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2015 DIGILAW 400 (JK)

Mir Rehmat-u-Lah & Anr. v. State & Ors.

2015-08-11

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT 1. The petitioners and private respondents are both physically challenged persons. They are working in the Department of Radiology in Sher-i-Kashmir Institute of Medical Sciences (SKIMS), Srinagar. 2. In terms of Order No. 12-SKIMS of 2014, dated 14-02-2014, the private respondents have been appointed by way of promotion on the posts of Technologists Grade-II from the post of Technologist Grade-I in the pay scale of Rs. 9300-34800+GP Rs. 4260. It is provided in the order that the order of promotion shall take effect subject to conditions contained in Government Order No. 362-GAD of 1992, dated 29-04-1992. It is this order which is called in question in this writ petition on the principal ground that the private respondents are junior to the petitioners. Copy of the final Seniority List of Technician-I/II, as on 30-09-2011. has been placed on record by the petitioners as Annexure (A) to indicate that they figure at S.Nos. 3&4 in the category of Technician-I, whereas private respondents figure at S.Nos. 7&8. 3. Respondents have filed Reply Affidavit. They have placed on record copies of Office Order No. SIMS(P) of 1997, dated 24-11-1997, whereunder the private respondents have been placed in the higher grade of Rs. 1400-2600 (Dark Room Technicians). They have also placed on record copy of Office Order No. 27(P) of 2012, dated 21-02-2012, whereunder it has been ordered that the condition, incorporated in the order dated 24-11-1997 that promotion will take effect when the private respondents join the post physically as provided in Government Order No. 362-GAD of 1992, dated 29-04-1992, is waived retrospectively. Thereafter, in terms of Office Order No. SIMS 55(P) of 2013, dated 26-03-2013, respondents -- SKIMS ordered that the release of higher grade of Rs. 5000-8000(PR) issued vide order dated 24-11-1997 shall take effect from 12-08-1994 instead of 24-11-1997. Thereafter final Seniority List of Technician Grade-I, as it stood on 31-08-2013, has been issued, in which the private respondents figure at S.Nos. 1 & 2 and petitioner at S.Nos. 5 & 6. 4. In terms of Office Order No. SIMS-396 OF 1983, dated 15-03-1983, Annexure (C) to the Reply Affidavit, filed by private respondents, sanction has been accorded to the appointment of persons mentioned therein as Dark Room Attendants in the grade of Rs. 390-500. In the said order, the private respondents figure at S.Nos. 1&4, whereas petitioners figure at S.Nos. 7&8. 5. Mr. 390-500. In the said order, the private respondents figure at S.Nos. 1&4, whereas petitioners figure at S.Nos. 7&8. 5. Mr. G.N. Shaheen, learned counsel for the petitioners submitted that the private respondents, having not physically joined on the higher post in terms of Government Order No. 362-GAD of 1992, dated 29-04-1992, they will not get the benefit of higher grade, which was released in their favour in terms of order dated 24-11-1997. He also submitted that the documents, which have been now placed on record by the private respondents, were not available to the petitioners despite they having made application under Right To Information Act (RTI). Mr. Shaheen also submitted that the private respondents have made a representation to the SKIMS Authorities for shifting them to Government Medical College (GMC), Jammu, to which request, some of the authorities in SKIMS have acceded to. Learned counsel submitted that if the private respondents are shifted to GMC, Jammu, on humanitarian grounds, then the petitioners will also be accommodated. 6. Admittedly, at the time of appointment as Dark Room Attendants in the year 1983, the private respondents were senior to the present petitioners. Because of their (Private respondents') migration from the valley, it appears that their case for grant of grade promotion was not considered in the year 1994, when same benefit was given to the petitioners. Government Order No. 362-GAD of 1992, dated 29-04-1992 provided that the order of promotion in favour of migrants shall take effect and they shall get benefit of the same after joining their new posts on which they have been promoted. This order will not be applicable to the case of the petitioners and private respondents, in as much as, the post of Dark Room Technician is carried on 02 grades, viz. Rs. 4000-6000 & Rs. 5000-8000 (pre-revised). 7. In terms of Rule 2(h) of Civil Services (Classification, Control and Appeal) Rules, 1956 (for short Rules of 1956), promotion means appointment of a member of service or class of service, in any category or grade who have category or grade of such service or class. Thus, promotion would mean appointment of member of service or a class on service in any category or grade to higher category or grade of such service or class. As already stated, the post of Dark Room Technician is carried on 02 pay scales. Thus, promotion would mean appointment of member of service or a class on service in any category or grade to higher category or grade of such service or class. As already stated, the post of Dark Room Technician is carried on 02 pay scales. The higher pay scale in terms of Rule 2(h) of Rules of 1956 would constitute promotion to higher grade but it will not constitute promotion to higher post as the post remains same, viz. Dark Room Technician. 8. Government Order No. 362-GAD of 1992, dated 29-04-1992 refers to promotion from one post to another. The said order would not be attracted in this case, at the stage of grant of promotion to higher grade in respect of the same post. The private respondents, who were already holding the posts of Dark Room Technicians and were given benefit of grade promotion, had not to join on another higher post. The condition contained in office Order No. SIMS 181(P) of 1997, dated 24-11-1997, while promoting the private respondents to higher grade attached to the same post, viz, Dark Room Technician, could not be attached to the said order. The condition so attached was superfluous. The respondent-SKIMS has rightly issued Office Order No. 27(P) of 2012, dated 21-02-2012, whereunder it has been clarified that the conditions laid down in Government Order No. 362-GAD of 1992, dated 29-04-1992 have been, inadvertently, incorporated in order dated 24-11-1997. 9. In sequel to the aforesaid order, Office Order No. SIMS 55(P) of 2013 dated 26-03-2013 has been rightly passed by giving benefit of grade promotion to the private respondents with effect from 12-08-1994 instead of 24-11-1997. The moment the said order took effect and validly so, the private respondents, in view of their initial appointment and seniority, had to figure senior to the petitioners in the Seniority List because they were senior to them in their appointment order as also in the Seniority List. 10. Since the private respondents rank senior to the petitioners in the Seniority List of Technician-I, as on 31-08-2013, they, on the basis of their seniority, have been rightly promoted to the next higher post of Technician Grade-II in terms of impugned order of promotion. 11. For the above stated reasons, there being no merit in this petition, it is, accordingly, dismissed along with connected lAs. Interim direction, if any, shall stand vacated. Petition dismissed