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2009 DIGILAW 476 (JK)

M. A. Khan v. State Of J. &K.

2009-10-05

SUNIL HALI

body2009
1. Fixation of seniority list of the non-gazetted technical cadre of Scientific Assistants in the J&K Forensic Department (Labs), by bifurcating the said cadre into different divisions and units is the subject matter of challenge in the present petition. 2. The facts in brief are that petitioners along with others came to be appointed as Scientific Assistants vide order No. 1113 of 1983 dt. 1st of Oct83. A tentative inter-se seniority list of Scientific Assistants was issued by the respondents vide order dt. 6th of June92. The said tentative seniority list was, however, not finalised until Sept95, when the respondents vide order No. 79SSF-AFSC/1995 dt. 6th of Sept95, issued another seniority list of Scientific Assistants by bifurcating the said cadre into different divisions i.e. Physics and Ballistics, Chemistry & Toxicology, Biology, Document Examination, Finger Print Comparison & Opinion, Serology, Lie detector and Photography Section. It is this seniority list which is impugned in the present petition. 3. Learned counsel for the petitioners submits that as there were no specific rules regarding fixation of inter-se seniority of various cadres in the department concerned, the respondents were bound to fix the inter-se seniority of different cadres in accordance with the Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Reliance in this regard is being placed on sub Rule (b), which reads as under:- "(b) in the case of those recruited direct except those who do not join their duties when vacancies are offered to them according to the positions attained by and assigned to them in order of merit at the time of competitive examination or on the basis of merit, ability and physical fitness etc. in case no such examination is held for the purpose of making selections." 4. It is stated that it was keeping in view the mandate of aforementioned Rule, the respondents initially issued the tentative seniority list vide order dt. 6th of June92, but just to provide undue benefit to some of the Scientific Assistants who were junior to the petitioners, did not finalise the said seniority list and issued the impugned seniority list by bifurcating the whole cadre into different divisions which is not in accordance with the law. 6th of June92, but just to provide undue benefit to some of the Scientific Assistants who were junior to the petitioners, did not finalise the said seniority list and issued the impugned seniority list by bifurcating the whole cadre into different divisions which is not in accordance with the law. It is further stated that so far as other non-gazetted cadres i.e. Laboratory Attendants and Laboratory Assistants are concerned, there has been a single caderization and the seniority has not been maintained division wise as has been done in the case of Scientific Assistants. It is thus stated that there are no statutory rules which lay down that the inter-se seniority of a single cadre is to be fixed by bifurcating the same into different divisions and in absence of any such statutory rules governing the field, the action of respondents is unconstitutional, arbitrary and illegal and the inter-se seniority of the whole cadre of Scientific Assistants is to be fixed in accordance with the rules referred to above. 5. This petition was admitted on the very first date of hearing i.e. 21st of Sept95. For the last fourteen years, respondents have not chosen to file counter. Under these circumstances, when the pleadings have remained un-controverted, these would be deemed to have been admitted. 6. There is no dispute that the petitioners came to be appointed as Scientific Assistants in the pay scale of Rs. 825-1240/-. A perusal of the order of appointment of the petitioners shows that there is no different categorization of post as has been mentioned in the impugned seniority list, and therefore, the post of Scientific Assistant against which the petitioners came to be so appointed would fall under the definition of "Cadre" which as per Rule 2 of the Rules aforementioned would mean the "sanctioned strength of service, class, category or grade". As per the appointment order Annexure 1 to the writ petition, as indicated above, the grade attached to the post of Scientific Assistant is Rs. 825-1240/- and there is also no further categorization. Therefore, the inter-se seniority of Scientific Assistants has to be fixed by taking it as a Single cadre and the same cannot be done on the basis of sub-categorization as has been done by the respondents vide impugned seniority list. 825-1240/- and there is also no further categorization. Therefore, the inter-se seniority of Scientific Assistants has to be fixed by taking it as a Single cadre and the same cannot be done on the basis of sub-categorization as has been done by the respondents vide impugned seniority list. The petitioners who along with others came to be appointed as Scientific Assistants may be having the speciality in different subject matters as is apparent from the impugned seniority list but these different specialities cannot be taken into consideration for the purposes of maintenance of inter-se seniority. Even other wise, there is nothing on record to show that there are some statutory rules or instructions which govern the maintenance of inter-se seniority by taking into consideration the different specialities. In the absence of any such rules/instructions, the inter-se seniority has to be governed by Rule 24(b) of the Rules, noticed above. 7. For the reasons mentioned above, this petition is allowed. Impugned Seniority list issued by the respondents vide order No. 79/SSF-DFSC/1995 dt. 6th of Sept95, is quashed. Respondents are directed to finalise the inter-se seniority of the petitioners and others falling in the category of Scientific Assistants by taking into consideration the provisions of Rule 24(b) aforementioned as was done by them vide order 6th of June92. Let this be done within a period of one month from the date, a copy of this order is made available to the respondents by the petitioner. Thereafter, on finalization of the said inter-se seniority, the respondents would be at liberty to take further action regarding promotions, if any, of the petitioners and other eligible candidates to the next higher post. However, after finalization of inter-se seniority, it is found that any person junior to the petitioners has been promoted, then, the same benefit shall be released in their favour also within a further period of two months. 8. Disposed of accordingly along with connected CMPs.