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J&K High Court · body

2009 DIGILAW 444 (JK)

Mohd. Ashraf Hakim v. State

2009-09-11

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner was appointed as Draftsman in the Town Planner Organization Kashmir in March, 1981, thereafter was promoted as Head Draftsman in the same Organization on 11th Dec. 1994. The petitioners services were transferred to Chief Architects Origination, Kashmir. Petitioner was appointed to the post of Architect Assistant in the pay scale of 875-1240 in the Chief Architects Organization vide order No. 22 of 1985 dated 30th April 1985, and successfully completed probation period of two years which is evidenced by order No. 63 1987 dated 23rd April 1987. Vide order No. 4 of 1996 dated 11th Jan. 1996 the petitioner was ordered to hold the charge of post of Architect Assistant in his own pay and grade with charge allowance till further orders. The post of Assistant Architect is born on gazette cadre of the service. The technical qualification of the petitioner is two years draftsman course in civil engineering. The services of petitioner were governed by the Rules called J&K Town Planners and Architects (gazette) Service Recruitment Rules, 1978 (for short Rules of 1978) notified vide SRO 207 dated 11th April 1978. In terms of Rules of 1978 the post of Assistant Architect was to be filled up by promotion from amongst the Architect Assistants possessing technical qualification of draftsman course with five years experience as Architect. 2. The case of the petitioner is that the post of Assistant Architect became available in Jan. 1996 when the petitioner was ordered to hold the charge of the said post. The further case of the petitioner is that seniority list was circulated vide order No. 69 of 1993 dated 24th August 1993. The petitioner figures at Sr. No.9 of the said seniority list. It is the case of the petitioner that he is seniormost Architect Assistant available in the Valley for being considered for promoted/appointed to the post of Assistant Architect. The further case of the petitioner is that respondent No.3 proposed to make amendments in the Rules of 1978 and after inter department correspondence it was proposed to change the qualifications in respect of post of Assistant Architect. In terms of proposed Rules the post of Assistant Architect was to be filled up from amongst Architect Assistants and technical Assistants from the non-gazetted Subordinate Cadre of the Architecture Service having registration with Council of Architecture as an Architect. 3. In terms of proposed Rules the post of Assistant Architect was to be filled up from amongst Architect Assistants and technical Assistants from the non-gazetted Subordinate Cadre of the Architecture Service having registration with Council of Architecture as an Architect. 3. The grievance of the petitioner is that by this proposed amendment the petitioner would be deprived of his right of being considered for being promoted/appointed as Assistant Architect. The petitioners claim is that post having become available under the Rules of 1978 and petitioner having been ordered to hold the said post, the post thus cannot be filled up under the proposed revised recruitment rules. 4. Respondents in reply affidavit have taken stand that the Rules of 1978 are repugnant to Architect Act of 1972. It is admitted that petitioner is holding the charge of post of Assistant Architect in his own pay and grade in terms of order dated 11th Jan. 1996. It is further pleaded that petitioner is not registered under the Architect Act of 1972, as such, is not entitled to use the title of Architect and consequently the petitioner is not entitled to hold the post of Assistant Architect. 5. Heard ld. counsel for parties. Considered the matter. 6. Mr. A. Haqani, ld. counsel for petitioner submitted that in view of the law laid down by the Honble Supreme Court in case State of Rajasthan v. R. Dayal and others reported in (1997) 10 SCC 419 and a Division bench judgment of this Court rendered in LPA No. 146/06 dated 30th May 2006, the petitioners right to seek regularization/ promotion/ appointment to the post of Assistant Architect got crystallized under the Rules of 1978 as the post had become available when the said Rules were in operation. It was further submitted by ld. counsel for the petitioner that in terms of Rules of 1978, petitioner was fulfilling all the requisite qualification for being promoted/appointed to the post of Assistant Architect. Ld. counsel, for respondents, however, submitted that in view of the Architect Act of 1972 the petitioner being not a registered Architect is not eligible for being considered for promoted to the post of Assistant Architect. 7. Ld. counsel, for respondents, however, submitted that in view of the Architect Act of 1972 the petitioner being not a registered Architect is not eligible for being considered for promoted to the post of Assistant Architect. 7. The pleadings and plea of petitioner is that the respondents be directed to provide the qualification for post of Assistant Architect as are held by the petitioner in the proposed revised rules as providing any other qualification will not be countenance in law. 8. The employer is within its rights to provide eligibility qualifications for filling up a post(s). The courts will not ordinarily direct the employer to provide a particular qualification for filling up of a particular post. 9. The admitted position that emerges is when the post of Assistant Architect became available in 1996 the petitioner was eligible in terms of Rules for being promoted as Assistant Architect and on the basis of the seniority he was ordered to hold the charge of said post. In view of the law laid down by the Honble Supreme Court followed by this court in the judgment referred to above, right of consideration of the petitioner for being promoted/ appointed to the post of Assistant Architect has become indefensible. The law laid down by the Honble Supreme Court makes it explicitly clear that a person is to be considered against a post in terms of rules which are in-force when the post became available. 10. In this case admittedly the post became available when Rules of 1978 were in force and petitioner in terms of said rules was possessing the requisite qualification for being promoted/ appointed to the said post. The petitioner on the basis of the law laid down by Honble Supreme Court cannot be stripped off, of the right which has been crystallized in terms of Rules 1978. The issue which requires further consideration is as to what would be the impact of the Architects Act of 1972 on the rights of the petitioner. The Act of 1972 came into force from 1st of Sept. 1972 and it extended to whole of India. The State Government who made Rules of 1978, in the back-drop that the Architects Organization was in its infancy and persons would not be available to man the post if the Act of 1972 would be carried-out. The Act of 1972 came into force from 1st of Sept. 1972 and it extended to whole of India. The State Government who made Rules of 1978, in the back-drop that the Architects Organization was in its infancy and persons would not be available to man the post if the Act of 1972 would be carried-out. It is for this reason, it appears a conscious decision was taken not to incorporate the condition of being registered Architect as provided in the Act of 1972 in the Rules of 1972. The Rule making authority cannot be said to be not conscious of the Act of 1972 when Rules of 1978 were drafted and thereafter notified. The State Government after some time deemed it proper to incorporate as one of the condition of eligibility for the post of Assistant Architect the registration with Council of Architecture as an Architect. The respondents after Rules of 1978 were in-force must have made promotions/appointments in accordance with the said Rules. A class apart of the employees is thus constituted under the rules of 1978 notwithstanding the fact that Act of 1972 required registration as an Architect with Council of Architecture constituted u/s 3 of the Act of 1972. 11. The conscious decision of the state government/ respondents in making of Rules 1978 was thus a requirement of the relevant times. The employees having drawn benefits under the Rules of 1978, the petitioner cannot be subjected to invidious discrimination which is violative of constitutional guarantees under Article 14 and 16 of the Constitution. The petitioner in view of the law laid down by the Honble Supreme Court in State of Rajasthans case is to be considered for being promoted/appointed/regularized against the post of Assistant Architect in terms of Rules 1978 as the said post became available when said Rules were in-force. 12. The other prayer of the petitioner that respondents be directed to make provisions in the revised rules for his promotion/appointment to the post of Assistant Architect, however, cannot be allowed, same being not permissible in the attendant facts and circumstances of the case. 13. This petition is accordingly, allowed as indicated above. 12. The other prayer of the petitioner that respondents be directed to make provisions in the revised rules for his promotion/appointment to the post of Assistant Architect, however, cannot be allowed, same being not permissible in the attendant facts and circumstances of the case. 13. This petition is accordingly, allowed as indicated above. Respondents are directed to consider the petitioner for regularization of services against the post of Assistant Architect charge of which he is already holding since 1996 and/or consider him for being promoted/appointed to the post of Assistant Architect under the J&K Town Planners/Architect(Service Recruitment Rules of 1978) notified by SRO 207, and give him all consequential benefits. This exercise be under taken and completed within three months from the date of the copy of this judgment is served on respondents. Disposed of.