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2010 DIGILAW 481 (JK)

Mohd. Shafi Zahid v. State Of J&K

2010-08-30

MOHAMMAD YAQOOB MIR

body2010
1. Heard, admitted to hearing. 2. Keeping in view the peculiar facts and features of the case, with the consensus of petitioner and learned counsel for the respondents is taken up for final disposal. 3. The grievance of the petitioner is that he is the suitable available candidate for the post of Director, Archives, Archaeology and Museums but has been ignored and instead respondent No.3, who was Special Secretary to Government Ladakh Affairs Department, on transfer has been posted as Director Archives, Archaeology and Museums pursuant to Government order No.633-GAD of 2010 dated 31.5.2010, resultantly petitioner is deprived of a legitimate chance of being appointed as Director on promotion. It is also contended that the petitioner possesses all requisite qualifications and additionally has a distinction of having participated in National and International level Seminars and has presented papers therein. His participation has been appreciated which fact is substantiated by various communications as stand placed on record. That would itself speak of the caliber of the petitioner but all this has been ignored. 4. According to learned Advocate General, order impugned is dated 31.5.2010. In compliance thereof respondent No.3 has joined on 1.6.2010 whereas stay has been granted on 17.6.2010. This position has resulted in confusion about the position of respondent No.3, which has adversely effected the functioning of the Directorate, therefore, stay may be vacated. 5. Further submitted that the petitioner in fact figures at serial No.2 in the seniority as Deputy Director whereas Mst. Nasreen Khan figures at serial No.1, therefore, it is Mst. Nasreen Khan who has a superior right of consideration. Accordingly it was thought just and proper to seek no objection from her but when she did not respond, the respondents (concerned authorities) could not afford to keep the post of Director vacant, therefore, they did consider the petitioner but he was not found to have experience of handling State cadre post so was not recommended for appointment to the post of Director. 6. Schedule-II to Jammu & Kashmir Archives, Archaeology and Museums (Gazetted) Service Recruitment Rules, 1995 provide the method of recruitment vis-a-vis post of Director which is reproduced here-under.- Class Category Designation of the post Grade Minimum qualification for direct rectt. Method of recruitment 1 2 3 4 5 6 1 - Director 4500-150-5700 - (I) By promotion for Class II having at least five years experience as such. Method of recruitment 1 2 3 4 5 6 1 - Director 4500-150-5700 - (I) By promotion for Class II having at least five years experience as such. OR (II) BY deputation from Higher Education Deptt. Of a person who has done research work in History with 15 years’ service. OR (III) By deputation from KAS/IAS Cadre. 7. The object of three options is to avoid handicap of filling the post but normal course is that option No.1 has to be given preference. Failure on that front may warrant resort to other options. Here in the instant case for option No.I candidate was available. If Mst. Nasreen Khan is bed ridden so incapacitated, that should not stand in the way of the petitioner for being actively considered. In the reply it is stated that the petitioner does not have experience of handling State cadre post and being junior to Mst. Nasreen Khan was not found fit to be recommended. This by itself shows as to how the case of the petitioner has been considered. Such type of consideration shall have discouraging effects on the commitment and functioning of the persons who are in queue for being considered for promotion. 8. When learned Advocate General was confronted with the position of Mst. Nasreen Khan being incapacitated for manning the post in view of her ailment and then with the position of petitioner being next in seniority having vast experience of having worked for at least eight years in the capacity of Deputy Director, having participated in various National and International level Seminars and then the appreciation letters placed on record by the petitioner and the position of casual consideration of the petitioner, he was candid enough to state that promotion cannot be granted as a matter of right but accord of proper consideration is imperative. 9. It is fact that the promotion cannot be granted unless a person possesses the requisite qualification/qualities and requisite experience but for ascertaining the requisite capacity, the accord of consideration should not look like an eye wash as it appears to be in the instant case. Accord of consideration must be transparent and must stand the test of reasonableness. The position of the petitioner having experience of 8 years as Deputy Director, then his capacity as highlighted in various letters of appreciation, require a proper appreciation while undertaking the exercise of consideration. 10. Accord of consideration must be transparent and must stand the test of reasonableness. The position of the petitioner having experience of 8 years as Deputy Director, then his capacity as highlighted in various letters of appreciation, require a proper appreciation while undertaking the exercise of consideration. 10. Thoughtful consideration of the rival contentions as well as record leads to a conclusion that the petitioner has been ignored as the accord of consideration appears to be simply an eye wash. Accord of consideration for promotion, which is a cherished goal of a person, requires a delicate touch so that aspiration of a particular person does not feel to have been marred. Legitimate expectation shall not become casualty in the name of saying to have "considered" without reference to the material and without reference to the actual position. 11. In the instant case resort to option No.III appears to be unreasonable. Accord of consideration vis-a-vis case of the petitioner does not stand the test of reasonableness. Simply to say that the petitioner does not possess the experience is not enough and then to say that Mst. Nasreen Khan figuring at serial No.1 did not respond is also not enough. It does not befit to the respondents to say that Mst. Nasreen Khan did not respond, she was not in the bed rock of the sea. In case it was to their knowledge that she suffers from ailment and is bed ridden so is incapacitated, that would not disentitle the next person in queue for being considered. 12. Again confronted with the stated position, learned Advocate General did not oppose the accord of consideration to the case of the petitioner including that of Mst. Nasreen Khan who figures at serial No. 1 in the seniority of Deputy Directors but at the same time submitted that it may take some time for according consideration to the promotion case of the petitioner. Till the exercise is completed, the present arrangement of respondent No.3 having joined shall be maintained and the order of stay may be vacated. 13. Viewed thus, this petition is disposed of with the direction to the respondents(concerned authorities) that they shall, at the first instance, have resort to option No.1 for filling the post of Director, Archives, Archaeology and Museums by promotion. In the process both Mst. 13. Viewed thus, this petition is disposed of with the direction to the respondents(concerned authorities) that they shall, at the first instance, have resort to option No.1 for filling the post of Director, Archives, Archaeology and Museums by promotion. In the process both Mst. Nasreen Khan and the petitioner shall be considered and shall be permitted to represent and project their case. 14. The exercise of accord of consideration shall be completed within a period of eight weeks from today. Result, as shall be warranted in accordance with applicable rules, shall be conveyed to the petitioner. 15. Interim direction dated 17.6.2010 shall cease to be in operation. Disposed of as above along with connected CMP(s).