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2015 DIGILAW 112 (JK)

Madan Lal Rahmotra v. State of J&K

2015-03-19

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. The controversy, in nut shell, as to be resolved in this petition is as to whether out of total strength of 649, 50% of the posts of Agriculture Extension Officers and others as figure at S. No. VII, in Schedule I of the Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1988, is to be filled up from amongst the Village Extension Workers (VEWs), as then was, now known as Junior Agriculture Officers. As per S. No. VI, Schedule-1 of the Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1978 notified vide SRO 134, said posts were to be filled up by direct recruitment method. Now the said Rules stand repealed by the Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1988. In Schedule-1 S. No. VII of the Rules of 1988, the said posts as figure at S. No. VI of the Rules of 1978 are to be filled up by 50% direct and 50% by promotion method from Village Extension Workers. 2. Now, out of total cadre strength of 649 of said posts, the share of the promotion quota shall be 325 whereas for direct recruitment quota, it shall be 324. As on date, 414 posts are already occupied by direct recruits, which mean, they have exceeded the share. 3. The question arose as to whether the cadre strength is to be taken of the available posts as on the date of notification of Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1988 or it is to be taken, as was available from the date of earlier Rules of 1978. 4. The question finds answer from the Rules of 1988. Rule 13 of Rules 1988 is relevant to be quoted. It reads as under:-- "(1) All rules corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed. (2). Notwithstanding such repeal, any appointment order, made or action taken under the provisions of the rules so repealed shall be deemed to have been made on or taken under the corresponding provisions of these rules." Rule 13 (2) in clear terms provides that any appointment made or action taken under the provisions of the rules so repealed shall be deemed to have been made under the corresponding provisions of these Rules. This position gets further strengthened by Rule 3 of the said Rules, which reads as under: "3. Constitution of service:-- (1) From the date of commencement of these rules there shall be constituted the Jammu and Kashmir Agriculture (Gazetted) Service. (2) The Government may, at the commencement of these rules, appoint to the service any person who at the commencement of these rules is holding any post in its sanctioned scale of pay included in the cadre of the service: Provided that for the purposes of initial constitution of the service the person holding any post included in the cadre of the service in its sanctioned scale of pay shall be deemed to have been appointed to the service under these rules if he is qualified to hold the post." 5. Proviso to sub-rule (2) in clear term suggests that the appointments shall be deemed to have been made under the rules of 1988 provided the person was qualified for the post. Rule 3 also provides for constitution of service. In this connection, Government order has been issued and the posts which fall in category-VII of Schedule-1 have been splitted and number of posts have been shown as against each category but the total strength remains the same, i.e., 649. 6. The objections as have been filed by the respondent No. 1 also make it clear that the post of Village Extension Worker was treated as feeding cadre for promotion to the post of Agriculture Extension Officer and equivalent posts in terms of the Jammu and Kashmir Agriculture (Gazetted) Service Recruitment Rules, 1988. The total strength of the posts of Agriculture Extension Officers was 649, out of which 414 vacancies were occupied by the officers recruited under 1978 Rules. According to the objections, 50% of the balance vacancies shall go to the promotion quota. 7. In the reply, position of the vacancies have been tabulated as under:-- Sanctioned Strength as on 02.06.1988 649 Officers in position as on 02.06.1988 414 Available vacancies as on 03.06.1988 235 Less technical posts (as per Govt. Order No. 14- Agri of 2005 dt: 17.01.2005) 16 Total vacancies of AEOs and equivalent as on 03.06.1988 189 8. 7. In the reply, position of the vacancies have been tabulated as under:-- Sanctioned Strength as on 02.06.1988 649 Officers in position as on 02.06.1988 414 Available vacancies as on 03.06.1988 235 Less technical posts (as per Govt. Order No. 14- Agri of 2005 dt: 17.01.2005) 16 Total vacancies of AEOs and equivalent as on 03.06.1988 189 8. Available Table suggests that 16+30 respectively are reserved for technical posts and SCA (Engineering) which means 46 posts have to be subtracted from total number of 649, which would mean the total strength to be shared by both the sources, i.e., promotion quota and direct quota shall remain 603. Out of 603, 301 posts will go to the direct quota and 302 will go to promotion quota. 9. Now the method is to be evolved so as to maintain balance between the two sources. If direct recruits occupy more than 301 posts that will remain as it is but the balance vacancies as are available, shall go to the promotion quota and in future when such vacancies arise, same shall go to promotion quota till the balance 50% to each service is achieved. 10. The contention of the respondent-State that the cadre strength was to be taken as available when the Rules of 1988 came into force pales into insignificance in view of the clear Rule position, i.e., saving clauses in the form of proviso to sub-rule (2) of Rule 3 and sub rule (2) of Rule 13 of 1988 rules. 11. To sum up, henceforth, whatever vacancies are available and will arise from amongst category-VII as figure in Schedule-1 of 1988 Rules, the same will go to the promotion quota till the 50% quota, i.e., at present 301 is completed. Petition, accordingly, disposed of along with connected CMAs.