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2015 DIGILAW 374 (JK)

Farooq v. State

2015-07-29

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J. A. SWP No. 06/2010 1. The challenge in this petition is to Order No. 535/DSMG of 2009 dated 29.12.2009 issued by the Director, State Motor Garages, respondent No. 2 herein, in so far as it promotes respondent No. 3 as Inspector in the State Motor Garages. The petitioners are also seeking a writ of mandamus declaring the qualification of matriculation for promotion to the post of Inspector in terms of Schedule II of J & K State Motor Garages (Subordinate) Service Recruitment Rules, 2004 as ultra-vires to the Constitution of India. They are also seeking a direction to the respondents to promote them against the post of Inspector. The facts as projected in the writ petition are that initially the petitioners came to be appointed as Cleaners in the State Motor Garages on 21.11.1972 and 01.03.1977 respectively. With the passage of time they earned promotions. Both of them came to be promoted as Electrician on 17.04.1980 and 22.04.1983 respectively, whereas respondent No. 3 came to be appointed as Electrician on 15.11.1991. It is averred that in the meanwhile recruitment rules known as the Jammu & Kashmir State Motor Garages (Subordinate) Service Recruitment Rules, 2004 (for short, Recruitment Rules of 2004) came into force on 03.09.2004. And, in terms of Schedule II Class I of said Rules, the incumbents must have the qualification of matriculation at their credit for seeking promotion to the post of Inspector, besides five years service in the feeding cadre. It is averred that after coming into force these rules, respondent No. 2 issued the final seniority list of Electrician on 17.05.2005, wherein petitioner No. 1 stood at Sr. No. 1, petitioner No. 2 at Sr. No. 5, whereas respondent No. 3 was at S. No. 6 in the said list. It is averred that the final seniority list clearly revealed that the petitioners were senior to respondent No. 3, but despite that respondent No. 3 came to be promoted as Inspector vide Order No. 535/DSMG of 2009 dated 29.12.2009 issued by respondent No. 2, impugned herein, thereby ignoring the claim of petitioners on the ground that they lacked the qualification of matriculation, necessary for according promotion to the post of Inspector in terms of Recruitment Rules of 2004. Being aggrieved of the same, the petitioners have filed the present writ petition. 2. Being aggrieved of the same, the petitioners have filed the present writ petition. 2. It would be relevant to mention here that earlier also petitioner No. 1 had filed SWP Nos. 996/1995, 2301/1999 and 2220/2002 in this Court. In SWP No. 996/1995 this Court, while observing that petitioner No. 1 had a case for consideration, directed the official respondents to consider the case of petitioner for promotion to the post of Foreman within a period of two months vide judgment and order dated 27.06.1996. 3. The contention of learned counsel for petitioners is that at the time of joining their service, the petitioners were not governed by the Recruitment Rules of 2004; rather their promotions were governed on the basis of seniority in the particular cadre. The order impugned, therefore, in so far as it promotes respondent No. 3 to the post of Inspector thereby ignoring the genuine claim of petitioners being senior to him is nothing but violation of Articles 14 & 16 of the Constitution of India. He further contended that making mandatory the qualification of matriculation for promotion to the post of Inspector in the Recruitment Rules of 2004 has converted the service conditions of petitioners to their-detriment. Learned counsel, therefore, prays that this part of the Recruitment Rules of 2004 be declared as ultra vires to the Constitution of India. 4. Learned counsel further contended that the Recruitment Rules of 2004 have further taken away the promotional prospects of petitioners, as their juniors, who were appointed much after them, are being made senior to them. 5. The next contention of learned counsel for petitioners is that in OWP No. 996/1995 this Court vide judgment dated 27.06.1996 had directed the official respondents to consider the case of petitioner No. 1 for promotion to the post of Foreman, but the respondents had failed to implement the said judgment despite the fact that the post of Foreman was available with them. Not only this, the persons junior to him came to be promoted to higher posts even before coming into force the Recruitment Rules of 2004. Petitioner No. 1 has relied upon one such order, bearing No. 181/GSMG dated 09.05.2002, whereby one Ghulam Hussain, Welder had been promoted to the post of Inspector. Not only this, the persons junior to him came to be promoted to higher posts even before coming into force the Recruitment Rules of 2004. Petitioner No. 1 has relied upon one such order, bearing No. 181/GSMG dated 09.05.2002, whereby one Ghulam Hussain, Welder had been promoted to the post of Inspector. It is contended that when petitioner No. 1 challenged the said order, official respondents had extended assurance to petitioner No. 1 that he would also be promoted similarly, but nothing has happened till date. 6. In the rejoinder filed by the petitioners, it is averred that the post against which respondent No. 3 has been promoted as Inspector was, in fact, very much available prior to coming into force the Recruitment Rules of 2004, which was vacated by one Ghulam Hussain. It is averred that petitioner No. 1 even challenged the promotion of said Ghulam Hussain against the post of Inspector in SWP No. 2220/2002, and the said petition is still pending adjudication. Thus, it is contended that the post which was available even before coming into force the Recruitment Rules of 2004 cannot be allowed to be occupied by respondent No. 3, that too when a lis in respect of the said post was still pending before this Court in the aforesaid writ petition. 7. Lastly it is contended by learned counsel for petitioners that the right of petitioners in respect of the posts of Foreman and Inspector, which were existed prior to the enforcement of Recruitment Rules of 2004, cannot be affected because of these rules. 8. Objections/counter have been filed on behalf of respondents. Respondents 1 & 2 in their objections have averred that the promotion of respondent No. 3 to the post of Inspector has been made in accordance with the Recruitment Rules of 2004 notified vide SRO 293 dated 03.09.2004, as he was having the requisite qualification of matriculation, whereas the petitioners were not found eligible for promotion against the said post. It is also averred that respondent No. 3 belongs to Scheduled Caste Category and even under reservation roster he was eligible to be promoted to the next higher post. It is also averred that respondent No. 3 belongs to Scheduled Caste Category and even under reservation roster he was eligible to be promoted to the next higher post. Further, it is averred that petitioner No. 1 being an Electrician, having limited knowledge of repairing job of vehicles, could not be considered against the post of Foreman, as the said post is supervisory in nature, which requires full knowledge of vehicle mechanism. 9. Heard learned counsel appearing for the parties and perused the writ record. 10. Indisputably, the petitioners came to be appointed much prior to respondent No. 3 and certainly were senior to him. Prior to coming into force the Recruitment Rules of 2004, promotions to the next higher posts were being accorded on the basis of seniority. It has not been denied by the official respondents that the persons junior to petitioner No. 1 came to be promoted against higher posts even before coming into force the Recruitment Rules of 2004. It has also not been denied by them that even after framing of Recruitment Rules on 03.09.2004, final seniority list of Electricians came to be issued on 17.05.2005 by respondent No. 2 himself, wherein petitioners had been shown senior to respondent No. 3. It has also not been denied that the post against which respondent No. 3 has been promoted as Inspector was very much available even prior to coming into force the Recruitment Rules of 2004, nor it has been denied that one Sudershan Kumar, who was also an Electrician, came to be promoted against the post of Foreman. The plea of official respondents that respondent No. 3 being under Scheduled Caste Category was otherwise eligible to be promoted to the post of Inspector under reservation roster is nothing but a willful attempt and clumsy ground to divert the actual issue. If that was the position, then petitioner No. 2 was required to be considered first for promotion being a Scheduled Caste candidate and senior to respondent No. 3. 11. Annexure "E" is communication date 15.10.1996 addressed to the Deputy Director (Garages) by the Director (Garages), which reveals that case of petitioner No. 1 for promotion to the next higher post was likely to be considered by the Departmental Promotion Committee within next two months. 11. Annexure "E" is communication date 15.10.1996 addressed to the Deputy Director (Garages) by the Director (Garages), which reveals that case of petitioner No. 1 for promotion to the next higher post was likely to be considered by the Departmental Promotion Committee within next two months. Annexure "F", i.e., communication dated 30.01.1997, reveals that the case of petitioner No. 1 for promotion was to be considered in the light of court directions, but nothing happened even after lapse of two decades. A perusal of the with record reveals that petitioner No. 1 was never considered for promotion right from the year 1995, firstly on the ground that he was not eligible to be promoted to the post of Foreman - the post being supervisory in nature and then on the ground that in terms of Recruitment Rules of 2004 he was ineligible to be promoted against the post of Inspector being not possessing the qualification of matriculation. 12. The Apex Court in Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 , while observing that the vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the un-amended rules, has held as under: "9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion/The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to 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." 13. A coordinate Bench of this Court in case, titled as, Mohinder Kour v. State, 2011 (2) JKJ 955 [HC], held as under: "8 There is, thus, merit in the petitioners claim that even if, the respondents are held to have absolute authority to revise, amend or recast the Recruitment Rules, the vacancies available before 2008 Rules came into force were to be filled up in accordance with 1979 Rules. The petitioners on the vacancies of Laboratory Assistants becoming available acquired a right to be considered for promotion against the quota available to them in accordance with Rules occupying the field and the right that accrued to the petitioners cannot be taken away by the revised Rules." 14. Therefore, in view of the facts as discussed above and the ruling of Supreme Court, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed. The petitioners, as per their seniority, are held entitled to promotion to the next higher posts which were available before coming into force the Recruitment Rules of 2004. Since petitioner No. 1 has already retired from service, he would be entitled to promotion to the next higher post with effect from the date the post had fallen vacant with all consequential/retiral benefits under rules. Similarly, petitioner No. 2 would also be entitled to promotion to the next higher post, if the post had actually fallen vacant before coming into force the Recruitment Rules of 2004. Since the Recruitment Rules of 2004 are prospective in nature, the promotion of respondent No. 3 to the post of Inspector, if made against the post which was available prior to coming into force these rules, shall stand quashed. Let the relevant orders in this regard be issued within a period of two months from today. 15. Before parting, I deem it proper to notice here that petitioner No. 1 came to be promoted to the post of Electrician on 17.04.1980. Let the relevant orders in this regard be issued within a period of two months from today. 15. Before parting, I deem it proper to notice here that petitioner No. 1 came to be promoted to the post of Electrician on 17.04.1980. He filed his first writ petition before this Court in the year 1995 seeking a direction to the official respondents to accord him promotion to the next higher post, and since then, i.e., for the last more than two decades, he is hankering for getting promotion. And, in the melee, he has since been retired. I really do not appreciate the manner in which the State took the judicial process for a ride and rejected the case of petitioner No. 1 on one or other pretext. In the peculiar facts and circumstance of this case, the State is directed to bear and pay the costs to petitioner No. 1 within a period of two months from today after proper verification and identification, which is quantified at rupees thirty thousand. It is made clear that in case the official respondents fail to deposit the costs within the aforesaid period, Registrar (Judicial) is directed to frame a separate robkar against them, and after issuing notice to them, list the same before the Court. 16. Disposed of along with connected miscellaneous petitions. B. SWP No. 2220/2002 Consequent upon allowing of SWP No. 06/2010, nothing survives in the present petition and the same is, accordingly, disposed of.