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J&K High Court · body

2008 DIGILAW 5 (JK)

Gh. Ahmad Bhat v. State

2008-01-28

BASHIR AHMAD KIRMANI

body2008
1. Petitioners and respondents 3 to 16 who have been proceeded against ex-parte vide interim order dated 07.05.1999 all originally belonged to class IV respondent-board service and competed in the type test to earn promotion to the Junior Assistant cadre required to be made from amongst qualified class IV officials with 5 years service in the board who could register a type speed of 25 WPM purporting to have been conducted on 16th May, 1994. After said test the promotion order of qualified candidates was issued under No.280-B of 1984 dt. 18.05.84 with petitioners figuring at serial No. 2 and 3 thereof and one Gh. Nabi Beigh not a party to this litigation at serial No. 1. As per contents of the promotion order which was made without prejudice to the seniority of those officials (orderlies) who were otherwise seniors in class IV and slated to be promoted separately. On the same day under another order being No.282-B of 1994 dated 18.5.1994 another seven candidates directly recruited as junior assistants without prejudice to the seniority of internal candidates whose promotion orders "with retrospective effect" were, to be issued later on, with an explanation that appointees would be on probation for a period of 2 years. On 28.07.94 thereafter vide order 395-B of 1994 private respondents, the other class IV officials with five years term of satisfactory service who had failed to qualify the type test were adjusted as junior assistants against available posts who in terms of the order were doing some "table work" and could not get time to learn type writing and were therefore, to be put to some test other than type writing "as would be prescribed by board-authorities like written test in English" etc. This was followed by order No.l39-B 95 dt. 25th March 1995 whereunder private respondents were granted exemption from qualifying the type or any other test as "the Chairman had been pleased to grant sanction to waiving of this as one time exception regarding type writing test in their favour". In addition under the same order they were deemed to have been promoted w.e.f 14th July 1994, perhaps the date from which the posts became available; and their seniority in class IV even above petitioners was maintained albeit in terms of the exception mentioned in above quoted orders No.280-B 1994 and 395-B of 1994. 2. In addition under the same order they were deemed to have been promoted w.e.f 14th July 1994, perhaps the date from which the posts became available; and their seniority in class IV even above petitioners was maintained albeit in terms of the exception mentioned in above quoted orders No.280-B 1994 and 395-B of 1994. 2. Feeling aggrieved thereby the petitioners herein appear to have represented before Secretary of respondent-board for maintenance of their seniority over private respondents who had been inducted into the cadre of junior assistants after them, which does not appears to have been considered at that time. However vide order No.629-B of 1998 dt. 16.09.1998 the promotion accorded to private respondents under order no. 139-B of 1995 was treated to have been given effect from 18.05.1994 on notional basis instead of 14.07.1994 from which tot take effect according to earlier orders, with the result that they ranked senior to the petitioners and the 3rd candidate promoted as junior assistant, after the departmental type test on basis of merit and suitability. This was again protested against by petitioners through another representation purporting to have been filed by them which does not appear to have been considered/disposed of at all. Consequently the petitioners seek quashment of the fixation of seniority of private respondents above them along with a directions to respondent-board for their placement ahead of them, on the ground that in view of service rules the respondent-board could not have placed private respondents over them in order of seniority as they had failed to qualify the prescribed test whereas petitioners had qualified the same and had been promoted to the cadre of junior assistants on basis of their merit and suitability which was practically undone by respondent-board by acting in the impugning manner. In reply the respondent-board has pleaded that private respondents could not qualify the type test which was later waived in their favour as they had been entrusted with some table work and could not find time to gain proficiency in typing and given seniority as it existed while petitioners were placed in the cadre of junior assistants. It has also been pleaded that this position was so saved under the promotion order of petitioners also which they accepted and would thus be deemed to have foregone their seniority. It has also been pleaded that this position was so saved under the promotion order of petitioners also which they accepted and would thus be deemed to have foregone their seniority. During course of submissions the counsel for rival sides have reiterated the contents of their pleadings condensed as above. 3. I have heard learned counsel and considered the matter. Admittedly petitioners and private respondents participated in the type test that was meant to assess their merit and suitability for promotion to the post of junior assistants which was qualified by petitioners only along with one Gh. Nabi Biegh while private respondents could not come up to the mark. In consequences therefore the petitioners were promoted as junior assistants and rightly so in a particular grade albeit with an observation that their promotion as such would be subject to seniority viz a viz those among class IV who "may be promoted some time later." After appointment of another batch comprising of direct recruits to the cadre of junior assistants, private respondents also were promoted thereto without having qualified the type or any other test, on the pretext that in their case some other method of evaluation would be prescribed as they had been working on desk jobs and did not find time to learn typing. Thereafter the alternate test was also done away with as "one time exception" and they confirmed as junior assistants and later placed above petitioners in the order of seniority. 4. With that sequence of events and orders passed from time to time it appears that the concerned authorities of respondent-board have been behaving like unbridled land-lords rather than responsible government officers are required to observe and obeying the set of norms and rules governing matters arising during their day to day functioning and thus accountable for their bread. 4. With that sequence of events and orders passed from time to time it appears that the concerned authorities of respondent-board have been behaving like unbridled land-lords rather than responsible government officers are required to observe and obeying the set of norms and rules governing matters arising during their day to day functioning and thus accountable for their bread. Admittedly in accordance with rules they prescribed the type test along with five years stay in class IV and a particular level of academic qualifications etc for promotion of class IV employees to the cadre of junior assistants against the vacancies available for such promotions and in view of the result thereof rightly promoted petitioners along with the 3rd candidate who qualified the test and the same was perfectly in keeping with the rule position and judicially acknowledged principles of service prudence; except the rider that these promotions would be subject to seniority of those who might be promoted in future, "with retrospective effect" which was certainly uncalled for and only reflected some prejudicial reservations presumptively occupying the mind of the officer passing the promotion order certainly it is not permissible to subject the seniority and promotion made on basis of in house test for assessment of the comparative merit and suitability of successful candidates to unforeseen future promotions those may be retrospectively made some time thereafter, particularly of those who competed in the qualifying test and failed to measure up to the mark. In fact the above said condition in petitioners order of promotion and the order of recruitment of direct appointees appears to have been dictated by some sort of extra legal consideration only reflect either corruption or compulsion managed by those who failed to qualify the prescribed test and successfully twisted the tails of the officers manning respondent-board at the relevant time. The whole thing is the most ridiculously arbitrary on part of the concerned officer whose behavior in first place is only an expression of the intention to change the nature of qualifying test from type test to some other test and then to do away with it lock, stock, and barrel, without any apparent justification for the same which simply depicts that the concerned authority had absolutely no idea of complying with the rules in sprit right from the beginning albeit under the grab of "one time exception" which also comes like a bolt from the blue without quotation of any enabling rule, the situations covered and procedure prescribed thereunder, if any. The ultimate act of expressly fixing the seniority of private respondents over the petitioners and the direct appointees is only as bad as the others preceding the same for similar reasons. 5. Before parting with the judgment it would be appropriate to notice the contention projected by respondents counsel during course of submissions to defend the impugned action of the officers of respondent-board which to his dismay are indefensible. The contention that private respondents having been assigned some table job by respondent-board could not get enough time to gain proficiency in typing is as untenable as bogus it is, in the first place because merely having working on desk job if at all that be factually correct because no documentary support has been furnished, by itself would neither mean a promotion to the desk job nor qualification for the same where eligibility and qualification is expressly prescribed. If the respondents were not proficient in typing, it was to be so at their own cost and the board could not come to the rescue by putting premium on their failure to qualify the prescribed test by projecting the pretext that they could not get time to learn typing. Incidentally the whole gamut of developments refers to a period (1994 to 1998) when due to the sway of general turmoil hardly enough official work was being done in any of the government offices which fact has even been judicially noticed. Similar is the case with another contention pertaining to acceptance of subjecting their promotions to seniority obtainable between petitioners and private respondents in class IV by petitioners which has been projected as an acknowledgement of the same by them. Similar is the case with another contention pertaining to acceptance of subjecting their promotions to seniority obtainable between petitioners and private respondents in class IV by petitioners which has been projected as an acknowledgement of the same by them. The contention no doubt appears to be presentable as being a derivative of the order of petitioners appointment on which they have acted but lacks all convictions. In first place the incorporation of this condition in the promotion order was by itself bad because having been promoted as result of a competitive examination there was no room for imposing such a condition upon petitioners who were not in a position to disagree with it. Secondly, in view of well settled law no promotion to any class or cadre can be given retrospectively to effect seniority of earlier entrants into that class or cadre, for the simple reason that seniority in a particular cadre has to be reckoned from the date of entry therein only and any order contravening the same would be bad just on its own. 6. Accordingly, and in view of what has been stated above the petition is allowed, with a direction that the seniority of petitioners and private respondents as also direct recruits in the cadre of junior assistants shall be reckoned and fixed precisely in accordance with the date of their actual entry into that cadre on substantial basis only and from no other date irrespective If any order to the contrary including the orders impugned herein which stand quashed to the extent of being contrary to this direction. All resultant benefits whatever becoming due to petitioners consequent to this direction be released in their favour forthwith. Disposed of.