DOUBLE), HGRID(Z_SINGLE), VGRID(Z_SINGLE), KEEP(OFF) @Z_TBL_BODY = TBLCN, TBLCN, TBLCN Post, Pay Scale under 1970 Rules, Pay scale under 1976 Rules Tourist, Rs 225-500, Rs 475-850 Officer, (Revised 475-850), (Revised_____) Asstt., Rs.250-550, Rs 520-900 Director , (Revised 520-900), (Rev 1000-1560) @Z_TBL_END = With the issuance of Govt order No. 1285-GAD of 1983, the appointment to the service remained at the entry level i.e. the Tourist Officer. However, the pay scale for the same was prescribed as Rs 1000-1560. Government order No. 1285-GAD also contained a stipulation for the change of recruitment rules to satisfy the Govt Order. Admittedly the rules were not modified even when the appellant was appointed to the service in the year 1984. However, the pay scale for the same was prescribed as Rs 1000-1560. Government order No. 1285-GAD also contained a stipulation for the change of recruitment rules to satisfy the Govt Order. Admittedly the rules were not modified even when the appellant was appointed to the service in the year 1984. The rules for the first time came to be modified in the year 1992, vide SRO 225 dated 23rd Sept, 1992 whereby the post of Asstt Director in the pay scale of Rs 2125-3600 was directed to be filled up by promotion as also by direct recruitment in the ratio of 50 : 50. This amendment was brought in to comply the Government decision incorporated in Govt Order No. 1285-GAD of 1983. Accordingly, the recruitment through Combined Services Competitive Examination was made at the level of Asstt Director on account of amendment in the rules. It appears that keeping in view the spirit of Govt order No.1285 and the subsequent amendment introduced in the year 1992 the Government granted benefit of the pay scale as also the designation of Assistant Director to the petitioner/ appellant from the date of his recruitment i.e. 18-6-1984. Though clause (ii) quoted above prescribe uniform pay scale for the members of all the services specified in the Govt. order, referred to above, however, by virtue of the proviso different pay scales came to be prescribed for the same class of officers. A writ petition No. 664 of 1995 was filed in this Court challenging the proviso and the provision of different pay scales for the same class of the employees. This writ petition was allowed vide judgment dated 14-8-1996. While allowing the writ petition, this Court held as under: "It is not difficult to appreciate that the proviso of Government Order envisaging continuation of existing position in respect of Gazetted posts below the rank and pay of Rs 1000-1560 (old) would have resulted in hostile discrimination to those officers who were holding the Gazetted posts, but in a lower scale vis--vis those who came to be appointed later pursuant to the Government order. It is also true that the operation of this proviso was loaded with perpetuation of such discrimination. The proviso, therefore, could not sustain. Xx x xx" This judgment became subject matter of challenge before the Letters patent Bench in LPA No. 49/03 having been challenged by the State. It is also true that the operation of this proviso was loaded with perpetuation of such discrimination. The proviso, therefore, could not sustain. Xx x xx" This judgment became subject matter of challenge before the Letters patent Bench in LPA No. 49/03 having been challenged by the State. The appeal was finally dismissed vide judgment dated 3-10-2003. As a consequence of the above judgmentm, proviso to Clause-(ii) to Govt order No.1285-GAD became in-operative and all the appointees to the Tourism Gazetted Service became entitled to pay scale of Rs 1000-1560. Respondent No.10 also, became entitled to the same pay scale from the date of issuance of Govt order no. 1285-GAD. Both these officers being in the same pay scale and respondent No.10 having entered the gazetted service much prior to the petitioner/ appellant has to rank senior. Independent of the above the claim of respondent No.10 as regards the seniority in the Tourism (Gazetted) Service is concerned has to be examined from another angle. Assuming respondent No.10 was in a lower pay scale when the petitioner came to be recruited in the year 1984. At the relevant time the post of Asstt Director was required to be filled upto 100% by promotion from the category of Tourist officer under the Recruitment Rules as invouge in the said year. A Tourist Officer with three years experience was entitled to be considered for promotion to the post of Asstt Director. In-disputedly, respondent No.10 was eligible for appointment/ promotion as Asstt Director in 1980. Some how his claim for promotion could not be considered. One of the reason which appears to be that he came to be deputed out-side the cadre of service in the year 1986 and was placed in a higher pay scale on ex-cadre basis. He remained out-side his parent service for a number of years traveling from one organization to another. In his absence from the department his claim for promotion to the post of Asstt Director came to be ignored though he had a lien in the department. When the matter came to the notice of the department the claim of respondent No.10 was examined and it was found by a committee appointed by the Government that he was entitled to be promoted w.e.f. May, 29 1984. When the matter came to the notice of the department the claim of respondent No.10 was examined and it was found by a committee appointed by the Government that he was entitled to be promoted w.e.f. May, 29 1984. It was on the recommendation of the committee that respondent No.10 was ordered to be promoted retrospectively w.e.f 29-5-1984 vide Govt order dated 8-8-1997. Though the petitioner/appellant has challenged this order but he has been unable to satisfy us as to why the claim of respondent No.10 for promotion was in-admissible, particularly when there was a vacancy available in the cadre of Asstt Director. There is another aspect of the matter. Admittedly, in the year 1984 all the vacancies of Asstt Directors were required to be filled up only by promotion and no direct recruitment was permissible. Therefore, it was only respondent No.10, who was a senior most Tourist Officer entitled to be promoted against any available vacancy in the cadre of Asstt Director. As far as the petitioner/ appellant is concerned he had no claim for being appointed as Assistant Director, but for the Government order No.1285-GAD. Strictly construing the legal position, Govt order was incapable of implementation in view of existing statutory rules. The Government granted the request of the petitioner for his appointment as Assistant Director in the year 1993 vide Govt order No. 625-GAD of 1993 dated 23-7-1993, after the amendment of the rules, though retrospectively. It is relevant to notice that if petitioner/ appellant was allowed benefit of higher pay scale and designation retrospectively why respondent No.10 be deprived of similar benefit if entitled to under law. The retrospective appointment to the service is otherwise permissible if vacancy in the quota to which a person belong is available in terms of Rule 23 of the J&K Civil Services (Classification, control and Appeal) Rules 1956 which reads as under: -- "23. The retrospective appointment to the service is otherwise permissible if vacancy in the quota to which a person belong is available in terms of Rule 23 of the J&K Civil Services (Classification, control and Appeal) Rules 1956 which reads as under: -- "23. Appointment of members (1) A probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected exists, be appointed to the service at the earliest possible opportunity in order of seniority, and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from such date or as the case may be, from such subsequent date from which he was continuously on duty as a member of the service. (2)Where recruitment to any service shall normally be both by direct recruitment and by transfer or promotion, the provisions of sub-rule (1) shall apply separately as regards; (a) vacancies against which person have recruited direct and; (b) other vacancies; (3) xx x xx x x (4) x xx x x x x x" Thus, the appointment of respondent No.10 as Assistant Director w.e.f. 29-5-1984 cannot be said to be impermissible, illegal or contrary to rules. Issue No.2. In view of the findings that the appointment of respondent no.10 w.e.f. 29-5-1984 is legal and valid, the seniority of the members of service will automatically be determined on the basis of their entry to a particular class, category and grade. Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 prescribe the mode of determination of seniority which reads as under: "24. Seniority (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be." In view of the clear position of the rule, respondent No.10 having been allowed the entry into the category of Assistant Director w.e.f. 29-5-1984 has to rank senior to the petitioner/ appellant, who entered the said category on 18-6-1984. The impugned seniority list circulated vide Govt order No.110 of 1997 dated 11-8-1997 is strictly in accordance with law and cannot be interfered with. The impugned seniority list circulated vide Govt order No.110 of 1997 dated 11-8-1997 is strictly in accordance with law and cannot be interfered with. On the same analogy grant of Selection grade to respondent no.10 vide Govt Order no. 21-TSM/93 dated 29-1-1993 also cannot be faulted with. Issue No. 3 The above discussion brings us to the question of relief to be granted to the petitioner/appellant. Admittedly, respondent No.10 has been inducted to KAS (Kashmir Administrative Service) vide Govt order No. 1864-GA dated 27-11-1997. It is pertinent to note that at the time of induction, both the petitioner/ appellant as also respondent No. 10 were considered, irrespective of their seniority. The induction into KAS is governed and regulated by the J&K Administrative Service Rules 1979 as notified vide SRO 569. Rules 5,6,7 & 8 prescribe the mode of recruitment to the Kashmir Administrative Service. Rules 5 to 8 are quoted below: "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 a competitive examination at the junior scale; (b) by promotion to the time scale of the service from amongst the members of the following services holding time scale of Rs 2125-3600 or any other higher grade in the respective departmental service: -- (1). The Jammu and Kashmir Revenue (Gazetted) Service; x xxxx x x xx (7).The Jammu and Kashmir Tourism (Gazetted) Service. xxx x x x xxxx Note-I. The Jammu and Kashmir Administrative Officers (Gazetted) Service shall be deemed to be a part of the Jammu and Kashmir Secretariat (Gazetted) Service for working out quota of vacancies in KAS till such time the officers who were regular recruits of the Jammu and Kashmir Secretariat (Gazetted) Service as on 10-10-1988 are promoted to KAS or retire whichever be earlier. This will not apply to the officers who may be superseded for purposes of promotion to the KAS. Note-2. This will not apply to the officers who may be superseded for purposes of promotion to the KAS. Note-2. Selections made from time to time for appointment to a service at its time scale shall bear the same ratio, as far as possible, to the member of posts in the respective feeding departmental services; c. By Selection to the time scale of the service from amongst the persons of outstanding ability and merit serving in connection with the affairs of the State in Departments/ services other than those covered under clause (b) above or in Autonomous Bodies/Government owned Public Sector Undertaking carrying pay scale equivalent or higher than the time scale of KAS, on the recommendations of the concerned department/Autonomous Body/Government owned public sector under taking respectively. (2) The number of vacancies in the junior scale of the service to be referred to the Jammu and Kashmir Public Service Commission for recruitment under clause (a) of sub-rule (1) shall be worked out by reference to 25% of the vacancies of senior scale posts available in the year in which the said junior scale recruits shall be eligible for promotion to Time Scale. (3) The number of persons to be recruited to the Time Scale of the service under sub-rule (1) from different sources shall be as under: (a) 65% of the vacancies of the Time Scale posts occurring in a calendar year shall be filled up by promotion from the departmental feeding services referred to in clause (b) of sub-rule (1) above. (b) 10% of the vacancies of senior scale posts occurring in ca calendar year shall be filled up by promotion of the junior scale KAS Officers subject to the conditions laid down in sub-rules (4) and (5) of rule 2 hereinabove. Provided that till the first batch of Junior KAS becomes eligible for promotion to the time scale, the vacancies in the time scale of KAS shall be filled up by promotion of officers as specified in clause (b) and clause (c) of sub-rule (1) above in the ratio of 85 : 15 respectively subject to other conditions as prescribed in these rules. 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 (1) 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 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 and "Good or "unfit" as the case may be on an overall relative assessment of these 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 there-after 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 as its Time scale." 12. A conjoint reading of the afore-said rules makes it clear that for induction to Kashmir Administrative Service, the seniority of a person has limited role i.e. to bring a person within the zone of consideration, there-after the seniority has no role to play as for the selection of the eligible persons within the zone of consideration is concerned. It is admitted case of the parties that in the year 1997, the appellant as also respondent No.10 both were eligible and within the zone of consideration and bothwere considered for induction to KAS. It is admitted case of the parties that in the year 1997, the appellant as also respondent No.10 both were eligible and within the zone of consideration and bothwere considered for induction to KAS. Respondent No. 10 came to be inducted on the basis of better grading of his APRs, whereas the petitioner/appellant remained un-successful on assessment of the comparative merit of both these officials by the selection committee. The petitioner/appellant having assailed the induction of respondent No.10 and failed in his attempt is not entitled to claim any relief against respondent No.10, who has already entered in a higher category and presently belongs to a different service on induction. The issue of inter-se seniority of petitioner/ appellant and respondent No.10 has been rendered otiose as both of them now belong to different services and the inter-se seniority has relevance only if they belong to the same cadre of service. The induction of respondent No.10 is a fait accompli and cannot be re-opened in the present proceedings. In view of detailed discussion, We are of the considered view that no relief can be granted to the petitioner/appellant in the present appeal. The appeal is as such, dismissed.