Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 222 (JK)

Swaran Singh v. State

2017-05-01

ALOK ARADHE, TASHI RABSTAN

body2017
JUDGMENT : 1. With the consent of the learned counsel for the parties, the matter is heard finally. 2. In this petition, petitioners inter alia seek review of the judgment dated 14.12.2016 passed in LPASW No. 05/2015. 3. Facts giving rise to the filing of this petition briefly stated are that the petitioners and respondent Nos. 4 to 9 were allowed to hold the post of Inspector in the Excise and Sales Tax Department in their own pay and grade and they were performing the duties of Inspector for the past 6 years. Thereafter, vide order dated 28.10.2009 the petitioners were reverted to the posts of Sub-Inspector on the ground they failed to qualify the prescribed Departmental Examination. The petitioners thereupon filed a SWP No. 1930/2011 before this Court in which the petitioners inter alia sought direction to the respondents to relax the Rule, particularly the one, which envisages the qualifying of Departmental Examination for being eligible to be promoted to the post of Inspector in Excise and Commercial Tax Department, Jammu and Kashmir Government, as well as direction to the respondents to promote the petitioners to the posts of Inspectors. The writ petition was dismissed by the learned Single Judge vide judgment dated 22.11.2014 and upheld by the Division Bench vide judgment dated 14.12.2016. 4. When the matter was taken up today, learned counsel for the petitioners fairly submitted that inadvertently the petitioners have sought the relief of relaxation with regard to the passing of qualifying examination. It is further submitted that under Rules 5 and 6 of the Jammu and Kashmir Excise and Sales Tax (Subordinate) Service Recruitment Rules, 1991, there is no requirement for passing the Departmental Examination prior to consider the case for promotion. 5. On the other hand, learned Government Advocate unable to point out that the rules contained such stipulation. However, he referred to the schedule appended to the Rules which provides for passing of the Departmental Examination prescribed for promotion to the post of Inspector. Mr. S.K. Shukla, learned counsel for respondent Nos. 4 to 9, has supported the submissions made by the learned counsel for the official respondents. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. Mr. S.K. Shukla, learned counsel for respondent Nos. 4 to 9, has supported the submissions made by the learned counsel for the official respondents. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to read Rules 5 and 6 of the Jammu and Kashmir Excise and Sales Tax (Subordinate) Service Recruitment Rules, 1991, which read as under: "5. Qualification and method of recruitment: (1) No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he possess the qualifications as laid down in the Schedule II and fulfills other requirements of recruitment as provided in the rules and orders for the time being in force. (2) Appointment to the service shall be made:- (a) by direct recruitment (which will include appointment by transfer), (b) by promotion; and (c) partly by direct recruitment and partly by promotion, in the ratio and in the manner mentioned against each post in the Schedules II and III. 6. Probation (1) Persons appointed to the service either by direct recruitment or by promotion shall be on probation or trial for two years. (2) If it appears at any time during or at the end of the period of probation or of trial that an officer has not made sufficient use of his opportunities or if he has otherwise failed to give satisfaction and has not passed the prescribed departmental examination or training, if any, if directly recruited be discharged from the service and if appointed by promotion be reverted to the post on which he holds a lien. (3) The Government may in the case of any person extend the period of probation or trial up to the maximum period of four years. Explanation.- Appointment on probation will be made against substantive vacancies only. All other appointments will be on trial; provided that any period of officiating appointment shall be reckoned as period spent on probation when a person appointed on trial is given regular appointment to the service. (4) A candidate appointed to the service by competitive examination shall be allowed the minimum of the time-scale during the first year and at the second stage of that scale during the remaining period of probation/trial. (4) A candidate appointed to the service by competitive examination shall be allowed the minimum of the time-scale during the first year and at the second stage of that scale during the remaining period of probation/trial. Where the period of probation/trial is extended beyond two years for reasons not directly attributable to the probationer he shall be allowed to draw the second and third increment after the expiry of 2nd and 3rd year of probation/trial. Provided that where a person has immediately before such appointment been holding a post under the Government in a substantive capacity and was drawing therein pay equal to or more than the minimum of the time-scale his initial pay at the time of his appointment to the service shall be regulated under Art. 77(a) (ii) read with Art. 67 (a) (ii) of the Jammu and Kashmir CSRs. (5) In respect of a person who immediately before such appointment held a post under the Government in an officiating capacity and draw his presumptive pay equal to or higher than the minimum of the time-scale his initial pay at the time of appointment to the service shall be regulated under Art. 77 (a) (ii) of the Jammu and Kashmir; CSRs treating his presumptive pay as substantive pay for purposes of such fixation alone. He shall not, however, get the benefit of Art. 67 (a) (ii) either at the time of initial fixation or subsequently. (6) In the case of persons who are appointed under these rules other than by competitive examination their fixation of pay shall be regulated under the normal rules relating to such fixation from time to time." 7. From the perusal of the Rules 5 & 6 it is evident that there is no requirement for passing of Departmental Examination prior to consider the case of the candidate for promotion. It is equally well settled law that rules and schedule appended to it cannot be overwritten. 8. In view of the aforesaid reasons, we are inclined to modify the order dated 14.12.2016 and direct the respondents that the petitioners and other eligible candidates shall be considered for promotion in terms of Rules 5 and 6 and in accordance with law. With the aforesaid directions, the order dated 14.12.2016 is modified to the aforesaid extent. Accordingly, the review petition is disposed of.