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2009 DIGILAW 384 (JK)

Harbans Lal Bhagat v. State

2009-07-31

NISAR AHMAD KAKRU

body2009
1. Order of promotion favouring members of the Jammu and Kashmir Agriculture (Gazetted) Service to different posts of different classes and categories carrying different pay scales bearing Govt. Order No.32-Agri of 2005 dated 18.02.2005, having witnessed an amendment by corrigendum vide Govt. Order No. Agri-E/40/2001-DPC dated 20.12.2005, substituting Sh. H.L. Bhagat, the petitioner herein by one Sh. K.L. Gupta against the post of a Plant Protection Officer borne on the service called "the Jammu and Kashmir Agriculture (Gazetted) Service", therefore, this writ petition against the corrigendum aforementioned which reads:- "Government of Jammu and Kashmir Agriculture Production Department Subject: Promotion of Officers of Agriculture Department. Corrigendum to Govt. Order No.: 32-Agri of 2005 Dated: 18.02.2005 Please read "Shri K.L. Gupta" instead of "Shri H.L. Bhagat" appearing at S.No.03 in annexure "D" to Government Order No.32-Agri of 2005 dated 18.02.2005. By order of Govt. of Jammu and Kashmir. Sd/- Deputy Secretary to Govt. Agriculture Production Department. 2. The case set out by the petitioner in his writ petition against the corrigendum is that it was not open to the Government to revoke the order of his promotion because it was made on the basis of recommendation of the Departmental Promotion Committee (for short DPC). Supporting the corrigendum, it is averred by the respondents that it was name of Sh. K.L. Gupta which had to be reflected in the promotion list but out of sheer mistake, the petitioner Sh. H.L. Bhagats name was included and when the mistake was noticed, the Government had no option but to correct the same, accordingly it was corrected. The contention raised by the official respondents makes it imperative to examine the issue in the light of the original record of DPC/PSC which is produced in original, perusal whereof reveals that the DPC comprising of Sh. M.S. Khan (the then Member of PSC), Sh. B.R. Kundal (the then Principal Secretary to Government, Agricultural Production Department) and Sh. Gazanfar Hussain (the then Special Secretary to General Administration Department) assisted by Sh. Sham Lal and Dr. Irshad the then Secretary and Dy. Secretary of the PSC respectively in its meeting on 29.07.2003, chaired by the Chairman of the Committee Sh. B.R. Kundal (the then Principal Secretary to Government, Agricultural Production Department) and Sh. Gazanfar Hussain (the then Special Secretary to General Administration Department) assisted by Sh. Sham Lal and Dr. Irshad the then Secretary and Dy. Secretary of the PSC respectively in its meeting on 29.07.2003, chaired by the Chairman of the Committee Sh. M.S. Khan, considered hundreds of eligible members of the Agriculture Gazetted Service for promotion to the Jammu and Kashmir Agriculture (Gazetted) Service on the touchstone of the Recruitment Rules notified vide SRO 179 dated 02.06.1988 inclusive of 28 officers against class-IV posts and process of consideration clinched in recommendation favouring a large number of officers including 8 officers under class-IV, one being Sh. K.L. Gupta. It is very clear from the record that Sh. H.L. Bhagat-petitioner was not considered at all so the recommendation in his favour for promotion to the post of Plant Protection Officer could not be thought of. Being clear from the record that no recommendation even worth the name was made in favour of Sh. H.L. Bhagat-petitioner, no fault could be found with the impugned corrigendum, for, it was obligatory upon the respondents to correct the mistake, set the record straight and undo the wrong done to the victim of the error. 3. This brings me to the ground of denial of consideration for promotion to the petitioner to the post of Director Agriculture or any other equivalent post retrospectively. In this behalf, it is appropriate to refer to the direction passed by the court in SWP No.285/1991 commanding the respondents to consider the petitioner for promotion. Record of writ petition was sent for, perusal whereof reveals that it was filed by the petitioner on 26.03.1991 in furtherance of an endeavour to compel the respondents to appoint him as a Block Development Officer in the Rural Development Department but having failed to persuade the court, sought its withdrawal which was accorded on 07.11.1991 with the following direction: - "Mr. Onkar Sethi. Mr. J.A.Qazmi, AAG. On this petition coming up today Mr. Onkar Seth wants to withdraw the same. The petition, along with its connected CMPs, is disposed of as withdrawn with directions that whenever any promotions are effected in the Agriculture Production Department, the petitioner shall be accorded due consideration for his promotion to the next higher post depending upon his eligibility and his falling within the zone of consideration." 4. Onkar Seth wants to withdraw the same. The petition, along with its connected CMPs, is disposed of as withdrawn with directions that whenever any promotions are effected in the Agriculture Production Department, the petitioner shall be accorded due consideration for his promotion to the next higher post depending upon his eligibility and his falling within the zone of consideration." 4. Since the direction commands the respondents to accord consideration to the petitioner, it is averred by the petitioner in the main petition that he was considered and got the promotion in compliance with the said judgment but during the course of argument it was contended that he was never considered for promotion, therefore, violation of his rights, an effort to propound a new and different case. Although it is not open to him in law yet I would like to dwell upon and to begin with, it has to be remembered that right of consideration for promotion cannot be claimed in absence of eligibility prescribed by rules for purposes of promotion to a higher post and the Jammu and Kashmir Gazetted Service Recruitment Rules having prescribed the eligibility criteria, the same has to be complied with strictly. Relevant it is to notice that the petitioner has entered the establishment of the State as a Village Level Worker on 14.04.1973 and acquired the qualification of B.Sc. Agriculture in the year 1982, consequently appointed as Village Extension Worker vide Govt. Order No.57-Agri of 1985 dated 29.01.1985. He was promoted as Agriculture Extension Officer vide Order No.194-GR of 1986 dated 27.06.1986 and as on date holds the same post substantively. Thus a million dollar question, whether he is possessed of the eligibility for the post of Plant Protection Officer, a class-IV post in the Gazetted Service for which method of recruitment prescribed by rules envisages selection from class-V but the petitioner being admittedly a class-VII officer, the learned appearing counsel was pointedly asked to refer to the rules which entitle the petitioner to consideration against class-IV post but could refer to none. The fact being that the petitioners substantive appointment is on the post of Agriculture Extension Officer which falls within class-VII, therefore, ineligible for consideration for class-IV post but amazingly he has staked a claim for the post of Director a class-I post something beyond imagination. The fact being that the petitioners substantive appointment is on the post of Agriculture Extension Officer which falls within class-VII, therefore, ineligible for consideration for class-IV post but amazingly he has staked a claim for the post of Director a class-I post something beyond imagination. Yet another difficulty for him traceable to the requisite minimum qualification for promotion to the post of Class-IV viz. M.Sc. which he lacks. In the given facts it is not only difficult but impossible to accept the challenge thrown to the corrigendum by the petitioner. 5. Much controversy was raised by learned counsel for the petitioner about the appointment of respondent No. 8. As a matter of fact, the arguments advanced by him for two days were intended to persuade the court to quash her basic appointment. In spite of the fact that no challenge is registered in the writ petition against the appointment of respondent No. 8, still I deem it appropriate to address the contention, one being her ineligibility because of lack of qualification of M.Sc. To refute the contention, Mr. Jalali has produced a certificate of Master of Science from Jawahar Lal University. A copy of the same certificate has been produced by Mr. Jan to contend that it is conferment of the degree, therefore, not a qualification. The copies of both the certificates are taken on record. To understand the unique argument, it is pertinent to reproduce Government Order No. 223-Agri of 1079 dated 19-03-1979 which reads:- "GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECTT. AGRICULTURE PRODUCTION DEPARTMENT. Subject: Appointment of Miss Vinod Bala Sharma, D/o. Late Sh. Krishen Chand, R/o Chohatta, Samba, District Jammu as Training Officer (Female) in centrally sponsored Scheme of Farmers Training and Education in H.V.P. District R.S.Pura. * * * * * Reference: Secretary J&K Public Service Commissions letter No. PSC/SC/671 dated 26.2.1979. * * * * * Government Order No. 223-Agri of 1979. Dated: 19-3-1979. As recommended by the J&K Public Service Commission, sanction is accorded to the temporary appointment of Kumari Vinod Bala Sharma, D/O Late Sh. Krishan Chand Sharma C/o. Shri Girdhari Lal, Badyal Chohatta Mohalla, Samba, District Jammu as Training Officer (Female) in the pay scale of 540-950 under the Centrally Sponsored Scheme of Farmers Training and Education in H.V.P Districts at R.S.Pura (Jammu). By order of the Government of Jammu and Kashmir. Sd/- (S.R.Sharma) Addl. Secretary to Government. Krishan Chand Sharma C/o. Shri Girdhari Lal, Badyal Chohatta Mohalla, Samba, District Jammu as Training Officer (Female) in the pay scale of 540-950 under the Centrally Sponsored Scheme of Farmers Training and Education in H.V.P Districts at R.S.Pura (Jammu). By order of the Government of Jammu and Kashmir. Sd/- (S.R.Sharma) Addl. Secretary to Government. No. Agri-E/78/89 Dated 17-3-1979." 6. A perusal of order reveals that the appointment of the petitioner was made in pursuance of the recommendation of the PSC. Presumption that arises is that the certificate has been accepted by the PSC and by the appointing authority apparently after being satisfied about its validity, obviously the contention appears to have been advanced just for the sake of argument and fails. 7. Placing reliance on category (f) Class-V of the Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules 1978, it was contended by Mr. Jan that Training Officer female did not figure in the Schedule-I appended to the said rules, however, no dispute was registered by him on account of existence of post of Training Officer in the rules. Suffice it to say that non-mention of gender in the rules cannot exclude the respondent-8 from ambit of the rules and least that can be said is that the argument is quite uncalled for. Mr. Jan also referred to category 2(a) and (b) Class- V of Schedule-I appended to 1988 Rules to contend that appointment to the post of Training Officer has to be made by selection from Class-VI which would mean that direct recruitment was impermissible. The argument needs to be appreciated in the light of the fact that the appointment of respondent 8 has come into being in the year 1979 and at that point of time 1978 Rules governed the field, which provided 25% by direct recruitment against the posts of Training Officers. That being the rule position, contention fails. Moreover, the controversy in respect of alleged ineligibility of the respondent No. 8 has been set at rest by the Government vide Order No. 141-Agri of 1994 dated 04.03.1994 reproduced in the judgement dated 13.05.1998 passed in SWP No. 32/1994 titled Vinod Bala Sharma Vs. That being the rule position, contention fails. Moreover, the controversy in respect of alleged ineligibility of the respondent No. 8 has been set at rest by the Government vide Order No. 141-Agri of 1994 dated 04.03.1994 reproduced in the judgement dated 13.05.1998 passed in SWP No. 32/1994 titled Vinod Bala Sharma Vs. State of J&K and others, operative part whereof is reproduced for facility of reference hereunder: "Whereas the eligibility of Smt. Vinod Bala Sharma, Training Officer (Female) has been examined with reference to qualification she possesses and Recruitment Rules in force and whereas, as a result of such examination she has been found eligible for adjustment to the post of Project Officer, Dryland (Development)." That apart the said order has not been questioned and same has gone unaltered as on date so also contention does not attract any credence and in totality of the circumstances, writ petition fails and is dismissed along with connected CMP(s). Interim directions passed from time to time are vacated. As a corollary Contempt (SWP)No. 212/2007 also fails and is dismissed. Rule discharged. 8. The matter does not end here because something has to be said about the amount the petitioner has drawn and disbursed to his person. How to deal with such exercise of drawing and disbursing power, it has to be borne in mind that he has made false averments on affidavits that his appointment was in pursuance of the recommendation of the PSC notwithstanding the fact that the State had categorically pleaded the absence of the recommendation from the DPC/PSC. He has by willful mis-statement and suppression of facts prosecuted the writ petition, forcing litigation on the State, fall out being an undue burden on the State exchequer, therefore, there is no alternative for him to reimburse the amount that exceeds his entitlement which shall have to be worked out by the respondents on the basis of the pay scale attached to the post that was held by him prior to the issuance of Govt. Order No.32-Agri of 2005 dated 18.02.2005. This direction has become imperative in view of an ad interim direction dated 19.02.2009 which forms basis of exercise of power on the part of the petitioner to draw and disburse the amount. Order No.32-Agri of 2005 dated 18.02.2005. This direction has become imperative in view of an ad interim direction dated 19.02.2009 which forms basis of exercise of power on the part of the petitioner to draw and disburse the amount. The direction reads: - "It be seen that once the corrigendum issued by the respondents withdrawing the name of petitioner from the promotion list is stayed by this court and the petitioner has been allowed to work as Plant Protection Officer, he is entitled to the salary attached to this post. Regarding any excess amount drawn by the petitioner, the respondent authorities are always at liberty to take appropriate action in accordance with the law for recovery of the said amount, if any. But till the matter is considered and decided as to whether the petitioner has been wrongly promoted or not, he, as indicated above, is entitled to salary due to him against the post of Plant Protection Officer on account of the corrigendum impugned having been stayed by this court. A direction is, thus, issued to respondent authorities to release the salary in favour of the petitioner against the above said post w.e.f 7th of July 2007 i.e. the date on which the corrigendum impugned was stayed by this court till today. Let this be released on or before the next date of hearing. The petitioner shall also be paid future salary attached to the post of Plant Protection Officer till the order dated 07.07.2007 is modified by this court. The payment of salary to the petitioner against the aforementioned post shall, however, remain subject to the outcome of the writ petition." 9. A perusal of the direction makes it manifestly clear that right of the State to recover the amount has been protected by the court making the release of the amount subject to outcome of the writ petition and recovery if called for. In that backdrop, the respondents are free to recover the excess payment from the petitioner who is duty bound to reimburse the same. SWP No. 1099/2008, CMP 1618/2008. 10. This petition was listed along with SWP No.1187/2007 but could not be heard because Mr. Jan after advancing arguments in SWP 1187/07 did not enter appearance despite consecutive adjournments. Adjourned in the interests of justice. Be listed again.