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2012 DIGILAW 800 (JK)

State Of J&K v. Ab. Rashid

2012-12-26

Mansoor Ahmad Mir, MUZAFFAR HUSSAIN ATTAR

body2012
Muzaffar Hussain Attar. 1. India, an ancient land, has witnessed and experienced all kinds of trials and tribulations. In pre constitution era certain sections of the society suffered many kinds of disadvantages. On the dawn of independence, the constitution makers, who were great visionaries, provided means and methods, in the Constitution itself, to enable the deprived and disadvantaged classes of the society to rub shoulders with those classes of the society who for variety of reasons were catapulted to advantageous position. Constitution cast solemn duty on the State to take steps for removing abominable disparities between different sections of the society. 2. The conferring of advantages and benefits on the deprived sections of the society, would pre suppose undertaking the exercise for ascertaining the level of disadvantages and deprivations from which they suffer and thereafter by law mechanism is to be provided for overcoming such disadvantages. In the guise of removing disparities, benefits cannot be conferred, to the disadvantage of other sections of the society. 3. In the public employment in view of the mandate contained in Article 16(4) of Constitution of India, the State has been given discretion for making provisions for the reservation in appointment(s) or post(s) in favour of any backward class(s) of citizen(s) which in the ‘opinion’ of the State is not adequately represented in the services. For formulating an opinion the Govt. has to conduct survey to ascertain the level of under representation in public services. 4. In the case on hand, the candidate(s) belonging to open merit category and ST have locked horns in respect of fixation of their seniority and consequential promotions to the next higher post. The petitioners and private respondents are members of the J&K Engineering (Gazetted) Service constituted under J&K Engineering (Gazetted) Service Recruitment Rules, 1978 (for short Rules of 1978). The appellants in LPA No. 217/07 belong to ST category. 5. In view of the pleadings of the parties, the respondents-writ petitioners admittedly were appointed by way of promotion on the posts of Assistant Executive Engineers (AEEs) in the year 1987 and the appellants in the year 1992-93 respectively. The appellant No. l in the appeal No. 217/07 was temporarily promoted to the post of Executive Engineer(EE) on 26th of April 2001, and other two appellants on 28th Nov. 2001. Writ petitioners-respondent Nos. 3 and 4 were also temporarily promoted to the posts of Executive Engineers on 28th Nov. The appellant No. l in the appeal No. 217/07 was temporarily promoted to the post of Executive Engineer(EE) on 26th of April 2001, and other two appellants on 28th Nov. 2001. Writ petitioners-respondent Nos. 3 and 4 were also temporarily promoted to the posts of Executive Engineers on 28th Nov. 2001 and writ petitioners-respondents 5 and 6 were temporarily promoted to the posts of Executive Engineers on 17.05.2002 and respondent No. 7 on 01.08.2003. 6. Before the appellants and respondents could be considered for further promotions to the next higher post of Superintending Engineer (S.E), in view of aforestated facts the respondents-writ petitioners and appellants were all holding the posts of Executive Engineers, though, all of them were temporarily promoted to the said posts. The controversy arose between the respondents-writ petitioners and appellants, when the State appellant in LPA No. 212/07 initiated process for making promotions to the post of Chief Engineer (C.E). It may not be out of place to mention that the appellants in LPA No. 217/07 and writ petitioners-respondents are substantively holding the posts of A.E.Es and their other promotion to the next higher posts have not been regularized in accordance with the rules till date. The writ court vide its order and judgment dated 10th Sept. 2007 directed the State and its authorities that for regularization as E.E/S.E or for promotion to the post of Chief Engineer on Incharge basis, the respondents-writ petitioners shall be treated senior to the appellants in LPA No. 217/07 who were respondents in the writ petition. It is this judgment which is called in question by the private respondents in the writ petition and also by the State. The issue in both the LPAs’ being same, they were considered together and are being disposed of by this common judgment. 7. Mr. M.A. Chasoo, ld AAG, in support of the appeal submitted that the State-appellant issued provisional seniority list of Executive Engineers vide Government Order No. 221-PDD of 2002 dated 19th April, 2002. Mr. Chasoo, ld counsel submitted that the writ petitioners-respondents ranked junior to the appellants, in LPA No. 217/07 in the said provisional seniority list. Ld counsel submitted that the writ petitioners-respondents did not file objections to the provisional seniority list and it is this provisional seniority list which became basis for making further promotions to the next higher posts. Ld counsel accordingly prayed that the impugned judgment be set-aside. Ld counsel submitted that the writ petitioners-respondents did not file objections to the provisional seniority list and it is this provisional seniority list which became basis for making further promotions to the next higher posts. Ld counsel accordingly prayed that the impugned judgment be set-aside. 8. Mr. D.C Raina ld senior counsel appearing for appellants in LPA No. 217/07 submitted that the appellants who were promoted ahead of respondents-writ petitioners, have to rank senior to them in the class of Executive Engineers and their claim for re-fixation of seniority and for their consideration for being promoted on the next higher post of SE and CE ahead of appellants cannot be countenanced in law. Ld counsel invited the attention of the court to Notification SRO 186 dated 30th May 1987, whereunder Proviso was added to Rule 24(1) (a) of J&K Civil Service (Classification, Control and Appeal Rules) 1956 (for short rules of 1956), which provided that where a schedule caste and schedule tribe (SC and ST) is promoted to immediate higher post/grade against the reservation vacancy earlier than his senior General/ OBC candidate who is promoted later on to the said immediate higher post/grade, General/ OBC candidate shall re-gain his seniority over such promoted candidate of SC/ST categories in the immediate higher post/grade. Ld counsel also referred to Notification SRO 110 dated 19th April 2000, whereunder the aforementioned clause (a) of sub rule (1) Rule 24 of Rules 1956 was deleted and submitted that in view of the aforementioned legal position the appellants who belong to ST category though ranked junior to the respondents-writ petitioners in the class of Assistant Executive Engineers, were promoted ahead of them to the posts of Executive Engineers, and in view of the mandate contained in Rule 24 of Rules of 1956, have to rank senior to respondents-writ petitioners. Ld counsel also referred to the Constitution (Eighty fifth) Amendment Act, 2001, and Constitution (Twenty seventh) Act, 1995; Constitution, (Eighty-first) Amendment Act, 2000; Constitution (Eighty-2nd) Amendment Act, 2000 and submitted that in view of the aforementioned Constitution amendments the appellants have to rank senior to the respondents-writ petitioners. Ld counsel also referred to the Constitution (Eighty fifth) Amendment Act, 2001, and Constitution (Twenty seventh) Act, 1995; Constitution, (Eighty-first) Amendment Act, 2000; Constitution (Eighty-2nd) Amendment Act, 2000 and submitted that in view of the aforementioned Constitution amendments the appellants have to rank senior to the respondents-writ petitioners. Ld counsel also provided compilation comprising of Rules of 1956, Rules of 1978, Constitutional Amendments and the judgments of the Hon’ble Supreme Court reported in (1999) 7 SCC 209 (known as Ajit Singh’s-II case) judgment reported in (1999) 7 SCC 251 ; (1999) 7 SCC 257 ; 2007 (1) SLJ 94; 2008(1) Supreme 34 ; (2006) 8 SCC 212 (known as Nagraj's case) and 2012 AIR SCW 2791 (U.P Power Corporation Ltd v. Rajesh Kumar and others (known as U.P Power Corporation case). Ld counsel prayed for allowing of the appeal and setting aside of the judgment impugned in the LPA. 9. Mr. Z.A. Qureshi ld counsel for the respondents-writ petitioners submitted that in view of the law laid down by the Hon’ble Supreme Court in Ajit Singh’s case reported in AIR 1999 SC 3471 , the respondents-writ petitioners who admittedly are senior to the appellants in LPA No. 217/07 in the feeding posts of Assistant Executive Engineers have to be treated senior, in as much as, the appellants were granted accelerated promotion/out of turn promotion in view of the reservation rules and on the basis of the roster point. Ld counsel further submitted that Constitutional amendments to which reference has been made have not been made applicable to the State of J&K as such, the appellants cannot claim any benefit under these constitutional amendments. Ld counsel placed whole-hog reliance, on the Ajit Singh’s case and submitted that the appeals’ deserve to be dismissed. 10. It is not in dispute that respondents-writ petitioners and appellants in LPA No. 217/07 are substantively holding the posts of Assistant Executive Engineers. The subsequent promotion to next higher post(s) are temporary in nature. On the basis of reservation rules and the roster point appellants in LPA No. 217/07 stole march over the respondents-writ petitioners and were temporarily promoted to the next higher post of Executive Engineer. While these appellants were holding the posts of Executive Engineers, having been temporarily promoted to these posts, the respondents-writ petitioners were also temporarily promoted to these posts. On the basis of reservation rules and the roster point appellants in LPA No. 217/07 stole march over the respondents-writ petitioners and were temporarily promoted to the next higher post of Executive Engineer. While these appellants were holding the posts of Executive Engineers, having been temporarily promoted to these posts, the respondents-writ petitioners were also temporarily promoted to these posts. The appellants and respondents-writ petitioners have not become members of the class-III to the schedule appended to Rules of 1978 viz. Executive Engineers, as were not promoted to these posts in accordance with rules viz for such promotions were not made on the recommendation of DPC. In terms of Rules of 1956, the interse seniority of the members of class of service is to be determined only when they are appointed by promotion to the posts in accordance with rules and only when they become permanent members of the class of service. The seniority list of 2002 is inconsequential in respect of the appellants and respondents-writ petitioners, inasmuch as, their seniority in the class of Executive Engineers can be determined only when they become permanent members of the said class of service. The fixation of seniority of these appellants and respondents-writ petitioners in terms of year 2002 is not countenanced by law and non filing of objections to such illegal seniority list, so far it pertain to appellants and respondents-writ petitioners will not be determinative of the seniority position of these competing parties. The law laid down by the Hon'ble Supreme Court in Ajit Singh’s case is explicit, lucid and clear in its terms and cover the facts of this case. Paragraphs 51 and 76 of the said judgment are taken note of:- “51.The general candidates who are senior at Assistants’ level (Level 2) and who have reached Superintendent Grade-II (Level 3) before the reserved candidate moved to Level 4 (Supdt. Grade-I) will have to be treated as senior at the level 3 also (Supdt. Grade-II) and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases of the senior general candidates at Level 3. Grade-I) will have to be treated as senior at the level 3 also (Supdt. Grade-II) and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases of the senior general candidates at Level 3. If the cases of the senior general candidates who have reached Level 3 though at a latter point of time, are not first considered for promotion to Level 4, and if the roster point promotee at Level 3 is treated senior and promoted to level 4, there will be violation of Article 14 and 16(1) of the Constitution of India. Such a promotion and the seniority at Level 4 has to be reviewed after the decision of Ajit Singh. But if reserved category candidate is otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3. What we have stated above accords, in fact, with what was actually stated in Ajit Singh ( 1996(2) SCC 715 ). In that case, N.P. Singh, J observed (P. 731): “It also cannot be overlooked that for the first promotion from the basic grade, there was no occasion to examine their merit and suitability for promotion". 76. We, therefore, hold that the roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, - vis- a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate-he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal and Ajit Singh have been correctly decided and that Jagdish lal is not correctly decided. Point 1 & 2 are decided accordingly." 11. We shall explain this further under Point 3. We also hold that Virpal and Ajit Singh have been correctly decided and that Jagdish lal is not correctly decided. Point 1 & 2 are decided accordingly." 11. In view of the law laid down by the Hon'ble Supreme Court, the respondents-writ petitioners have to rank senior to the appellants in class of Executive Engineers and their claim for other promotions are to be considered by treating the respondents-writ petitioners senior to the appellants and are to be considered for further promotions even though, made on Incharge/temporary basis by treating the respondents-writ petitioners senior to the appellants. The law laid down in Nagraj’s case summarized at paragraphs 123 thereof would knock the bottom out of the appellants case, but that being not issue raised in the writ petition and in these appeals, thus, no finding can be recorded about the same in these appeals. 12. The notification SRO 186/97 appears to have been issued in view of the law laid down by the Hon’ble Supreme Court for fixation of seniority in the cases of accelerated promotion on roster point, and issuance of SRO 110 of 2000 appears to be a sequel to subsequent constitutional amendments which provided for giving seniority to those members of the services who are promoted on roster point as ST/SC category candidates. There was no requirement for issuance of notification SRO 186 of 97. The law laid down by the Hon’ble S.C in Ajit Singh’s case would govern the field and is still governing the field in the State of J&K, as the subsequent constitutional amendments have not been made applicable to the State of J&K. 13. Appointment to the post of Chief Engineer is to be made by selection of meritorious candidate from the feeding class of service. The appointment by way of selection to the post of Chief Engineer, from amongst the eligible candidates, is in the discretion of competent authority. 14. The issue of seniority is to be determined and settled in term of law laid down by Hon'ble Supreme Court in Ajit Singh’s case. 15. For our above stated reasons, we find no scope for interfering with the impugned judgment, consequently these appeals are dismissed.