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2007 DIGILAW 83 (JK)

Gh. Mohd. Dar v. State Of J. &K.

2007-05-18

BASHIR AHMAD KIRMANI

body2007
1. Briefly stated, petitioners case is that he was promoted as Head Assistant in respondent-department vide order No. PW -130 of 1981 dated 21.07.1981 and after having worked as such for all the intervening years he was asked to function as Section Officer till the post was filled up by concerned Promotion Committee. Grievance projected is that despite having been working as Section Officer till July 2006 the respondents were contemplating his replacement by promoting respondent no. 6 on the pretext that he had not passed the Secretariat Training Course even though said respondent was junior to him in the cadre. Accordingly, petitioner seeks quashment of the order communication purporting to have been issued by respondent no. 4 whereunder he has been held to be ineligible for promotion to the post of Section Officer for want of Secretariat Training Course. 2. In their objections, while admitting petitioners seniority the respondents have pleaded that in view of recruitment rules the petitioner was not eligible for being considered for promotion to the post of Section Officer due to which his case was not submitted to the concerned Promotional Committee. In his separate reply the private respondent has while re-iterating the objections taken by official respondents also stated that previously also petitioner had instituted a writ petition SWP no. 1447/2006 which is still pending adjudication before this Court in view whereof the present petition deserves dismissal as being not maintainable. During course of their submissions the counsel appearing for rival sides have re-iterated the contents of their pleadings. 3. I have heard learned counsel and considered the matter. Admitted premise of the matter is that while petitioner is the seniormost Head Assistant in the cadre promoted as such way back in 1981 he has not passed the Secretariat Training Course and the promotion to the post of Section Officer is governed by Jammu and Kashmir Engineering Subordinate Service Recruitment Rules, 1997. Within that given premise the central theme of controversy appears to be whether or not having the Secretariat Training Course would be necessary for petitioners promotion to the post of Section Officer against which he is currently working. If answer to that query would be in positive then he is out of reckoning, otherwise he has earned the right to promotion by being the senior person in the cadre of Head Assistants. If answer to that query would be in positive then he is out of reckoning, otherwise he has earned the right to promotion by being the senior person in the cadre of Head Assistants. Now in so far as the question of applicability of rule under which the requirement of qualification of Secretariat Training Course is a part of eligibility for promotion from the post of Senior Assistant to the post of Head Assistant is not concerned it is not expressly provided in case of promotion from the post of Head Assistant to the post of Section officer while it is essential for promotion from the post of Senior Assistant to that of Head Assistant. To proceed ahead with the decision, it would be proper to quote from the judgment passed by this Bench in SWP no. 540/2005 on 08.02.2005 whereunder while considering me question it was observed as under:- "4. Promotion in the service from cadre of Head Assistants to which the petitioner and respondent no. 5 belong, to the next higher cadre Section Officer is admittedly governed by SRO 164 of 1st. Sept. 1993 whereunder rules governing the services of J&K Handloom Department have been framed. As per schedule 2 attached to the rules read with Class II thereof, the post of Section Officer is required to be filled up by promotion from the cadre of Head Assistant with not less than 5 years service in that category. The said schedule does not mention anything to suggest that Secretariat Training Course is a part of eligibility criterion for promotion to the post of Section Officer from the cadre of Head Assistant, whileas the same is a requirement for promotion from the cadre of Senior Assistant to that of Head Assistant alongwith five years stay in that cadre. In nutshell therefore, while the Secretariat Training Course is a part of eligibility criterion for promotion from the cadre of Senior Assistant to that of Head Assistant, it is not required for promotion from the cadre of Head Assistant to that of Section Officer who would naturally have had the said training course to his credit, at the time of his promotion to the cadre of Head Assistant. Thus a question would arise as to whether the petitioner who like respondent no. Thus a question would arise as to whether the petitioner who like respondent no. 5 is already functioning as Head Assistant has had the requisite secretariat training course to his credit at the time of his promotion from the cadre of Senior Assistant to that of Head Assistant. Admittedly it is no so, but then the petitioner appears to have been promoted to the cadre of Head Assistant after clarification by State Level DPC, way back in 1983 under order No. DHD/58 of 1983 dated 29.07.1983, whileas the rules aforementioned which prescribe the requirement of secretarial training for promotion from the cadre of Senior Assistant to that of Head Assistant have come into force in 1993. So, at the time petitioner was promoted to the post of Head Assistant the requirement of secretarial training was not there at all and having served as such for a decade, he could not be left out of consideration for promotion to the next higher cadre only because he did not have the qualification which was not required in his case at the relevant time. That is particularly so because SRO 164 aforementioned does not contain anything to suggest that any person who has been promoted to the cadre of Head Assistant prior to promulgation of the said SRO would suffer for want of requisite secretariat training course for his consideration for promotion to the post of Section Officer. Plainly, therefore, the requirement does not appear to apply to the petitioner who had already put in 10 years as Head Assistant in 1993 when the SRO was promulgated and thereby around 22 years by now. In that view, the requirement of secretariat training course for his consideration for promotion against the post of Section Officer that would become available after superannuation of the incumbent is not attracted in petitioners case and accordingly, the placement of 5th respondent, admittedly junior to him, on the launching pad for promotion to the Section Officer post was not proper. On the contrary it appears to have been quite an unusual exercise only aimed at pre-empting the petitioner from claiming promotion to the post of Section Officer at the relevant time. In that much it appears to be quite deplorable. 4. In the instant case also the salient features are identically same. On the contrary it appears to have been quite an unusual exercise only aimed at pre-empting the petitioner from claiming promotion to the post of Section Officer at the relevant time. In that much it appears to be quite deplorable. 4. In the instant case also the salient features are identically same. The petitioner was promoted to the cadre of Head Assistant in 1981, when the requirement of having Secretariat Training Course, as prescribed under SRO 164 of 1993, was not there at all and now that he has completed one year as Incharge Section Officer, his promotion thereto could not be stalled for something that he lacks only because it was not required when he crossed the level when it could be relevant. That being so the reasoning employment in the above quoted. 5. In view, therefore, the petition is allowed and respondents are directed to consider petitioners case for promotion independent of the requirement of Secretariat Training Course subject to his eligibility otherwise.