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2013 DIGILAW 434 (JK)

Mehraj-ud-Din Khan v. State Of J&K

2013-07-26

Hasnain Massodi

body2013
1. Petitioner is working as Executive Engineer in Engineering wing, Rural Development Department of the State Government. He claims to be eligible for induction into Kashmir Administrative Service under "technical quota" in terms of Kashmir Administrative Service Rules, 1993. He is aggrieved that though considered for induction into aforementioned service by the Selection Committee constituted for the purpose, he has been erroneously declared as ineligible and not recommended for his induction. Petitioner complains that his exclusion on the ground of ineligibility, is based on non consideration of relevant material and erroneous interpretation of communication addressed by Special Secretary to Government Rural Development Department (Respondent No. 4) bearing No. Agri/RD/B/86/98 dated 18.9.1999 to the Commissioner Secretary, General Administration Department. The respondents are also stated to have taken decision in the matter oblivious to the communications on the subject exchanged by them, copies whereof are appended as annexure "B" to "J" to the petition. Petitioner insists that he held the qualifying grade of Rs. 3000-4500 on the relevant date and there was no reason to declare him ineligible for claimed induction. The respondents are alleged to have resorted to favouritism while inducting officers into Kashmir Administrative Service. Petitioner, as an illustration, refers to induction of Shiekh Fayaz Ahmad and Shri Jehangir Mir (respondent Nos. 5 and 6). Both the respondents, allegedly because of favourtism shown, are said to have been inducted though ineligible in terms of Jammu & Kashmir Administrative Service Rules 1993. 2. Petitioner on the strength of averments made in the petition seeks following relief: a) A writ of certiorari quashing the memorandum submitted to the Cabinet by respondent No. 1 and 2 regarding all officers inducted into Kashmir Administrative Service under the 15% technical quota in so far it relates to petitioner's ineligibility. b) A writ, order or direction in nature of certiorari, quashing Government order No. 1014-GAD 2000 dated 31.08.2000 together with its annexures. c) A writ, order or direction in the nature of mandamus directing respondent No. 1 to 3 to induct petitioner into Kashmir Administrative Service either in the Open Merit category of in the Reserve Category. d) A writ, order or direction in the nature of mandamus treating the petitioner to be entitled in induction into Kashmir Administrative Service. c) A writ, order or direction in the nature of mandamus directing respondent No. 1 to 3 to induct petitioner into Kashmir Administrative Service either in the Open Merit category of in the Reserve Category. d) A writ, order or direction in the nature of mandamus treating the petitioner to be entitled in induction into Kashmir Administrative Service. e) A writ, order or direction in the nature of quo waranto commanding the respondents 4 and 5 to refrain from performing and functioning as KAS officers and also from holding any cadre post in the said service. 3. The writ petition is opposed by Respondents 1 to 4 on the grounds that the petitioner on the date he was considered for induction into KAS, was in the substantive grade of Rs. 2500-4000 as conveyed by Agriculture Production and Rural Development Department vide office memo No. Agri/RD/8/96/98 dated 18.8.1999 and therefore held ineligible for induction. It is pointed out that in terms of Rule 5(1)(c) of Jammu & Kashmir Administrative Service Rules, 1993 an officer (an officer not from any of the feeding service) would be eligible for induction into KAS against "technical quota" only if he is in the pay scale of Rs. 3000-4500 (pre-revised) Rs. 10,000-15200/-. It is admitted that the petitioner filed a representation insisting that he was allowed the pay scale of Executive Engineer vide No. 531-RD of 1996 dated 19.9.1996. However, respondents 1 to 4 plead that genuineness of Government order No. 531-RD of 1996 dated 19.9.1996 has not been confirmed till date. It is pleaded that even if the aforesaid Govt. order is to be taken as genuine, still petitioner cannot claim, eligibility on the basis thereof, in as much as, the order on the face of it appears to have been issued on the recommendation of Deputy Commissioner/Chief Executive Officer Ladakh Autonomous Hill Council and in compliance of interim order in SWP No. 105/1992 dated 6.5.1992, When the petitioner was on deputation to Desert Development Agency and therefore is an ex cadre promotion. The respondents take a categoric stand that petitioner was at no point of time promoted as Executive Engineer on substantive basis. 4. It is next pleaded that the Selection Committee notwithstanding ineligibility of the petitioner for induction into KAS, considered his case under technical quota and rejected it as the petitioner could not make the grade. The respondents take a categoric stand that petitioner was at no point of time promoted as Executive Engineer on substantive basis. 4. It is next pleaded that the Selection Committee notwithstanding ineligibility of the petitioner for induction into KAS, considered his case under technical quota and rejected it as the petitioner could not make the grade. It is pleaded that the petitioner secured 67 out of 100 marks while the last selected candidate secured 75 marks and that the petitioner even if held eligible for consideration could not have been selected in view of his poor performance. The averments in this regard is reiterated in supplementary affidavit filed on 14.6.2012. The respondents insist that petitioner obtained 60 marks on the basis of Annual Performance Report and 7 marks in interview. In supplementary affidavit filed on 12.6.2012 by respondents 1 to 3, however, claimed to have laid hands on file No. GAD(Ser) KAS/9/97 indicating that the petitioner had secured 67 marks as against 75 marks secured by the last candidate inducted into KAS. However, said record also has not been made available till date, not has been any record produced to rebut or contradicts the APRs for the year 1992-93 to 1996-97 placed by the petitioner on record. Respondents 1 to 4 however, have not responded to the case set up by the petitioner in paras 12 and 13 of the writ petition wherein petitioner alleges that respondents 5 & 6 though not eligible in terms of Jammu & Kashmir Administrative Service Rules, 1993 were shown favour by respondent 1 to 4 and inducted into KAS. 5. The respondents 1 to 3 in additional affidavit filed on 23.2.2011 traced career graph of the petitioner and admitted that the pay and grade attached to the post of Executive Engineer, was vide Government order No. 390-RD of 1996 dated 19.7.1996 released in favour of the petitioner from the date he was deputed to Desert Development Authority Leh, in compliance of interim order passed in SWP No. 1051/1992. However, it is insisted that the petitioner was favoured with promotion after promotion after his initial appointment as Section Officer vide Govt. Order No. 288-Agri of 1981 dated 25.9.1981 without following the procedure prescribed under law and without clearance from Departmental Promotion Committee. However, it is insisted that the petitioner was favoured with promotion after promotion after his initial appointment as Section Officer vide Govt. Order No. 288-Agri of 1981 dated 25.9.1981 without following the procedure prescribed under law and without clearance from Departmental Promotion Committee. The respondents 1 to 3 further pleaded that in view of significant changes in induction process, no slot under technical quota out of selection process of 2000 was available and that a number of officers inducted under technical quota far exceeded to slots. The petitioner as evident from statement made by his counsel on 14.6.2012 has not filed any response to the additional affidavit. 6. Respondents 5 & 6 in their counter affidavit deny that they were not eligible in terms of Rule 5(1)(c) of J&K Administrative Service Rules for induction into KAS. Respondent No. 5 pleads that he was holding the grade of Rs. 3000-4500 (pre-revised) since the year 1991 and was inducted into KAS nine years thereafter i.e 2000. Respondent No. 6 pleads that his induction ordered vide Govt. order No. l034-GAD/2000 dated 31.8.2008 has been upheld by the court in Mohammad Aslam v. State of J&K and others and Letters Patent Appeal LPA (SW) No. 324/2001 taken against writ court judgment, dismissed on 22.5.2002 and is therefore beyond challenge. 7. The petitioner in his rejoinder insists that he was holding the grade of Rs. 3000-4500 on 27.9.1999 i.e the date Selection Committee constituted under J&K Administrative Service Rules 1993 met to consider his case and that his having been placed in the aforesaid grade w.e.f 6.5.1992 was conveyed by Special Secretary to Government Rural Dev. Department vide No. Agri/RD/B/86/98 to Commissioner Secretary to Government General Administration Department. It is pointed out that even the Minister for Agriculture Production and Rural Development Department in his note dated 4.6.2000 at para 64 observed that the petitioner had been placed in the grade of Rs. 3000-4500 and that the author of the Government order No. 531-RD of 1996 dated 19.6.1996 namely Shri G.D.Wadwa vide his No. ES/LS/2007/527 dated 30.9.1999 had admitted to have signed the order placing the petitioner in the grade of Rs. 3000-4500 and that the order was genuine. 3000-4500 and that the author of the Government order No. 531-RD of 1996 dated 19.6.1996 namely Shri G.D.Wadwa vide his No. ES/LS/2007/527 dated 30.9.1999 had admitted to have signed the order placing the petitioner in the grade of Rs. 3000-4500 and that the order was genuine. It is pleaded that Selection Committee conscious that the petitioner was eligible for induction into KAS under "technical quota" considered the petitioner's case and thereafter rejected it erroneously on the ground that the petitioner had not been able to make the grade. Petitioner vehemently denies that he did not fulfill the criteria laid down by the selection committee for induction and insists that as against 75 secured by the last selected officer, he secured 89 marks i.e 75 marks on account of his 5 Annual Performance Reports for the years 1992 to 1997 and 14 out of 20 marks in the interview conducted by the Selection Committee. The petitioner claims to be also entitled to induction under Schedule Tribe Category in terms of SRO 537 of 3.12.1999. 8. I have gone through the pleadings and record available on the file. I have heard Ld. Counsel for the parties. 9. The pleadings give rise to following two issues:- i) whether the petitioner was eligible to be considered for induction in KAS under technical quota in terms of J&K Administrative Service Rules 1993 on the date he was considered by the Selection Committee for his induction. ii) Whether the petitioner satisfies the criteria laid down by the Selection Committee to determine eligibility of an aspirant to appear in interview. 10. The petitioner as noticed, was working as officiating Executing Engineer on deputation to Desert Development Agency Leh, was on the recommendation of Deputy Commissioner / Chief Executive Officer Ladakh Autonomous Hill Development Counsel placed in Executive Engineers pay and grade of Rs. 3000-4500 vide Govt. order No. 531-RD of 1996 dated 19.9.1996. The order also made reference to interim order of the High Court in SWP No. 1051/1992 dated 6.5.1992. The placement in pay and grade of Rs. 3000-4500 was given effect from the date of the interim order i.e 6.5.1992. Having regard to aforesaid order there is no doubt as regards placement of petitioner in the pay and grade of Rs. 3000-4500. The placement in pay and grade of Rs. 3000-4500 was given effect from the date of the interim order i.e 6.5.1992. Having regard to aforesaid order there is no doubt as regards placement of petitioner in the pay and grade of Rs. 3000-4500. However, the respondents denied the benefit of induction into KAS otherwise available to the petitioner in terms of aforesaid Government order, on the ground that the genuineness of the order was under cloud and that his placement in the grade of Rs. 3000-4500 was on ex-cadre basis. 11. The suspicion raised as regards genuineness of the order must disappear once Shri G.S.Wadwa the then Commr./Secretary Agriculture and Rural Development Department vide his letter mentioned in the communication addressed by Special Secretary Agriculture and Rural Development Department to General Administration Department, bearing No. 531-RD of 1996 dated 19.6.1996, admitted to have put his signatures on the Order. Mr. Wadwa, therefore, has placed seal of authenticity on the order. 12. The question remains whether the petitioners placement in the grade of Rs. 3000-4500 was on ex cadre basis implying thereby that the petitioner had to hold the grade as long as petitioner served in the Desert Development Agency Leh under Ladakh Autonomous Hill Dev. Council. The stand taken by the respondents is belied by the record available on the file. The petitioner after completing his deputation to Desert Development Agency Leh, has been vide Government order No. l73-Agri of 2000 dated 7.06.2000 recalled from deputation by the Government and posted as Executive Engineer Rural Engineering Wing Kargil. Had the petitioner held Executive Engineer's pay and grade i.e Rs. 3000-4500 on ex cadre basis, he would not have been transferred and posted as Executive Engineer in Rural Engineering Wing Kargil. This ends controversy as regards petitioner's eligibility for induction into Kashmir Administrative Service having regard to the pay and grade held by him at the time he was considered by the Selection Committee. Let us now focus on petitioner's merit and see whether he satisfies the eligibility criteria fixed by the committee. It would be appropriate to extract the relevant part of the minutes of proceedings of the committee dated 30.8.2000: "The Selection Committee decided to evaluate/assess the suitability of these officers for induction to KAS by reference to their APRs for a period of five years from 1992-93 to 1996-97. It would be appropriate to extract the relevant part of the minutes of proceedings of the committee dated 30.8.2000: "The Selection Committee decided to evaluate/assess the suitability of these officers for induction to KAS by reference to their APRs for a period of five years from 1992-93 to 1996-97. Each APR carried a maximum evaluation of 15 points, thus providing a maximum aggregate evaluation of 75 for the five APRs. It was further decided that 15 points shall be awarded for "Excellent", 12points for "Very Good" and 09 points for "Good" for any APR. Thus, in case an officer would get an over all excellent grading for all the five years he would be awarded 75 points. Further, provision for an interview carrying 25 marks was also kept. In other words, each of the eligible person was to be evaluated with reference to 100 marks--- a maximum of 75 for APRs and 25 for interview. On evaluation of APRs a score of 45 was considered as being eligible for interview and 139 officers were called for the interview out of whom 108 actually appeared before the Selection Committee. 13. Petitioner, as evident from the copies of Annual Performance Reports appended to the rejoinder filed by the petitioner for the period 1992 -93 to 1996-97, has been all through assessed "Excellent" and is to be awarded 75 marks (15x5). Petitioner therefore having satisfied the requirements of pay and grade, was eligible to appear in interview as in any case he secured more than 45 marks on his previous five Annual Performance Reports. Petitioner claims to have been called for interview and to have appeared before the Selection Committee at SKICC, Srinagar at 17.7.1999 and to have faired well in interview and have been given 14 out of 25 marks fixed for interview. He insists that in view of his excellent performance in interview and appreciations showered by the Members of the Selection Committee, he deserves more marks than awarded to him by the Selection Committee. The petitioner's merit i.e 89 according to him made him entitled to be inducted into KAS. 14. It is important to note that Ld. He insists that in view of his excellent performance in interview and appreciations showered by the Members of the Selection Committee, he deserves more marks than awarded to him by the Selection Committee. The petitioner's merit i.e 89 according to him made him entitled to be inducted into KAS. 14. It is important to note that Ld. Counsel for the respondents 1 to 4 was repeatedly asked to produce record of the selection Committee so as to check petitioner's claim as regards his performance as reflected in the APRs for the period 1992-93 to 1996-97 and the assessment made by the Selection Committee reflecting performance of the petitioner in interview. Mr. Kawoosa, Ld. Sr. AAG on 3.5.2012 stated that General Administration Department vide its No. GAD(L)F-36/2001 dated 12.4.2012 had informed Ld. Counsel that requisite record of Selection Committee was not traceable though efforts were made to trace the record. Though given adequate opportunity, Ld. Counsel failed to produce the record. The record comprising of GAD(Ser)KAS/9/D-Tech made available by Mr. Kawoosa, Ld. SAAG, does not have on it points secured by the petitioner on the basis of APRs or performance in interview. It does not, therefore, extend support to the respondents' case that petitioner secured 67 points as against 75 points secured by last selected candidate. The documents on file reinforce the petitioner's claim and that the petitioner vide No. SPL/DDA/RD/98 dated 13.08.1998 submitted his APRs for preceding three years to Commissioner Secretary General Administration Department, as claimed in the petition. 15. The above discussion leads to the irresistible conclusion that petitioner was unjustifiably excluded from consideration for his induction into KAS in the year 1999 under "technical quota" in terms of Rule 5(1)(c) J&K Administrative Service 1979. The Selection Committee in its minutes of proceedings 3.8.1999 considered petitioner's case at Sr. No. 2 and held the petitioner ineligible for induction into KAS under technical quota. The committee in the minutes of the proceedings dated 30.8.2000 does not indicate that the petitioner notwithstanding his so called "ineligibility" was considered and marks awarded on the basis of Annual Performance Reports for the years 1992-93 to 1996-97 and his performance in interview. The respondents' contention that the petitioner did not make the grade, therefore does not inspire confidence more so record claimed by the respondents to reinforce their case is not forthcoming. The respondents' contention that the petitioner did not make the grade, therefore does not inspire confidence more so record claimed by the respondents to reinforce their case is not forthcoming. Petitioner insists that his performance for the period 1992-93 to 1996-97 was all along assessed `excellent'. He has placed his photocopies of APR's for the years 1992-93 to 1996-97 on the file as Annexure - 2 to the Rejoinder. The photo copies duly attested show him to have been assessed "excellent" by his initiating officers and his APRs of 1992-93 to 1996-97 to have been approved by accepting authority. The respondents as custodian of official record are expected to have the record regarding APRs available with them, but they as already indicated have withheld the record. 16. In the circumstances there is no reason to disbelieve the record placed on file by the petitioner. The plea raised by the respondents 1 to 3 in their additional affidavit dated 14.6.2012 that as there has been change in induction scenario and the officers inducted under technical quota exceed the permissible limits, cannot deprive the petitioner to his right that has accrued to him way back in the year 1999 and has been unjustifiably denied to him. 17. The petitioner's challenge to induction of respondent No. 5 and 6 on the grounds of favouritism and disregard of rules however is destined to fail. In the first place the averments made in this behalf do not find support from the record available on the file. Secondly the induction of respondent No. 6 has gone through judicial filtration and upheld by this court in SWP No. 1663/2000 and LPA (SW)324/2001 taken against the writ court judgment and dismissed on 22.5.2002. There is no reason to reopen the issue that stands already clinched. 18. Secondly the induction of respondent No. 6 has gone through judicial filtration and upheld by this court in SWP No. 1663/2000 and LPA (SW)324/2001 taken against the writ court judgment and dismissed on 22.5.2002. There is no reason to reopen the issue that stands already clinched. 18. For the reasons discussed the writ petition is allowed and the respondents are directed to accord fresh consideration to the petitioner's induction into Kashmir Administrative Service w.e.f 31.8.2000 having regard to his performance as assessed in his APRs of 1992-93 to 1996-97 and in the interview conducted by the Selection Committee in light of the selection criteria incorporated in para-4 of the memorandum for submission to the General Administration Department dated 30.8.2000 (annexure A to the petition) as also having regard to his claim that he in terms of rules in vogue at the relevant time was also eligible for such consideration under Schedule Tribe Category. The respondents shall accord consideration as directed and take a final decision in the matter within four weeks from the date copy of this order is served on them. 19. Record be returned. Disposed of.