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2016 DIGILAW 312 (JK)

Shubeena Rahim v. State of J&K

2016-06-03

N.PAUL VASANTHA KUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed praying for issuing Writ of Mandamus directing the official respondents to allow the petitioner to join as Field Assistant in pursuance of Order No. 62 of 2000, dated 16.08.2000 with retrospective effect and pay compensation to him. According to the petitioner, she has passed T.D.C. Part-II in Commerce and has been engaged as Daily Wager vide order dated 01.03.1994. She continues to work in the Lakes Division (Civil Division 1st.), Srinagar. The Board of Directors decided to strengthen the ecological monitoring Laboratory which is working under the authority of J&K Waterways Development Authority, and the Directorate Office of Lakes and Waterways Development Authority (LAWDA) was asked to appoint/select/promote persons on the basis of seniority and qualification. The said issue was deliberated on 14.08.2000 by the Director, LAWDA stating that B.Sc candidates be confirmed against recommended posts, graduates to be adjusted against Class IV posts and all other posts be filled up according to seniority and qualification. The list of candidates proposed for promotion/adjustment was dawn which was approved by the Vice Chairman, LAWDA. In the said proposal, the petitioner's name was shown at Sr. No. 11 and she is shown to be promoted as Field Assistant and respondent No. 4 is shown at Sr. No. 14 as Orderly. The said proposal was approved without any change or alteration and final order was issued bearing No. 62-LDA of 2000, dated 16.08.2000. The petitioner came to know about her selection as Field Assistant. However, the list which was circulated contained the name of 4th respondent at Sr. 11 and petitioner's name was not included. The petitioner submitted a representation to the Vice Chairman, LAWDA stating about her figuring in the list initially and not in the final list. Again representation was submitted on 03.12.2000 which was forwarded by the Assistant Executive Engineer to the Vice Chairman, LAWDA and the petitioner was informed that the matter is pending before the Vigilance Authorities and decision will be taken after the enquiry was over. The petitioner also approached the Vigilance Authorities with a representation and the Director General, Vigilance informed that the Vigilance Department has no role to play in the matter as it pertains to administration and can be dealt with administratively. The petitioner also approached the Vigilance Authorities with a representation and the Director General, Vigilance informed that the Vigilance Department has no role to play in the matter as it pertains to administration and can be dealt with administratively. Thereafter, petitioner made several representations and no reply having been given, the petitioner has filed this writ petition with the above said prayer. 2. When the writ petition was taken up for hearing, interim order was passed on 21.05.2001 to the effect that the petitioner shall also be allowed to join and in case respondents find any difficulty in such an eventuality order shall remain in abeyance with respect to respondent No. 4. 3. Pursuant to the said direction issued, the petitioner was allowed to join as Field Assistant which post was held by respondent No. 4 who in turn joined against available post of Class IV and the said order was issued on 22.07.2001. Thus, the petitioner is continuing as Field Assistant and 4th respondent is functioning as Orderly. 4. Learned counsel for the petitioner as well as the 4th respondent submit that only in the Draft Rules issued in the year 2014 the qualification was prescribed as 10+2 or equivalent from registered institute with Biology as one of the subjects and before the Draft Rules were issued, 10+2 was the qualification. 5. The grievance of the 4th respondent is that he is also entitled to be adjusted against the post of Field Assistant as the qualification prescribed was 10+2 without any bar of having Biology as one of the subjects before issuance of Draft Rules. 6. Hence the issue which arises for consideration in this writ petition is as to whether the official respondents can deny the Field Assistant post to the petitioner as well as the 4th respondents on the ground that they are not having 10+2 qualification with Biology as one of the subjects. Admittedly, the said qualification was prescribed only in the year 2014 in the Draft Rules and when the vacancy was filled in the year 1998 there was no such qualification prescribed. 7. Admittedly, the said qualification was prescribed only in the year 2014 in the Draft Rules and when the vacancy was filled in the year 1998 there was no such qualification prescribed. 7. When the matter was listed for hearing on 20.05.2016 learned counsel appearing for LAWDA was directed to get instructions as to whether vacancies are available in the Authority to continue the petitioner and to accommodate 4th respondent as Field Assistant for which reply has been given dated 01.06.2016 stating that presently two posts of Field Assistant are available in the Authority and if the petitioner and 4th respondent qualify for the same as per the new Draft Rules the petitioner as well as 4th respondent can be considered. The said stand of the official respondents cannot be countenanced in view of the fact that 10+2 qualification with Biology as one of the subjects was prescribed only in Draft Rules issued in the year 2014 which cannot be applied to the vacancies arose prior to issuance of Draft Rules. The petitioner as well as 4th respondent are entitled to hold the post of Field Assistant as they possess the requisite qualification of 10+2 as two vacancies are also available. In such circumstances, the writ petition is disposed of with direction to the official respondents to treat the petitioner appointed as Field Assistant from the date of her selection and the 4th respondent should be treated to be appointed as Field Assistant instead of Orderly as the 4th respondent is also qualified for the post. The 4th respondent shall be posted as Field Assistant within a period of four weeks from the date of receipt of copy of this order and on his posting as Field Assistant, he shall be paid salary of Field Assistant therefrom. No costs.