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2016 DIGILAW 128 (JK)

Zaffar-Ul-Islam Parray v. State of J&K

2016-03-22

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : MOHAMMAD YAQOOB MIR, J. 1. Father of the petitioner, Works Supervisor in the respondent department, died in harness on 13.05.2001. Petitioner (son) has been appointed vide order No. 61 of CA/MISC/2000 dated 31.05.2001 against the available post of Class IV in the pay scale of 2550-3200 in the irrigation Department in accordance with rule 3 of the Jammu and Kashmir Compassionate Appointment Rules, 1994 notified vide SRO 43 of 1994. 2. After a gap of six years from the date of appointment, petitioner filed SWP No. 1743/2007 projecting therein that he has been working against the post of Works Supervisor which post had fallen vacant due to the death of his father, as is clear from the endorsement made by the Executive Engineer, Irrigation Division, Anantnag while forwarding the order of appointment dated 31.05.2001 passed by Deputy Commissioner, Anantnag. Therefore shall be adjusted against the said post. The said writ petition has been disposed of vide judgment dated 05.10.2009, operative part of the judgment reads as under: "...Therefore, keeping in view the above circumstances and also the fact that the petitioner for all these years has been allowed to work against the post of Works Supervisor, the respondents would be at liberty to consider his case for promotion/appointment against a post in the lowest rank in the non-gazetted service subject to the availability of the said post and also keeping in view the eligibility of the petitioner in accordance with the rules. Let this consideration be done and appropriate orders passed within a period of four months from the date, a copy of this order is made available to the respondents by the petitioner. Writ petition shall stand admitted and disposed of accordingly along with the connected CMPs." 3. Respondent No. 2 (Chief Engineer, Irrigation and Flood Control Department) in compliance to the said judgment has accorded consideration to the case of the petitioner, as such, has passed order dated 9th March, 2011 which is impugned in this writ petition. 4. In the order impugned it has been mentioned that the petitioner had accepted the appointment, then after a gap of six years has challenged the same by medium of SWTP No. 1743/2007. 5. It is also mentioned therein that petitioner was appointed on compassionate basis in the year 2001, when he was only matriculate 10+2 has been passed after appointment. In the order impugned it has been mentioned that the petitioner had accepted the appointment, then after a gap of six years has challenged the same by medium of SWTP No. 1743/2007. 5. It is also mentioned therein that petitioner was appointed on compassionate basis in the year 2001, when he was only matriculate 10+2 has been passed after appointment. In addition thereto, petitioner neither possessed nor possesses the technical qualification required for the post of Works Supervisor. Finally, case of the petitioner has been rejected. 6. Learned counsel for the petitioner submitted that the petitioner possessed the qualification of 10+2 at the time of appointment, therefore, in terms of rule 3 of Compassionate Appointment Rules was entitled to be appointed to a lower post in the non-gazetted service, also highlighted that the petitioner is a very brilliant person, by now has acquired the qualification of Post-graduation and has also been discharging duties as Works Supervisor ever since his appointment, therefore, has a right to be adjusted against the said post. 7. Learned AAG in opposition rightly pointed out that in the year 2001 when the petitioner was appointed, he did not possess 10+2 qualification. He was simply a matriculate, therefore, has been rightly appointed against Class IV vacancy in-keeping with the mandate of Compassionate Appointment Rules. 8. The order of appointment has been issued on 31st May, 2001 by Deputy Commissioner, Anantnag. Copy of said order had been sent to various authorities including Executive Engineer, Irrigation Division, Anantnag who in turn had endorsed the same to various officers including AEE, Irrigation Sub Division, Anantnag, mentioning therein that the petitioner has been appointed in the pay scale of 2550-3200/against the post which has become vacant due to death of Shri Mohammad Sidiq Parray, father of the petitioner. By making this endorsement it does not mean that the basic appointment of the petitioner is altered. Petitioner firstly has not challenged the order of appointment for six long years, means he has accepted the appointment. Even otherwise when he did not possess the requisite qualification for the post of Works Supervisor at the time of appointment, he could not be appointed against the post of Works Supervisor, therefore has been rightly appointed against the Class IV post. 9. Even otherwise when he did not possess the requisite qualification for the post of Works Supervisor at the time of appointment, he could not be appointed against the post of Works Supervisor, therefore has been rightly appointed against the Class IV post. 9. For appointment against the post of Works Supervisor, petitioner was required to possess the qualification - as is prescribed by Schedule-C appended to the Jammu and Kashmir Public Health Engineering Department (Subordinate) Service Recruitment Rules, 1989. 10. Petitioner has been appointed on 31st May, 2001 against an available Class IV post in the pay scale of 2550-3200/- by the Deputy Commissioner, Anantnag and after having accepted the same had filed writ petition (SWP) No. 1743/2007 after a gap of six years which writ petition had been allowed but the operative part of the judgment as quoted above does not suggest that he was necessarily to be appointed/promoted to the post of Works Supervisor. Liberty had been given to the respondent-authorities to consider the case of the petitioner for promotion/appointment against a post in the lowest rank in non-gazetted service subject to availability of the post and also eligibility. 11. Promotion to the next higher post cannot be denied which right is available to the petitioner but subject to availability of the post and the eligibility. 12. When the petitioner did not possess the requisite technical qualification i.e. ITI certificate course in Civil Trade, he could not be considered for promotion for the post of Works Supervisor. No doubt respondents have admitted that the petitioner had been asked to look after the post of Works Supervisor, for that respondents can consider the grant of charge allowance if permissible under relevant rules. 13. While summing up what will emerge is that the petitioner vide order dated 31.05.2001 has been appointed against the available Class IV post in the pay scale of 2550-3200. The said order has been accepted by the petitioner, therefore, is not open to any question nor it could be because he was appointed on compassionate basis strictly in accordance with rules and on the basis of qualification he possessed at the time of his appointment. Acquiring higher qualification subsequently has no relevance except for future promotion that too subject to eligibility and availability of the promotional post. 14. In the totality of circumstances, no case is made out which would warrant interference. Acquiring higher qualification subsequently has no relevance except for future promotion that too subject to eligibility and availability of the promotional post. 14. In the totality of circumstances, no case is made out which would warrant interference. The order impugned passed by respondent No. 2, as such is maintained, petition accordingly, dismissed.