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2016 DIGILAW 664 (JK)

Kartar Chand v. State of J&K

2016-12-16

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This L.P. appeal is preferred against the interim order dated 20.10.2016 made in MP No. 2/2016 in SWP No. 1379/2016, contending that while modifying the interim order initially granted on 20.04.2016 by the learned Single Judge staying the selection process of filling up the posts of Principals which was modified to keep one post of Principal as vacant and the position of the writ petitioner in SWP No. 1379/2016 shall be maintained and no such protection was granted to the petitioners in SWP No. 789/2016. On 10.11.2016, pending further orders an interim order was passed in this L.P. Appeal to the effect that process of selection for filling up the post of Principals shall be carried out to its logical conclusion and one post in favour of each of the writ petitioners shall not be filled up till further orders and status of the appellants in L.P. Appeal as incharge Principals shall be maintained. 2. Further with the consent of learned counsel for the writ petitioners in SWP No. 789/2016 and SWP No. 1379/2016, the writ petitions were ordered to be listed before the Division Bench along with L.P. appeal. Pursuant to the said directions, the above referred writ petitions are also listed with this appeal. 3. Learned counsels for the petitioner in SWP No. 789/2016 and 1379/2016 argued that in the writ petitions the prayer made is to quash the notification issued by the Public Service Commission for selection to the post of Principals which is contrary to the recruitment rules, namely, the J & K Colleges (Gazetted) Service Recruitment Rules, 2008 and direct respondent No. 2 to consider the petitioners for promotion by regularizing their service as In-charge Principals in terms of the Recruitment Rules without reference to the impugned criteria. 4. The case of the petitioners in SWP No. 789/2016 and SWP No. 1379/2016 is that they were initially selected as Lecturers in J & K Education (Gazetted) Colleges Service as per Rules of 1995 from 20.07.1992 to 07.04.1993. The said Rules of 1995 were repealed by Rules framed in 2004 and after repealing the said Rules also 2008 Rules were framed which stated that Principals posts are to be filled up 100% by promotion. The said Rules of 1995 were repealed by Rules framed in 2004 and after repealing the said Rules also 2008 Rules were framed which stated that Principals posts are to be filled up 100% by promotion. As per the said Rules, Selection Grade Lecturers are to be promoted as Principals by selection through DPC/PSC on the basis of integrity, merit and suitability amongst persons having ten years of service as Selection Grade Lecturers. All the writ petitioners were posted as In-charge Principals by orders issued from 29.09.2010 to 24.06.2014 and charge allowance was paid as per Regulation 85(3) of the J & K Civil Service Regulations. The said incharge arrangements were made even though permanent vacancies were available. The Public Service Commission has now issued a notification to fill up the vacancies by promotion by following the procedure mentioned in [2014 (21) JK Statutes JK-75 [Education (Gazetted) College Service Recruitment Rules, 2008--Schedule I and Schedule II substituted] SRO 124 dated 21.04.2014. It is also argued by the learned counsels that the vacancies which arose prior to issuance of SRO 124 dated 21.04.2014 and on which posts the petitioners are to be promoted as Principals, the procedure in-vogue as per Rules of 2008 will govern and not as per the procedure contemplated under SRO 124 dated 21.04.2014. It is also admitted that the posts of Principals, which the Public Service Commission is assigned the task for selection/promotion, were in existence for over four years and due to non-conducting of DPC/selection by the Public Service Commission the posts were not regularly filled up and several persons were posted as In-charge Principals without giving them any right to claim the post based on the Incharge assignment given. 5. The contention of the learned counsel for the appellant insofar as applicability of Rules for promotion is concerned, the said issue is no longer res integra. Admittedly the rules substituting the earlier Rules was notified on 21.04.2014, hence the vacancies which arose prior to the said date, which are being filled up by promotion shall be filled up by the procedure which was in vogue prior to the substitution of the said rules i.e. the J & K (Gazetted) Colleges Service Recruitment Rules, 2008. 6. Admittedly the rules substituting the earlier Rules was notified on 21.04.2014, hence the vacancies which arose prior to the said date, which are being filled up by promotion shall be filled up by the procedure which was in vogue prior to the substitution of the said rules i.e. the J & K (Gazetted) Colleges Service Recruitment Rules, 2008. 6. In the decision reported in (1995) 4 SCC 246 (Vinod Kumar Sangal v. Union of India and Ors.) the issue regarding simultaneous selection to promotional vacancies occurring in different years came up for consideration and Hon'ble the Supreme Court, taking note of non-convening of the DPC to consider the appellant for selection against the vacancies occurring in the years preceding the last of such years directed to convene the DPC for considering the appellant in that case for selection/promotion to the post of Senior Technical Assistant (Drilling) against the vacancies which occurred in the years 1980, 1982 and 1983 separately as per the procedure in-vogue. In paragraph 9 it is held thus:- "9. The 6 persons who were selected by the DPC in 1985 for promotion to the post of Senior Technical Assistant (Drilling) are not parties in these proceedings. Their selection cannot, therefore, be disturbed. Therefore, without disturbing the selection of the 6 officers who were selected by the DPC in 1985 for the post of Senior Technical Assistant (Drilling), the respondents are directed to convene a DPC for considering the appellant for selection for promotion to the post of Senior Technical Assistant (Drilling) against the vacancies which occurred in the years 1980, 1982 and 1983. The said DPC shall consider the appellant for such selection for the vacancies for each of these years separately as per the Office Memorandum dated December 24, 1980. In case the appellant is selected for such promotion against any of these vacancies, the reversion of the appellant made by order dated February 18, 1985 would stand revoked and he would be regularly promoted on the post of Senior Technical Assistant (Drilling) with all consequential benefits with effect from the date when 6 persons who were selected by the DPC in 1985 were so promoted on the post of Senior Technical Assistant (Drilling). In case the appellant is not selected by the DPC for any of the vacancies, his reversion under order dated February 18, 1985 would remain undisturbed. In case the appellant is not selected by the DPC for any of the vacancies, his reversion under order dated February 18, 1985 would remain undisturbed. The DPC should be convened within a period of four months." In the decision reported in (2010) 4 SCC 290 (Union of India & Anr. v. Hemraj Singh Chauhan & Ors.) the delay in considering promotion due to in-action in finalizing the cadre review came up for consideration before Hon'ble the Supreme Court and in paragraph Nos. 35 to 38 it is held thus:- "35. The Court must keep in mind the Constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a Welfare State. 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. 37. In The Manager, Government Branch Press and Anr. v. D.B. Belliappa - (1979) 1 SCC 477 , a three judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomized under Articles 14 and 16 is "fairness founded on reason" (See para 24 page 486). 38. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion has been defeated by the acts of the government and if not of the Central Government, certainly the unreasonable in-action on the part of the Government of State of U.P. stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy." The Regulation framed for giving promotion was applied prospectively as the Government delayed the exercise of statutory function. In paragraph 48 it is further held thus:- "The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. In paragraph 48 it is further held thus:- "The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively." In the decision reported in (2014) 1 SCC 144 (State of Rajasthan v. Ucchab Lal Chhanwal), a question arose as to the applicability of Circular issued on 26.07.2006 for considering promotion of the years 1996-97 before Hon'ble the Supreme Court and it was held that the said Circular cannot be applied to the vacancies which arose in the year 1996-97. 7. It is relevant to be noted at this juncture that the Higher Education Department, Government of Jammu and Kashmir, initiated the process of filing up the vacancies of College Principals through Public Service Commission and the Nodal Principals, AS College Srinagar and G.G.M. Science College Jammu were requested to furnish the APRs complete in all respects for last three years in respect of In-charge Principals/Associate professors of 195 persons by communication dated 13.11.2013. Thus it is evident that process of selection of Principals was commenced by the Government from the said date and Rules, which were in vogue at that time alone can be applied in terms of the judgment of Hon'ble the Supreme Court reported in (1998) 9 SCC 223 (B.L. Gupta v. M.C.D.). 8. Hence we are of the view that Public Service Commission shall proceed with the selection of principals by promotion to such of those vacancies, which arose prior to 21.04.2014 after getting vacancy position from respondent No. 1-Higher Education Department as per the procedure in-vogue prior to 21.04.2014 and the vacancies which arose after 21.04.2014 are to be filled up by following the procedure contemplated under SRO 124 dated 21.04.2014. The writ petitioners can also participate for selection/promotion subject to their right in the writ petitions seeking regularization, which can be considered at the time of final hearing of the case. The writ petitioners can also participate for selection/promotion subject to their right in the writ petitions seeking regularization, which can be considered at the time of final hearing of the case. The interim order granted by the Writ Court stands vacated. 9. In view of the disposal of MPs in the writ petition, as stated supra, the prayer sought for in this L.P. Appeal has become in fructuous and the same is dismissed. Post the writ petitions, SWP No. 789/2016 and 1379/2016 on 23.03.2017 for final disposal before the Division Bench.