Research › Search › Judgment

J&K High Court · body

2007 DIGILAW 217 (JK)

Ajaz Hussain Qureshi v. State Of J. &K.

2007-10-09

AFTAB ALAM, MANSOOR AHMAD MIR

body2007
Per Mansoor Ahmad Mir, J. 1. This Letters Patent Appeal is directed against the judgement and order dated 16-5-2007 passed in SWP No. 750/2000 by the writ court, whereby writ petition of the appellant came to be dismissed. The short controversy involved in this appeal is whether appellant is estopped from claiming retrospective benefits after exercising option and accepting his adjustment/appointment as Junior Stenographer (English) with prospective date. 2. In order to determine the controversy, it is necessary to notice the brief facts of the case. 3. It appears that material facts averred by the appellant are not in dispute. Respondents have admitted that the appellant was appointed as Urdu Stenographer in the year 1994 vide Government order No. 298-GAD of 1984 dated 13-12-1984. He was allowed to undergo training in English Stenography at his request and completed the said training in the year 1993. He was granted one increment in terms of rules with the intervention of the court. There-after he made representations for up-gradation of his post, but his request was not acceded to by the respondents. However, he was given option for change of his cadre and was offered the post of Junior Stenographer (English) in the J&K Secretariat (Subordinate) Service. Besides him, other three officials namely Jan Mohammad, Ghulam Hassan Thokar and Mohammad Ashraf were also given the same offer. The offer was out come of decision made by the Establishment Committee on 8-7-1997. 4. The petitioner showed his willingness for the change of his cadre with retrospective effect, but his option was not accepted. He was advised to exercise specific option, whether he would like to be appointed as Junior Stenographer (English) with prospective date or would like to be transferred along with post to the Financial Commissioners office, who administers the cadre of Urdu Stenographers. The appellant accepted the offer, exercised option and made request that he be appointed as Junior Stenographer (English) with prospective date. A copy of the option so submitted by him was placed on record by the respondents before the writ court, which reads as under:- "...... In reference your letter No. GAD (Estt) 70/78-II dated 25-9-1997 regarding encaderment as Junior Stenographer English. It is therefore, requested that I may kindly be appointed as Jr. Scale stenographer English with prospective date." 5. A copy of the option so submitted by him was placed on record by the respondents before the writ court, which reads as under:- "...... In reference your letter No. GAD (Estt) 70/78-II dated 25-9-1997 regarding encaderment as Junior Stenographer English. It is therefore, requested that I may kindly be appointed as Jr. Scale stenographer English with prospective date." 5. The respondents specifically pleaded in their counter that the appellant is caught by law of estoppel and cannot turn round. He filed rejoinder, wherein he has not denied the said factum, but averred that option so exercised, would not debar and disentitle him from agitating his grievances. It is profitable to reproduce relevant para of the rejoinder hereunder:- "....... However, giving that option, he has not lost any of his rights, for, it being well settled that there can be no estoppel against legal or fundamental rights. It being petitioners legal as well as fundamental rights to seek promotion/up-gradation and the respondents having denied the same to him, therefore, the question of his giving option for his encaderment as Jr. Stenographer (English) prospectively in the Secretariat Service will not impinge all his rights. Even after giving his option, the petitioner is not stopped from agitating his grievances with the respondents......." 6. Writ court after hearing learned counsel for the parties and considering the matter, held and found that the petitioner is caught by his conduct. He has made election and cannot turn round, thereby is caught by law of estoppel. The writ court accordingly dismissed the writ petition. 7. Learned counsel for the appellant argued that the option exercised would not come in the way of seeking the enforcement of his legal and fundamental rights and in this connection he placed reliance on the judgement of the apex court reported in AIR 1986 SC 180, 2000(3) SCC 588 and AIR 1998 SC 2909. 8. Keeping in view the above said facts, the writ petitioner has himself accepted the appointment adjustment as Junior Stenographer (English) with prospective date. It appears that he has exercised option after examining the rule position that there was no chances of promotion from the cadre of Urdu Stenographer, while as there are ample chances for promotion of Junior Stenographers (English). Keeping in view the above said facts, the writ petitioner has himself accepted the appointment adjustment as Junior Stenographer (English) with prospective date. It appears that he has exercised option after examining the rule position that there was no chances of promotion from the cadre of Urdu Stenographer, while as there are ample chances for promotion of Junior Stenographers (English). The Jammu and Kashmir Secretariat (Subordinate) Service Recruitment Rules, 1972 provide that Junior Stenographers (English) have chances of promotion, while as Urdu Stenographer is not having any chance of promotion. Junior Stenographer (English) is the feeding cadre to the Senior Stenographer class I, while as Urdu Stenographer cadre is falling in class 2(F) is not the feeding cadre for any other cadre. The writ petitioner has himself admitted in the appeal that he had bleak chances of promotion from the cadre of Urdu Stenographer and that was the reason for accepting change of cadre. It is profitable to reproduce para 12 of the appeal:- "That after passing is English Stenography Training Course and having been given one advance increment, the appellant approached the respondent No. 1 with an application stating therein that as he was a graduate and has seven years of service as Urdu Steno/English Steno and had also Computer knowing hand and had passed the Computer Training, therefore, his case be considered for up-gradation in the pay scale of Rs. 2000-3200. The appellant also stated in his application that since his future was totally bleak and he has no chances of promotion, therefore, keeping in view his merit and ability and the training he has passed, his case deserve consideration for up-gradation........" 9. In the given circumstances, the writ petitioner has exercised option willingly and made election consciously. The apex court in case K.P. Sudhakaran and another Vs. State of Kerala and others, 2006 (5) SCC 386, held that when an employee is having knowledge that he has no chances of promotion avenues in the cadre and makes election for change of cadre or designation, he cannot turn round there-after in order to seek the benefits of past service. It is profitable to reproduce para 11 of he judgement here under:- "...... It is profitable to reproduce para 11 of he judgement here under:- "...... In service jurisprudence, the general rule is that if a government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior most employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service rules." 10. Keeping in view the above said facts and the conduct of the appellant, he is estopped from making U turn. 11. The apex court in case Indu Shekhar Singh & ors. Vs. State of U.P and ors, 2006 AIR SCW 2582 has held that if a person obtains entry in any service cadre on the basis of election, he cannot be allowed to turn round and contend that condition(s) is/are illegal. Further it held that there is no fundamental right in regard to the counting of past service rendered in any other cadre. It is profitable to reproduce para 25 of the said judgement hereunder:- "They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal (see R.N. Gosain V Yashpal Dhir (1992) 4 SCC 683, Ramankutty Guptan v. Avara (1994) 2 SCC 642 and Bank of India & ors. Vs. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal (see R.N. Gosain V Yashpal Dhir (1992) 4 SCC 683, Ramankutty Guptan v. Avara (1994) 2 SCC 642 and Bank of India & ors. Vs. O.P. Swarnakar & ors. (2003) 2 SCC 721. Furthermore, there is no fundamental right in regard to the counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtain such benefit of past service." 12. Argument of learned counsel for the appellant that the petitioner was to be adjusted/appointed retrospectively in Junior Stenographer cadre in order to enable him to have the benefit of past service rendered by him in Urdu Stenographer cadre. The said right is a fundamental right, thus law of estoppel cannot come in the way of claiming legal and fundamental rights. His argument is not tenable for the following reasons:- 13. The apex court in recent judgements held that claiming seniority is not a fundamental right. It is profitable to reproduce para 21 and 22 of the said judgement of the apex court (supra) hereunder:- "Seniority, as it well settled, is not a fundamental right. It is merely a civil right. (See Bimlesh Tanwar v. State of Haryana (2003) 5 SCC 604, paragraph 49 and also Prafulla Kumar Das & Ors. V. State of Orissa and Ors. (2003) 11 SCC 614. The High Court evidently proceeded on the premise that seniority is a fundamental right and thereby, in our opinion, committed a manifest error." 14. The apex court also in the case titled Bimlesh Tanwar Vs State of Haryana & ors., 2003 (5) SCC 604, held that right of seniority is not a fundamental right at all. It is profitable to reproduce para 4 of the said judgement hereunder: "Seniority is not a fundamental right. It is merely a civil right. Inter se seniority lf the candidates who are appointed on the same day would be dependent on the rules governing the same. Only in absence of any statutory rules, the general principles may be held to be applicable." 15. It is merely a civil right. Inter se seniority lf the candidates who are appointed on the same day would be dependent on the rules governing the same. Only in absence of any statutory rules, the general principles may be held to be applicable." 15. Keeping in view the above discussion and the ratio laid down by the apex court referred to hereinabove, I am of the considered view that the writ court has rightly dismissed the writ petition and the judgement under appeal do not warrant any interference. Accordingly the appeal is dismissed.