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2013 DIGILAW 22 (JK)

Satish Kumar Wali v. State & Ors.

2013-01-04

MANSOOR AHMAD MIR

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1. This writ petition owes its origin to Government Order No. 489–PW(R&B) of 2012 dated 25.10.2012, whereby one Shri Sunil Gupta, incharge Executive Engineer, came to be posted and adjusted in the Jammu Municipal Corporation, against an available post. 2. The petitioner has sought writ of mandamus commanding the respondents to consider the petitioner for promotion on substantive basis to the post of Executive Engineer. Further he has sought writ of prohibition prohibiting the respondents from filling up the post of the Executive Engineer by way of deputation from P.W.D. to Jammu Municipal Corporation, on the grounds taken in the writ petition. 3. I have heard learned counsel for the parties and have gone through the averments made in the writ petition, besides the reply filed by the respondents as also the record made available during the course of the arguments. 4. Precisely, the case of the petitioner is that he belongs to Engineering Service of Jammu Municipal Corporation, Jammu. It is averred that petitioner was working with Srinagar Municipal Corporation, and after migration stands adjusted in Jammu Municipal Corporation in the year 1998 vide Government Order No. 113-HUD/LSG (K) of 1998 dated 23.03.1998. It is further averred that the respondent No. 3 - Jammu Municipal Corporation had already recommended him against one of the post of the Executive Engineers available in the Corporation. It is further averred that the Respondent-Corporation while recommending the case of the petitioner to the Government has observed that one Shri Sunil Kohli, deputationist Executive Engineer in Jammu Municipal Corporation is likely to be promoted as the Superintending Engineer by PWD authorities, therefore, the petitioner may be promoted against the resultant vacancy of the Executive Engineer which had become available on promotion of Shri Sunil Kohli. 5. It appears that one Shri Sunil Gupta, who stands transferred to the Jammu Municipal Corporation as Executive Engineer against one of the posts, laid a motion by way of CMA No. 3736/2012, for arraying him as a party-respondent in the writ petition on the grounds taken in the application, contending that the ad interim direction passed by this Court on 25.09.2012 runs detrimental to his interests and accordingly seeks vacation of that direction. The application was considered and in terms of order dated 07.12.2012; he was allowed to intervene in the matter by arraying him as respondent No. 5 in the writ petition, with liberty to him to file the objections. 6. It needs a mention here that one Shri Sunil Kohli, deputationist Executive Engineer, in the Respondent-Corporation, stands promoted and placed as incharge Superintending Engineer, PMGSY, Jammu, vide Government Order No. 422-PW (R&B) of 2012 dated 11.09.2012, and in order to fill up the post in question, the respondent No. 4 came to be transferred vide Government order aforementioned. 7. What crystallizes from the pleadings of the parties and above discussion is that the petitioner has sought a writ of mandamus commanding the respondents to consider his case for promotion on substantive basis against one of the posts of the Executive Engineer. The basic controversy in the writ petition which needs consideration at the first instance is whether the petitioner has or has not been promoted as Assistant Executive Engineer substantively. In this regard, the reply of respondent No. 1 assumes significance, wherein the respondent No. 1 has disputed substantive appointment of the petitioner as Assistant Executive Engineer. It would be advantageous to reproduce the paragraph 3 of the reply hereunder: “3. That the petitioner is holding the post of Assistant Engineer on substantive basis and has been adjusted as Assistant Executive Engineer against the available post in his own pay and grade subject to the confirmation by DPC. Petitioner has not been so far confirmed as Assistant Executive Engineer by DPC. Hence the present writ petition for considering his case against the post of Executive Engineer is misconceived and is liable to be dismissed.” 8. Respondents 3 & 4 i.e. Jammu Municipal Corporation have also filed the reply and have stated identical facts as to the status of the petitioner. It would be fruitful to reproduce paragraph 4 of their reply, which reads as under: “4. ….The petitioner is a Assistant Engineer and adjustment of the petitioner for the post of AEE would be made subject to the confirmation of DPC. The answering respondent has given the charge of Assistant Executive Engineer to the petitioner. The petitioner is not holding the post of AEE substantively. The petitioner has been shown as I/C AEE in his own pay grade in the seniority list. The answering respondent has given the charge of Assistant Executive Engineer to the petitioner. The petitioner is not holding the post of AEE substantively. The petitioner has been shown as I/C AEE in his own pay grade in the seniority list. The petitioner is working in the grade of AE not AEE.” It is thus seen that the petitioner does not hold the post of Assistant Executive Engineer on substantive basis but continues to be in his lower post, i.e., Assistant Engineer. What is seen further is that he was promoted as incharge Assistant Executive Engineer in his own pay and grade in terms of Government order dated 06.02.2008 subject to the confirmation of DPC. It is useful to reproduce the Government order No. 34 HUD of 2008 dated 06.02.2008, which reads as under: “Sanction is hereby accorded to the:- a) Absorption of Shri Satish Kumar Wali, Assistant Engineer, Srinagar, Municipal Corporation in Jammu Municipal Corporation as Assistant Engineer. b) Adjustment of the officer against the available post of Assistant Executive Engineer in his own pay and grade subject to the confirmation of DPC. By order of Government of Jammu and Kashmir. Sd/- Secretary to Government Housing & Urban Dev. Deptt.” 9. From perusal of the reproduction aforementioned, it is revealed that the petitioner as on date has not been promoted as Assistant Executive Engineer substantively, which is the feeder post for the post of the Executive Engineer. Further, from perusal of the record, it is revealed that the DPC is yet to be convened and confirmation is yet to be accorded in favour of the petitioner. The aforesaid factual position is also buttressed by the service record of the petitioner, produced by Mr. SS Nanda, on asking of the Court. It is, therefore, preposterous on the part of the petitioner even to claim promotion on the post of Assistant Executive Engineer. If at all he was aggrieved, he should have sought writ of mandamus to consider his case for regular promotion against the post of Assistant Executive Engineer. Instead, through this writ petition, the petitioner is seeking a direction in the name of the respondents to grant him jump promotion from the post of Assistant Engineer to that of the Executive Engineer, which in law is impermissible. 10. Instead, through this writ petition, the petitioner is seeking a direction in the name of the respondents to grant him jump promotion from the post of Assistant Engineer to that of the Executive Engineer, which in law is impermissible. 10. It is relevant to mention here that the perusal of the service book of the petitioner further reveals that though he was initially appointed as Sectional Officer in the erstwhile Srinagar Municipal Council but, thereafter has been transferred from time to time by the Chief Engineer, PWD (R&B), Srinagar, to Pulwama and from Pulwama to Srinagar, which clearly shows that he was not on the establishment of the Municipal Corporation alone but was with the PWD authorities as well. 11. Viewed thus, I find no merit in this writ petition. Accordingly, it is dismissed along with CMPs. Interim direction shall stand vacated. However, no order as to costs. 12. The Service book of the petitioner produced by Mr. SS Nanda, learned appearing counsel for the Jammu Municipal Corporation, is returned to him in the open Court.