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J&K High Court · body

2009 DIGILAW 300 (JK)

B. R. Chadgal v. State

2009-06-05

SUNIL HALI

body2009
1. Extension of the reservation to the persons, who belong to the reserved category was granted to the petitioners vide Government Order No. 233 PW of 1995 dated 21.4.1995. In terms of the said order, the deemed appointment of the petitioners as Assistant Engineer was made with effect from 7.1.1985 and 6.8.1985 respectively. In respect of Assistant Executive Engineers, the deemed appointment was given effect from 11.11.1987. The tentative seniority list of the Assistant Engineers and Assistant Executive Engineers was issued on 25.4.1997 reflecting the seniority position of the petitioners at serial Nos. 133 and 138 respectively. The placement of the petitioners in the said seniority list was based on their deemed appointments as indicated supra. 2. It seem that vide Government Order No. 370-Works of 2002 dated 23.7.2002, finally seniority list of the Assistant Engineers (Civil) R&B Wing was issued, wherein the date of deemed appointment of the petitioners was shown as 1.12.1987. This final seniority list was followed by order dated 06.08.2003 of regularization of Assistant Engineers and Assistant Executive Engineers, wherein the petitioners figured at serial Nos. 186 and 202. This order was challenged in this court in SWP 1951/2003. 3. The grounds of challenge in said writ petition were with respect to the grant of benefit of regularization of Assistant Executive Engineers pursuant to the re-organization of the Engineering Department in the State of Jammu and Kashmir. The ground questioning the regularization of the Assistant Engineers was that private respondents were regularized with effect from 13.11.1987 giving benefit of reservation in promotion under the then existing Rules. It was stated that private respondents to the writ petition would not entitle to the benefit of reservation, as they were in a higher pay scale than prescribed under the reservation rules invogue at the relevant time. In nutshell grievance of the petitioners in that writ petition is that grade of Assistant Engineer was Rs. 1200-1800/- as per Government Order No. 455 dated 29.06.1987, which was revised to 2200-3650 in October, 1987 as is evident from Government Order No. PW 972 of 1987 dated 29.10.1987. The J&K Schedule Caste and Backward Classes (Reservations of Appointment by Promotion) Rules, 1970 provides that a person whose grade was upto Rs. 3500/- alone be eligible for said reservation. 1200-1800/- as per Government Order No. 455 dated 29.06.1987, which was revised to 2200-3650 in October, 1987 as is evident from Government Order No. PW 972 of 1987 dated 29.10.1987. The J&K Schedule Caste and Backward Classes (Reservations of Appointment by Promotion) Rules, 1970 provides that a person whose grade was upto Rs. 3500/- alone be eligible for said reservation. The sum and substance of total submission made on behalf of the petitioners was that the date from which private respondents have been granted benefit of regularization, they were in the higher pay scale, as such, not entitled to the benefit of promotion being member of the reserved category. Resultant affect of the judgment was that the Order dated 6.8.2003 impugned in that writ petition was quashed to the extent it has granted the benefit of reservation in promotion to the private respondents with effect from 1987. Interest of the petitioners in the said judgment was protected to the extent that they were promoted in the quota reserved for diploma holders, for which there was no dispute. The direction was issued in the writ petition for determination of date of regularization of the interested parties and their seniority has to be fixed in accordance with Rule, 24. In pursuance to the directions of the court, the official respondents issued the Government Order No. 168 PW(R&B) of 2005 dated 24.05.2005, whereby the seniority in terms of aforementioned directions of the court was fixed by the respondents. This resulted in exclusion of the petitioners in the regularization list. It is this order, which is subject matter of challenge before this court. 4. I have heard learned counsel for the parties and perused the record. 5. The regularization of the petitioners as Assistant Executive Engineer with effect from 11.11.1987 stands set at naught by the judgment of this court indicated herein above. The date of appointment of the petitioners was fixed as 11.11.1987 in the category of Assistant Executive Engineers in view of the benefit of the reservation given to them. This court has already stated that they were not entitled to the benefit of Reservation Rule, 1970. Reservation can be given to a person, who was working in the grade not higher than Rs. 3500/- as determined by the aforementioned SRO. The petitioners were admittedly working in a grade of Rs. 2200-3650/-. This court has already stated that they were not entitled to the benefit of Reservation Rule, 1970. Reservation can be given to a person, who was working in the grade not higher than Rs. 3500/- as determined by the aforementioned SRO. The petitioners were admittedly working in a grade of Rs. 2200-3650/-. The appointment of the petitioners as Assistant Executive Engineers with effect from 11.11.1987 was set at naught by the judgment of this Court passed on 01.12.2004 (supra). However, vide Government order No. 233 PW of 1995 dated 21.4.1995, the petitioners were deemed to have been placed as incharge Assistant Engineers with effect from 7.1.1985 and 6.8.1985 and their pay scale at the relevant time was Rs. 1560/-. Admittedly, interms of SRO 126 of 1994, they were entitled for being given benefit of the reservation, which has rightly been given to them vide order dated 21.4.1995. So, the fixation of their seniority from 7.1.1985 and 6.8.1985 respectively in the category of Assistant Engineers has not been taken into question while issuing impugned order passed in the year, 2005. All that has been done by virtue of order impugned is that benefit of reservation Rules given to the petitioners as Assistant Executive Engineers with effect from 11.11.1987 has been taken away. The respondents were required to determine the seniority of the petitioners in the category of Assistant Engineer. Consequently, they were required to be shown in the said category. This seems not to have been done by the respondents. I say so because their regularization with effect from 1985 as Assistant Engineers was not subject matter of challenge before this court in SWP No.1951/2003. 6. The benefit of reservation was to be given to the petitioners while promoting them from Junior Engineer to Assistant Engineers interms of reservation Rules, 1970. The effect of the seniority in the year, 1987 on account of re-organization in the engineering department was required to be determined afresh. The post of Assistant Engineer was upgraded and was re-designated as Assistant Executive Engineer. For the purpose of determination of their seniority in the category of Assistant Executive Engineer will have to be determined in relation to the seniority position which exists in the lower grade of Junior Engineers. I say so because there was no promotion from Assistant Engineer to Assistant Executive Engineer. For the purpose of determination of their seniority in the category of Assistant Executive Engineer will have to be determined in relation to the seniority position which exists in the lower grade of Junior Engineers. I say so because there was no promotion from Assistant Engineer to Assistant Executive Engineer. It was only after re-organization of the department that the post of Assistant Engineer was re-designated as Assistant Executive Engineer. In essence, determination of the seniority of the petitioners in the category of Assistant Engineer will have to be determined on the basis of seniority they held in lower category. 7. In view of the circumstances, I direct the respondents to determine the seniority of the petitioners in the category of Assistant Engineer with effect from the date they stand appointed to the said post. Consequently, after such determination, their seniority in the category of Assistant Executive Engineer shall be reflected. They shall also be entitled to consequential benefits. Their deemed appointment as Assistant Executive Engineer with effect from 11.11.1987 cannot be sustained in view of the judgment of this court passed in SWP No. 1951/2003, whereby they have found disentitled as Assistant Executive Engineers with effect from December, 1987. Let this exercise be completed within a period of three months from today. Till then present status of the petitioners shall not be affected, which has been protected by this court vide order dated 1.12.2002. Disposed of.