Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 610 (JK)

P. P. KAUL v. STATE OF J&K

2015-11-20

N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasanthakumar, J. This writ petition is filed seeking to quash the promotion given to the private respondents, promoting them as Workshop Superintendents/HODs and subsequent promotion in suppression to the superior claim of the petitioner and for directing the official respondents to give retrospective promotion to the petitioner as Workshop Superintendent in Govt. Polytechnic, Jammu w.e.f. November, 1990 i.e., the date on which the petitioner attained the eligibility for promotion or in the alternative to promote the petitioner from the date when private respondent No.3 was promoted with all monetary benefits. 2. During the pendency of the writ petition, the petitioner on reaching the age of superannuation retired from service. Learned senior counsel appearing for the petitioner fairly submitted that at this stage, prayer to quash promotions given to the private respondents and giving retrospective promotion to the petitioner may not arise, however, the petitioner is entitled to notional promotion from the date promotion was given to his junior namely 3rd respondent at-least for the purpose of fixing his pension. 3. The case of the petitioner is that while working as Demonstrator, K.G. Polytechnic, Srinagar, he was promoted as Lecturer Metallurgy in the year 1979. In the year 1990, the post of Workshop Superintendent had fallen vacant due to retirement of one M.L. Dhar and for filling up of the said post, persons working in the Lecturer grade with prescribed qualification in the appropriate branch have to be considered. According to the petitioner, he was the only person, in terms of the rules, eligible to get promotion. The petitioner was not promoted and in the year 1994 respondent No.3 was promoted as Workshop Superintendent ignoring the claim of the petitioner. The petitioner raised objection but despite that 3rd respondent was promoted against the vacancy at Srinagar. However, he did not join and later on by order dated 14.01.1994 he was adjusted against available vacancy of IIOD in Govt. Women Polytechnic College, Jammu. Thus, the HOD, KG Polytechnic became vacant. 4. The petitioner was not given promotion and one D.N. Koul was put as In-charge Principal, Govt. Polytechnic, Jammu. Once again the post of HOD Govt. Polytechnic, Jammu became vacant because of adjustment of one D. Sharma as In-charge Principal, Govt. Women Polytechnic College, Srinagar but again against that post petitioner's claim was not considered. Again one post of Workshop Superintendent in Govt. Polytechnic, Jammu. Once again the post of HOD Govt. Polytechnic, Jammu became vacant because of adjustment of one D. Sharma as In-charge Principal, Govt. Women Polytechnic College, Srinagar but again against that post petitioner's claim was not considered. Again one post of Workshop Superintendent in Govt. Polytechnic, Jammu became vacant from 02.05.1997 and for that vacancy also petitioner's claim was not considered. Accordingly, the petitioner's right to be considered for promotion was denied in November 1990, January 1994, May 1995, June 1996, August 1996 and May 1997, even though he was the only senior most claimant for the post with full qualification for promotion to the post of HOD, Mechanical Engineering workshop Superintendent. 5. Respondent No.3 was not qualified in Mechanical Engineering as he only possess degree in Metallurgy which is a different branch and he was also not having sufficient teaching experience in mechanical engineering discipline. The petitioner passed AMIE (Mech. Engineering) in 1980 and therefore, he became eligible for promotion to the post of HOD/Workshop Superintendent. According to the petitioner, the 3rd respondent was entitled to be promoted as Work Superintendent only in the year 1994 and the petitioner was to be promoted as Work Shop Superintendent in the year 1990 and the 3rd respondent was eligible to be promoted as Principal in the year 2001, however, he was promoted as Principal in the year 1997. Thus, the petitioner is entitled to be promoted to the respective posts at-least from the date promotions were given to the 3rd respondent. 6. Respondent Nos. 1 to 4 opposed the writ petition by contending that the petitioner has got a right to be considered for promotion and not promotion as a matter of right. The petitioner was initially promoted as Junior Engineer in ITI sector on 20.09.1973 and his services were transferred to KG Polytechnic Srinagar against an available post of Demonstrator (Metallurgy Engineer) by order dated 31.03.1976. Pie was transferred to the College only from 31.03.1976 and his seniority was fixed only from the said date. He was promoted as Lecturer in the discipline of Metallurgical Engineer by order dated 16.04.1981 giving retrospective effect from 26.03.1979 and ranked at serial No.2 in the seniority list of Lecturers i.e. junior to Shri S.C. Sharma, the 3rd respondent. Pie was transferred to the College only from 31.03.1976 and his seniority was fixed only from the said date. He was promoted as Lecturer in the discipline of Metallurgical Engineer by order dated 16.04.1981 giving retrospective effect from 26.03.1979 and ranked at serial No.2 in the seniority list of Lecturers i.e. junior to Shri S.C. Sharma, the 3rd respondent. The seniority of the petitioner along with other officers working in the discipline of Mechanical Engineering and Metallurgical Engineering was combined and based on the combined seniority list and eligibility, promotions to the higher post of HODs/Workshop Superintendents were made by the DPC/PSC from time to time. On the said objections filed, respondent Nos. 1 to 4 prayed for dismissing the writ petition. 7. Learned senior counsel appearing for the petitioner argued that even though combined seniority was drawn, as per rules, the persons having qualification in the appropriate branch with 5 years experience alone can be promoted and the vacancy having arose in Mechanical Engineering, person possessing Mechanical Engineering alone can be posted as HOD/Workshop Superintendent and if promoted as HOD at the relevant time he should have been subsequently promoted as Principal. The said aspect has not been answered by the official respondents. 8. I have considered the submissions of learned senior counsel appearing for the petitioner and relevant issues. 9. It is true that a combine seniority list was drawn. The contention of the petitioner is that as per Recruitment Rules, if a HOD post became vacant, the person in that branch and in this case Mechanical Engineering branch alone can be posted as HOD. It is not in dispute that HOD post became vacant in Mechanical Engineering and not in Metallurgy Engineering. Thus the petitioner is bound to be considered for promotion as and when the vacancy arose in the HOD cadre in Mechanical Engineering in Polytechnic. 10. The only objection raised is that as per combined seniority list, the 3rd respondent being shown as senior he was given promotion. Combined seniority may not be relevant factor particularly when the rules Contemplate that a person promoted for HOD shall possess branch in which the post is vacant and the person should be qualified in that branch. The 3rd respondent was from other branch. The said aspect has not been considered by the official respondents. Combined seniority may not be relevant factor particularly when the rules Contemplate that a person promoted for HOD shall possess branch in which the post is vacant and the person should be qualified in that branch. The 3rd respondent was from other branch. The said aspect has not been considered by the official respondents. The petitioner has already retired from service; hence no purpose would be served by allowing the writ petition as prayed for, however, as contended by learned senior counsel for the petitioner, a direction is issued to the official respondents to re-consider the claim of the petitioner seeking notional promotion to the post of HOD in the department of Mechanical Engineering from 1990 and consequently as Principal from 1994 i.e. the date on which such promotion was given to the 3rd respondent, for the purposes of fixing retrial benefits namely pension. Necessary orders in this regard be passed by the official respondent Nos. 1 and 2, within a period of three months from the date a copy of this order is served on them. 11. This writ petition is disposed of in the above terms. No costs.