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2013 DIGILAW 433 (JK)

Zahoor Ahmad v. State Of J&K

2013-07-26

Hasnain Massodi

body2013
1. Petitioners have Diploma in engineering to their credit. They were appointed as Section Officers in various engineering department of the State Government on different dates in 1981, 82 and 88. The post of Section Officer was later re-designated as Junior Engineer Grade-II. The next promotion due to the petitioner in terms of Jammu & Kashmir Subordinate Engineering Services Recruitment Rules 1997, is that of Junior Engineer Grade-I. The respondents notwithstanding the availability of sufficient posts at the level of Junior Engineers Grade-I, deferred consideration to petitioners' promotion. Before petitioners could be considered for promotion as Junior Engineer Grade-I, respondents issued Government order No. 370- PW(Hyd) of 2011 dated 26.09.2011 whereby the cadre of J.E Grade I was reduced by 544 posts and the posts so deleted were added to the cadre of Assistant Engineer in engineering departments viz PHE/I&FC/R&B/Mechanical departments. The left over Junior Engineers Grade-I posts were to be available only till incumbents remained in service and in terms of Government order were to get abolished with the promotion /retirement/ death of the incumbents. In terms of aforesaid, Junior Engineer Grade I, category was not to exist and was to be re-designated as Junior Engineers and left over posts of Junior Engineer Grade-I, if any, added to re-designated category of Junior Engineers. 2. Petitioners are aggrieved that Government order No. 370-PW(Hyd) of 2011 dated 26.09.2011 deprives them of the opportunity to be considered for promotion as Junior Engineer Grade I under Jammu & Kashmir Engineering (Subordinate) Service Recruitment Rules of 1997. They insist that they are entitled to be considered for promotion as Junior Engineer, Grade I, in as much as they have more than ten years of service to their credit. They claim to figure in final seniority list of Junior Engineer, Grade II, notified vide order dated 17.07.2000 at S.nos. detailed in para 10 of the petition. 3. It is pleaded that petitioners colleagues have already been considered and favoured with the promotion as Junior Engineers Grade I and it is only when petitioners were to be considered for such promotion that the respondents took extreme step of abolishing 544 posts of Junior Engineers Grade-I and in effect deny the petitioners' right to be considered for promotion as Junior Engineer Grade I after a long wait stretching over more than a decade after attaining eligibility. 4. 4. Petitioners insist that on the date they acquired eligibility for promotion as Junior Engineer Grade I, sufficient number of vacancies at Junior Engineers Grade I level were available and right had accrued to them to be considered for promotion against the available vacancies. They point out that order impugned in the petition does not only delete a particular number of posts of Junior Engineer Grade I, but also abolishes the cadre, depriving the petitioners of their right to be even considered for promotion to cadre of Junior Engineer Grade I after deletion of 544 posts and their addition to the cadre of Assistant Engineers. The Government order dated 26.09.2011 called in question in the writ petition is said to infringe petitioners' rights guaranteed under Article 14 & 16 of Constitution of India. 5. Petitioners question the Government order 370-PW(Hyd) of 2011, dated 26.09.2011, also on the ground that it in fact amends the Recruitment Rules of 1997 framed in exercise of powers conferred by Proviso to Section 124 of the Constitution of J&K. It is insisted that Recruitments Rules framed under exercise of powers under proviso to section 124 of the Constitution, cannot be amended by government except in accordance with the mechanism available under the rules. 6. Petitioners complain that they have been subjected to invidious discrimination as their counter parts in Power Development Department in terms of order No. 199-PDD of 2010 dated 29.07.2010, have been favoured with promotion as Junior Engineers Grade I and the petitioners with a similar claim of promotion have been denied promotion and therefore, subjected to hostile discrimination. 7. It is pleaded that respondents by avoiding to accord consideration to petitioners promotion on the date it was due and the posts against which the petitioners were to be promoted, were also available and by issuance of Government order No. 370-PW(Hyd) of 2011 dated 26.09.2011, deprived the petitioners of the right that had accrued to them much before the date of order i.e 26.09.2011 and subjected them to treatment different from one given to their colleagues in Power Development Department. 8. Petitioners on the strength of averments made, seek following relief:- (i) A writ, direction or order in the nature of certiorari, quashing the Government order No. 370-PW(Hyd) of 2011 dated 26.09.2011. 8. Petitioners on the strength of averments made, seek following relief:- (i) A writ, direction or order in the nature of certiorari, quashing the Government order No. 370-PW(Hyd) of 2011 dated 26.09.2011. (ii) A writ, direction or order in the nature of mandamus commanding the respondents to consider and promote the petitioners as against the posts of Junior Engineer Grade-I retrospectively from 1995 and consequent thereto grant all consequential benefits to which the petitioners are entitled to. 9. The writ petition is opposed by respondent nos. 1 & 2 on the ground that petition is not maintainable as none of the fundamental, constitutional, and legal or statutory rights of the petitioners has been infringed; that the petitioners have raised disputed questions of fact, and therefore, not entitled to invoke extraordinary writ jurisdiction. The respondents justify the Government order dated 26.09.2011 on the ground that order is to remove stagnation at the level of Junior Engineers Grade I and create promotional avenues for the cadre. The Government order is said to have its roots in recommendations made by the Establishment-cum-Selection Committee constituted by the Government to examine the issue of stagnation at different levels in the Engineering departments of the State Government. 10. It is pleaded that to remove stagnation in Engineering departments a number of posts at the Assistant Engineers level were converted into Assistant Executive Engineer, bringing down the posts in the category of Assistant Engineers to less than the posts of Assistant Executive Engineer making it necessary to add/increase the posts of Assistant Engineers. Respondents detailing the background of the Government order dated 26.09.2011 refer to the minutes of the review meeting issued vide no. PW (R & B) Plan - 121/06 dated 14.08.2008 and the recommendations of the Committee of the Secretaries dated 18.02.2008 to maintain the strength of Assistant Engineers 15 % more than the strength of Assistant Executive Engineers in each engineering department. 11. The State Government vide order No. 507-PW(Hyd) of 2011 dated 30.12.2011 is said to have ordered allocation of 544 posts of Junior Engineers Grade I to the Assistant Engineers category in different engineering departments viz R&B/PHE /I&FC/Mechanical. Respondents on the grounds urged in their reply seek dismissal of the writ petition. 12. Respondents 3 to 13 resist the writ petition almost on the same grounds as have been urged by respondents 1 & 2 in their reply. Respondents on the grounds urged in their reply seek dismissal of the writ petition. 12. Respondents 3 to 13 resist the writ petition almost on the same grounds as have been urged by respondents 1 & 2 in their reply. The private respondents trace the history of evolution of Recruitment Rules governing the Jammu & Kashmir Subordinate Engineering Services to SRO 261 of 1985, Government Order No. 455 of 1987 dated 29.06.1987, Government order no. 972 of 1987 and order of 1992 whereby Section Officers were re-designated as Junior Engineers Grade I. It is pleaded that process of updating the recruitment rules culminated into Jammu & Kashmir Subordinate Engineering Services Recruitment Rules 1997. Respondents while admitting case set up by the petitioners, as regards their appointments and their promotional avenues under Jammu & Kashmir Subordinate Engineering Services Recruitment Rules 1997, insist that Government Order no. No. 370-PW(Hyd) of 2011 dated 26.09.2011, is not in any manner prejudicial to petitioners interests. It is pleaded that petitioners have been already placed in the grade of Junior Engineers Grade I after benefit of In-situ promotion notified vide SRO 14 of 1996 was extended to petitioners. According to Respondents 3 to 13 even the impugned Government order is to benefit the petitioners, inasmuch as the petitioners retain their seniority in the category of Junior Engineers and have an opportunity for their promotion directly as Assistant Engineers without hassle to first get promoted as Junior Engineers Grade I and thereafter as Assistant Engineers. Apprehensions voiced by the petitioners as regards fall out of the Government order no. 370-PW(Hyd) of 2011 dated 26.09.2011 on their service career, according to respondents 3 to 13 are without any basis and grossly misplaced and that the petition, therefore, deserves to be dismissed. 13. I have gone through the pleadings as also the record available on the file. Have heard learned counsel for the parties at length. 14. The case set up by the parties as reflected in their pleadings, gives rise to following issues:- (a) Whether it was permissible to amend the Recruitment Rules 1997 framed in exercise of powers under Proviso to Section 124 of the Constitution of J&K by the Government order 370-PW(Hyd) of 2011 dated 26.09.2011. 14. The case set up by the parties as reflected in their pleadings, gives rise to following issues:- (a) Whether it was permissible to amend the Recruitment Rules 1997 framed in exercise of powers under Proviso to Section 124 of the Constitution of J&K by the Government order 370-PW(Hyd) of 2011 dated 26.09.2011. (b) Whether the Government order dated 26.09.11 whereby the strength of Junior Engineers Grade I cadre reflected in Recruitment Rules 1997 has been decreased, infringes the petitioners' fundamental rights guaranteed under Article 16 of the Constitution of India. 15. It is admitted case of the petitioners that they are members of Jammu and Kashmir Engineers, (Subordinate) Service and governed by J&K Engineering (Subordinate) Services Recruitment Rules, 1997. Strength and composition of service in terms of Rule 4 at the initial constitution of the service under the Rules, is as specified in Schedule I annexed to the Rules. In terms of Schedule I, the sanctioned strength of Jr. Engineer Grade-I at the initial constitution of the service, was 901 permanent posts, out of which 468 are non-plan and 431 plan posts. Schedule I gives sanctioned strength of Jr. Engineers Grade-II in the grade of 1760-3200 as 1911-404 non plan and 1507 plan and that of Jr. Engineer Grade-II in the pay scale of Rs. 1400-2300 as 1279 posts - 97 non-plan and 1182 plan posts. Rule 4 empowers the Government to determine from time to time strength and composition of service. It also empowers the government to create temporary posts in the cadre of service for specified period as may be considered necessary from time to time. In terms of Rule 4 (2), the government is obligated to re-examine the strength and composition of the cadre of the service, at the intervals of every two years or at such intervals as may be necessary and make such alterations in the strength and composition of the cadre of the service as it may deem fit. The government in terms of proviso is given power to alter the strength and composition of the cadre at any time. 16. The power exercised by the government while making Government Order No. 370 PW(Hyd.) of 2011 dated 26.09.2011 is one that is to be located in Rule 4 of the Rules, 1997. The Government Order alters strength of the cadre of Jr. 16. The power exercised by the government while making Government Order No. 370 PW(Hyd.) of 2011 dated 26.09.2011 is one that is to be located in Rule 4 of the Rules, 1997. The Government Order alters strength of the cadre of Jr. Engineer Grade-I and therefore, falls within purview of Rule 4(2) whereunder Government is given power to alter the strength and composition of the cadre at any time. The Government Order impugned in the petition, therefore, cannot be said to be one amounting to amendment of the Schedule I/Rules and, therefore, to be exercised by the authority competent to amend Recruitment Rules made in exercise of proviso to Section 124 Constitution of India. The case set up by the petitioners that the Government Order No. 370-PW (Hyd) of 2011 dated 26.09.2011, in effect amends the Recruitment Rules is bereft of any merit as Government Order falls within the ambit of Rule 4 and has been made in exercise of the powers available thereunder. 17. The Government Order impugned in the petition reduces strength of Jr. Engineer Grade-I Cadre from 901 to 357 and makes corresponding addition i.e. 544 posts to the cadre of Assistant Engineers in the Departments that also constitute J&K Engineering (Subordinate) Services i.e. PHE, Irrigation & Flood Control, R&B, Mechanical, Stores etc. The cadre of Jr. Engineers Grade-I is to get completely obliterated and whatever posts are left after reduction of 544 posts, are held by the present incumbents in personal capacity, and are to get abolished with promotion/retirement/death of the incumbents. Furthermore, the cadre is to be designated as JEs. The Jr. Engineer Grade-I posts reduced and added to the cadre of Assistant Engineers, in terms of the Government Order impugned in the petition are not made unavailable to the petitioners and their colleagues. These posts do not go beyond their reach. The Government Order No. 370-PW (Hyd.) of 2011 dated 26.09.2011 actually helps the petitioners and their colleagues to have a direct leap to the Gazetted Cadre without hassle of getting promotion to the next level in the Subordinate Service i.e. Junior Engineer Grade I and, thereafter wait for their appointment by promotion to the Gazetted Service i.e. Assistant Engineers. The impugned Government Order, in a way brightens up petitioners' promotion avenues and should be taken by them as a welcome step on part of respondent no. 1. The impugned Government Order, in a way brightens up petitioners' promotion avenues and should be taken by them as a welcome step on part of respondent no. 1. The petitioners can because of the Government Order in question, go higher up in the promotion cadre and before their retirement on superannuation, hope to reach a position in the Gazetted Service that would not come, their way had they to first aspire for promotion to the post of Junior Engineer Grade-I and thereafter to be appointed by promotion to the Gazetted Service. Petitioners, possibly, could have been heard complaining that the impugned Government Order adversely affected their rights had the Government abolished 544 Junior Engineer-I posts. 18. The apprehensions and grievances voiced in the petition are, therefore, misplaced. Government Order No. 38-PW (R&B) of 2013 dated 13.02.2013 illustrates how the petitioners and their colleagues have been benefited by the impugned Government Order. Sh/Shri Zahoor Ahmad and Muneer Ahmad Sheikh- petitioners 1 and 3 vide aforesaid Government Order have been placed as I/C Assistant Engineers in their own pay and grade. They have jumped to a position in Gazetted Service without going through the route before they had to follow in absence of the impugned Government Order. The delay in promotion, if any, from the post of Junior Engineer Grade-II to the next level is only temporary and the petitioners and their colleagues because of the impugned Government Order are to be compensated for the delay and rewarded by their promotion to a post higher to that of Junior Engineer Grade-I. Petitioners and their colleagues who have stagnated in the position of Jr. Engineer Grade-II are, otherwise, compensated by Higher Standard Pay Scale or In-situ Promotion. The petitioners' grievance is that the Government Order deprived them of promotion that had become due to them much before the Government Order was made is, therefore, without merit, more so, when the right was not that of promotion but consideration for promotion. The respondents, as Government Order No. 38-PW (R&B) of 2013 dated 13.02.2013 would suggest appear to have treated the petitioners as Junior Engineers and, therefore, members of category re-designated as J.E. vide Government Order 370-PW (Hyd.) of 2011 dated 26.09.2011. This must further redress petitioners' grievance that their continues to be a Category between them and the cadre of Assistant Engineers. 19. This must further redress petitioners' grievance that their continues to be a Category between them and the cadre of Assistant Engineers. 19. For the reasons discussed above, I don't find any merit in the petition and the petition is, accordingly, dismissed. 20. Dismissed.