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2016 DIGILAW 64 (JK)

Phuntsog Angchok v. State of J&K

2016-02-22

ALI MOHAMMAD MAGREY

body2016
JUDGMENT : ALI MOHAMMAD MAGREY, J. 1. The petitioner in this petition has called in question Government order No. 200-HME of 2015 dated 04.06.2015, insofar as thereby respondent No. 3, herein has been placed as Incharge Director Health Services Kashmir, in his own pay and grade. The petitioner has also prayed for issuance of Mandamus commanding the respondents to promote him to the Post of Director Health Services/Family Welfare Kashmir as per his eligibility and seniority and issue orders for substantive promotion in accordance with rules holding the field. Brief facts. 2. The petitioner was appointed as B-Grade Specialist (now designated as Consultant) on 10.03.1997. It is submitted that the respondent No. 3 has been appointed as B-Grade Specialist (now designated as consultant) on 17.09.2001. It is submitted that the respondent No. 3 is junior to petitioner. It is submitted that the petitioner as also respondent No. 3 on the recommendations of Public Service Commission were appointed to the post of Sr. Consultants from 01.02.2012 vide Govt. Order dated 19.06.2014. It is submitted that petitioner being senior to the respondent No. 3 as Consultant was shown at serial No. 2 while as respondent No. 3 shown at serial no. 3. It is further submitted that respondent No. 2 issued Govt. Order No. 200-HME of 2015 dated 04.06.2015 impugned in this petition, whereby the respondent no. 3 has been given the charge of the post of I/C Director Health Services Kashmir, of which the petitioner is aggrieved of and challenged the same on the grounds detailed out in the petition. Precisely put, the petitioner's case is that: (i) the official respondents have failed to make regular promotions of the members of the Service in terms of the Rules having bearing on the matter. (ii) that the Incharge arrangement is dehors the Rules. 3. On notice official respondents 1 and 2 filed objections and submitted that the petition is not maintainable, therefore, seeks its dismissal on the grounds that the impugned Government order does not suffer for any legal infirmity. It is submitted that the petitioner has not approached with the clean hands. It is submitted that the petitioner has also concealed the material facts, which renders the petition liable to be dismissed. It is submitted that the petitioner has not approached with the clean hands. It is submitted that the petitioner has also concealed the material facts, which renders the petition liable to be dismissed. It is submitted that the petitioner raises disputed question of fact, which cannot be gone into by this Court in the writ petition, also renders the petition liable to be dismissed. 4. I have heard learned counsel for the parties, perused the record and considered the matter. 5. The approach adopted by the Government of making promotions on stop gap basis is a routine. It is not known as to what are the compelling reasons for official respondents to continue adhocism for indefinite period in violation of the supreme court directions passed in the case of Suraj Parkash Gupta and Others vs. State of J&K, 2010 (5) JKJ 497 (SC) : AIR 2000 SC 2386 as also of this court judgments/orders passed from time to time. 6. The result of the lis would be hinging on determination of the sole question, whether the Government could make the temporary arrangement for an indefinite period? 7. Law in that regard is not res-integra. It has long since been settled that an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months. Reference in this connection may be made to the decision of this Court in Mohd. Amin Pandit vs. State of J&K, 1974 JKLR 688 . For ready reference, paragraph 6 of the judgment is excerpted below: "Rule 4(d) (ii) of the J&K Public Service Commission (Limitation of Functions) Regulations, 1957 provides that it shall not be necessary for the Public Service Commission to be consulted on the suitability of candidates for: "Officiating promotions or transfers to any service or post, when at the time of making the promotion or transfer there is reason to suppose that the officiating promotion or transfer will be for not more than six months." This Rule 4(d)(ii) of J&K PSC (Limitation of Functions) Regulations, 1957 clearly lays down that an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months. As such the Govt. As such the Govt. would be acting in excess of its powers if it directs such promotion for a period longer than six months or for an indefinite period, as in the present case. In any case, where the order does not specify the period or specifies a period longer than six months, the order cannot remain operative for a period of more than six months... As is, the impugned order directed the promotion of respondent No. 2 for an indefinite period. In the view I have expressed above, it was bad in law and could be effective for a period of six months and no more. That period has expired since. In fact more than four years have passed since the order was made. Presently, therefore, the respondent No. 2 holds the post of Deputy Director without any legal order to support it." 8. There is yet another striking factor involved in the matter. Rule 25 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1957 deals with promotions. Sub-Rule (1) thereof says that all promotions shall be made by the appointing authority; Sub-rule (2) says that promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal. Sub-rule (4) provides that where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules, but such temporary promotion shall in no case exceed three months on each occasion. State-respondents have adopted the approach of adhocism for indefinite period against the mandate of Rule 25 sub rule (2) of Classification, Control and Appeal Rules, 1956. 9. Broadly speaking, the grievance of the petitioner is that the official respondents have been making ad hoc/stop gap/in-charge arrangements and not only continuing the same unabated, but even elevating such ad hocees to higher posts. 10. 9. Broadly speaking, the grievance of the petitioner is that the official respondents have been making ad hoc/stop gap/in-charge arrangements and not only continuing the same unabated, but even elevating such ad hocees to higher posts. 10. It may be observed here that the issues raised by the learned counsel have already been set at rest by the decision of the Division Bench of this Court in two clubbed Letters Patent Appeals, LPA Nos. 212/2007 and 217/2007, lead case being State of J&K vs. Abdul Rashid, decided on 26.12.2012, reported in 2014 (3) JKJ 42 (HC) referred to and quoted here in above. In that case it has clearly been laid down that in terms of Rules of 1956 the inter se seniority of the members of the service is to be determined only when they are appointed by promotion to the posts in accordance with rules and only when they become permanent members of a class or category of service. Therefore, reliance on Rule 24 of the CCA Rules is immaterial, since neither the petitioner nor the private respondent herein have become members of the class or category of the service with reference to which the dispute is sought to be racked. The catch up rule, too, would also come into play only when promotion is made on regular basis. Such rule would not be applicable to Incharge arrangements. 11. To summarise, the law as it stands settled is that: (i) an officiating promotion cannot be made without the consultation of the Public Service Commission for a period of more than 6 months [vide Mohd Amin Pandit v. State of J&K (supra)] (ii) when charge arrangement is made, it has to be for a short duration not exceeding six months and such an arrangement does not confer any right whatsoever on the officer holding the post on charge basis except entitling him to the charge allowance. 12. For all what has been stated above, the writ petition is disposed of in the following terms: (i) Respondents 1 and 2 shall fill up the post of Director Health Services/Family Welfare Kashmir on regular basis in accordance with the rules and consider the petitioner along with other eligible candidates. 12. For all what has been stated above, the writ petition is disposed of in the following terms: (i) Respondents 1 and 2 shall fill up the post of Director Health Services/Family Welfare Kashmir on regular basis in accordance with the rules and consider the petitioner along with other eligible candidates. (ii) The exercise of filling up of the post on regulars basis shall be completed as early as possible but not later than two months from the date copy of this judgment is served on respondents 1 and 2. (iii) The present arrangement shall remain in operation till the time regular arrangement is made but not beyond two months from today. 13. No order as to costs.