Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 15 (JK)

Vijay Kumar Abrol v. State Of J. &K.

2010-01-01

SUNIL HALI

body2010
1. Promotion/adjustment to the post of Lecturers in the discipline of Commerce in the Education Department is the subject matter of controversy in this writ petition. Petitioner came to be appointed as teacher on 13.5.1981, thereafter he acquired his post graduation degree in the year 1992. 2. Promotions/adjustments against the post of lecturer is governed by the Jammu and Kashmir Education (Gazetted) Services Rules 1992, and the appointments to this post is 50% by direct recruitment and 50% by promotion from the Masters grade ,and in case there is no suitable candidate from the Masters grade, then appointment is to be made from the senior teachers. 3. Promotions/adjustments on adhoc basis came to be made vide common order No. 1539-Edu. Of 1995, in the Commerce Department, whereby respondents 3 to 5 came to be adjusted as Incharge lecturers. Being aggrieved of the above said order, petitioner filed a writ petition bearing No. SWP 910/1996, praying therein that the private respondents who were admittedly junior to him have been promoted without considering his case. Writ petition came to be disposed of with the observation that placing the private respondents as Incharge lecturers did not confer any right on them in the matter of seniority. It was further directed that, if any, promotion is to be made to the post of lecturers the case of the petitioner be also considered on the basis of combined seniority list. 4. It is not in dispute that the petitioner is admittedly senior to the respondents 3 to 9 on the basis of combined seniority list of both male and female teachers. The process of making substantive appointments to the post of lecturers in the Commerce Department was initiated and vide order dated 29.6.2000 whereby private respondents who were juniors to the petitioner came to be promoted as lecturers. Thereafter, another Government Order No. 1491-Edu of 2002 dated 31.12.2002 was issued whereby respondents 4 and 5 have been regularized as lecturers. Both these orders are subject matter of challenge before this court. 5. The main thrust of petitioner is that he being senior and eligible under rules, has not been considered for appointment as lecturer and the persons who were juniors to him have been promoted. 6. Both these orders are subject matter of challenge before this court. 5. The main thrust of petitioner is that he being senior and eligible under rules, has not been considered for appointment as lecturer and the persons who were juniors to him have been promoted. 6. The stand taken by the respondents on the other hand is that claim of the petitioner that he should be appointed as lecturer w.e.f. 1988 when respondent No.6 has been promoted is not sustainable as he was not eligible on that date. With regard to the private respondents 3,4,5,7,8 & 9, it is contended by the learned counsel for the State that the said respondents are female candidates who were admittedly junior to the petitioner but have been promoted on the basis of separate seniority list maintained for male and female Post Graduate Master and teacher upto 11.5.1999. It is, however, admitted that after issuance of SRO 154 combined seniority has been maintained. I have heard learned counsel for the parties. 7. Right to equality is guaranteed by the Constitution for all its citizen who constitute one class. Right to seek appointment which includes promotion, is a fundamental right which cannot be wished away without indicating the distinguishing features between one who is excluded from the class. Right of consideration is one of the essential feature while considering the persons for appointment/promotion. It is not in dispute that the petitioner admittedly was senior to the private respondents and his case for appointment as lecturer in the Commerce Department has not been considered for the following reasons: a/ That he was not having the requisite qualification for being considered as lecturer in the year 1988, when respondent No.6 who was junior to the petitioner has been given the effect of promotion from that date. b/ That his case for appointment could not be considered in respect of the other respondents, on the ground that a separate seniority list was maintained for female teachers. 8. Eligibility is one of the essential criteria for making appointments. Admittedly, petitioner was not eligible for being promoted as lecturer in the year 1988, as it is stated that he has acquired the PG qualification in year 1992. 9. While promoting respondent No.6 in year 1998 vide order dated 29.6.2000, effect has been given from the date when he was eligible to hold the post of lecturer. Admittedly, petitioner was not eligible for being promoted as lecturer in the year 1988, as it is stated that he has acquired the PG qualification in year 1992. 9. While promoting respondent No.6 in year 1998 vide order dated 29.6.2000, effect has been given from the date when he was eligible to hold the post of lecturer. This in my opinion is ex-facie illegal. A person eligible on a particular date does not give him a right to be appointed from that date. The relevant date for considering a person is when the post is actually being filled up. Substantiative appointments to the post of lecturer was made on 29.6.2000, and on that date petitioner was also eligible. To say it candidly, the relevant date for considering the eligibility of a person is not from the date when he acquires the eligibility but from the date when post is filled up. Petitioner admittedly, was eligible for consideration for promotion to the said post on 29.6.2000, which has not been done. 10. Regarding second contention raised by the learned counsel for the respondents that petitioner could not be considered for promotion from the date private respondents came to be promoted, as there were two seniority lists, one for male and another for female teachers. Assuming that there is any such bifurcation of seniority list, but on their own showing it remained operational only till 19.5.1999. 11. That being the position the promotion accorded to the private respondents on 31.12.2002 by relying upon the two separate seniority lists was per se illegal. On the date of consideration for promotion, there was one combined seniority list which was required to be acted upon. It is manifestly clear that the respondents have taken recourse to this and have excluded the petitioner for consideration on the basis of their being two separate seniority lists, is ex-facie arbitrarily and violative of Article 14 and 16 of the Constitution of India. 12. For the reasons stated hereinabove, I allow this writ petition and direct the respondents to accord consideration to the case of the petitioner for being promoted as lecturer in the Department of Commerce from the date private respondents have been accorded the benefits. Petitioner shall also be entitled to receive all the monetary benefits to which he is entitled. 12. For the reasons stated hereinabove, I allow this writ petition and direct the respondents to accord consideration to the case of the petitioner for being promoted as lecturer in the Department of Commerce from the date private respondents have been accorded the benefits. Petitioner shall also be entitled to receive all the monetary benefits to which he is entitled. I do not intend to quash the promotion of private respondents as they are working on the posts since long. The cause of justice will be fully served, if the petitioner is also accorded promotion from the date, his juniors have been promoted as lecturers. However, in case the above said exercise for considering the case of the petitioner is not concluded within a period of three months from today, then impugned order shall stand quashed and fresh consideration shall be accorded to all the candidates including the petitioner. Writ petition is, accordingly, disposed of.