Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 208 (JK)

Amrit Sagar v. State Of J. &K.

2005-08-03

PERMOD KOHLI

body2005
1. Petitioners in this batch of writ petitions, are aggrieved of Government Order No. 1491-Edu.of 2002 dated 31.12.2002 whereby the Incharge Lecturers in the discipline of Mathematics in the Education Department of the State, have been ordered to be regularized with effect from the date they were made Incharge ignoring the claims of the writ petitioners and other persons who claim to be senior to them in the cadre of service both as Masters/ Teachers , the feeding channel for the post of Lecturer. 2. The recruitment to the post of Lecturer is governed and regulated by the Jammu and Kashmir Education (Gazetted) Service Recruitment Rules, 1992. Rule-5 of these Rules reads as under: 5. Qualifications and method of recruitment(1) No person shall be eligible for appointment or promotion to a post in any class , category or grade in the service unless he possesses the qualifications as laid down in Schedule-II� appended to these rules and fulfils 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 promotion; and c) partly by direct recruitment and partly by promotion in the ratio and in the manner mentioned against each post in Schedule-II.� The Schedule annexed thereto prescribed 50% of the posts to be filled up by direct recruitment and 50% by promotion from amongst the eligible candidates i.e. Masters, Senior Teachers and Teachers possessing the requisite qualification. Relevant extract from Schedule-II is reproduced as under: Lecturers 1700-2900 Masters Degree in the relevant subject (i) 50% by direct recruitment. (ii) 50% by promotion from Masters in the grade of 1300-2500 and in case no suitable candidate is available from Masters grade then by promotion from Sr. Teachers(1075-2325) and if no suitable candidate is available then promotion from General Line Teachers (900-1830) With at-least 3 years Experience as teacher." 3. In SWP No. 17/2003, it is alleged that the petitioners were appointed as teachers from 1979 to 1992. They acquired their Post Graduation and promoted as Masters. They are senior to the private respondents as Master. Their seniority position is reflected in the tentative seniority list of 1994 and 1996, which clearly indicates that they are senior to the private respondents. They acquired their Post Graduation and promoted as Masters. They are senior to the private respondents as Master. Their seniority position is reflected in the tentative seniority list of 1994 and 1996, which clearly indicates that they are senior to the private respondents. It is further alleged that the respondent- State has been making promotions to the posts of Lecturer on Incharge basis by adopting pick and choose method ignoring the claim of seniors including the petitioners in almost all the disciplines in the Education Department in most arbitrary manner instead of making promotion on regular substantive basis in accordance with law i.e. by referring the same to the Public Service Commission (PSC) and holding Departmental Promotion Committee (DPC).Petitioners further state that the Government has now issued Government Order No. 1491- Edu. Dated 31.12.2002 whereby all the Incharge Lecturers have been regularized w.e.f. the dates they were made Inchage. From the annexure enclosed to the impugned Government Order, it appears that the officials have been regularized from the dates they were holding the post as Incharge Lecturers . Petitioners accordingly assailed impugned order and seek its quashment and consequently directions on the following grounds: i) That the impugned order has been passed in contravention to the direction of the Hon™ble Division Bench in its judgment dated 30.5.2002 passed in LPA (SW) No. 662/99; ii) That the regularization has been ordered in most arbitrary manner and in violation of the rights of the petitioners as enshrined under Articles 14 and 16 of the Constitution of India; iii) That the regularization has been ordered ignoring the PSC and without its consultation, which is mandatory condition as per the settled proposition of law ;and iv) That the regularization is also discriminatory in nature as in all other disciplines , the rule of seniority has been adhered to and promotion made on that basis except the discipline of Mathematics without any valid basis. 4. The petitioners have quoted some instances where the persons junior to them have been granted the benefit of regularization and even some of the persons do not fall within the norms specified in the impugned order. This is to indicate that as a matter of fact, no parameter or valid norm has been observed by respondents in making promotions, which are otherwise said to be unlawful and illegal. 5. This is to indicate that as a matter of fact, no parameter or valid norm has been observed by respondents in making promotions, which are otherwise said to be unlawful and illegal. 5. Respondents- State in its disclaimer to the writ petitions stated that the teachers beyond the level of Masters i.e Lecturers , Head Masters, Principals and above in the Education Department are State level officers. It is further stated that for the last number of years, the State was feeling problems in the matter of promotion from one level to another and cadre management became difficult. As far the rule position is concerned, it is admitted that 50% of the posts are to be filled up by direct recruitment from the open market whereas 50% posts reserved for in-service Post Graduate Teachers. It is contended by respondents that despite the Recruitment Rules, the parity of 50: 50 between the direct recruits and promottee cannot be maintained in the wake of tremendous expansion of Educational facilities and the last few years, promotions were made to the post of Lecturers to keep the schools functional . It is further stated that it takes Public Service Commission 6 to 9 months to finalize the selection of Lecturers in one discipline and since during this intervening period, schools have to be kept functional in the interest of students who have to cover the prescribed courses within an academic calendar year, temporary arrangements were made putting in-service Masters Grade teachers in-charge of jobs of Lecturers in various subjects in their own pay and grade with charge allowance as admissible under rules. It is admitted that promotion to Gazetted level is to be made by duly constituted Departmental Promotion Committee chaired by member of the Public Service Commission .It is stated that due to prevailing situation , it has not been possible for the Department to arrange holding of meetings of constituted Departmental Promotion Committee as frequently as would be warranted . It is admitted that promotion to Gazetted level is to be made by duly constituted Departmental Promotion Committee chaired by member of the Public Service Commission .It is stated that due to prevailing situation , it has not been possible for the Department to arrange holding of meetings of constituted Departmental Promotion Committee as frequently as would be warranted . It is further case of respondents- State that with a view to keep the schools functional relatively junior officers were entrusted with the job of Lecturers in the interest of students and in this process , a sizeable number of in-service teachers have been given promotion in ˜Incharge™ capacity in excess of their share under rules and for variety of reasons , it was not possible for the Department to have this regularization process completed in consultation with the Public Service Commission . State accordingly considered that one time departure from the prescribed procedure shall have to be made and all the officers working at present in their own pay and grade should be confirmed by relaxing rules requiring regular promotion through the Public Service Commission and according to the respondent- State, this was the only option available with the Department to clear the huge back-log of promotions and in this background, Commissioner/ Secretary to Government, School Education Department with the approval of Hon™ble Minister for Education submitted the case to the Cabinet. The cabinet vide decision No. 165/15 dated 21.10.1998 conveyed approval of the said proposal of the Education Department. Accordingly, with the approval of the department, the lists were prepared in each discipline and orders were issued in accordance with the seniority in all subjects except Mathematics . Reference is made to certain writ petitions wherein certain persons approached High Court with the complaint that persons junior to petitioners have been made Incharge Lecturers ignoring their claims and accordingly directions were issued in various writ petitions to consider their cases on the analogy of their juniors who were promoted and made Incharge Lecturers . It is further alleged that some Incharge Lecturers including Lecturers™ forums represented to Government to implement the Cabinet decision referred to above. It is further alleged that some Incharge Lecturers including Lecturers™ forums represented to Government to implement the Cabinet decision referred to above. It is further stated that the matter was considered in view of the pendency of various writ petitions and the Administrative Department decided to implement the aforesaid Cabinet decision in its right perspective to regularize the services of those Incharge Lecturers who have been working as such for so many years in all disciplines including Mathematics and accordingly the impugned order came to be passed. Some of the private respondents have also filed their objections in some of the writ petitions justifying their promotion, as according to them, they had taken up the challenge to work in far- flung areas during the militancy when their seniors declined the offer for such promotion. In SWP No. 17/2003, private respondent-7 in his reply submitted that he belongs to Schedule Tribe category and was entitled to promotion on the basis of roster point . It is further stated that no candidate of Schedule Tribe category has challenged his promotion and therefore, his case is distinguished from other respondents. The respondents have also taken refuge under Cabinet Decision No. 165/15 dated 21.10.1998. 6. I have perused impugned order dated 31.12.2004. The relevant extracts from this Government Order which deal with the grounds for passing impugned order are noticed as below: Whereas at any given point of time there must be parity of 50:50 between the direct recruits and promotees . It has not been possible to maintain this parity in the wake of tremendous expansion of educational facilities that took place over the years. Whereas for keeping the school functional in the absence of timely availability of select lists of lecturers from Public Service Commission , the department have been making temporary arrangements in order to run the schools by picking up from Masters/Teachers in their own pay and grade with charge allowance as I/C lecturers as admissible under rules. against available vacancies. Whereas right from mid seventies when the department switched over to +2 system of education at Secondary level , a number of seniority disputes among lecturers in various subjects have arisen. These seniority disputes are between the teachers of science stream and their counterparts in the Arts stream and within two streams themselves . against available vacancies. Whereas right from mid seventies when the department switched over to +2 system of education at Secondary level , a number of seniority disputes among lecturers in various subjects have arisen. These seniority disputes are between the teachers of science stream and their counterparts in the Arts stream and within two streams themselves . Since the department was engaged in sizeable litigation, promotion of eligible officials at various levels in a regular manner has not been possible. Whereas parity because of the situation that has arisen, the State during the last more than 12 years , particularly in Valley of Kashmir and in the District Doda and partly because of the difficulties of terrain in the Jammu Division , there is reluctance on the part of teachers to serve in the remote areas . They prefer to forego their promotions rather than serve in difficult areas. The department was thus obliged to pick up relatively junior officials for these promotions and this has naturally made it difficult to make promotions in a regular manner. Whereas the present situation is that number of in- service teachers who are working as Incharge lecturers are working in their own pay and grade with charge allowance admissible under rules without full benefit of promotions.; Whereas over the last couple of years teachers of School Education Department in both the Divisions are showing signs of restiveness as their services in higher posts as Lecturers have not been regularized. Whereas for variety of reasons, it has not been possible to have this regularization process completed in consultation with the Public Service Commission . Whereas the issue of regularization services of various gazetted cadres who were working in the incharge capacities was discussed a number of times and it was considered opinion of the department that one time departure from the prescribed procedure shall have to be made and all officers at all gazetted levels working at present in their own pay and grade should be confirmed by relaxing the rules requiring regular promotion through the Public Service Commission . This was practically the only option available with the department to clear the huge back log of promotions including those were placed as such irrespective of their seniority positions. This was practically the only option available with the department to clear the huge back log of promotions including those were placed as such irrespective of their seniority positions. Whereas the case was re-examined in department and submitted to the Cabinet with the following resolution for approval: All officers of the Education Department presently working as Incharge Principals , Incharge Zonal Education Officers, Incharge Headmasters and Incharge Lecturers will be confirmed from the dates the post became available or from the date they were adjusted on these posts whichever be later . The Education Department without reference to the Public Service Commission /DPC will issue necessary orders; 5% vacancies in each cadre will be kept as for disposal of such cases as have been left out over the years for one reason or the other. Their cases will also been disposed off by the department with the approval of the Hon™ble Education Minister.� Whereas the cabinet vide their Decision No. 165/15dated 21.10.1998 conveyed approval to the proposal of the Education Department; Whereas after receiving the Cabinet approval, the Education department started to prepare lists etc. with full particulars on each discipline /category and issued regularization orders in all most all subjects except in Math discipline in accordance with the seniority and by doing this several incharge Lecturers were not regularized in the spirit of cabinet decision although those teachers/masters were regularized who had never worked for a single day in incharge capacity thus cabinet decision was defeated to some extent; Whereas number of lecturers approached the Hon™ble High Court praying for strict implementation of the Cabinet Decision and directions to that effect were issued by the Hon™ble court in many writ petitions from time to time; Whereas so many lectures other than those who had gone to the Hon™ble High Court including Lecturer Forum� of J&K represented from time to time to implement the Cabinet Decision in its letters and spirit and keeping in view the reasons mentioned in the memorandum which was submitted to the cabinet; Whereas from the other side in Math discipline so many Incharge Lecturers having notice the procedure adopted in other disciplines went to the Hon�ble High Court through the medium of writ petition SWP NO. 1752/99 & CMP No. 2758/99 titled Sudesh Kumar and Others Vs. 1752/99 & CMP No. 2758/99 titled Sudesh Kumar and Others Vs. State of Jammu & Kashmir and others and got the following interim directions: ¦¦No regularization orders in-terms of annexure ˜E™( Order No.Edu/V/145/98 dated 27.10.1998) shall be issued and the present status of the petitioners shall not be disturbed till the next date before the bench.� Whereas on the directions of the Hon™ble High Court the regularization in the discipline of Math subject was totally stopped; Whereas the intention of this cabinet decision as well as the memo that was submitted to the cabinet was only to regularize those who volunteered to serve in far off/ risky places on the posts of lecturers during militancy when their seniors had shown unwillingness and a vacume was created due to migration of people from Valley; Whereas as a result of non-implementation of Cabinet Decision about a number of Masters/Teachers who had worked as Incharge Lecturers under proper orders in various subjects were not regularized and these persons have been agitating since 1998 for implementation of the cabinet decision and about more than fifty writ petitions are pending and among them some have brought orders for consideration of their claim in terms of cabinet decision since they have been working as Incharge Lecturers for last more than twelve years and are in receipt of charge allowance; Whereas the case has been re-examined in the Administrative Department and it has been decided to implement the Cabinet Decisions in its right perspective and regularize the service of those Incharge Lecturers who are working as such for so many years; Now, therefore, in pursuance of Cabinet Decision No.165/15 dated 21.10.1998 and directions of the Hon™ble High Court in various writ petitions , sanction is accorded to the regularization of I/C Lecturers as shown against each in various discipline including Math as per Annexure-A to this order from the dates they have been placed as I/C Lecturers through various Government Orders issued by the Administrative Department from time to time in the relevant pay scales as revised from time to time, subject to the following conditions¦..� 7. One Bharat Bhushan challenged the adhoc arrangement of lecturers in Mathematics by filing a writ petition in the High Court , which was dismissed and in the appeal preferred there from being LPA(SW) No.662/99, the Hon™ble Division Bench of this court disposed of the LPA vide order dated 30.5.2002 with the following observations: We are of the opinion that instead of dismissing the writ petition, respondents be directed to take note of the judgment quoted above. Respondents would accordingly take note of law laid down by the Supreme Court and see to it that adhoc appointments are not permitted to be continued . In line with the judgment and more particularly para-6 of the judgment adhoc arrangement should not confer any benefit on the persons who were given this benefit. Para 6 of the judgment is being reproduced below: 6. The third contention is that appellant ˜s™ in charge™ arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an™ incharge™ arrangement is not recognition of or is necessarily based on seniority and that therefore, no rights equities or expectation could be built upon it. The third contention is also unmeritorious.� On the basis of above observations, LPA Bench issued this direction: Respondents to take note of above mentioned judgment of the Supreme Court of India and see to it that equities as observed by the Supreme Court of India are not disturbed. They would take a decision within a period of three months from the date copy of the order passed today is made available by the petitioner to the respondents and their counsel. Appeal is disposed of accordingly.� 8. This judgment was passed admittedly before the passing of the impugned order. The State was duly represented before the Hon™ble Division Bench in the aforesaid judgment.. A perusal of the judgment clearly indicate that the court deprecated the practice of adhocism and also observed that the adhoc arrangement should not confer any benefit on the persons, who are given this benefit and relying upon the Apex Court judgment as noticed in the order, a direction was issued to take decision within three months without disturbing the ratio of the judgment of the Apex Court. The impugned order has neither taken note of this judgment of the Division Bench nor of the Apex Court referred to therein despite a clear direction in this regard. Therefore, the contention of petitioner that impugned order has been passed in violation of the direction issued in LPA No. 662/99 cannot be brushed aside lightly. It was obligatory upon the official respondents to have taken the decision in furtherance to the directions of the Hon™ble Division Bench in respect to the adhoc arrangements. The impugned order has apparently not been issued in consonance with the directions/observations in the aforesaid judgment. 9. The ratio for filling up the available posts of lecturers has been prescribed in the rules. It is admitted in the impugned order that 50: 50 ratio amongst the direct recruits and promotees in the cadre of lecturers in Education Department has not been maintained and promotions have been made in access of the quota prescribed for promotees. It is also admitted in the impugned order that junior officials were promoted to keep the schools functional in their own pay and grade as Incharge Lecturers and this arrangement continued for number of years. The respondents have also specifically stated in the impugned order that for variety of reasons, it is not possible to complete the process of regularization in consultation with the Public Service Commission. The reasons that prevented the respondents/ State from seeking opinion of the Public Service Commission for a period of twelve years or so, have not been indicated. The vague assertion in the impugned order that for variety of reasons , it is not possible , cannot justify the decision of the Government to relax the rules, that too in respect to only one discipline where admittedly rules have been followed in other subjects . It has been vehemently urged on behalf of respondents that State has the power to relax rules and even Rule-9 of the Recruitment Rules of the Education Department confers power upon the Government to relax rules in appropriate cases . Such power has to be conceded to the Government. However, mere vesting of power to relax the rules may not be enough to justify the action unless there exist valid reason for exercising such power of relaxation. The Apex Court in Ashok Kumar Uppal Vs. State of J&K reported as AIR 1998 SC 2812 observed : 26. Such power has to be conceded to the Government. However, mere vesting of power to relax the rules may not be enough to justify the action unless there exist valid reason for exercising such power of relaxation. The Apex Court in Ashok Kumar Uppal Vs. State of J&K reported as AIR 1998 SC 2812 observed : 26. Power to relax the Recruitment rules or any other rule made by the state Government, under Article 309 of the Constitution of India of which the corresponding provision is contained in Section 124 of the Constitution of Jammu & Kashmir, is conferred upon the government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have become impossible, under service jurisprudence as also the Administrative Law, such a power has necessarily to be conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under them in different departments including the Central or the State secretariat.� This court in SWP No.1363/2000 and SWP No. 1235/2000 decided on 15.9.2003 observed as under: It has not been indicated in the replies filed by the respondents as to under what circumstances the power has been exercised. What was the emergent situation and what was in-justice which was required to be un-done. There is also no situation where the working of any rule has become impossible. The judgment has no application to the facts of the present case. It is a pure and simple case of appointment dehors the rules. Respondents have also not placed on record anything to show that rules have been relaxed in any manner. Merely saying that the appointment made is in relaxation of rules does not mean that the State has actually exercised the power to relax the rules. Even if any rule has been relaxed the appointment of respondent No.4 is still not sustainable having been made in violation of Articles 14 & 16 of the Constitution of India. Reference to other rules in the submissions has no relevance to the issue in question.� 10. The aforesaid observations were upheld even upto Supreme Court when LPA and SLP preferred against the aforesaid judgment came to be dismissed. Reference to other rules in the submissions has no relevance to the issue in question.� 10. The aforesaid observations were upheld even upto Supreme Court when LPA and SLP preferred against the aforesaid judgment came to be dismissed. In view of the dictum of the aforesaid judgments, the State has to come forward with the valid, rationale and plausible reasons to justify the relaxation. . Validity of impugned order needs to be examined on the touch-stone of above observations. 11. Second reason indicated in impugned order is that, the adhoc arrangements were made to keep the schools functional in absence of duly selected lecturers from Public Service Commission. I am pained to notice that nothing has been indicated either in impugned order or in reply filed by respondents-State that during the last 12 years any reference was made to PSC/DPC for the posts in question and the PSC has not accorded its consultation /opinion to such reference . Therefore, this plea does not seem to be bona -fide and valid. 12. Second reason as revealed from the impugned order is reluctance on the part of teachers to serve in remote areas and their preference to forego their promotions rather to serve in difficult areas, which forced the State to make adhoc arrangements. 13. During the course of hearing of this petition, a specific question was asked to Mrs. Neeru Goswami, learned counsel for respondents to show any material or averment in the reply that any of the writ petitioner was offered the post on incharge basis and that offer was declined or any one of them preferred to forego their promotion on any ground. Learned counsel though took some time at the conclusion of hearing to place on record such relevant material, however, even after waiting for more than two months, no record has been shown which may indicate any offer made to any of the writ petitioner and their refusal to seek promotion or forego the same at any stage. On the other hand, representations in SWP No. 59/2003 at Page 43,47 as also the legal notice at page -49, clearly establish that senior officials who were ignored while making adhoc arrangements had been clamouring for justice and making representations not only complaining the adhoc arrangement bestowing favours to juniors but also seeking their own promotion on analogical basis . On the other hand, representations in SWP No. 59/2003 at Page 43,47 as also the legal notice at page -49, clearly establish that senior officials who were ignored while making adhoc arrangements had been clamouring for justice and making representations not only complaining the adhoc arrangement bestowing favours to juniors but also seeking their own promotion on analogical basis . Even petitioner -2 in SWP No. 59/2003 namely Krishen Lal was made Incharge Lecturer and sent to Leh, but has not been granted regularization vide impugned order. 14. In SWP No. 493/03, it is specifically stated that respondents 4 and 5 therein were also initially ignored while granting benefit of Incharge posting and they filed SWP NO. 1006/2000 which was allowed vide judgment dated 3.5.2001 and consequently Government Order dated 16.10-.2002 has been passed granting them benefit of Incharge promotion. These two officials have been regularized in impugned order and are respondents in this petition. Another official namely Ravinder Sharma filed SWP No.2290/99, which was decided on 8.10.99 with direction to consider his claim and the Government in compliance to the aforesaid judgment, granted him Incharge promotion vide order dated 28.3.2001. Similarly, petitioner -3 in SWP No. 59/2003 also worked as Incharge Lecturer from 1995 to 1997 , but has not been granted the benefit of regularization. It is relevant to note that Public Service Commission has filed reply in SWP No. 184 /2003 and it is specifically averred therein that Public Service Commission was never consulted for grant of promotion or even regularization of the Incharge Lecturers . In the same writ petition, it has been specifically stated that writ petitioner was never offered adhoc promotion at any stage. From the above circumstances, the ground that the officials were reluctant to serve in remote areas and even some of them have preferred to forego their promotion, has no factual background or basis , as nothing has been placed on record to support this averment in the impugned order. Mrs. Neeru Goswami, learned Dy.AG has forcefully argued that impugned order has been passed pursuant to Cabinet Decision No. 165/15 dated 21.10.1998, which is policy decision of the Government and no interference is warranted by this court. 15. Mrs. Neeru Goswami, learned Dy.AG has forcefully argued that impugned order has been passed pursuant to Cabinet Decision No. 165/15 dated 21.10.1998, which is policy decision of the Government and no interference is warranted by this court. 15. It is specifically mentioned in impugned order that Cabinet took the above decision and adopted following resolution : All officers of the Education Department presently working as Incharge Principals , Incharge Zonal Education Officers, Incharge Headmasters and Incharge Lecturers will be confirmed from the dates the post became available or from the date they were adjusted on these posts whichever be later . The Education Department without reference to the Public Service Commission /DPC will issue necessary orders; 5% vacancies in each cadre will be kept as for disposal of such cases as have been left out over the years for one reason or the other. Their cases will also been disposed off by the department with the approval of the Hon™ble Education Minister.� 16. The fallacy of the aforesaid contention of learned counsel is apparent from impugned order itself as in the very next paragraph of impugned order, following is recorded: Whereas after receiving the Cabinet approval, the Education department started to prepare lists etc. with full particulars on each discipline /category and issued regularization orders in all most all subjects except in Math discipline in accordance with the seniority and by doing this several incharge Lecturers were not regularized in the spirit of cabinet decision although those teachers/masters were regularized who had never worked for a single day in incharge capacity thus cabinet decision was defeated to some extent� 17. The above paragraph is sufficient to demolish edifice built by respondent- State that it is only on account of conscious policy decision of the Government that the impugned order has been passed. The above averment shows that the cabinet took decision on 21.10.98 allowing the regularization of Incharge Lecturers from the date they were so adjusted without reference to PSC/DPC . However, the State subsequently did not follow the cabinet decision and regularized the officials in all the disciplines except Mathematics on the basis of their relative seniority in the feeding channel. The above averment shows that the cabinet took decision on 21.10.98 allowing the regularization of Incharge Lecturers from the date they were so adjusted without reference to PSC/DPC . However, the State subsequently did not follow the cabinet decision and regularized the officials in all the disciplines except Mathematics on the basis of their relative seniority in the feeding channel. This established beyond doubt that the State was conscious of the mandate of law and declined to implement its own policy of making regularization in violation of law and decided to observe the rule of seniority for making promotion strictly in accordance with the Recruitment Rules and the settled legal position in respect to all disciplines except Math. What prevented the State from adhering to the same rules as far the discipline of Math is concerned, is not forthcoming except an averment in impugned order that one writ petition SWP No. 1752/99 & CMP No. 2758/99 titled Sudesh Kumar and Others Vs. State and Others was filed seeking implementation of the cabinet decision and an interim order was passed restraining the State from making regularization in the discipline of Math. It is noticed with concern that nothing beyond that has been stated in impugned order. What happened to the writ petition finally and if the interim order is still in force whereby the respondents/ State restrained from making regularization; how the impugned order has been passed ; does it violate the interim order or interim order has been vacated and what happened to writ petition, are all relevant questions, which have not been answered by respondents/ State either in impugned order or in the reply filed before the court . There is no answer to the question as to if rule of seniority has been observed and followed for the purpose of making promotion in respect to all other disciplines , why the same principle has not been observed in Math . Impugned order thus suffers from vice of arbitrariness and also provides hostile and discriminatory treatment to officials like petitioners belonging to discipline of Math, who have claim better than or equal with the officials named in impugned order. 18. The Apex Court in case Suraj Parkash Gupta and others Vs. Impugned order thus suffers from vice of arbitrariness and also provides hostile and discriminatory treatment to officials like petitioners belonging to discipline of Math, who have claim better than or equal with the officials named in impugned order. 18. The Apex Court in case Suraj Parkash Gupta and others Vs. State of J&K and others reported as ( 2000) 7 Supreme Court Cases 561, while dealing with the dispute of seniority and regularization of Engineering Gazetted Service in the State of J&K, made certain observations and issued general directions. The same are quoted hereunder: We think this is a occasion to issue certain general directions to the State of Jammu and Kashmir. As pointed out earlier, the State of Jammu and Kashmir is flouting basic rules of recruitment by granting relaxation of the rules of direct recruitment as also the rules requiring consultation with PSC/DPC for promotions/recruitment by transfer. In order to ensure that this is not done in future, the following directions shall also issue: A) The State of Jammu and Kashmir shall appoint a High Level Committee within a month from today to go into the question as to whether in any department in government service, direct recruitment of existing vacancies has not been made and if there was unreasonable delay . The State will consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. But it will ensure that no promotees are put in the direct recruitment quota, temporarily or on stopgap or ad hoc basis unless simultaneously proceedings are initiated for direct recruitment through the Service Commission . The committee will recommend in what manner the direct recruitment could keep pace with promotions as contemplated by rules. B) Similarly, the Committee will find out in which department the ad hoc/ stopgap promotees are languishing without their cases being referred to the Service Commission/ DPC for regularization within their quota. C) The State of Jammu and Kashmir will ensure that no relaxation of the basic recruitment rules is made for direct recruitment through PSC or for purposes of regular promotions/recruitment by transfer. The recommendations of the committee referred to above may be considered by the Government and implemented in accordance with the rules and in accordance with law without unreasonable delay.� Emphasis Supplied� 19. The Apex Court in Mahmood Hasan and Others Vs. The recommendations of the committee referred to above may be considered by the Government and implemented in accordance with the rules and in accordance with law without unreasonable delay.� Emphasis Supplied� 19. The Apex Court in Mahmood Hasan and Others Vs. State of UP and others reported as ( 1997) 2 SCC 138 held: It will not be out of place to mention here that 147 writ petitions by 490 employees of the Food and Civil Supplies Department of U.P. have been filed and the High Court has made several interim directions in these writ petitions giving benefits of interim promotions. The State- level provisional seniority list circulated in 1989 was cancelled on 22.8.91. It is submitted by the State of U.P. that the 1979 Rules required seniority lists to be maintained only division-wise and so the list issued in 1989 was not according to the rules. However, the State of U.P. has since framed another State-level seniority list and has sought permission to revert all those promoted out of turn. By an interim application, being IA No. 14 of 1994 in Writ Petition No. 1131 of 1991, the State of U.P. has applied for vacating all those orders of the High Court. We may recall that the State of U.P. also filed a petition for review of the orders dated 4.12.1987 and 1.10.1991, being Review Petition No. 820of 1994. The respondents contended in the review petition that the respondents therein who were given adhoc promotion in violation of the statutory rules and whose promotions had been cancelled vide order dated 27.12.1983, challenged the cancellation order in the High Court and on such challenge having failed , filed Civil Appeal No. 329 of 1985, Civil Appeal No. 116 of 1986 and Civil Appeal No. 328 of 1985 in which the order dated 4.12.1987 was passed. Subsequently, writ petition no. 1128 of 1989 was filed in which the order dated 1.10.1991 was passed. Subsequently, writ petition no. 1128 of 1989 was filed in which the order dated 1.10.1991 was passed. It is contended on behalf of the State in the petition for review that in view of the two orders dated 4.12.1987 and 1.10.1991 a large number of clerks had filed writ petitions before this court and the High Court claiming promotion o the ground that they were senior to the persons granted promotion, that the earlier review petition filed against the order dated 1.10.1991 being Review Petition No. 292 of 1992 was dismissed on 18.2.1992 ass the order dated 4.12.19897 was still in operation and that the present petition was being filed for review of both the orders dated 4.12.1987 and 1.10.1991 so that the entire matter could be heard de novo . The contention is that unless this court overcomes the inhibition of the said earlier orders complete justice cannot be done and the undeserved benefit reaped by some in preference to their seniors would continue to them at the cost of their seniors. The confusion and anomaly caused by the previous orders had brought about a serious imbalance in the service, inasmuch as, juniors are manning the higher posts without sufficient experience whereas seniors with sufficient experience are required to work at lower levels when they should be manning the higher posts. It is, therefore, contended that the court should utilize its extraordinary powers under Article 142 to undo the injustice and repair the imbalance caused by its earlier orders. Unless the situation arising under the earlier orders is repaired , the imbalance in the cadre will continue and the grievance of the seniors who have been denied promotions because the promotional slots are occupied by their juniors, will survive and so will the brooding sense of injustice continue to adversely affect the functioning of the department. We see considerable substance in this line of reasoning. The exceptional situation has arisen because of number of officials seeking promotion on the ground that their juniors have been promoted is almost as large as the total strength of the promotional cadre. The proper course in such a situation is for the juniors to vacate and to make room for their senior colleagues. The exceptional situation has arisen because of number of officials seeking promotion on the ground that their juniors have been promoted is almost as large as the total strength of the promotional cadre. The proper course in such a situation is for the juniors to vacate and to make room for their senior colleagues. To restore the balance it is necessary to recall the orders dated 28.1.1985, 4.12.1987 and 1.10.1991 and to set aside all orders of the High Court passed in the matter after 28.1.1985 as well as all orders for promotion made by the State Government during this period and to direct that promotion be made , keeping in view all relevant rules and norms, with retrospective effect from the date a vacancy arises for an incumbent according to the State-level seniority list now prepared and submitted to the court¦� Emphasis Supplied� 20. The Apex Court in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and Others reported as AIR 1991 SC 1145 held : The third contention is that appellant™s ˜ in charge™ arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. The contention ignores the fact that an ˜ in charge™ arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, equities or expectations could be built upon it. The third contention is also unmeritorious.� Emphasis supplied� 21. A co-ordinate bench of this court in Ashok Kumar Vs. State of J&K and Others reported as Service Cases Today 1997(2) 485 held: The position that emerges in this backdrop is that the State - respondent had already provided for the mode of determination of seniority of the feeding categories to the post of lecturer viz , Rule 24 of the CCA Rules read with Rule 10 of SRO 83/92. So long as these rules are in force, seniority is determinable in accordance with the mandate of these rules. No administrative instructions or circular providing to the contrary, can sustain and stand in the force of the statutory rules. It is a different thing that the State- respondent may decide to change or re- frame these rules. Till then the existing rules would occupy the field and require implementation¦� Emphasis Supplied� 22. No administrative instructions or circular providing to the contrary, can sustain and stand in the force of the statutory rules. It is a different thing that the State- respondent may decide to change or re- frame these rules. Till then the existing rules would occupy the field and require implementation¦� Emphasis Supplied� 22. The settled legal position that emerges from the facts of this case and the law noticed above, is that the statutory rules governing the regulation of seniority and promotion have to be adhered to and not to be violated in any manner that too by an administrative decision. In the present case, statutory rule of seniority has been contravened with impunity by resorting to wholesome promotions of juniors under the grab of prevailing situation ignoring the claims of the seniors in the cadre of service. This not only frustrates the cadre but also generates a sense of insecurity, which is against the spirit of rules, norms equities and logic. The power to relax rules also cannot be permitted to be exercised in manner so as to render the rules otiose. It also apparently looks a colorable exercise of power in arbitrary and hostile manner 23. The impugned order is also in clear contravention of the directions of the Apex Court in Suraj Parkash Gupta™s case (supra). The judgment was delivered 28-4- 2000. Whereas the impugned order has been passed on 31-12-2002. As a matter of fact, the impugned order is also in violation of the direction dated 30.5.2002 of the Hon™ble Division Bench of this Court passed in LPA (SW) No.662/99. By no parameters, the impugned order is sustainable under law or can be allowed to operate. 24. I allow these writ petitions and quash the impugned order dated 31-12-2002 as regard discipline of Math. As a consequence of quashment of impugned order, the resultant vacancies of lecturers in the discipline of Math are directed to be filled up on the basis of seniority and in accordance with the J&K Education (Gazetted ) Service Recruitment Rules,1992.