Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 422 (JK)

Showkat Ali Mufti (Dr. ) v. State

2009-08-27

SUNIL HALI

body2009
1. After completion of his post graduation, the petitioner came to be appointed as Lecturer in General Medicines by a proper selection on 16.8.1993. It is relevant to note that the appointment to the post of Lecturer was made against the vacancy left by migrant employee. The order of appointment was to remain in force initially for a period of one year. It seems that this order was further extended vide Government Order No. 14-IMS of 1994 dated 13.1.1994. The appointments of all those persons was to remain against temporary leave vacancies till the posts are re-advertised or till the incumbents holding such posts on regular basis return back. It is relevant to note that vide SRO 18 of 2002, the posts of lecturer was re-designated as Assistant Professor. The petitioner is stated to have worked as Lecturer from 16.8.1993 to 3.12.1996. The petitioner could not undergo higher studies in Post Graduation Institute at Chandigarh, as he was not relieved by the respondents, which impelled the petitioner to file writ petition in this court. On the intervention of the court, the petitioner was relieved as a result of which, he joined the Post Graduation Institute at Chandigarh for higher studies. However, his salary and other dues were not released in his favour. It seems that on account of non-release of his salary, he could not continue with the higher studies at Chandigarh with the result, he re-joined the department. 2. After joining the department, post of Assistant Professor was required to be filled up. Non consideration of his case for appointment resulted in filing of another writ petition in which direction was issued by the court that he be considered for promotion to the post of Assistant Professor. 3. The petitioner was appointed as Assistant Professor vide Government order dated 9.7.2001. It seems that this order was challenged by one Dr. Fayaz Ahmad Sofi in writ petition No. 1284/2001. The result of this writ petition was that the petitioner was directed to be appointed as Assistant Professor against the available vacancy without disturbing the selection of the petitioner and other candidates. While appointing Fayaz Ahmad Sofi, it was indicated that his appointment shall be against clear vacancy. On review, the respondents found that appointment of Fayaz Ahmad Sofi made against the clear vacancy was changed by showing his appointment against temporary vacancy. While appointing Fayaz Ahmad Sofi, it was indicated that his appointment shall be against clear vacancy. On review, the respondents found that appointment of Fayaz Ahmad Sofi made against the clear vacancy was changed by showing his appointment against temporary vacancy. Necessary order in this respect was issued by the Government on 22.1.2003 whereby the petitioner was confirmed as Assistant Professor on regular temporary basis wherein in case of Dr. Fayaz Ahmad Sofi, confirmation was against temporary leave vacancy. This order seems to have been withdrawn by the respondents on 22.10.2003 and the same has been challenged by the petitioner in SWP no. 15/2004. The said order has been kept in abeyance by this court. 4. The respondents vide SRO 378/2000, framed Assessment Merit Promotion Scheme of 2004. The said rules came into force with effect from 18.10.2000. The said scheme envisages promotion of Assistant Professors as Associate Professors each year without linkage to the vacancies in the grade of Associate Professors. 5. In pursuant to the aforesaid scheme, promotions were made to the post of Assistant Professors on 17.10.2005. Non inclusion of the petitioner in the promotion list, has resulted in filing of this writ petition. 6. The case of the petitioner is that he has been excluded from the consideration zone by invoking rule 5 of the aforesaid scheme, which provides that a person with four years regular service in respective grade, would be eligible for promotion as Associate Professor, Additional Professor and Professor respectively. The petitioner, according to the respondents, falls short by nine days, as result of which, he was not considered for promotion. It is contended by the petitioner that while interpreting the word `regular service the respondents have interpreted it as continuous service in the lower grade from which the promotion is to be made. In nutshell, the case of the petitioner is that while counting regular service, the respondents were required to take into account the service rendered by the petitioner from 1993 to 1996 as Lecturer, which was re-designated as Assistant Professor. 7. On the other hand, the case of the respondents is that petitioner was appointed on 9.7.2001 and on that date, he did not have requisite service and fell short by nine days, which resulted his exclusion from the consideration zone. 8. I have heard learned counsel for the parties. 9. 7. On the other hand, the case of the respondents is that petitioner was appointed on 9.7.2001 and on that date, he did not have requisite service and fell short by nine days, which resulted his exclusion from the consideration zone. 8. I have heard learned counsel for the parties. 9. Eligibility is one of the essential criteria for making promotion or appointment. The person who does not fulfill the eligibility criteria, cannot be considered for appointment or promotion to the post for which he has applied. Under the Assessment Merit Promotion Scheme, the promotions of the persons to the post of Assistant Professor, Associate Professor Additional Professor and Professor are to be made, who have four years of service without linkage to the vacancies in the grade of Additional Professor. In essence, it is an up gradation of the post of Assistant Professor to the post of Associate Professor carrying higher emoluments. It is to be noted that this promotion/up-gradation will not have any effect on the vacancies in the grade of Associate Professor. In essence, the object of aforementioned scheme is to ensure that stagnation should not set in service. It is under these circumstances that the present controversy has to be resolved. 10. Rule 5 of Assessment Merit Promotion Scheme mentioned that a person can be promoted as Associate Professor if he has four years service in the grade of Assistant Professor. The petitioner on the first blush admittedly does have four years of service as he came to be appointed on 9.7.2001. It seems from the stand taken by the respondents that the word `regular has been construed to be continuous service on the post against which he claims his right to be promoted. The interpretation placed on Rule-5 by the respondents is that a person should have continuous service on a particular post, when the rule talks about regular service. Both the words have different connotation in law. The word `continuous means to remain in existence or in the given place or to go on with. The expression has an element of continuity. The word `regular would mean conformable to rule; periodical; recurring or repeated at fixed times or uniform intervals. Construing the two expressions results in different interpretations. The word `regular would mean continue for shorter period while as word `continuous would mean without break. The expression has an element of continuity. The word `regular would mean conformable to rule; periodical; recurring or repeated at fixed times or uniform intervals. Construing the two expressions results in different interpretations. The word `regular would mean continue for shorter period while as word `continuous would mean without break. Eligibility clause clearly states that a person should be on regular service. 11. It is in this background contention of the petitioner that he was initially appointed as lecturer in the year, 1993 even though engaged against temporary leave vacancy which was continued up to the year 1996, has to be understood. The said selection of the petitioner was made by Apical selection committee. The appointment as such was regular and in conformity with the rules. The Lecturers were re-designated as Assistant Professors in the year 2000. The respondents cannot ignore the service rendered by the petitioner as Lecturer from 1993 to 1996 for the purpose of counting the experience of four years as provided under rule-5 of the aforementioned scheme. As already indicated above, both the expressions have two different connotations for the purpose of determining eligibility under rule-5. The word "regular" which has been used in the eligibility clause would mean that if the petitioner has worked as Lecturer, which was re-designated as Assistant Professor, this experience of the petitioner cannot be ignored for the purpose of determining his eligibility. The framers of law have consciously omitted to mention continuous in the said rules. 12. Examining this question in the present controversy, all those persons who were working as Lecturers and later on re-designated as Assistant Professor till 2000, it cannot be construed that after their re-designation, the actual experience gained by them as Lecturer, can be ignored. I say so because re-designation does not amount to promotion. It is only a change in nomenclature and any experience gained prior to this change, have the intent of continuity after the re-designation. 13. I, therefore, hold that while interpreting the word "regular", it has to be understood that service, which has been rendered by the petitioner as Lecturer from 1993 to 1996 now re-designated as Assistant Professor, cannot be ignored and he is deemed to be eligible for appointment to the post of Associate Professor. 13. I, therefore, hold that while interpreting the word "regular", it has to be understood that service, which has been rendered by the petitioner as Lecturer from 1993 to 1996 now re-designated as Assistant Professor, cannot be ignored and he is deemed to be eligible for appointment to the post of Associate Professor. The stand of the respondents that the petitioner should be in continuous service, is not accepted, in view of the clear language of rule-5 of the Assessment Merit Promotion Scheme. 14. Viewed thus, I therefore, allow this writ petition and direct the respondents to consider the case of the petitioner for appointment as Associate Professor from 2005. This direction has been issued in view of the fact that the petitioner has been interviewed for the said post in pursuant to the direction of this court passed on 25-8-2005. The appointment of private respondents, however, shall not be disturbed. Let this exercise be completed by the respondents within a period of two months from the date copy of this order is received by them.