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2014 DIGILAW 211 (JK)

Mohammad Ashraf Shah v. State

2014-05-16

MUZAFFAR HUSSAIN ATTAR

body2014
JUDGMENT Muzaffar Hussain Attar, J.—Following reliefs are sought in this writ petition: "A. By issuance of writ of mandamus, the respondent No. 2 be directed to update the service record of the petitioner with necessary entries from 1st February, 2011 to 28-02-2011 by incorporating the grade attached to the post of Secretary, Legislative Council in favour of the petitioner and release salary for the month of February, 2011 in favour of the petitioner in the pay scale of 37400 + GP 8900. B. By issuance of writ of mandamus, the respondent No. 2 be directed to forward the revised LPC in favour of the petitioner in the pay band of 37400 + GP 8900 to that of respondent No. 3 and the respondent No. 3 be directed to create a supernumerary post in the pay scale of 37400+GP 8900 and thereto release salary in favour of the petitioner as attached to the post of Secretary in the pay band of 37400+GP 8900 along with all consequential benefits from 01-03-2011 to 31-01-2012 excluding the salary which the petitioner has already received. C. By issuance of writ of mandamus, the respondents be directed to forward the pension case of the petitioner to that of respondent No. 4 and thereto respondent No. 4 be directed to accord sanction to the release of revised pension in favour of the petitioner in the pay scale of 37400+GP 8900." Respondents 1 to 3 have filed the Reply Affidavit. 2. The only issue involved in this case is as to whether the petitioner should be paid the retiral benefits by treating him to have been appointed on the post of Secretary, Legislative Council. 3. Mr. Jehangir, learned counsel for the petitioner, referred to the various appointment orders placed on writ record to show that it is the Chairman, Legislative Council, who has been issuing orders of promotion in respect of the employees of the Council. Mr. Jehangir, while inviting attention of the Court to various annexures, stated that the promotion to the post of Under Secretary, Deputy Secretary and Secretary, Legislative Council, has all along been made by the Chairman, Legislative Council. Mr. Jehangir, while inviting attention of the Court to various annexures, stated that the promotion to the post of Under Secretary, Deputy Secretary and Secretary, Legislative Council, has all along been made by the Chairman, Legislative Council. Learned counsel submitted that this being the position, the petitioner, who has been appointed by way of promotion to the post of Secretary, Legislative Council, is entitled to get all the service benefits attached to the said post, which would include post retiral benefits as well. He further submitted that the respondent Nos. 1 to 3, instead of processing the case of the petitioner for grant of retiral benefits by treating him as Secretary, Legislative Council, have recommended for payment of retiral benefits by treating him as Deputy Secretary, Legislative Council. Learned counsel, though in his fairness conceded that services of the petitioner are governed by J&K Legislative Council Secretariat (Recruitment and Conditions of Services) Rules, 1959 (for short Rules of 1959), which provide that appointment to the post of Secretary, Deputy Secretary and Under Secretary, Legislative Council, shall be made by the Governor, submitted that it has, however, all along been the practice in the Legislative Council that Chairman/Deputy Chairman, Legislative Council, would make promotions of the employees from one post to another which would include promotions from the posts of Deputy Secretary and Under Secretary, Legislative Council as well. It is for this reason that learned counsel for the petitioner vehemently argued that the petitioner is entitled to all the benefits which are attached to the post of Secretary, Legislative Council. 4. Mr. S.A. Naik, learned AAG, appearing for the State, submitted that in terms of Rule 7(1) of the Rules of 1959, it is only the Governor, who can order appointment to the post of Secretary, Deputy Secretary and Under Secretary, Legislative Council. Mr. Naik submitted that since the petitioner has not been appointed to the post of Deputy Secretary, Legislative Council, by the Governor, his appointment to the said post is void ab initio and that is why his case has been processed for grant of retiral benefits by treating him as Deputy Secretary, Legislative Council. 5. In order to appreciate contentions of learned counsel for the parties, Rule 7 of the Rules of 1959 is taken note of: "7(1). 5. In order to appreciate contentions of learned counsel for the parties, Rule 7 of the Rules of 1959 is taken note of: "7(1). Subject to the provisions of sub-section (2) of section 133 of Constitution of Jammu and Kashmir and to any regulations for the time being in force under the proviso to the said sub-section, [the Secretary, the Deputy Secretary and the Under Secretary], shall be appointed by the [Governor] and other gazetted officers specified in appendix I by the Chairman. (2) Subject to the provisions of appendix 1, the conditions of service as regards leave, pension, allowance and other matters in respect of the officers in the council Secretariat specified in the first column of appendix II annexed to these rules, shall, unless otherwise provided by or under these rules, be governed by the rules and orders for the time being applicable to the classes of Government servants specified in the corresponding entry in the second column thereof." 6. Perusal of the annexures placed on the writ record would show that appointments by way of promotion to the posts of Under Secretary, Deputy Secretary and Secretary, Legislative Council, has been made either by the Chairman or by the Deputy Chairman, Legislative Council. This mode is unknown to the Rules of 1959. The appointments/promotions have to be made strictly in accordance with the mandate contained in the Rules of 1959. In view of the specific condition contained in the Rule 7(1) of the Rules of 1959, appointment by way of promotion to the post of Secretary, Legislative Council, can be ordered by the Governor. The writ Court cannot issue Mandamus to an authority to do an act in breach of statutory rules. For the above stated reasons, this writ petition, being meritless, is dismissed along with connected CMPs.