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2013 DIGILAW 579 (JK)

Parshotam Singh Manhas v. State Of J&K

2013-09-24

ALI MOHAMMAD MAGREY, Virender Singh

body2013
Per Virender Singh, J. CDLSW No. 102/2013 1. Through the instant application, the applicant-appellant seeks condonation of 317 days' delay in filing the connected Letters Patent Appeal, bearing LPA(SW) No. 154/2013. He figures as respondent No. 4 in writ petition, SWP No. 558/2012. 2. It is the case of the applicant that he caused his appearance in the writ petition and filed objections. However, the writ petition has been disposed of ex parte by the learned Writ Court by order dated 04.09.2012 which order has subsequently been clarified by another ex parte order dated 26.6.2013. It is stated in the application that the orders impugned in the connected appeal have been passed without considering the stand taken by the applicant in his objections. It is further averred that the applicant-appellant came to know about the Writ Court order dated 26.6.2013 only on 10.9.2013 and on further verification it was revealed to him on 13.9.2013 that the writ petition had been disposed of on 4.9.2012. It is stated that the applicant-appellant was under bona fide belief that the writ petition is pending. 3. We asked Mr. Johal, learned senior counsel to address the Court on merits of the main appeal which, in turn, would have bearing upon the condonation application also, as such the matter was posted for today, i.e., 24.09.2013. Accordingly, the learned senior counsel was heard on merits. Fascicule of the matter is as follows. 4. The applicant-appellant is a member of the Jammu and Kashmir Engineering (Subordinate) Service, holding the substantive post of Junior Engineer (Civil). He also belongs to the reserved category of ALC (Actual Line of Control). On 01.03.2012, the Government, pending clearance by the Departmental Promotion Committee / Public Service Commission, issued Order No. 80-PW(Hyd) of 2012 according sanction to placement of the applicant-appellant as I/C Assistant Engineer (Civil) under backlog quota of ALC category. The aforesaid Government Order further read "the effect to his placement shall be with effect from the date the roster point meant for ALC category (roster point 20) became available, i.e., 19.07.2010". 5. The aforesaid Government Order further read "the effect to his placement shall be with effect from the date the roster point meant for ALC category (roster point 20) became available, i.e., 19.07.2010". 5. The aforesaid Government Order was challenged in writ petition, SWP No. 558/2012 by respondent No. 4 herein and when the writ petition came up before the learned Writ Court on 14.03.2012, the Court, while issuing notice in the main petition, passed an order in the accompanying civil miscellaneous petition, CMP No. 860/2012, keeping the Government Order in abeyance till next date. The minutes of the writ record (Zimni Orders) reveal that the matter, thereafter, came up before the learned Writ Court on 23.04.2012; 04.05.2012 and 08.06.2012. However, the interim direction passed on 14.03.2012 was not extended on any of these dates. Finally, when the matter again came up before the learned Writ Court on 04.09.2012, it was disposed of by the following order. "The petitioner is aggrieved that notwithstanding his seniority in the cadre of Junior Engineer, respondent no. 4 has been promoted as Incharge Assistant Engineer. It is insisted that in terms of the Government instructions even in case of ad hoc / incharge promotion, seniority is required to be respected. In view of the short controversy involved in the writ petition, it is disposed of with a direction to the respondents to convene a Departmental Promotion Committee and consider all the eligible candidates for promotion to the position of Assistant Engineer, of course, in accordance with rules and make promotion to the cadre on substantive basis, within three months from the date copy of the order is served upon them. The order impugned whereby respondent no. 4 has been placed as Incharge Assistant Engineer shall cease to be inoperative after three months." 6. Subsequently, the learned Writ Court, in an application, APSWP No. 14/2013, seeking rectification of the typographical error, passed the following order on 26.06.2013: "This court while disposing of SWP No. 558/2012 with CMA no. 860/2012 directed the respondents to convene a Departmental Promotion Committee and consider all the eligible candidates for promotion against available vacancy(ies) of Assistant Engineer(s) in the Department. The order whereby respondent no. 4 was placed as Incharge Assistant Engineer was directed to case to be operative after three months. 860/2012 directed the respondents to convene a Departmental Promotion Committee and consider all the eligible candidates for promotion against available vacancy(ies) of Assistant Engineer(s) in the Department. The order whereby respondent no. 4 was placed as Incharge Assistant Engineer was directed to case to be operative after three months. However, due to clerical error crept in order dated 04.09.2012 instead of `operative' the word `inoperative' finds place in the last line of the order. The error has rendered the order inconsequential and made the order to convey what was not intended while disposing of the writ petition. In the said background, the application is allowed and the word `inoperative' in last line of order dated 04.09.2012 in SWP No. 558/2012 directed to be read as `operative'. Resultantly, the operative of the order dated 04.09.2012 shall read as under: `The order impugned whereby respondent no. 4 has been placed as Incharge Assistant Engineer shall cease to be operative after three months.' The application is disposed of accordingly. This order shall be read as part of order dated 04.09.2012 passed in SWP No. 558/2012". 7. A cumulative reading of the aforesaid orders passed by the-learned Writ Court, from time to time, reveal that, but for the brief spell between the first order passed by the Court on 14.3.2012 and the date the writ petition next came up before the Court on 23.04.2012, the applicant-appellant continued to hold his position as Incharge Assistant Engineer in terms of the Government order dated 01.03.2012. By virtue of the orders passed by the learned Writ Court, impugned by the applicant in the connected Letters Patent Appeal, the learned Writ Court, in essence and in effect, has not changed this status of the applicant-appellant. This is so for the simple reason that the Government order dated 01.03.2012 itself stipulates the condition "pending clearance by the Departmental Promotion Committee / Public Service Commission". Clearance by the DPC/PSC involves a process of referral of the post, which is intended to be filled up by promotion, alongwith the list of eligible candidates with their respective service records; accord of consideration by the DPC/PSC under the relevant Rules and norms to each of such eligible candidates referred to it by the Government; assessment by the DPC/PSC of comparative merit etc. of such candidates; and the recommendations those are ultimately formulated and made by the DPC/PSC. 8. of such candidates; and the recommendations those are ultimately formulated and made by the DPC/PSC. 8. The learned Writ Court by its order dated 04.09.2012 has not done anything except directing the official respondents in the writ petition to convene the DPC and consider all the eligible candidates for substantive promotion to the post in question within three months, which otherwise is the mandate of the rules having bearing on the matter. Once substantive promotion is made, the natural consequence thereof would be that the arrangement made in terms of Government order dated 01.03.2012 would automatically cease to operate. The aforesaid direction made by the learned Writ Court was more buttressed by the pleadings of the present applicant made in his objections before the Writ Court than the averments made in the writ petition. In this connection, paragraphs 10 and 11 of the objections filed on behalf of respondent no. 4 need a special mention. The same are quoted hereunder: "10. In reply to contents of para 12 to 14, it is submitted that in terms of order No. 80 PW(Hyd) of 2012 dated 01.03.2012, the answering respondent has not been formally promoted against the post of Assistant Engineer (Civil) but in fact has been placed as Incharge Assistant Engineer under backlog quota of ALC category being the member of ALC category. The official respondents have not undertaken any process of promotion to be accorded to the eligible officers in the ALC category including the petitioner and the answering respondent, therefore, following the provisions of Reservation Act the Rules made thereunder does not arise at all. 11. The contents of para 15 is misconceived and palpably wrong. As has been stated in the preceding paras, the answering respondent has been only placed as Incharge Assistant Engineer and not formally promoted against the backlog quota of ALC category. The post of Assistant Engineer (Civil) in the category in question has to be filled up in accordance with the Rules occupying the field considering all eligible officers. It is denied that the official respondents are bent upon to regularize the services of the answering respondent." (Underlining supplied) In light of the aforementioned emphatic averments and pleadings made by none other than the applicant-appellant himself before the Writ Court, there is hardly, rather no scope, left for the applicant to feel aggrieved of the direction made by the learned Single Judge. However, the applicant-appellant has chosen this appellate forum. 9. Let us take a holistic view of the matter. Even if we allow the condonation petition, enter upon the grounds taken in the memo of appeal, set aside the orders passed by the learned Writ Court and remand the case, the result of the lis would be hinging on determination of the sole question, whether the Government could make the temporary promotion of the applicant-appellant for an indefinite period? 10. Law in that regard is not res integra. It has long since been settled that an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months. Reference in this connection may be made to the decision of this Court in Mohd Amin Pandit v. State of J&K, 1974 JKLR 688 : JKJ Soft JKJ/11073. For ready reference, paragraph 6 of the judgment is excerpted below: "Rule 4(d) (ii) of the J&K Public Service Commission (Limitation of Functions) Regulations, 1957 provides that it shall not be necessary for the Public Service Commission to be consulted on the suitability of candidates for: `Officiating promotions or transfers to any service or post, when at the time of making the promotion or transfer there is reason to suppose that the officiating promotion or transfer will be for not more than six months.' This Rule 4(d)(ii) of J&K PSC (Limitation of Functions) Regu's (1957) clearly lays down that an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months. As such the Govt. would be acting in excess of its powers if it directs such promotion for a period longer than six months or for an indefinite period, as in the present case. In any case, where the order does not specify the period or specifies a period longer than six months, the order cannot remain operative for a period of more than six months... As is, the impugned order directed the promotion of respondent No. 2 for an indefinite period. In the view I have expressed above, it was bad in law and could be effective for a period of six months and no more. That period has expired since. In fact more than four years have passed since the order was made. As is, the impugned order directed the promotion of respondent No. 2 for an indefinite period. In the view I have expressed above, it was bad in law and could be effective for a period of six months and no more. That period has expired since. In fact more than four years have passed since the order was made. Presently, therefore, the respondent No. 2 holds the post of Deputy Director without any legal order to support it." 11. In the present case, admittedly, vide the Government order dated 01.03.2012, the applicant-appellant was put Incharge of the post of Assistant Engineer (Civil) without consultation with the Public Service Commission and without mentioning the period of such officiation. As mentioned above, the order has remained in operation, but for a brief spell between 14.3.2012 and 23.04.2012 (the period during which the stay order passed by the Writ Court remained in operation), ever since the Government order was issued. In that view, it has remained in operation beyond the period of six months. This case is thus squarely covered by the law laid down in Mohd Amin Pandit v. State of J&K (supra). 12. Applying the aforesaid judgment to the facts of the present case, one cannot escape the conclusion that the direction of the learned Writ Court permitting continuation of the applicant-appellant's officiating promotion for a further period of three months either from 04.09.2012 or 26.06.2013 was bad in view of the law laid down in Mohd Amin Pandit v. State of J&K (supra). However, we refrain from entering into the details on that aspect of the matter, as the writ petitioner is not in appeal before us. 13. There is yet another striking factor involved in the matter. Rule 25 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1957 deals with promotions. Sub-Rule (1) thereof says that all promotions shall be made by the appointing authority; Sub-rule (2) says that promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal. Sub-rule (4) provides that where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules, but such temporary promotion shall in no case exceed three months on each occasion. This rule does not contemplate or envisage making of an officiating promotion from a retrospective date. The Government Order dated 01.03.2012, which was the subject matter of the learned Writ Court, has sought to give effect to the placement of applicant-appellant as Incharge Assistant Engineer (Civil) from a retrospective date, viz., 19.07.2010. The word `emergency' used in Rule 25(4) implies the situation obtaining at present or may even relate to an immediate future. It cannot relate to a time that has elapsed long back. The Rule does not permit going back in time to meet a situation that exited some time in distant past. Logically or rationally, it can, therefore be inferred that the element of emergency or exigency visualized by Rule 25(4) that would enable the Government to make the officiating arrangement did not actually exist on the date the Government order was actually made. In any case, the Government order does not speak of any such emergency or exigency which would enable it to make officiating promotion of the applicant-appellant otherwise than in accordance with the prescribed norm. This fact by itself goes to the roots and should remove the foundation of the Government Order. 14. As a sequel to the aforesaid discussion, we are of the considered view that the hearing of the connected appeal would not alter the rules governing the field and / or the well settled legal position as mentioned hereinabove. The result would ultimately be the same as the learned Writ Court has directed vide the orders impugned in the connected appeal. Resultantly, issuing of notice to the non-applicants in the Condonation Application (CDLSW No. 102/2013) for entertaining the connected appeal in which otherwise there is a huge delay of 317 days, would be an exercise in futility. The said Condonation Application, thus, merits dismissal. Ordered accordingly. 15. Resultantly, issuing of notice to the non-applicants in the Condonation Application (CDLSW No. 102/2013) for entertaining the connected appeal in which otherwise there is a huge delay of 317 days, would be an exercise in futility. The said Condonation Application, thus, merits dismissal. Ordered accordingly. 15. The connected Letters Patent Appeal, being LPASW No. 154/2013 together with CMA No. 193/2013 is accordingly dismissed as time barred. 16. No order as to costs.