Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 245 (JK)

Farooq Ahmad Qureshi v. State

2009-05-18

J.P.SINGH

body2009
1. Petitioner had approached this Court twice before filing these two writ petitions. His first writ petition, SWP No. 140/89, was allowed issuing a writ of mandamus commanding the respondents to consider his case for regularization on the post and in the grade of Superintendent Spinning and Testing with effect from 16.04.1984 when he had started holding the post on charge basis. It was further provided that if the post of Superintendent Spinning and Testing was available in the Directorate of Handlooms, the consideration shall be accorded on that basis and if, on the basis of the impugned order, the post stood transferred and was not available, to that extent, the impugned order dated 15.02.1988 shall be deemed to have been quashed and set aside with the result that the post of Superintendent Spinning and Testing shall be deemed to be available in the Directorate of Handlooms for the purpose of according consideration to the petitioner. 2. Complying the directions issued by the Court, the Government of Jammu and Kashmir in the Industries and Commerce Department issued Order No. 106-lnd. of 1996 dated 08.03.1996 directing restoration of the post of Superintendent Spinning and Testing, UNDP Project and petitioners promotion as Superintendent Spinning and Testing, UNDP in Handloom Development Department in the grade of Rs. 2125-3600. It was further provided in the order that the petitioner shall be eligible for placement in the pay scale of Rs. 2500-4000 after completion of two years of service in the said cadre. This was, however, made subject to the clearance by the Departmental Promotion Committee/Public Service Commission. 3. Government Order No. 106-lnd. of 1996 dated 08.03.1996, aforementioned, was questioned by the petitioner in his second writ petition, SWP No. 631/96, seeking inter alia a direction to the State respondents to consider him for induction into the Jammu and Kashmir Administrative Service against one of the posts allotted to the Jammu and Kashmir Handloom gazetted service. 4. During the pendency of the writ petition, the State respondents modified Government Order No. 106-lnd. of 1996 dated 08.03.1996 by issuing order No. 338-lnd. of 1996 dated 14.10.1996, promoting the petitioner as Superintendent Spinning and Testing in UNDP in Handloom Development Department in the grade of Rs.2500-4000 with effect from 16.04.1984. 5. 4. During the pendency of the writ petition, the State respondents modified Government Order No. 106-lnd. of 1996 dated 08.03.1996 by issuing order No. 338-lnd. of 1996 dated 14.10.1996, promoting the petitioner as Superintendent Spinning and Testing in UNDP in Handloom Development Department in the grade of Rs.2500-4000 with effect from 16.04.1984. 5. Relief claimed by the petitioner in SWP No. 631/96 was thus found to have been substantially allowed to him with the issuance of Government Order No. 338-lnd. of 1996 dated 14.10.1996 barring, however, his surviving claim seeking consideration for induction into the Jammu and Kashmir Administrative Service. 6. On consensus of the parties, this writ petition was disposed of by issuing a direction to the respondents to accord consideration to the petitioner for induction into the Jammu and Kashmir Administrative Service according to the applicable rules. 7. It appears that pursuant to the directions issued on December 17, 1997 in petitioners second writ petition SWP No. 631/96, petitioners case for induction into the Jammu and Kashmir Administrative Service was rejected by the Government with the issuance of Government Order No. 1532-GAD of 1997 dated 23.09.1997, whereby five persons namely Gulzar Ahmad, Sajad Ahmad Khan, Munisha Devi, Farooq Ahmad Shah and Manzoor Ahmad belonging to the feeding service of the Jammu and Kashmir Handloom (Gazetted) Service were inducted into the Jammu and Kashmir Administrative Service against the slots allotted to the service for which the petitioner had sought consideration. 8. It further appears from the records that the petitioners case for appointment against the post of Deputy Director Handloom (Project), projected during the pendency of his third writ petition SWP No. 1123/98, was rejected by the Government with the issuance of Government Order No. 312-lnd. of 1998 dated 03.09.1998 on the ground that he was not eligible to hold the post of Deputy Director Project, which, at that point of time, stood included in the cadre of the Jammu and Kashmir Administrate Service. 9. Through his third writ petition SWP No.1123/98 and fourth writ petition SWP No. 96/06, which are the subject matter of this judgment, the petitioner has sought reliefs, which for facility of reference, are reproduced hereunder: - SWP No. 1123/98: "i) Certiorari, quashing the Government Order No. GAD (ser)/KAS/118/97 dated 23.09.1997 to the extent that the post of Deputy Director Handloom (Projects) has been encarded into the KAS. ii) Certiorari, quashing the orders of induction of directly recruited candidates appointed since September, 1984 in the Handloom Department being illegal on the ground that the Jammu and Kashmir Administrative Service did not contemplate quota for direct recruitment. iii) mandamus, commanding the respondents not to allow any direct recruitment from out of the candidates from a general lot through the Public Service Commission and declare the Department as a Technical Department, iv) mandamus, commanding the respondents to restore the post of Deputy Director Handloom (Projects) to the Handlooms Development Department and consider and appoint the petitioner against the said post on the basis of his eligibility, merit, experience and length of service. v) mandamus, commanding the respondents to clarify the seniority position with respect to the petitioner as on 30.09.1988 viz-a-viz the candidates shown in annexure thereto and declare him senior to the candidates shown in the annexure-A therein. vi) mandamus, commanding the respondents to consider the case of the petitioner for induction into the Jammu and Kashmir Administrative Service on the basis of his rank, status, eligibility and merit viz-a-viz other candidates who have been inducted into the KAS ahead of him and issue orders of his appointment in KAS with retrospective effect. vii) mandamus, commanding the respondents to release the pay, allowances and other consequential benefits after granting him promotion with retrospective effect from the date he was due for such promotion ahead of his junior and inferior candidates, & viii) mandamus, commanding the respondents to fix the seniority of the petitioner among the KAS Officers at his due place as per his length of service and consider him for promotion to the next higher post as and when eligible for the same. SWP No. 96/06: "A) Certiorari for quashing the impugned Transfer Order bearing G.O. No. 65-GAD of 2006 dated 19.1.2006 as being illegal and unreasonable. B) mandamus commanding the respondents to fix the seniority of the petitioner on the basis of his length of service ahead of his juniors and give effect to his promotions retrospectively. C) mandamus commanding the respondents to regularize his promotion to the next higher post of Joint Director Handlooms from the date of his eligible ahead of his juniors. B) mandamus commanding the respondents to fix the seniority of the petitioner on the basis of his length of service ahead of his juniors and give effect to his promotions retrospectively. C) mandamus commanding the respondents to regularize his promotion to the next higher post of Joint Director Handlooms from the date of his eligible ahead of his juniors. The alternative relief sought for by the petitioner in the writ petition is: - D) mandamus directing the respondents to allow the petitioner to be encarded in KAS time scale from the dates his juniors were inducted." 10. During the course of the consideration of these petitions, Mr. A. Andrabi, the petitioners learned counsel did not press reliefs appearing at serial nos. 1, 3, 4 & 5 of SWP No. 1123/98, conceding that during the pendency of the two writ petitions, the petitioner had been allowed the grade attached to the post of Deputy Director Handloom (Projects) pursuant to the release of the post from the cadre of the Jammu and Kashmir Administrative Service. The only relief which according to the petitioners counsel required consideration was his induction into the Jammu and Kashmir Administrative Service retrospectively from the date his juniors had been so inducted. I have considered petitioners counsels submissions and perused the Jammu and Kashmir Administrative Service Rules. The Jammu and Kashmir Administrative Service comprises of the posts in three scales of pay i.e. (i) Selection grade of Rs.3700-5000 (Pre-revised); (ii) Time Scale of Rs.3000-4500 (Pre-revised); & (iii) Junior Scale of Rs.2125-3600. 11. Method of recruitment to the posts carrying the above scales of pay in the Jammu and Kashmir Administrative Service is governed by Rule 5 of the Rules. Recruitment to the Junior Scale of the Jammu and Kashmir Administrative Service is by a competitive examination whereas promotion to the time scale of the service is from amongst the members of various Gazetted services of the State mentioned as such in the Rule, holding the time scale of Rs.2125-3600 (pre-revised). 12. The dispute in the present case pertains to petitioners claim for promotion to the time scale of the Jammu and Kashmir Administrative Service because of his being a member of the Jammu and Kashmir Handloom (Gazetted) Service, one of the feeding services mentioned as such in Rule (5) of the Rules. 12. The dispute in the present case pertains to petitioners claim for promotion to the time scale of the Jammu and Kashmir Administrative Service because of his being a member of the Jammu and Kashmir Handloom (Gazetted) Service, one of the feeding services mentioned as such in Rule (5) of the Rules. In terms of Rule 5(3) of the Rules, the number of persons to be recruited to the time scale of the service under Rule 5(1) from different sources including the time scale posts, is provided in Rule 5(3)(a) of the Rules. Rule 7 of the Rules prescribing eligibility for induction in the time scale of the service indicates that the Secretary of the Administrative Department of the feeding services is required to send to the Selection Committee set up under Rule 6 of the Rules, a list of officers eligible under Clause (b) of sub-rule (1) of Rule 5 of the Rules for selection against the vacancies in the time scale of the service to the extent of the posts specified in sub-rule (3) of Rule 5 of the Rules. 13. Perusal of the Rules thus demonstrates that members of the Gazetted Services mentioned in Rule 5 of the Jammu and Kashmir Administrative Service Rules holding the pay scale of Rs.2125-3600 (pre-revised) are entitled to seek consideration for induction into the Jammu and Kashmir Administrative Service by the Selection Committee constituted in terms of the Rules but only against the vacancies available for such persons of respective services in terms of Rule 5(3) of the Rules. 14. Five persons named elsewhere in this judgment stand inducted into the Jammu and Kashmir Administrative Service against the slots/vacancies available for the Jammu and Kashmir Handloom (Gazetted) Service in terms of the Rules, with the issuance of Government Order No. 1532-GAD of 1997 dated 23.09.1997. 15. Petitioner despite having known about the issuance of the above mentioned Government Order providing for induction of five persons against the slots available for the members of the Jammu and Kashmir Handloom (Gazetted) Service, has opted not to question the Government Order. Persons belonging to the Jammu and Kashmir Handloom (Gazetted) Service who have been inducted into the Jammu and Kashmir Administrative Service against the available slots for the Jammu and Kashmir Handloom (Gazetted) Service too have not been impleaded as party respondents to the petitioners writ petition. 16. Persons belonging to the Jammu and Kashmir Handloom (Gazetted) Service who have been inducted into the Jammu and Kashmir Administrative Service against the available slots for the Jammu and Kashmir Handloom (Gazetted) Service too have not been impleaded as party respondents to the petitioners writ petition. 16. In such view of the matter, in the absence of any challenge by the petitioner to the rejection of his candidature for induction into the Jammu and Kashmir Administrative Service and filling up of all the slots allotted to the Jammu and Kashmir Handloom (Gazetted) Service with the induction of five persons, mentioned hereinabove, the petitioners claim for induction into the Jammu and Kashmir Administrative Service cannot thus be sustained. 17. Petitioners claim for induction to the Jammu and Kashmir Administrative Service for the above reasons is, therefore, found untenable. 18. The other remaining reliefs claimed in SWP No. 1123/98 too cannot be allowed to the petitioner in view of the failure of his claim for induction into the Jammu and Kashmir Administrative Service because all these reliefs are consequential reliefs flowing from the relief of petitioners main relief of consideration for induction into the Jammu and Kashmir Administrative Service. There is thus no merit in petitioners writ petition SWP No. 1123/98. 19. So far as the petitioners writ petition SWP No. 96/06 is concerned suffice it would be to say that petitioner has no right to question Government Order No. 65-GAD of 2006 dated 19.01.2006 whereby Shri Kachoo Mohammad Shah, a member of the Jammu and Kashmir Administrative Service was posted as Joint Director Handloom, Srinagar which post had been included into the cadre of the Jammu and Kashmir Administrative Service, in that, having not been found entitled for induction into the Jammu and Kashmir Administrative Service, the petitioner has no right to question the posting and transfer of Kachoo Mohammad Shah against a post included in the cadre of the Jammu and Kashmir Administrative Service, which, in terms of the Jammu and Kashmir Administrative Service Rules, is required to be manned only by the members of the Jammu and Kashmir Administrative Service. 20. 20. Petitioners second relief in SWP No. 96/06 to regularize his promotion against the post of Joint Director Handlooms too is misconceived, in that, in the absence of petitioners induction into the Jammu and Kashmir Administrative Service he has no right to claim regularization against the post of Joint Director Handlooms, being ineligible therefor. 21. Order No. DHD/138 of 2005 dated 23.08.2005 devising an arrangement of allowing the petitioner to look after the work of the post of Joint Director, Handloom Development Department, Srinagar in addition to his own duties till the Joint Director was posted by the Government, would not, in my opinion, confer any right on him to seek regularization against the post of Joint Director Handloom, which in terms of the Jammu and Kashmir Administrative Services Rules, is required to be held by a member of the Jammu and Kashmir Administrative Service. 22. For all what has been said above, the petitioner is held disentitled to the reliefs prayed for by him in his writ petitions SWP Nos. 1123/98 and 96/06. Found to be without merit, both these writ petitions are, accordingly, dismissed.