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2014 DIGILAW 441 (JK)

Gh. Nabi Reshi v. State of J&K

2014-10-31

HASNAIN MASSODI

body2014
JUDGMENT : Hasnain Massodi, J.:- 1. Petitioner is aggrieved with Order No. 105-HD of 2013 dated 23rd January, 2013 whereby Shri Ghulam Rasool Ahanger-respondent No. 3 herein, has been promoted to the post of Master Craftsman, in Handicrafts Department of the State Government. He seeks quashment of afore-stated order on the grounds pleaded in the petition. He further asks for a writ of mandamus, commanding respondents 1 & 2 to accord consideration to the eligible candidates for promotion, having regard to the rules occupying the field at the time promotional post of Master Craftsman became available, due to retirement of Sh. Saleem Hagroo. Petitioner claims to have been vide order No. 81 SOD of 1995 dated 6th of November, 1995 appointed as Assistant Craftsman-wood-carving in respondent department. Petitioner's case is that in April 1997 the post of Craftsman-Woodcarving (now designated as Master Craftsman) fell vacant on retirement of one Shri Saleem Hagroo. He insists that available vacancy was to be filled up having regard to Recruitment Rules in vogue in April, 1979. The respondents are said to have delayed promotion till the Recruitment Rules of 1979 were replaced by the Rules of 2005. It is pleaded that respondents acting on the Rules of 2005 notified vide SRO 58 of 2005 [Refer 2005 (3) JKS JK-211], vide order No. 557-HD dated 4th of January, 2012, promoted respondent No. 3 as in charge Master-Craftsman pending clearance of Departmental Promotional Committee; that this was followed by his promotion on substantive basis ignoring objection raised by the petitioner. Petitioner's case is that had consideration been accorded to eligible Assistant Craftsman on the anvil of Recruitment Rules of 1979, respondent No. 3 would have been out of race as he is junior to petitioner and did not fulfil the eligibility criteria prescribed under Recruitment Rules of 1979. 2. Petitioner's case in nutshell is that respondents acted beyond powers while applying Recruitment Rules of 2005 to fill-up the post by promotion, that had become available when the Recruitment Rules of 2005 were yet to come in force and Recruitment Rules of 1979 were occupying to the field. 3. 2. Petitioner's case in nutshell is that respondents acted beyond powers while applying Recruitment Rules of 2005 to fill-up the post by promotion, that had become available when the Recruitment Rules of 2005 were yet to come in force and Recruitment Rules of 1979 were occupying to the field. 3. The writ petition is resisted by respondents 1 & 2 on the grounds that as petitioner was not eligible for promotion to the post of Craftsman (now designated as Master craftsman) in April, 1997 in terms of Recruitment Rules of 1979, he did not have any right to throw challenge to respondent No. 3's promotion. It is pleaded that petitioner was initially appointed as Assistant Craftsman in the Pay scale of Rs. 1200-2040, w.e.f. 1st of November, 1985 and was placed in the pay scale of Rs. 1400-2000 w.e.f. 06.11.1995. He therefore had less than two years' of service to his credit on the date post of Craftsman fell vacant. It is averred that in terms of Recruitment Rules of 1979 an Assistant Craftsman with five years experience would be eligible for promotion to the post of Craftsman and petitioner could not have any claim of promotion on the relevant date even if promotion was made on the anvil of Recruitment Rules of 1979. It is next pleaded that respondent 3 went through selection process and was appointed on recommendation of Services Selection Recruitment Board, as Assistant Craftsman vide order No. 288 HD dated 5th August, 1997. It is averred that as respondent No. 3 was only Assistant Craftsman with National and State awards to his credit, he satisfied the eligibility criteria for promotion laid down in the Recruitment Rules of 2005, he was considered for promotion in the year 2013 and promoted as Master Craftsman. Respondents insist that post of Master Craftsman is a selection post. 4. Respondent No. 3 opposes the writ petition on the grounds identical to that urged by respondents 1 & 2 in their reply. It is pleaded that even under Recruitment Rules of 1979, seniority is not the only criteria to be considered by the Departmental Promotion Committee and that as respondent 3 was higher in merit as compared to petitioner, he was rightly promoted as Master Craftsman. It is pleaded that even under Recruitment Rules of 1979, seniority is not the only criteria to be considered by the Departmental Promotion Committee and that as respondent 3 was higher in merit as compared to petitioner, he was rightly promoted as Master Craftsman. It is insisted that as the post, merit of Master Craftsman is a selection post, merit is to be given precedence and seniority pushed to the back seat. Respondent 3 takes stand that as the consideration to eligible candidates for promotion as Master Craftsman was accorded in 2013, the Rule in vogue 2013 were to be adhered to while making the promotion. It is pleaded that even though the post of Master Craftsman became available when repealed Rules i.e. Rules of 1979 held the field, consideration was not to be accorded on the anvil of repealed Rules. 5. I have gone through pleadings as also the record made available and have heard learned counsel for the parties. 6. Before giving a closer look to the rival stand of the parties spelt out in their respective pleadings, it would be appropriate to notice relevant part of Rules of 1979 as also Rules of 2005. THE JAMMU AND KASHIR HANDICRAFTS AND HANDLOOMS (SUBORDINATE) SERVICE RECRUITMENT RULES, 1979. SCHEDULE II ‘A’ Classcategory Designation Grade Minimum qualification for direct recruitment Method of recruitment/appointment 123456 ............ IID Craftsman 450-700 Diploma in respective trade from recognized Institute By promotion from class IV category (D) having at least 5 years IVD Assistant Craftsman 280-520 Having at least 10 years experience in the respective trade By direct recruitment. THE JAMMU AND KASHIR HANDICRAFTS (SUBORDINATE) SERVICE RECRUITMENT RULES, 2005. SCHEDULE II ‘C’ EXECUTIVE (TECHNICAL) Class Category Grade Designation Minimum qualification for direct recruitment Method of recruitment 123456 IA C6500-10500 Master-Craftsman Post Graduate pr degree in Textile Chemistry from any recognized Institute. By promotion from class III (Asstt. Craftsman SOD) from respective craft in such of Designs having not less than 5 years service as such. Preference to be given to National/State awardees. IIIB 5000-8000 Assistant Craftsman (SOD) Matric and above with 10 years experience and on the basis of practical Test. By promotion from Class IV category P (Craftsman/Asstt Craftsman/Asstt. Craftsman Tapestry (SOD) 7. Craftsman SOD) from respective craft in such of Designs having not less than 5 years service as such. Preference to be given to National/State awardees. IIIB 5000-8000 Assistant Craftsman (SOD) Matric and above with 10 years experience and on the basis of practical Test. By promotion from Class IV category P (Craftsman/Asstt Craftsman/Asstt. Craftsman Tapestry (SOD) 7. A bare look at the above reproduced Recruitment Rules would reveal that while in Recruitment Rules of 1979, only requirement for promotion from Assistant Craftsman to Craftsman (now designated as Master Craftsman) was five years experience, in Recruitment Rules of 2005, in addition to the above experience, scope is left for preference to National/State awardees. The respondents have admittedly acted upon Recruitment Rules of 2005 and given preference to respondent No. 3 over the petitioner who undisputedly is junior to petitioner but is a National Awardee. Had respondents accorded consideration to eligible candidates on the anvil of Rules of 1979, respondent No. 3 would not have stolen march over the petitioner as he was otherwise junior to the petitioner. The focus therefore is to be on the applicability of Rules 2005 to promotion in question. 8. It is admitted case of parties that the post of Master Craftsman became available in the respondent department in April, 1997 with retirement on superannuation of one Shri Saleem Hagroo. On the date the aforementioned post became vacant, petitioner had less than two years of service to his credit and therefore was not eligible to be considered for promotion as Master Craftsman in terms of Rules of 1979. Respondent No. 3 was yet to be appointed on the said date and therefore was not a member of cadre of Assistant Craftsman. He joined much later when he was appointed as Assistant Craftsman vide order No. 288 HD dated 1997 dated 05.08.1997. However, ineligibility of petitioner on the date Promotional post became available and respondent No. 3 not being member of the cadre on said date would not be relevant. The eligibility for promotion is to be determined not on the date the post required to be filled-up by promotion, becomes available, but the date on which consideration is accorded to the eligible candidates. 9. Perusal of record would reveal that respondents initiated process to fill-up the post of Master Craftsman by promotion some time in 2012. The eligibility for promotion is to be determined not on the date the post required to be filled-up by promotion, becomes available, but the date on which consideration is accorded to the eligible candidates. 9. Perusal of record would reveal that respondents initiated process to fill-up the post of Master Craftsman by promotion some time in 2012. The Departmental Promotional Committee accorded consideration to the eligible candidates on the basis of Rules of 2005 and recommended respondent No. 3, a National Awardee for promotion as Master Craftsman. The respondent No. 2 acting on the recommendation made by Departmental Promotion Committee promoted respondent No. 3 prospectively against available post of Master Craftsman (Wood-carving) in the pay scale of Rs. 9400-34800. 10. The respondents in the circumstances acted against Rules while according consideration to eligible candidates for promotion to the post of Master Craftsman (Wood-carving) in the pay scale of Rs. 9400-34800 on the basis of Rules of 2005. The consideration in terms of Rules was required to be accorded on the basis of Rules of 1979 in vogue in April 1997 i.e. when the promotional post in question become available. Adherence to the aforementioned fundamental rule was strictly warranted in as much as the Rules of 2005 made significant departure from eligibility criteria for promotion to the post of Master Craftsman (Wood-carving) laid down in Rules of 1979. Promotion was to be made having regard to Rule 25 of J&K Civil Services (Classification and Control Appeal) Rules 1956. 11. The Departmental Promotion Committee as the record would reveal has been influenced by National award granted to respondent No. 3 and has not embarked on an exercise to assess merit and seniority of officials within the zone of consideration. The argument that even if consideration was accorded to the eligible officials on the touch-stone of Rules of 1979, the Departmental promotion Committee would have arrived at some conclusions, does not sound convincing in as much as the Departmental Promotion Committee has admittedly considered eligible Officials on the anvil of Rules of 2005 in vogue on the relevant date and influenced by a criteria which was not applicable on the relevant date. 12. It is settled law that, while according consideration to the eligible candidates, the competent authority/Departmental Promotion Committee has to follow Rules in vogue on the date post became available and not rule's on the date consideration is accorded. 12. It is settled law that, while according consideration to the eligible candidates, the competent authority/Departmental Promotion Committee has to follow Rules in vogue on the date post became available and not rule's on the date consideration is accorded. Reference in this regard may be made to law laid down in, Y.V. Rangaiah & Other v. J. Sreenivasa Rao and Other, (1983) 3 SC 284, and P. Murugesan and Others v. State of Tamil Nadu & Other (1993) SC 340and reiterated in numerous judicial pronouncements thereafter. 13. In Y.V. Rangaiahs' case, the issue was whether promotion by transfer from lower division clerk in the Department of Registration and Stamps (Andhra Pradesh) was to be governed by the Rules in vogue on the date posts became available or on the date consideration was accorded. The Rules had undergone change in the intervening period. It was held that the Rules in force on the date, posts occurred were to be followed and not the amended Rules in place on the date consideration was accorded. The Court observed:- "The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules.............. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules". The principle was reiterated in P. Murugesans' case in following words:- "Accordingly it must be held that the learned counsel for respondents 3 to 8 is right in his submission that the vacancies occurring prior to three months before the date of commencement of the impugned amendment ought to have been filled in accordance with the rules then obtaining". The petitioner against backdrop of law, laid down on the subject has made out a case for exercise of writ jurisdiction under Article 226 Constitution of India read with Section 103, Constitution of Jammu and Kashmir. 15. For the reasons discussed above, Writ petition is allowed. Order No. 105-HD of 2013 dated 23rd of January, 2013 is set-aside and respondents are directed to accord fresh consideration for promotion to the post of Master Craftsman to all eligible candidates on the basis of The Jammu and Kashmir Handicrafts and Handlooms (Subordinate) Service Recruitment Rules, 1979. 15. For the reasons discussed above, Writ petition is allowed. Order No. 105-HD of 2013 dated 23rd of January, 2013 is set-aside and respondents are directed to accord fresh consideration for promotion to the post of Master Craftsman to all eligible candidates on the basis of The Jammu and Kashmir Handicrafts and Handlooms (Subordinate) Service Recruitment Rules, 1979. Let such exercise be completed within four weeks from the date of receipt of copy of order. In the event on such consideration respondent No. 3 is found to be most suitable candidate for promotion, no scope will be left for any confusion as regards benefits already derived by respondent No. 3 in wake of promotion order No. 105-HD of 2013 dated 23rd of January, 2013. However, in case petitioner or any other eligible Assistant Craftsman is found suitable for promotion and accordingly promoted as Master Craftsman (Wood-carving), recovery of benefits availed by respondent No. 3 in wake of his promotion shall not be effected by official respondents as respondent No. 3 though promoted in violation of Rules, has discharged duties as Master Craftsman (Wood-carving) from the date he was promoted till the date promotion order in compliance of this Judgment is passed.