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J&K High Court · body

2009 DIGILAW 64 (JK)

Imtiyaz Hussain Parray v. State

2009-02-17

HAKIM IMTIYAZ HUSSAIN

body2009
1. Issues which arise for determination in the present petitions are that whether a Government order could override the statutory rule, if so whether a Male Multipurpose Health Worker (MMPHW) is entitled to promotion to the post of Health Educator under the Jammu & Kashmir Health & Medical (Subordinate) Services Recruitment Rules, 1992 (for short the Rules). 2. The petitioners in SWP No. 01/2008 are substantively holding the post of Male Multipurpose Health Worker in the pay scale of Rs.3050-4590. They seek mandamus directing the respondents to forebear from considering an ineligible class of employees viz. Health Inspectors for the post of Health Educator against the quota fixed for in-service candidates, alternately they seek their promotion and appointment to the post of Health Educator. 3. Petitioners in SWP No. 315/08 are holding the posts of Health Inspectors. They state that under the rules they are entitled for promotion to the post of Health Educators but the respondents have under an order dated 21.9.2007 directed promotion of private respondents vide order Nos. 283/NG of 2007, 284/NG of 2007, 285/NG of 2007, 286/NG of 2007, 287/NG. The private respondents being Male Multipurpose Health Workers are not under the rules entitled to promotion to the post of Health Educators so the Government order is not in accordance with the recruitment rules. 4. Heard. I have considered the matter. 5. The rules, which were framed vide SRO No. 20 of 1992 dated 24.2.1992, have constituted a service called as the Jammu & Kashmir Health & Medical (Subordinate) Service. Under the schedule appended to the rules, the posts of Health Educator are to be filled up as under: - Class Category Designation Grade Qualification Mode of Recruitment IV (f) Health Educator 1150-2050 i) Graduate i) 25% by direct recruitment ii) Matric ii) 75% by promotion from class V category (b) having five years service in that category. 6. Admittedly petitioners of SWP No. 315/08 are holding the posts of Health Inspectors as such they have quota of 75% fixed for promotion to the post of Health Educator under the rules, therefore, they are eligible for promotion to the post of Health Educator. 7. In SWP No.315/08 petitioners are admittedly holding the post of Male Multipurpose Health Worker. 6. Admittedly petitioners of SWP No. 315/08 are holding the posts of Health Inspectors as such they have quota of 75% fixed for promotion to the post of Health Educator under the rules, therefore, they are eligible for promotion to the post of Health Educator. 7. In SWP No.315/08 petitioners are admittedly holding the post of Male Multipurpose Health Worker. There is no provision under the rules for their promotion to the post of Health Inspectors as such they are not entitled to any such consideration under the said rules. 8. These petitioners admit that under the rules they do not have any avenue for promotion to the post of Health Inspectors. They, however, state that they represented to the Government for providing promotional avenues to them. The matter was considered by the Government and it was proposed to make amendment in the recruitment rules by incorporating Male Multipurpose Health Workers as one of the feeding categories to the post of Health Educator. In this behalf vide Government Order No.631-HME of 2007 dated 21.9.2007 the Government ordered that those Male Multipurpose Health Workers (MMPHW) who have ten years experience, shall be treated as one of the feeding categories to the post of Health Educator in the pay scale of Rs.5000-8000 on the basis of the sanctioned strength of each category. It is on the basis of this Government Order that promotions of some of the MMPHW have been ordered which is impugned in SWP No. 315/08. 9. These facts are not in dispute. It is admitted that vide Government Order No. 631-HME of 2007 dated 21.9.2007 the Government has ordered that Male Multipurpose Health Worker shall form one of the feeding categories to the post of Health Educator but the issue raised by Mr. Qayoom, the learned counsel for the petitioners (in SWP No. 315/2008) is that since the recruitment rules are still in force and no amendment has been made in the same in this behalf promotion to the post of Health Educator is to be governed by the existing rules only. On this basis, urge the petitioners the private respondents would not become eligible for promotion to the post of health educator as such their promotion on the basis of said Government Order is not in accordance with the recruitment rules. On this basis, urge the petitioners the private respondents would not become eligible for promotion to the post of health educator as such their promotion on the basis of said Government Order is not in accordance with the recruitment rules. In support learned counsel has relied on Paluru Ramkrishnaiah v. Union of India, AIR 1990 SC 167, Dr. Rajinder Singh v. State of Punjab (2001)5 SCC 482, Virender Singh Hooda v. State of Haryana AIR 2005 SC 137 and Sk. Abdul Rashid v. State of J&K ( 2008)1 SCC 722. 10. In Paluru Ramkrishnaiah v. Union of India, AIR 1990 SC 167 the Apex Court held that an executive instruction could make a provision only with regard to service matter which was not covered by the rules and that such executive instructions could not override any provision of the rule framed under Art. 309. 11. Similarly in Dr. Rajinder Singh v. State of Punjab, (2001) 5 SCC 482 the Supreme Court held that settled position of law is that no government order, notification or circular can be a substitute to the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution. 12. In Virender Singh Hooda v. Stale of Haryana AIR 2005 SC 137 it was held that a vested right cannot be taken away by legislature by way of retrospective legislation. 13. Similarly in Sk. Abdul Rash id and Others, v. State of J&K, (2008)1 SCC 722 the Apex Court in a matter which was from this State, observed that no executive order could be issued in derogation of the statutory rules far less a legislative Act. 14. 13. Similarly in Sk. Abdul Rash id and Others, v. State of J&K, (2008)1 SCC 722 the Apex Court in a matter which was from this State, observed that no executive order could be issued in derogation of the statutory rules far less a legislative Act. 14. Applying this settled legal position to the facts of the present case I find the promotion to the post of Health Educator is to be governed by the rules and as per the rules in vogue post of Health Inspectors only is the feeding category for it for the in-service candidates. The post of Male Multipurpose Health Workers is not a feeding category for promotion to the post of Health Educator as such persons holding the post cannot be considered for the post of Health Educator till the rules are amended suitably. This being the rule position Government Order No.631-HME of 2007 dated 21.9.2007 would not confer any right on the petitioners of SWP No.91/08 or the private respondents of SWP No.315/08 to get the post of Health Educator. This order being an executive order would not override the provisions of the Act for which a proper amendment is required. Till that is done promotion to the post of Health Educator are to be governed by the existing rules. 15. Respondents No. 11 to 36 in SWP No. 315 of 2008 have in their reply stated that the petitioner no.1 was appointed as cook on temporary basis on 6.2.1982 and that there is no rule providing promotion of a cook as health educator. They have further stated that under the rules a health inspector can be considered for promotion to the higher post of health educator only if he has completed 5 years of service as health inspector. The petitioners, according to them, have not completed their 5 years service as such are not, eligible for promotions. 16. Mr. Manzoor appearing for there respondents has vehemently objected to the right of the petitioners to claim promotion on the basis of the rules. 17. Similarly Mr. Ahmad, appearing for the petitioners in SWP No. 91 of 2008 would submit that the appointment, of the private respondents in the petition as health inspectors itself was not in accordance with the rules as such they cannot claim any promotion under the rules. 18. 17. Similarly Mr. Ahmad, appearing for the petitioners in SWP No. 91 of 2008 would submit that the appointment, of the private respondents in the petition as health inspectors itself was not in accordance with the rules as such they cannot claim any promotion under the rules. 18. Both the learned counsels have referred to the draft rules which have been now framed by the respondents and which include the post of MMPHW as the feeding category to the post of health educators. 19. On consideration I could not find force in the submissions for the reasons that MMPHW being not eligible for promotion to the post of health educator have got no locus to stop consideration of the health inspectors for promotion. Appointment of the petitioners in SWP No. 315 of 2008 as health inspectors is not under challenge. They being members of the services holding the said post are entitled to consideration provided they fulfill other considerations as provided by the rules. It is for the respondents to see whether they fulfill these conditions. 20. Accordingly I find no merit in SWP No. 91/08. I find due substance in the pleas taken and submissions made in SWP No. 315/08 accordingly the same is allowed. The impugned orders in petition SWP No. 315 of 2008 i.e. orders No. 631-HME of 2007 dated 21.9.2007, 283, 284, 285, 286, 287 & 288/NG of 2007 dated 20.12.2007 are set aside. Order accordingly.