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J&K High Court · body

2008 DIGILAW 76 (JK)

Repujeet Bakshi v. State Of J. &K.

2008-03-25

Y.P.NARGOTRA

body2008
The J&K Public Service Commission, Jammu vide its Notification No.09 PSC of 2006 dated 28.12.2006, invited applications from the permanent residents of J&K State for the post of Soil Conservation Assistant (Engg) Bio-gas Engineer and Technical Assistants against 23 posts available in the following break-up: - OM RBA SC ST ALC SLC PHC Total 09 05 04 04 01 - - 23 The eligibility qualification prescribed for the post was B.Sc. Agriculture Engineering from a recognized institute or University. 2. The Government by its order No. 18-Agri. of 1998 dated 12.01.1998, provided as follows:- "Whereas the Govt. of India under Soil Conservation Scheme prescribed that half of the strength of the staff in the Soil Conservation Scheme should comprise of Agriculture or Civil Engineers and the other half from Agriculture Graduates; and Whereas a provision was made to this effect in the J&K Agriculture (Gazetted) Service Recruitment Rules. 1988 by incorporating Soil Conservation Assistant (Engg.) in class -VII of the schedule attached to above rules. Whereas the posts of Soil Conservation Assistants available in the soil Conservation Scheme of Agriculture Department are required to be shared equally by Agriculture Engg. Graduates and non-Engineering graduates in accordance with the norms of the scheme. Now, therefore, it is hereby ordered that the posts of Soil Conservation Assistants will be filled up in the department on 50:50 basis from among the B.Sc. Agriculture Engineer Graduates and B.Sc. Agriculture graduates as per guidelines contained in the Soil Conservation Scheme." 3. The scheme referred in the above said order was formulated on 24th August 1972. Para 9 of the said scheme reads as follows: - "About half of the strength of the staff in the Soil Conservation Organization should comprise Agricultural or Civil engineers and the other half Agriculture graduates. All the staff should be sent in phased manner for training to the training centers of the Indian Council of Agricultural Research and of Punjab, Haryana and Utter Pradesh. It is further suggested that Divisional officers for irrigated areas should be both engineers and their staff should consists of engineers at the Assistant Soil Conservation Officer level. Fifty percent of the staff at the level of Soil Conservation Assistant and field Asstts. Should also comprise engineering skills. It is further suggested that Divisional officers for irrigated areas should be both engineers and their staff should consists of engineers at the Assistant Soil Conservation Officer level. Fifty percent of the staff at the level of Soil Conservation Assistant and field Asstts. Should also comprise engineering skills. The bulk of the work involved in the sub-division will be of engineering nature and hence the technical discipline of the personal just suit the job requirement," The petitioners who are occupying the posts of Soil Conservation Assistant and one of them Assistant Agriculture Extension Officer in Agriculture Department came to be appointed in terms of J&K Agriculture (Gazetted) Service Recruitment Rules, 1978 which was in force then. The posts occupied by the petitioners are in Clause VI posts of schedule-I appended to the Rules. For becoming eligible to the posts mentioned in Clause-V, it was necessary to have seven years service on Clause VI cadre post. The petitioners who were holding the post of Agriculture Extension Officer and equivalent posts were sent for training in Soil Conservation by the State Government in various institutes of India Council of Agricultural Research. On completion of the training, they had been transferred and posted as Soil Conservation Assistants. 4. The J&K Agriculture (Gazetted) Service Recruitment Rules were repealed by framing J&K Agriculture (Gazette) Service Rules of 1988, through the medium of SRO179 of 1988. Schedule-I to the J&K Agriculture (Gazetted) Service Recruitment Rules 1988, reflects the cadre strength of various posts in the Agriculture Department. 5. At serial No.78, against the cadre strength of Soil Conservation Assistant, 60 permanent posts have been shown, at serial 79, 12 posts Assistant Engineer Bio-Gas have been shown and at serial No. 80 four posts in the cadre of Technical Assistant have been shown. However, schedule-II in Clause VII has two classes of posts. First part comprises of the posts mentioned in items (a) to (w) which correspond clause VI mentioned in item (a) to (q) in J&K Agriculture (Gazetted) Service Recruitment Rules, 1978, and the second class of posts comprising of "Soil Conservation Asstt. (Engg.)/Technical Asstt. Agriculture Engineering." The grade of both the posts is the same i.e. 1700-2900. The method of recruitment is 50% by direct recruitment preferably M.Sc. Agriculture and 50% by promotion from VEWs possessing B.Sc. Agriculture Degree having minimum of 4 years experience in that class. (Engg.)/Technical Asstt. Agriculture Engineering." The grade of both the posts is the same i.e. 1700-2900. The method of recruitment is 50% by direct recruitment preferably M.Sc. Agriculture and 50% by promotion from VEWs possessing B.Sc. Agriculture Degree having minimum of 4 years experience in that class. The essential qualification prescribed for the said posts is B.Sc. Agriculture from a recognized Institute/University. While for the other classs method of recruitment is 100% by direct recruitment and essential qualification is B.Sc. Agriculture Engineering from a recognized Institute or University. 6. The Public Service Commission through its Notification dated 4th December 1997 invited applications for 44 posts of Soil Conservation Assistants (Engineering) in the Agriculture Department. For questioning the legality of the issuance of the said notification, the similarly placed Soil Conservation Assistants like the petitioners in the instant writ petition filed SWP No. 93/1998, (some of the present writ petitioners were even also writ petitioners in the said writ petition). 7. The grievance in that writ petition of the writ petitioners was that if the selection is allowed to be made, the petitioners may have to face reversion which is likely to affect their service career because having been posted on the post under a scheme they are entitled to continue till the scheme lasts. The stand of the Government in that writ petition was that there were as many as 91 posts of Soil Conservation Assistants and since 50% of them have to be manned by the Agricultural Engineering Graduates as per Government Order No.l8-Agri. of 1998 dated 12.1.1998. 44 posts were referred to the Public Service Commission so that Agricultural Engineering Graduates are recruited to make up the deficiency of Agricultural Engineering Graduates in the Department. 8. The said writ petition came to be disposed of by order dated 9.9.1998, with the following observations: - "The petition is a pre-emptive action on the part of the petitioners, who have no cause to challenge the notification inviting applications for the post of Soil Conservation Assistants, as they are not to be ousted from service with the appointments of the selected candidates. Since many of them have been adjusted by transfer and not appointed to the post, they have no right to the post advertised. Even those who have been substantively appointed will have cause only, if they are effected by the fresh appointments. Since many of them have been adjusted by transfer and not appointed to the post, they have no right to the post advertised. Even those who have been substantively appointed will have cause only, if they are effected by the fresh appointments. Since there are 91 posts and the petitioners are only 49, only few are likely to be effected because Agricultural Engineering Graduates are to occupy only 44 posts which are less than half of 91 sanctioned posts. But this exercise has still to be made by the department. How many of the petitioners are likely to be retained and who will be retained to maintain the 50:50 ratio has yet to be worked. So, the apprehension is based on the mere ipsi-dixist of the petitioners, which has no foundation because a reference to the order dated 11.1.90 issued by the Director Agriculture reveals that Soil Conservation Assistants were transferred or posted as Agriculture Extension Officers and vice-versa. If that be so as it really is, all those not appointed as Soil Conservation Assistants in accordance with the Recruitment Rules will have no claim to the post and will have to be reverted. It is settled law that appointment to the post can be made only in accordance with the Recruitment Rules. The selected candidates are being appointed strictly in accordance with Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1988 after the Agriculture Department had identified the vacancies and referred 44 posts to the Public Service Commission for recruitment vide their letter dated 19.11.1997. Petitioners have no right much less legal right to prevent the selected candidates from being appointed to the posts for which they have been selected. As a matter of fact, out of 91 posts, the share of direct recruits will be 45 while only 44 are being appointed. So, there is absolutely no merit in this petition as stale claim has been made to hold on to the post on which many of them were never appointed. It is accordingly dismissed. As the petition has been dismissed, the application for impleading the selected candidates is not maintainable. It is also dismissed." Against the above judgment writ petitioners preferred a LPA (SW) No. 322 of 1998. A learned Division Bench of this Court by order dated 22nd February 1999, dismissed the same. 9. It is accordingly dismissed. As the petition has been dismissed, the application for impleading the selected candidates is not maintainable. It is also dismissed." Against the above judgment writ petitioners preferred a LPA (SW) No. 322 of 1998. A learned Division Bench of this Court by order dated 22nd February 1999, dismissed the same. 9. Consequent, upon the rejection of the claim of the writ petitioners, Pubic Service Commission proceeded with the selection process and made the selections for appointments. Some of the candidates were selected and appointed. 10. The writ petitioners once again have raised identical controversy by filing the instant writ petition. 11. The stand of the Public Service Commission is that in the year 1997, 44 posts of Soil Conservation Assistants were referred by the Agriculture Production Department to the public Service Commission for being filled up through direct recruitment from and amongst the Agriculture Engineering Graduates. These posts were accordingly, advertised by the Commission vide Advertisement No. 25-PSC of 1997 dated 4.12.1997 with the following break up: - "Open 26 RBA 09 S.C 04 ST 04 ALC 01" It has been submitted that on culmination of the selection process, 16 candidates (15-open and 1-RBA) were selected by the Commission and no candidate was found eligible in SC/ST and ALC category and rest of the 24 posts remained vacant. It has further been stated that thereafter vide communication No. Agri/E/564/88- Genl. Dated 15.2.2000, it was informed by the Agriculture Production Department to the Commission that one candidate figuring at Serial No. 8, in the selection list amongst open category did not join the service, consequently the remaining 29 (28 + 1) posts of Soil Conservation Assistant (Engineering) were referred by the Agriculture Production Department to the Commission for being filled up, as per the following break up. "Open 12 SC 04 ST 04 RBA 08 ALC 01 Total 29" After having received the said communication from the Agriculture Production Department, Public Service Commission advertised the said posts vide advertisement notification No. 6-PSCof 2000 dated 6.3.2000, and made the selection process. After conclusion of the selection process the Commission recommended only 4 candidates who were found eligible in the open merit category. However, out of the said four candidates recommended for appointment one candidate namely Hilal Ahmed recommended for appointment was cancelled because his certificate was found fake. After conclusion of the selection process the Commission recommended only 4 candidates who were found eligible in the open merit category. However, out of the said four candidates recommended for appointment one candidate namely Hilal Ahmed recommended for appointment was cancelled because his certificate was found fake. Thereafter, the Commission requested the concerned department for making fresh requisitions in respect of 23 left out posts, out of the total number of 44 posts of Soil Conservation Assistants (Engineering) and accordingly, vide letter No. Agri/E/564/88/gen-II dated 7.11.2006, 23 posts of Soil Conservation Assistant in the pay scale of 6700-10900 were referred to the Commission for being filled up with the following break up: - Open 09 RBA 05 SC 04 ST 04 ALC 01 Accordingly, the above said posts were advertised by the Commission, vide its notification No 9-PSC -2006 dated 28.12.2006, which has been impugned in this writ petition. 12. The principal contention of learned counsel for the petitioner is that in terms of the Schedule-I attached to the Rules of 1988, there are only 60 posts of Soil Conservation Assistants Assistant, 12 posts in the category Assistant Eng. Bio-Gas, and 4 posts in the cadre of Technical Assistants. There being no post available in the Soil Conservation Assistant (Engineering), the Public service Commission cannot under law initiate the selection process for filling up the said posts. He submits that if selection is permitted to be made for the said posts it would result in the adjustment of the selected candidates over the posts of Soil Conservation Assistants, which are held by the petitioners and subsequently into their ouster. 13. The contention of learned counsel for the petitioners is mis-conceived. It is true that Schedule-I appended to J&K Agriculture (Gazetted) Service Recruitment Rules, 1988 speaks of only 60 posts of Soil Conservation Assistants and does not make any reference to the post of Soil Conservation Assistant (Engineering), yet the fact remains that Schedule II in clause-VII attached to the Rules of 1988, refers to both the classes of posts i.e. one Soil Conservation Assistant (Non-Engg) and Soil Conservation Assistant (Engg) and Technical Assistant, Agri. Engineer. Merely because, Schedule-I, does not speak of the post of Soil Conservation Assistant, it does not mean that there cannot be any post of Soil Conservation Assistant (Engg.) in the Agriculture Department. Engineer. Merely because, Schedule-I, does not speak of the post of Soil Conservation Assistant, it does not mean that there cannot be any post of Soil Conservation Assistant (Engg.) in the Agriculture Department. The post of Soil Conservation Assistant mentioned in schedule-I would cover both the posts i.e. Soil Conservation Assistant (Non-Engg) and Soil conservation Assistant (Engg.) The method of recruitment and qualification to the post of Soil Conservation Assistant (Non-Engg.) and to the post of Soil Conservation Assistant (Engg.) is quite different from each other. But it is a fact that recruitment rules do not prescribe any ratio in which appointments can be made to the post of Soil Conservation Assistant (Non-Engg) and Soil Conservation Assistant (Engg), and there is thus a gap. 14. It is settled principal of law that the government can in exercise its plenary power by an executive order to fill up the gap, which has been filled by Government order impugned. 15. Therefore, there is no illegality in the order impugned in prescribing the ratio of 50:50 for the posts of Soil Conservation Assistants (Non-Engg.) and Soil Conservation Assistants (Engg.). As the present vacancies advertised vide impugned advertisement are left out vacancies. The Commission is entitled to advertise the same and make the selection for the said posts. The petitioners cannot legally urge that their right to hold the posts, which they are holding, would be adversely affected. If at all after the appointments are made any of their right is disturbed, they can agitate for the same, but they cannot under law stall the selection process on their apprehension of being adversely affected. 16. Therefore, there is no merit in this writ petition, it is as such dismissed. Connected CMP shall also stand dismissed. Interim direction, if any, shall stand vacated.