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J&K High Court · body

2015 DIGILAW 55 (JK)

Subash Chander Heeer v. State of J&K & Anr.

2015-02-26

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : 1. At the very outset it was pointed out that one more petition SWP No. 94/2013 pertaining to the same subject is pending. Same was called for from the Registry as such received. Both the petitions are taken up together for final disposal with the consensus of learned counsel for the parties. Petitioner admittedly is an employee of the respondent-department. He was working as Laboratory Attendant. Service conditions/ recruitment/ promotion were governed by Jammu and Kashmir Health and Medical (Sub ordinate) Services Recruitment Rules, 1992. Later on there has been segregation of one wing of the same department, i.e., Drug and Food Control Organization. For governing the service conditions of the said wing. Draft Rules had been prepared under the caption (Ministerial) J&K Drug & Food Control Organization (Subordinate) Service Recruitment Rules, 2007. The said draft Rules were not finalized as a result whereof Government order No. 39-HME of 2008 dated 11.01.2008 had been issued by Government in terms whereof it has been provided that till the finalization of the Recruitment Rules for the Non-gazetted posts, the method of recruitment to these posts shall be governed by draft Recruitment Rules forming Annexure to the Government order as Schedule I & II. 3. In terms of the draft Recruitment Rules as against the post of Laboratory Technician, 75% has to be by direct recruitment whereas 25 % by promotion from class-(a) Category-V having three years of experience possessing a degree in Science with Chemistry or SMF Training whereas in terms of the earlier Rules, i.e., Jammu and Kashmir Health and Medical (Subordinate) Services Recruitment Rules, 1992 as against the post of Laboratory Technician, the method of recruitment was 100% by promotion from Laboratory Assistant having five years of experience. In the Rules of 1992, the post of Laboratory Attendant was not a feeding cadre for filling the post of Laboratory Assistant. 4. The challenge thrown by learned counsel for the petitioner on the count that draft Recruitment Rules are not applicable and its applicability through executive orders is unwarranted so he would claim that promotion has to be governed by Rules of 1992. On such basis he has thrown challenge to the advertisement Notice No. 02 of 2008 dated 25.04.2008 whereunder applications have been invited against one vacancy of Laboratory Technician in Health (Food Org.). On such basis he has thrown challenge to the advertisement Notice No. 02 of 2008 dated 25.04.2008 whereunder applications have been invited against one vacancy of Laboratory Technician in Health (Food Org.). Similarly he has also thrown challenge to the another advertisement Notice inviting applications for the two posts of Laboratory Technician advertised vide Notification No. 03 of 2012 dated 28.12.2012 which being the subject matter of another writ petition SWP No. 94/2013 filed by the petitioner. 5. The contention has fallen flat in view of the fact which has been rightly pointed out by Mr. Siddiqui that the petitioner is beneficiary of the draft Recruitment Rules which are being followed in view of the executive instructions issued by Government vide order No. 39-HME of 2008 dated 11.01.2008. The same position is supported by the records which would suggest that the petitioner (Laboratory Attendant) vide order No. 149 of 2008 dated 18.01.2008 in pursuance to the Government Order No. 39-HME of 2008 dated 11.01.2008 (pursuant to which draft Recruitment Rules are being followed) has been promoted as Laboratory Assistant which was not permissible under 1992 Rules, wherein Laboratory attendant is not the feeding cadre for promotion to the post of Laboratory Assistant. When it is so, the challenge thrown on such count is not available to the petitioner being the beneficiary of the draft Rules. 6. Confronted with the stated position learned counsel for the petitioner would submit that still as per the draft Rules 25% of vacancies are to be filled from the promotion quota. This submission has substance as subsequent to the two advertised Notices as are under challenge. Two posts were noticed to be available as is clear from the communication bearing No. PHL/J/Estb/66/37-38 dated 15.04.2013 addressed to the Controller, Drugs and Food Control Organization by Public Analyst (Food Analyst) Jammu, photocopy of which is produced by learned counsel for the petitioner, Same is taken on record. In the communication it is mentioned that vide Government Order 200-HME of 2013 dated 25.03.2013 four posts of Laboratory Technician have been created. 7. It is now clear that in addition to the three posts advertised, six more posts have become available taking the ratio of 25% for promotion quota, fourth and eighth post has to be filed from amongst the promotees. 8. 7. It is now clear that in addition to the three posts advertised, six more posts have become available taking the ratio of 25% for promotion quota, fourth and eighth post has to be filed from amongst the promotees. 8. The two petitions as filed throwing challenge to the two advertisement notices inviting application respectively viz-a-viz one and 2 posts of Laboratory Technicians are no more to be granted as the three posts would automatically go to the direct quota. Petitioner has a right against the fourth vacancy which now has become available. 9. The process for filing up the vacancies initiated vide two advertisement notices in the year 2008 and 2012 shall be finalized. Petitioner now has every right to be considered for promotion as against the fourth vacancy. 10. Petitioner a senior most Laboratory Assistant and admittedly has been working against the post of Laboratory Technician in his own pay and grade from 2013 shall be considered along with other eligible in-service Laboratory Assistants, if any for promotion as against fourth vacancy from the date it has become due. 11. Respondents-authorities shall initiate the process as prescribed and pass the appropriate orders within a period of four weeks from the date copy of judgment is served upon them. 12. Both the petitions are accordingly disposed of.