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2013 DIGILAW 395 (JK)

Kishore Kumar Shan v. State

2013-07-12

TASHI RABSTAN

body2013
1. Petitioner by the medium of petition-in-hand seeks a direction to the respondents to fix his seniority retrospectively, i.e. with effect from 01.07.1982, the date he was appointed in the pay scale of Rs. 250-460; with a further direction to the respondents to consider his case for promotion to the post of Supervisor Grade-I with all consequential benefits, retrospectively, i.e., with effect from the date his juniors came to be promoted. 2. The facts in brief are that the petitioner was appointed as a Storekeeper in the pay scale of Rs. 250-460 vide SFC Order No. 211 dated 01.07.1982 and continued to work, as such, upto 24.05.1984. It is contended that vide order No. 315-16/PS/MD dated 25.05.1984, he was adjusted as Assistant Supervisor in the same pay scale, that is to say only his cadre from Storekeeper to Assistant Supervisor was changed. Thereafter, the respondents issued Seniority List vide No. 338-88/BIX/SFC dated 29.04.1995, in which name of the petitioner appeared at S.No.132 whereas his date of first appointment was shown as 05.07.1982 (though it is 01.07.1982) and date of first promotion as Supervisor Grade-II as 25.05.1984, which as per the contention of the petitioner was not a promotion, but, only change of cadre in the same pay scale, which he was already drawing while working as a Storekeeper. 3. Being aggrieved, the petitioner made representation (s) to the respondents contending therein that though he was appointed as Storekeeper on 01.07.1982, but, in the seniority list, his date of appointment was indicated as 05.07.1982 (though it is 01.07.1982) with date of promotion as 25.05.1984 on the post of Assistant Supervisor. Whereas, the fact of the matter is that no promotion was ever given to him, his cadre from Storekeeper to Assistant Supervisor was changed. 4. Thereafter, the respondents vide Order No. 146-75/BIX/SFC/CJ dated 31.01.2001 issued the tentative seniority list of Supervisors Grade-II, in which also the date of appointment of petitioner was shown as 05.07.1982 and date of promotion as 25.05.1984, and name of petitioner in the said tentative seniority list figured at S.No. 116. 5. On this, the petitioner filed objections to the tentative seniority list projecting his grievance that the persons, who were junior to him, have been shown senior. The petitioner specifically mentioned the names of some of the Supervisors Grade-II, who were promoted as Supervisor Grade-I, viz. Paras Ram, Gh.Rasool Rather and Dhani Ram Bhagat. 5. On this, the petitioner filed objections to the tentative seniority list projecting his grievance that the persons, who were junior to him, have been shown senior. The petitioner specifically mentioned the names of some of the Supervisors Grade-II, who were promoted as Supervisor Grade-I, viz. Paras Ram, Gh.Rasool Rather and Dhani Ram Bhagat. They were promoted as Supervisor Grade-II in the year 1983, while the date of appointment of the petitioner in the same grade was 01.07.1982. The petitioner made number of representations to the respondents for re-fixation of his seniority, but, all in vain. 6. Respondents have filed objections contending therein that adjustment of the petitioner as Depot Assistant/Supervisor-II was made on his request vide order dated 25.05.1984 wherein it was specifically mentioned that for the purpose of seniority of the petitioner, the order shall have effect from the date of its issue, i.e., 25.05.1984. It is further contended that the service of the petitioner is governed by J&K SFC Service Regulations, 1981 (hereinafter, for short, the Regulations) and clause 15 (iv) of the said Regulations is relevant, which reads as:- Clause-15(iv) In case of change of appointment from one class or category of post to another, on an employee's own request, provided the time-scale attached to both the posts is identical, the seniority in the new post shall be reckoned from the date the employee actually joins the new post after such change over is ordered by the competent authority; and employee's claim to seniority and future promotions in the old post or cadre shall cease to exist.' In case, however, such changeover is ordered by the competent authority in the interests of the Corporation, the seniority and promotion prospects of the employee in his own class/category shall not be affected adversely. 7. Plain reading of the aforesaid clause makes it manifestly clear that if change of appointment from one class or category of post to another, on an employee's own request, provided the time-scale attached to both the posts is identical, the seniority in the new post shall be reckoned from the date, the employee actually joins the new post after such change over is ordered by the competent authority; and employee's claim to seniority and future promotions in the old post or cadre shall cease to exist. 8. 8. The contention of the learned counsel for the respondents is that in view of the aforesaid provision, the seniority of the petitioner was to be counted from 25.05.1984 and not from 01.07.1982 as order dated 25.05.1984 in express terms provides that the seniority will also change with the change of cadre. The respondent-Corporation normally does not effect change of cadre from Ministerial to Executive, but, as and when the same is done at the request of the employee, in such case, the provisions of clause 15(iv) of the regulations have to apply. As regards the claim of the petitioner that he is senior to the officials figuring at S.No.1 to 115 in the seniority list of Supervisor-II, the same is not based on actual facts as these persons belong to executive cadre and were promoted from the level of Field Assistant to the level of Supervisor-II before the adjustment of the petitioner from ministerial cadre to executive cadre. Since the cadre of the petitioner was changed from the category of Storekeeper to the cadre of Assistant Supervisor, i.e. from ministerial cadre to executive cadre, as such, his seniority is to be reckoned from the date of his adjustment in the changed cadre under the provisions of clause 15 (iv) of Regulations, i.e., with effect from 25.05.1984. 9. The respondents have further contended that the petitioner did not challenge the order of his adjustment dated 25.05.1984 till date, therefore, the present writ petition is not maintainable. They further contended that the petitioner has not made those persons as party respondents to the petition, who have been made senior to him, therefore, on that account also the present petition deserves to be dismissed. 10. Heard learned counsel for the parties and perused the record. 11. This Court vide order dated 07.08.2010 directed the respondents to produce the record so as to know as to whether the petitioner's appointment as Supervisor was made at his request, and can the same be construed to be change in the cadre. Record has been produced, a perusal whereof reveals that the petitioner is an employee of respondents and his cadre was changed from ministerial to executive. Prior to that he was working as Storekeeper. After change of cadre, he was adjusted as Assistant Supervisor in the grade of Rs. Record has been produced, a perusal whereof reveals that the petitioner is an employee of respondents and his cadre was changed from ministerial to executive. Prior to that he was working as Storekeeper. After change of cadre, he was adjusted as Assistant Supervisor in the grade of Rs. 430-860 vide SFC Order No. 315-16/PS/MOD dated 25.05.1984, a post equal to the post of Storekeeper and carrying the same pay scale. 12. There is a clear cut stipulation in clause 15 (iv) that in case of change of appointment from one class or category of post to another in the same time scale on an employee's own request, the seniority in the new post shall be reckoned from the date the employee actually joins the new post after such change-over is ordered by the competent authority, and employee's claims to seniority and future promotions in the old post or cadre shall cease to exist. In case, such change-over is ordered by the competent authority in the interest of the Corporation, in that case the seniority and promotion prospects of the employee in his own class/category shall not be affected adversely. 13. Learned counsel for the petitioner, however, could not dispute the rule position, but argued that the petitioner was innocent as he was not aware that with the change of cadre, his seniority would also get changed and was to be reckoned in the changed cadre from the date of his adjustment in the said cadre. The contention of the petitioner that had he been aware of the rule position, he would not have made such a request for change of cadre, cannot be accepted for the reason that ignorance of law can not be a bliss. The contention of learned counsel for the petitioner that the petitioner came to know about this fact through an order dated 25.05.1984 and he immediately filed representation before the respondent-Managing Director (Annexure-E) for counting two years service which he had rendered while working as Storekeeper, but, when his representation (s) was not decided, he filed the instant petition, is equally untenable. His contention that he came to know about the rejection of his representation only after the reply came to be filed by respondents too cannot be accepted. No benefit can be drawn by the petitioner if he was ignorant to the rule position and decision on his representation. 14. His contention that he came to know about the rejection of his representation only after the reply came to be filed by respondents too cannot be accepted. No benefit can be drawn by the petitioner if he was ignorant to the rule position and decision on his representation. 14. In view of what has been stated hereinabove, I do not find any merit in this petition. The same is, accordingly, dismissed along with connected CMA(s). 15. However, Mr. Sethi, learned counsel for the respondents submitted that the Corporation is not averse to sympathetically consider the plea of the petitioner for giving him retrospective effect of seniority in view of his contention that he was not aware of the consequences while opting for change of cadre if the petitioner makes such a representation to the authority concerned. 16. In view of the statement made at the Bar by the learned counsel for respondents, it is provided that the order of dismissal of this petition would not come in the way of the authority in considering the representation of the petitioner, if any, is made highlighting the aforesaid aspect of the matter and passing appropriate orders in accordance with law. 17. Registry to return the record to learned counsel for the respondents.