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2015 DIGILAW 535 (JK)

Hans Raj v. J&K SRTC

2015-10-06

DHIRAJ SINGH THAKUR

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JUDGMENT : Dhiraj Singh Thakur, J. 1. The petitioner, who is working as Conductor in the J&K State Road Transport Corporation (for short 'SRTC'), is aggrieved of the promotions of private respondent Nos. 8 and 9 as Junior Assistants on the ground that he was senior to the said respondents, but was never considered for promotion as Junior Assistant. It was urged that the petitioner was possessed of the eligibility conditions, which would make him entitled for such a consideration for promotion. The petitioner, therefore, seeks issuance of a writ of mandamus for directing the respondents to consider him for promotion as Junior Assistant w.e.f., 28.8.1997 when his juniors were so promoted and further to show him senior to the said respondents. 2. Objections have been filed by the SRTC wherein a stand has been taken that the petitioner could not be promoted as Junior Assistant though he was senior to private respondent Nos. 8 and 9 as he was shown to be not possessed of a matriculation diploma in the seniority list of Conductors circulated by the department. 3. It is urged that according to the rules, basic qualification at the relevant time was Matriculate as eligibility for promotion to the post of Junior Assistant. It was further stated that the petitioner had produced the requisite matriculation certificate after the issuance of the promotion order in respect of the matriculate conductors. Subsequently, it is stated that the recruitment regulations stood framed by the Corporation in 2013, according to which, the minimum qualification for promotion to the post of Junior Assistant has been prescribed as 10+2. 4. Heard learned counsel for the parties. 5. Article 16(1) of the Constitution of India guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office in the State. The phrase 'matters relating to employment' has a wide amplitude and covers even the case of promotion as has been held in General Manager, Southern Railway & Anr. v. Rangachari, AIR 1962 SC 36. What was stated by the Apex Court in the said judgment is reproduced hereunder: "This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is equality of opportunity and nothing more. Art. 16(1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. What was stated by the Apex Court in the said judgment is reproduced hereunder: "This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is equality of opportunity and nothing more. Art. 16(1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a selection post all that Art. 16(1) guarantees is equality of opportunity to all citizens who enter service." 6. What is alleged in the petition by the petitioner is that his case was never considered for promotion. On the other hand, the official stand is that the petitioner, with reference to the seniority list circulated, was shown to be an under matriculate and, therefore, on that basis, it is stated that his case could not be considered for promotion. 7. The reply affidavit, however, does not at all suggest that any effort was made by the Promotion Committee to verify as to whether the petitioner was, in fact, a matriculate or not on the date when the DPC was convened to consider the case of similarly situate other conductors for promotion as Junior Assistant. 8. The official respondents are placing reliance only on the fact that the petitioner was shown as an under matriculate in the seniority list circulated at the relevant time. No records have been produced before this court to show as to whether the petitioner was at all considered by the concerned DPC. On the other hand, the reply affidavit suggests that the petitioner did produce the matriculation certificate subsequently but the said reply is conspicuous by its silence on the issue as to whether on the relevant date, he was possessed of the said qualification. 9. On the other hand, the reply affidavit suggests that the petitioner did produce the matriculation certificate subsequently but the said reply is conspicuous by its silence on the issue as to whether on the relevant date, he was possessed of the said qualification. 9. In the absence of the records, which the official respondents had failed to produce and on the basis of the pleadings of the parties and the arguments addressed before this court, it can safely be presumed that the case of the petitioner was not considered for promotion at all along with the private respondent Nos. 8 and 9. The petitioner's right as enshrined under Article 16 had, thus, clearly been violated. 10. This petition is accordingly allowed. The respondents are directed to consider the case of the petitioner for promotion w.e.f. 28.8.1997. The respondents shall go into the question as to whether on the relevant date when the committee considered the cases of private respondent Nos. 8 and 9, the petitioner was possessed of the qualification of matriculation. In case, the petitioner is found to have possessed the said qualification and satisfied all other conditions, on the basis of which, private respondent Nos. 8 and 9 were promoted, then appropriate orders would be passed for giving him benefit of promotion w.e.f., 28.8.1997. In that event, the petitioner would naturally figure senior to the said private respondent Nos. 8 and 9 in the cadre of Junior Assistant. The petitioner would also be considered for giving notional benefits w.e.f. 28.8.1997. 11. The order of consideration shall be passed within a period of two months from today. Disposed of accordingly along with connected applications.