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2016 DIGILAW 49 (JK)

Bodh Raj v. State

2016-02-16

MOHAMMAD YAQOOB MIR

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JUDGMENT : Mohammad Yaqoob Mir, J. Stop gap arrangement made pursuant to Order No. 99-LC of 2011 dated 14.10.2011 has entangled the parties in a litigative process. It is advantageous to notice the order as it is: “In view of the dearth of manpower and in the interest of administration, the following Asstt. Labour Welfare Officers, Caretakers and Sr. Assistants are hereby ordered to work as incharge Labour Inspectors purely on stop gap basis in their own pay and grade till the posts are formally filled up on substantive basis in terms of the J&K Labour (Subordinate Service) Recruitment Rules, 1988. The placement of these incumbents as incharge Labour Inspectors shall not confer on them any preferential right for regularization through Departmental Promotion Committee. This arrangement is made without prejudice to the seniority and superior claim of others, if any, and also outcome of any writ petition(s) pending before any Competent Court of law. S/Sh 1. Kuldeep Kumar 2. Ravinder Singh 3. Anoop Raj(RBA) 4. Idris Ali 5. Firdousa Ramzan 6. Sanjay Kumar Kaw Charge Allowance as admissible under rules is also sanctioned. Sd/- Labour Commissioner J&K Govt. Srinagar No. LC/Estt/2011.OPG/762-70Dated 14-10-2011 2. The order suggests that the placement of the employees as incharge Labour Inspectors in their own pay and grade is until filling up of the posts on substantive basis in terms of J&K Labour (Subordinate Service) Recruitment Rules, 1988. It also envisage that the placement as incharge Labour Inspectors shall not confer any preferential right for regularization through Departmental Promotion Committee (DPC) and even such an arrangement shall be without prejudice to the seniority and superior claim of the employees. 3. The petitioner who in the final seniority list of Senior Assistant issued by the Department on 01.07.2011 figures as the last candidate at Sl. No. 29 and his date of promotion to the post of Senior Assistant is shown as 01.01.2010 under Category SC. 4. The Recruitment Rules of 1988 provide mode and method for promotion to the post of Labour Inspector. Same is as under: SCHEDULE II Executive TABLE Class Category Designation of the post Grade Minimum qualification for direct recruitment Method of Recruitment I ….. Labour Inspector 600-925 Essential Degree in Arts or its equivalent qualification from any recognized University. Desirability Degree in Economics or Commerce or Sociology or its equivalent of any recognized University. I. 25% by direct recruitment. II. Labour Inspector 600-925 Essential Degree in Arts or its equivalent qualification from any recognized University. Desirability Degree in Economics or Commerce or Sociology or its equivalent of any recognized University. I. 25% by direct recruitment. II. By Promotion from Class IV 20% from Class V 20% and Class III category ‘A’ (Ministerial) 25% having not less than three years service in that class and who have passed the prescribed Departmental Examination 5. Petitioner was required to have three years experience in the feeding class which he did not possess in the year 2011 that is why he has not challenged the said order till the year 2013. Now when he has challenged it, respondents appear to have woke up from deep slumber by stating that the substantive promotion of all eligible candidates including the petitioner to the post of Labour Inspector would be considered in the next DPC in accordance with the rules. Why respondent authorities have not taken steps for finalization of promotion on substantive basis from the year 2011 when the seniority list was finalized is a question which has remained unanswered but as a consequence thereof the private respondents are subjected to a disadvantageous position, as by now many more other employees in the feeding cadre may have become eligible for consideration. 6. Vide interim order dated 01.07.2013, the operation of the order impugned dated 14.10.2011 has been directed to remain in abeyance. When this direction was not carried into effect, a contempt petition appears to have been filed, as a result whereof respondent Labour Commissioner has issued order No. 160-LC of 2015 dated 18.08.2015 which suggests that in compliance to the interim orders, the Order No. 99-LC of 2011 dated 14.10.2011 has been kept in abeyance so far it relates to the respondent Nos. 4 and 6. This order according to learned counsel for the petitioner has been challenged by medium of separate writ petition which is stated to be pending. 7. Learned counsel appearing for respondents 1 to 3 would submit that the writ petition is rendered infructuous because the order which is impugned is no more in existence. In opposition, learned counsel for respondents 4 to 6 would submit that that order has been kept in abeyance only in pursuance to the directions of the Court, with the disposal of the writ petition, it may revive. 8. In opposition, learned counsel for respondents 4 to 6 would submit that that order has been kept in abeyance only in pursuance to the directions of the Court, with the disposal of the writ petition, it may revive. 8. The petition in fact cannot be termed to have been rendered infructuous because the order impugned has not been withdrawn unconditionally. Be that as it may, now respondents 1 to 3 in their reply have made it clear that presently seniority list of the officials in the feeding category has been finalized so all eligible candidates shall be considered for substantive promotion in the next DPC. Such a statement redresses the grievances of the petitioner as well as of the respondents 4 to 6. All eligible officials have to be considered by the DPC when it is so, there shall be no need for making any stop gap arrangement. Earlier the stop gap arrangement order clearly provide that their shall be no superior right to the employees put as incharge Labour Inspectors. 9. It is true, in the year 2011, petitioner had not completed requisite three years of service in the feeding channel so in the year 2011, by no means he could be placed as incharge Labour Inspector. 10. The interim arrangement had been made only in view of dearth and the difficulties faced by the department. Equally true that official respondents have not convened the DPC after finalization of the seniority list from in the year 2012 and have allowed the stop gap arrangement to continue which now may likely to prove detrimental to the interests of private respondents. 11. The contention of the learned counsel for respondents 4 to 6 Mr. C.M Koul is that the arrangement of the year 2011 shall remain till regular process on substantive basis is finalized. Since respondents have taken a positive and clear stand to the effect that all the eligible candidates including the petitioner will be considered for the post of Labour Inspector on substantive basis in the next DPC. That is the most viable solution to the controversy so as to save both the parties from any further prolonged litigation. 12. Since respondents have taken a positive and clear stand to the effect that all the eligible candidates including the petitioner will be considered for the post of Labour Inspector on substantive basis in the next DPC. That is the most viable solution to the controversy so as to save both the parties from any further prolonged litigation. 12. Viewed thus, petition is disposed of with a direction to the respondents No. 1 to 3 to abide by their statement and to convene the DPC within a period of four weeks, in the process all eligible candidates including the petitioner as well as respondents 4 to 6 shall also be considered for promotion subject to their eligibility. All rules and regulations occupying the filed in the process shall be strictly adhered to. 13. In the meantime, if the respondents authorities now require any arrangement to be made, same shall abide by norms including seniority. 14. Petition disposed of as above alongwith connected MP.