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J&K High Court · body

2008 DIGILAW 78 (JK)

Gurmeet Singh v. State

2008-03-25

Y.P.NARGOTRA

body2008
1. The petitioner who is an aspirant for the post of Motor Vehicle Inspector in Transport Department seeks to question the promotion of private respondents principally on the ground that in terms of Jammu and Kashmir Transport Controllers (Subordinate) Service Recruitment Rules 1974 (hereinafter called 1947 Rules), the post of Motor Vehicle Inspector can only be filled up by direct recruitment and not by promotion. He seeks the ouster of the private respondent, as according to him they had not possessed the eligibility qualification prescribed for the post so are usurpers of public office. 2. Undisputedly, the private respondents have come to be promoted to the post of Motor Vehicle Inspectors (Survey) which post does not place in the 1974 Rules. In clause IV Schedule A to Rules in the Technical Cadre two posts i.e., of Mechanical Inspectors and Motor Vehicles Inspectors have been mentioned. For the said posts eligibility qualification and mode of appointment is as follows: - Category Designation Grade Minimum Qualification for direct recruitment. Method of Recruitment A Mechanical Inspectors 340-700 Diploma in automobile Engineering from any recognized Institution having at least five years experience in any recognized institution of State Transport Undertaking. By direct recruitment. B Motor Vehicle Inspectors 340-700 Diploma in Automobile Engineering from any recognized institution. -do- 3. Mr. Sharma, learned counsel for the petitioner submits that the post of Motor Vehicle Inspector (Survey) is to be deemed post of Motor Vehicle Inspector within the meaning of Clause IV of Schedule-A and as such, can be filled up only by direct recruitment and not by promotion. He submits that simply by introducing the word "Survey" to the post of Motor Vehicle Inspector and changing the nomenclature of the post, it cannot be said that the same is a new and independent post. Since the post is the same as referred to by 1974 Rules, therefore, it can only be filled up by the mode prescribed under the Rules. 4. The stand of the respondents is that post of Motor Vehicle Inspector (Survey) is a different post for which there is no mode of appointment, provided in the Rules. Therefore, the Government in exercise of its plenary power is entitled to prescribe the mode of its filling. 5. By Govt. order No. 51-FST of 1977 dated 23-1-1977 the sanction was accorded to the creation of 14 posts of Surveyors in the pay scale of Rs. Therefore, the Government in exercise of its plenary power is entitled to prescribe the mode of its filling. 5. By Govt. order No. 51-FST of 1977 dated 23-1-1977 the sanction was accorded to the creation of 14 posts of Surveyors in the pay scale of Rs. 230-430 on permanent basis for the Planning and Service Cell of the Inspector General of Transport Organization. 12 posts were to constitute the Cell and 2 posts as leave reserve. Thereafter the Government Vide Govt. order No. 303-FST of 1977 dated 12-5-1977 granted sanction to the up-gradation of 14 posts of Surveyors to the pay scale of Rs 300-450. Then vide Govt. order No. 572-FST of 1977 dated 23-12-1977 sanction was accorded to the re-designation of `Surveyors as `Surveyors-cum-Supervisor. Vide Govt. order No. 35-TR of 1981 dated 23-10-1981 sanction was accorded to the up-gradation of existing 14 posts of Supervisor-cum-Survey from Rs 370-580 grade to Rs 450-700 grade to be re-designated as Motor Vehicle Inspector. It was also provided in the order: - "To facilitate proper discharge of duty in the desired manner, these officers will wear distinct uniform which will be different from the police Uniform. These duties will be as under: - (1) to conduct survey for assessment of passenger/goods traffic; (2) to conduct survey of passenger offerings and road conditions on the basis of demands project by public representatives and other quarters; (3) monitoring of the time table in respect of passenger services from the bus stand; (4) enforcement of the authorize fare and freight rates; (5) to maintain suggestion book in which views and comments of citizens are recorded. (6) To make arrangements for additional/special services on fares, festivals, natural calamities etc; and (7) to detect the operation of vehicles in violation of State transport Policy and the provisions of the Motor Vehicles Act." 6. From the above orders of the Government, it be seen that the Government envisaged the creation of new posts and accordingly created posts of Motor Vehicle Inspectors (Survey) for discharging their duties specified in Government Order No. 35-TR of 1981 dated 23-10-1981. 7. In this view of the matter the contention of the learned counsel for the petitioner that the post of Motor Vehicle Inspector (Survey) are not new posts but only change of the nomenclature of the post of Motor Vehicles Inspector is without any merit. 7. In this view of the matter the contention of the learned counsel for the petitioner that the post of Motor Vehicle Inspector (Survey) are not new posts but only change of the nomenclature of the post of Motor Vehicles Inspector is without any merit. Motor Vehicle Inspectors have to perform different duties as envisaged under the Motor Vehicles Act, whereas Motor Vehicle Inspectors (Survey) are required to perform duties specified in the order dated 23-10-1981. As the 1974 Rules do not prescribe for the manner in which these posts are to be filled up or eligibility qualification required to be possessed by a person to be appointed on that post. 8. It is case of the respondents that the process for finalization of Recruitment Rules of Motor Vehicle Inspector (Survey) has already been initiated which is quite evident from the communication of Joint Transport Commissioner, Jammu and Kashmir, Jammu to Commissioner/ Secretary to Government Transport Department, J&K Jammu vide No. TC/ JK/Estt/17/NG/ 2005/ 1346 dated 8-3-2005 which reads as follows: "Kindly refer your letter No. TR-MVD-434/73-DGT dated 8-2-2004 and letter of even No. dated 28-2-2005 on the subject noted above. The draft schedule to the recruitment rules for this Department is sent herewith in duplicate, as per the proformas of Schedule-I and Schedule-II for favour of further action at your end. Pertinent to submit and request that the promotion chances of Head Assistant, Sr. Assistant and MVTA are very bleak and time has come to create new posts in higher pay scale by reducing the existing strength to the lesser extent to provide improved promotional avenues at lesser financial cost while creating larger experience level. Moreover the post of the rank of MVTA needs to be re-designated as AMVI (Assistant Motor Vehicle Inspector) referred in the rule 337 of JK Motor Vehicle Rules, 1991" 9. The draft schedule to the eligibility qualification prescribed for the post of Motor Vehicle Inspector (Survey) is Graduate from any recognized University with Diploma in Automobile Engineering. The mode of recruitment prescribed there for is 50% by direct recruitment and 50% by selection/promotion from Class-II Category `A or Class 3rd Category `A having at least five years service in that particular class and does possess sufficient knowledge of Motor Vehicle Act/Rules and J&K Motor Vehicle Rules. 10. Mrs. The mode of recruitment prescribed there for is 50% by direct recruitment and 50% by selection/promotion from Class-II Category `A or Class 3rd Category `A having at least five years service in that particular class and does possess sufficient knowledge of Motor Vehicle Act/Rules and J&K Motor Vehicle Rules. 10. Mrs. Shekhar, AAG submits that since there are no Recruitment Rules governing the post of Motor Vehicle Inspector (Survey), the Draft Rules are being finalized. Until the finalization of the Draft Rules, it is permissible for the Government in exercise of its plenary power to adopt the similar criterion for filling up the post. She submits that since 50% are to be filled up by promotion, therefore, the private respondents have been promoted against the said post. Her contention is that the petitioner not being in-service has no locus to question the promotion of private respondents. 11. I am in agreement with Mrs. Shekhar, AAG. In the absence of Recruitment Rules, it was open for the Government in exercise of its plenary powers to create new posts and to provide for the mode of filling of these posts. The Government with a view to create promotional avenues for the employees who are in the lower cadre appears to have provided for their promotion to the post of Motor Vehicle Inspector (Survey) by reserving 50% of posts for them, in the Draft Rules. As Draft Rules have not been finalized, therefore, the Government could have independently adopted any mode of appointment including the one envisaged by draft rules for filling up the posts of Vehicle Inspectors (Survey). The petitioner not being in service person has not right to question the promotion of the private respondent. The private respondents in the absence of Recruitment Rules cannot be said to be usurpers of public office. 12. In SWP No. 1108/91 titled Raj Shekhar and others Vs State and others and SWP NO. 61/92 Bipin Singh Vs State and others, decided on 14-8-2000, promotion of the private respondents in both the writ petitions to the post of Motor Vehicle Inspector (Survey) was questioned on the ground that the private respondents who belonged to ministerial cadre of Transport Department, were not eligible for holding the Technical posts as they were not possessing the requisite qualification as mentioned in 1974 Rules. The respondents contested the writ petition on the ground that the post of Motor Vehicle Inspector (Technical) and Motor Vehicle Inspector survey were two different categories while the qualification for Technical post is Diploma or Degree in Automobile Engineering, it is not so for the post of Motor Vehicle Inspector (Survey). It is also submitted that the post to which the private respondent had been promoted were not technical posts requiring of qualification of Automobile Engineering. While repelling the contention of the writ petitioners, this Court observed as follows: - "Despite efforts Mr. Kotwal could not point out that technical qualification is also a pre-condition for promotion or appointment to the post of Survey Inspectors. He however, pointed out that the order of promotion does not indicated that the private respondents have been promoted to the post of survey inspectors and therefore, it is camouflage. However, the order mentions that promotees have been promoted in the Survey Cell and not technical side.." 13. In the above titled Service Writ Petitions, the writ petitioners had also sought the quashment of the promotions of the private respondents on the ground that they were usurpers of the public office. That contention was also repelled by this Court and it was held: "The other aspect of the case that the petitioners are not in service candidates. They have no right to compete with the private respondents. The order of promotion cannot be quashed because unless it is against the recruitment rules and they cannot be held to be the usurper of the public post." 14. There is no merit in this writ petition, which is as such, dismissed. Connected CMP shall also stand disposed of.