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2008 DIGILAW 495 (JK)

Fida Iqbal v. State Of J. &K.

2008-12-18

MANSOOR AHMAD MIR

body2008
1. Writ petitioners/Agriculture graduates came to be appointed by the said department against the post of Village Extension Workers in the pay scale of Rs. 825-1240 vide order No. 57-Agri of 1985 dated 29-1-1985 and are holding the post as on today. The said post came to be redesignated as Junior Agriculture Assistants and is carrying now the pay scale of Rs. 6500-10500. In terms of the J&K Agriculture (Subordinate) Service Recruitment Rules, 2004, the said post falls under Class II Category-B. 2. It is further submitted that the respondent-department has failed to constitute Departmental Promotion Committee for assessing their merit, ability and suitability, thereby have denied promotion chances to the petitioners. It also stated in para 8 of the petition that the promotion prospects are regulated by the rules known as Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1988 and they are eligible for promotion to the post borne on class VII category A and the said post is/was to be filled 50% by direct recruitment and 50% by promotion from Village Extension Workers, subsequently redesignated as Junior Agriculture Assistants, having B.Sc. Agriculture Decree with four years experience in that class. Petitioners have accordingly prayed for quashing of advertisement notice No. 16-PSC of 2005 dated 13-10-2005, so far it relates to filling up the posts of Agriculture Extension Officers without determining the availability of quota with the further command to respondents to convene Departmental Promotion Committee meeting for considering the case of petitioners for promotion with the further restraint not to regularize promotions made in I/C capacity, to fix seniority of the petitioners in the category of Agriculture Extension Officers, while maintaining rota-quota system. 3. The petition came up for consideration before the court on 24-11-2005, when official respondents were directed not to make selection/appointment in terms of the impugned advertisement notice dated 13-10-2005, and virtually advertisement notice came to be stayed. Respondents filed reply and in the meantime Mr. Azhar moved an application with the averments that the dispute in the writ petition relates to promotion quota i.e. in-service quota and not direct recruitment quota and the impugned advertisement notice relates to direct recruitment quota and has accordingly prayed that respondent-PSC be allowed to finalize the selection process and make appointments. Respondents filed reply and in the meantime Mr. Azhar moved an application with the averments that the dispute in the writ petition relates to promotion quota i.e. in-service quota and not direct recruitment quota and the impugned advertisement notice relates to direct recruitment quota and has accordingly prayed that respondent-PSC be allowed to finalize the selection process and make appointments. This court vide order dated 3-3-2008 modified the interim order dated 24-11-2005 and the respondents were directed to proceed with the selection process of direct recruitment posts only with the further rider not to make appointments. In the meanwhile, it appears that the selection process reached to its logical end and only appointment orders are to be issued. 4. Mr. H.I. Hussain, Advocate filed an application on behalf of respondents 4 and 5 who too had competed pursuant to the advertisement notice and prayed that the subject matter of the writ petition being promotional quota and not direct recruitment quota and pendency of the writ petition having effected their rights because they have competed in the selection process and are waiting for their result right from 2005. The application came to be allowed and they came to be arrayed as respondents 4 and 5 to the writ petition. 5. It appears that learned counsel for the writ petitioners Mr. Jan has moved yet another CMP No. 932/2008 for directing the respondents to reduce number of vacancies required to be filled up by direct recruitment to the post of Extension Agriculture Officers from 50% to 20% in terms of SRO 433 dated 28-12-2007. Mr. Azhar Amin, learned counsel for the respondent No. 3 has also filed CMP No. 2133/2008 for vacation of the interim order passed by this court. 6. Mr. R. A. Jan while addressing arguments frankly conceded that the petitioners have no right to challenge the appointments to be made against direct recruitment quota being in-service candidates. Further argued that now as per amended rules, only 20% posts are to be filed by direct recruitment and 80% by promotion, the writ petition be disposed of with the direction to the respondents to make selection only vis-a-vis 20% posts quota and not against 50% quota. 7. Mr. Further argued that now as per amended rules, only 20% posts are to be filed by direct recruitment and 80% by promotion, the writ petition be disposed of with the direction to the respondents to make selection only vis-a-vis 20% posts quota and not against 50% quota. 7. Mr. Azhar Amin, learned counsel for respondent No. 3 argued that advertisement notice came to be issued in the year 2005 and candidates who were eligible have applied and participated in the selection process, but because of the restraint order, respondents failed to take the selection process to its logical end and in the meanwhile amendment came to be made to the recruitment rules in 2007, reducing quota of direct recruitment from 50% to 20% and the selection list is to be completed and made as per rules which were applicable in 2005 and not as per amended rules. He further submitted that it is because of the restrain order that the selection process could not be completed and the interim direction cannot be used as a weapon to cause prejudice to the candidates who have applied in 2005 pursuant to advertisement notice dated 13-10-2005. Mr. Hussain also made the same submission. 8. The short controversy involved in this writ petition is whether the rules which were occupying field at the time of advertisement of posts are to be made applicable or the amended rules which came to be amended in the year 2007. In order to decide the controversy involved in the petition, it is necessary to notice the brief resume of the case. 9. The Department was/is under legal obligation to maintain a roster till amendment was made as to how many posts were to be filled by promotion and by direct recruitment in terms of un-amended recruitment rules, as admitted in para 8 of the writ petition. The department after making assessment came to the conclusion as to how many posts have fallen due to direct recruits and issued the impugned advertisement notice dated 13-10-2005 and invited applications. The eligible candidates applied, but before selection could have been taken to its logical end, this court issued a restraint order and it is because of that restraint order that the selection is still to be made. In the meantime, amendment was made in the Recruit Rules in the year 2007. in terms of SRO 430 of 2007 dated 28-12-2007. The eligible candidates applied, but before selection could have been taken to its logical end, this court issued a restraint order and it is because of that restraint order that the selection is still to be made. In the meantime, amendment was made in the Recruit Rules in the year 2007. in terms of SRO 430 of 2007 dated 28-12-2007. The roster is to be maintained in the ratio of 20% by direct recruitment and 80% by promotion and the vacancies which are to be filled up against class VII from 28-12-2007 are to be filled up in the ratio of 20:20 and all those vacancies which were vacant till 28-12-2007 are to be filled in the ratio of 50:50. This controversy has been clinched by the apex court in case P. Mohanan Pillai Vs. State of Kerala & others, (2007) 9 SCC 497, by holding that rules which were prevailing at the time, when the vacancies arose would be adhered to. It is apt to reproduce relevant para of the judgement hereunder:- It is now well settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as were prevailing on the date of vacancy should ordinarily be followed. 10. The apex court in case Y.V. Rangaiah & ors. Vs. J. Sreenivasa Rao, AIR 1983 SC 852, has also held that rules which were in force before amendment when the vacancies arose have the application. It is profitable to reproduce relevant portion of the judgement hereunder:- ..The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by the counsel for both the parties that henceforth promotion to the post of Sub-Registrar, Grade-II will be accordingly to the new rules only zonal basis and not on the statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.. 11. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.. 11. Again Supreme Court in another case titled B.L. Gupta and another V. M.C.D, (1998) 9 SCC 223, laid down the same law. It is in place to reproduce para 11 of the judgement hereunder: ..11 This is with regard to the vacancies which remain and are required to be filled under the 1978 Rules. Any vacancies which arise after 1995 will have to be filled as per the amended Rules. It is but obvious that the sonority in all these cases will have to be fixed according to the seniority rules which are applicable. 12. In case Delhi Judicial Services Association & ors. v. Delhi High Court and others, (2001) 5 SCC 145, the apex court has laid down the same principal. 13. A coordinate bench of this court in an identical case being SWP No. 72/1998 titled Abdul Rashid Dar Vs. State of J&K & others, decided on 21-7-2008, has laid down the same principle. 14. The judgements cited by Mr. Jan reported in (1999) 5 SCC 180 and 624 are distinguishable in the given circumstances of the case, for the simple reason that advertisement notice came to be issued in the cases in hand in 2005 i.e. much before amendment. 15. The candidates who have applied in terms of the advertisement notice and are waiting for their selection have undergone through pain and agony because of the restraint order of the court and have been deprived of three years of their life. If there would not have been restraint order, the selection process would have been completed in 2005. It is beaten law of the land that court direction shall not cause prejudice to any party(ies). If any party is deprived of any legitimate right because of court order, the principle of restitution will come into play. If it is held that now as per amendment only 20% posts are to be filled by direct recruitment and that will amount to deprive the candidates who have applied pursuant to advertisement notice of 2005 under 50% quota for direct recruitment from their legitimate rights. If it is held that now as per amendment only 20% posts are to be filled by direct recruitment and that will amount to deprive the candidates who have applied pursuant to advertisement notice of 2005 under 50% quota for direct recruitment from their legitimate rights. And in that eventuality, candidates who had applied, would be seriously affected and they will met injustice, which no court will allow to happen. 16. It is made clear that Mr. Jan has not advanced any argument vis-a-vis any other relief. However, Mr. Azhar stated that the petitioners are in-service candidates and their promotions are under consideration. DPC would be convened. Further stated that final seniority came to be framed, but it was not acted upon because of the restraint orders passed by this court at Srinagar as well as at Jammu. 17. While going through the writ petition, one comes to an in-escapable conclusion that petitioners have no right to challenge the advertisement notice which relates to direct recruitment quota and not to promotional quota. 18. Having glance over the above discussion, this petition being misconceived is accordingly dismissed. In the circumstances of the case, there will be no order as to costs.