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2014 DIGILAW 51 (JK)

Rohit Khajuria v. State Of J&K

2014-02-13

MOHAMMAD YAQOOB MIR

body2014
1. Petitioner seeks quashment of Government Order No. 1265-GAD of 2013 dated 04.09.2013, to the extent it provides for placing respondent No. 6-Sh. Farooq Ahmad in the Super Time Scale of KAS, on the ground of being junior to the petitioner. Further prays for commanding respondent Nos. 1 and 2 to recommend the name of the petitioner for induction into IAS. 2. The question for determination is as to whether petitioner is senior and is it open for him to challenge the seniority of respondent No. 6. 3. On perusal of the respective pleadings of the parties, what emerges is that the petitioner has been appointed on adhoc basis as Assistant Director, Handloom vide Order dated 26.04.1990 subject to clearance by the State Public Service Commission. On technical grounds, substantive appointment was not granted, as a result thereof, he has filed writ petition, SWP No. 570/1990, which was decided wherein he was found entitled to substantive appointment with effect from 26.04.1990 with a further observation that his seniority has not been properly fixed. 4. Vide Government Order No. 378-Ind of 1995 dated 27.11.1995, the seniority list was issued, wherein his name did not figure, whereas Sh. Farooq Ahmad Shah figured at S. No. 4. Aggrieved thereof, SWP No. 1362/1999 was filed which has been disposed of vide judgment dated 09.10.2006 with a direction to respondent No. 3 therein (Commissioner/Secretary to Government, Industries & Commerce Department, J&K, Civil Secretariat) to fix his seniority, vis-a-vis, Sh. Farooq Ahmad Shah. Once proper placement is fixed, he shall be entitled to all consequential benefits. Further, it has been directed that if the petitioner is found eligible and suitable, respondent No. 3 may consider recommending him for induction into KAS in accordance with rules. In compliance whereof, respondents have considered the case of the petitioner, which culminated into issuance of Government Order No. 200-Ind of 2010 dated 29.10.2010, wherein it has been concluded that Sh. Farooq Ahmad Shah has been appointed on 29.10.1987, whose seniority has been reckoned with effect from 29.10.1987 in the Handloom Development Department in terms of Government Order No. 269-Ind of 1993 dated 08.10.1993. The petitioner has been appointed on 26.04.1990, as such, has been placed appropriately in the seniority list. The petitioner has been considered for induction into KAS and stand inducted vide Government Order No. 1265-GAD of 2008 dated 25.09.2008. The seniority does not merit any modification. 5. The petitioner has been appointed on 26.04.1990, as such, has been placed appropriately in the seniority list. The petitioner has been considered for induction into KAS and stand inducted vide Government Order No. 1265-GAD of 2008 dated 25.09.2008. The seniority does not merit any modification. 5. In the Judgment dated 09.10.2006 rendered in SWP No. 1362/1999, the factual position to the following effect has not been noticed accurately:- "Sh. Farooq Ahmad Shah was not substantively appointed in the year 1987, as earlier appointment was withdrawn. Even his appointment as Assistant Director in the year 1989 was withdrawn vide Government Order No. 269-Ind of 1993 dated 08.10.1993. His seniority has been fixed with effect from 29.10.1987 which appears not in accordance with rules." 6. Sh. Farooq Ahmad Shah-respondent No. 6, vide Government Order No. 1953-GD of 1987 dated 29.10.1987, has been appointed as Technical Officer in the Industries and Commerce Department. Subsequently, vide Government Order No. 1537-GAD of 1989 dated 05.12,1989, Sh. Farooq Ahmad Shah, afresh has been appointed as Assistant Director, Handloom. This order, immediately after nine days, was withdrawn vide Government Order No. 1572-GAD of 1989 dated 14.12.1989, which reads as under:- "Government of Jammu and Kashmir General Administration Deptt. Sub: Transfer of Shri Farooq Ahmad as Assistant Director, Handlooms. Govt. Order No. 1572-GAD of 1989 Dated : 14-12-1989 In Supersession of Government Order No. 1537-GAD of 1989 dated 5-12-1989; Shri Farooq Ahmad, Technical Officer, Industries presently Public Relations Officer to Minister of State for Works, is transferred and his services are placed at the disposal of Additional Chief Secretary (Industries and Commerce) for his posting as Assistant Director, Handlooms. By order of Government of Jammu and Kashmir. Sd/- (Parvez Dewan) Secretary to Government General Admn Department No. GAD(ser)PRO-MOS(6)/87 Dated 14.12.1989" 7. The position of respondent No. 6, Sh. Farooq Ahmad Shah having been substantively appointed in the year 1987, has not been withdrawn at all and then vide Government Order No. 1572-GAD of 1989 dated 14.12.1989, as quoted above, his services have been placed at the disposal of Additional Chief Secretary (Industries and Commerce) for his posting as Assistant Director, Handloom. The question of withdrawal of appointment order dated 29.10.1987 is beyond imagination. Reference to Government Order No. 269-Ind of 1993 dated 08.10.1993 is suggestive of the fact that in pursuance to direction issued in SWP No. 774/93 CMP No. 4310/93, as was filed by said Sh. The question of withdrawal of appointment order dated 29.10.1987 is beyond imagination. Reference to Government Order No. 269-Ind of 1993 dated 08.10.1993 is suggestive of the fact that in pursuance to direction issued in SWP No. 774/93 CMP No. 4310/93, as was filed by said Sh. Farooq Ahmad Shah, his seniority was to be fixed as Assistant Director, Handloom in accordance with rules keeping in view his date of appointment. Said direction has been quoted in the said order and thereafter, his seniority, as Assistant Director, Handloom in the Cadre of Jammu and Kashmir Handloom Development Department (Gazetted) Service has been directed to be reckoned with effect from 29.10.1987, i.e., the date when he was appointed as Technical Officer in the Industries and Commerce Department. So order dated 08.10.1993 is to the advantage of said Sh. Farooq Ahmad Shah, whereunder his seniority has been fixed. The said order does not have the trapping of withdrawing his order of transfer and adjustment as Assistant Director, Handloom, as done in terms of Order No. 1572-GAD of 1989 dated 14.12.1989. 8. From perusal of the records and the respective pleadings, it is quite clear that respondent No. 6 has been appointed in the year 1987, his seniority has been directed to be fixed vide Government Order No. 269-Ind of 1993 dated 08.10.1993 reckonable from 29.10.1987, i.e, his first substantive appointment. 9. He (respondent No. 6) has been inducted into KAS vide Government Order No. 1532-GAD of 1997 dated 23.09.1997, then has been placed in Selection Grade of KAS vide Government Order No. 1622-GAD of 2002 dated 31st July, 2002. As compared to him, writ petitioner has been inducted into KAS vide Government Order No. 126-GAD of 2008 dated 25.09.2008. 10. Petitioner, in the aforestated background, has no case at all to claim himself to be senior to respondent No. 6. 11. Respondent No. 6 (Sh. Farooq Ahmad Shah) has been appointed on 29.10.1987 substantively which position has neither been challenged nor is now open to challenge. His position of having been posted as Assistant Director, Handloom, in terms of Government Order No. 1572-GAD of 1989 dated 14.12.1989 too has not been challenged. The position of his seniority having been fixed vide Government Order No. 269-Ind of 1993 dated 08.10.1993 has not been challenged, as such, is intact. His position of having been posted as Assistant Director, Handloom, in terms of Government Order No. 1572-GAD of 1989 dated 14.12.1989 too has not been challenged. The position of his seniority having been fixed vide Government Order No. 269-Ind of 1993 dated 08.10.1993 has not been challenged, as such, is intact. The fixation of his seniority vide Government Order No. 378-Ind of 1995 dated 27.11.1995 too is not open to question. 12. The consideration order, i.e., Government Order No. 200-Ind of 2010 dated 29.10.2010 passed in compliance to the judgment dated 09.10.2006 rendered in SWP No. 1362/1999, has not been challenged. 13. Respondent No. 6 has been inducted into KAS in the year 1997 and then into Selection Grade of KAS in the year 2002, same has attained finality. How the petitioner can claim to be senior and seek quashment of Government Order No. 1265-GAD of 2013 dated 04.09.2013, whereunder, respondent No. 6 has been placed in Super Time Scale of KAS and then how petitioner can claim induction into IAS, is not comprehensible. Moreso, he has been inducted into KAS in the year 2008 whereas respondent No. 6 has been inducted in the year 1997, so has become the member of the Administrative Officers under the provisions of J&K Administrative Officers (Gazetted) Service Recruitment Rules, 1996 [Refer JK'S Part D Gazetted Services Recruitment Rules (2nd Ed.) P-551] in the year 1997 whereas petitioner has become such member of Service in the year 2008, therefore, no comparison. 14. This writ petition has been filed so as to put the position of respondent No. 6 under cloud with a design to deprive him from getting further legitimate service benefits, as shall be permissible and available to him. 15. In the aforesaid background, petitioner's claim of being senior is beyond imagination, attempt of the petitioner is found to be uncalled for and inappropriate much to the inconvenience of the respondents, more particularly, to respondent No. 6. Petition, being devoid of merit, is dismissed with costs amounting to Rs. 20,000/-, to be deposited in the Advocates' Welfare fund. Interim direction dated 24.09.2013 shall cease to be in operation. 16. Dismissed as above along with connected CMA(s).