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2005 DIGILAW 234 (JK)

Ab. Rashid Ganaie v. State

2005-08-12

BASHIR AHMAD KIRMANI

body2005
1. Shorn of unnecessary detail, the case of the petitioners is that after having been initially appointed as attendants they were promoted to the post of Junior Assistants first on ad hoc basis and later regularized as such, whereafter they were given officiating promotion as Senior Assistants and then regularized in that cadre vide Order No. SIMS 184(P) of 1998 dated 14.10.1998. Thereafter they were given officiating promotion of Head Assistants against certain vacancies caused due to migration of incumbents and also allowed to undergo the secretariat training course. Claiming that having undergone the said training course they are eligible for regularization of their promotion as Head Assistants particularly in view of their experience and qualification, the petitioners pray for issuance of mandamus upon respondents to treat the petitioners as having been regularized on the posts of Head Assistants from the date they were given officiating charge as such. Ground pleaded in support thereof is equality of treatment and parity with some others who they allege have been so regularized. Materials annexed with the writ petition are the initial appointment orders of petitioners, etc. including order of their officiating promotions as Head Assistants alongwith the communication showing their participation in the secretariat training course. 2. Perusal of relevant rules, being SRO 94 of 22.3.2001 relied upon by the petitioners to canvas their case reveals that posts of Head Assistants in the service are required to be filed up by promotion from the cadre of Senior Assistants having at least three years service as such and having passed Secretariat Assistants Examination. On that basis the petitioners contended that they be treated as having been regularized on the post of Head Assistants, even though admittedly no formal orders to that effect have been issued by the competent authority. Taken as such, the prayer appears to be grossly misconceived for the simple reason that mere eligibility of petitioners, even if assumed to be there, can ordinarily not perse mean the regularization of their officiating promotion as Head Assistants, unless administrative orders to that effect as issued by the competent authority. Needless to say that eligibility for promotion to a particular post is one thing and actual promotion to that post is another. On basis of mere eligibility, ordinarily, no one can claim an officiating promotion, admittedly ordered as a stop gap arrangement, to have automatically ripened into a regular one. Needless to say that eligibility for promotion to a particular post is one thing and actual promotion to that post is another. On basis of mere eligibility, ordinarily, no one can claim an officiating promotion, admittedly ordered as a stop gap arrangement, to have automatically ripened into a regular one. Faced with that situation the petitioners counsel in his brief submissions tried to derive support from a judgment of this court reported as 1997 SLJ 283 claiming the same to be based on the law declared by Hon™ble Apex Court in cases reported as AIR 1986 SC P 638 and AIR 1983 SC P 1019. For what follows learned counsel™s reliance upon said judgments appears to be misplaced. 3. The judgment reported as AIR 1983 SC 1019 appears to have been passed in a bunch of civil appeals captioned as M/s Hoechst Pharmaceuticals Ltd. and another etc. v. State of Bihar and others�, M/s Jamuna Flour and Oil Mills and others etc. v. State of Bihar and others� and M/s Pharma Associates etc. v. State of Bihar and others�, whereunder certain provisions of Bihar Finance Act, Essential Commodities Act, Drug (Price Control Order) were under discussion for assessing their constitutional validity and does not appear to contain anything having bearing upon the questions raised in the instant petition. 4. Similarly, vide judgment in Narender Chadha v. Union of India� reported in AIR 1996 SC P 638, even though the question of continued officiating promotion on a particular post for a very long time without substantial, appointment or regularization thereupon was considered, yet that was in a slightly different context, and the observations made therein regarding benefit accrued to the employee due to continued officiating promotion were in terms of the judgment itself, specific of that case, which essentially involved a dispute of seniority between direct recruits and promotees, wherein the Hon™ble Bench in para 14 of the judgment observed as under: ¦It is expressly admitted that the petitioners have been allowed to hold posts included in Grade IV of the aforesaid services, though on an ad hoc basis. (See Para 21 of the counter - affidavit filed by Shri P. G Lele, Deputy Secretary, Department of Personnel and Administrative Reforms). It is, therefore, idle to contend that the petitioners are not holding the posts in Grade IV of the two Services in question. (See Para 21 of the counter - affidavit filed by Shri P. G Lele, Deputy Secretary, Department of Personnel and Administrative Reforms). It is, therefore, idle to contend that the petitioners are not holding the posts in Grade IV of the two Services in question. It is significant that neither the Government has issued orders of reversion to their former posts nor has any body so far questioned the right of the petitioners to continue in the posts which they are now holding. It would be unjust to hold at this distance of time that on the facts and in the circumstances of this case the petitioner are not holding the posts in grade IV¦� Immediately thereafter, Hon™ble Bench was pleaded to add that: But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results. In the instant case the Government has also not expressed its unwillingness to continue them in the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts¦ In the instant case there is no impediment even under the Rules to treat these petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in R.16 thereof¦� 5. It may be added that rule 16 referred in the aforesaid para envisaged the power of Government to relax any of the provision of the rules with respect to any class or category of persons or posts for reasons to be recorded, prospectively. It may be added that rule 16 referred in the aforesaid para envisaged the power of Government to relax any of the provision of the rules with respect to any class or category of persons or posts for reasons to be recorded, prospectively. Thus observations of the Hon™ble Bench in the above quoted case were too specific to the facts and circumstances of that case where the petitioners had held officiating promotion for as long as fifteen to twenty years without any reversion in between or any challenge to their continuation as such with a provision to save the Governments power of relaxation, whereunder, such relaxation in view of the aforesaid facts was deemed to have been granted. 6. Similarly the case of A. R. Qurashi v. State of Jammu and Kashmir� decided by a Bench of this court and reported in 1997 SLJ P.283 also appears to have been decided within its peculiar circumstances, where in the petitioner continued on officiating promotion to the post of Deputy Director (Technical) as stop gap arrangement for around eleven years, for want of regular promotion in absence of rules, whereafter, he was accorded ad-hoc promotion till his retirement from service in 1993, for near about two years prior to which he was given full pay scale of the post. In those circumstances, the Hon™ble, Bench of this court held the petitioner to be treated as having been promoted on regular basis against the post, with effect from the date he was given officiating promotion thereupon. However, the ratio of aforementioned Supreme Court judgments as contained in the said judgment does not appear to have been reflected alongwith the attending perspective. 7. Accordingly, it follows that the judgments quoted by petitioners counsel in support of his contention, have been quoted out of context, do not lend even marginal support to petitioners cases, particularly the ultimately prayer, that has been made in following terms: (a) Mandamus, commanding the respondents to treat the petitioners regularized on the posts of Head Assistants from the date petitioners were holding the posts in the officiating capacity with incentive of charge allowance as the petitioners are eligible in terms of rule to hold the posts substantively. (b) Mandamus, commanding the respondents to release the arrears of the salary retrospectively from the date the petitioners were holding the posts of Head Assistants in officiating capacity.� and which in view of the rule relied upon, as already said, does not appear to have any substance. Accordingly, the petitioner™s prayer as quoted above cannot be granted, and in that view of the matter, the petition appearing to be misconceived, is dismissed. Needless to say, however, that dismissal of this petition would not act as a bar against consideration of petitioners in their own right for substantive promotion to the posts of Head Assistants against available vacancies and under rules governing such promotions subject to their eligibility, whenever such promotions are to be made. With that the petition stands disposed of at the very threshold.