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2017 DIGILAW 294 (JK)

Randhir Singh v. State of J&K

2017-07-05

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. In this intra Court appeal, the appellant has assailed the validity of order dated 03.03.2010 passed by the learned Single Judge by which the writ petition preferred by the appellant has been dismissed. In order to appreciate the appellant’s challenge to the impugned order, few facts need mention, which are stated infra. 2. The appellant, admittedly held Diploma in Mechanical Engineering and was appointed as Mechanical Overseer in the Milk Supply Scheme, Jammu on temporary basis in the pay scale of 140-10-200EB 10-250 against the post of Dairy Engineer vide order dated 27.09.1967. Thereafter vide order dated 02.05.1968, the appellant was sent for training at National Dairy Research Institute, Karnal for a period of nine months as the department was in dire need of Dairy Engineers. Later on the period of training of the appellant was extended by order dated 26.10.1971. Admittedly, the appellant completed the training in the year 1971. In the meanwhile, the State Government framed the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules, 1970. In the aforesaid Rules, admittedly, the qualification which was prescribed for the post of Dairy Engineer was Degree in Dairy Engineering. The appellant did not have the degree in Dairy Engineering and had only Diploma in Dairy Engineering, which he had acquired after the commencement of the Rules of 1970. 3. The appellant submitted a representation seeking his adjustment on the post of Dairy Engineer. The appellant thereupon filed a writ petition being SWP No.1707/1997 seeking consideration of his appointment as Dairy Engineer. The aforesaid writ petition was disposed of on 04.04.2001 with a direction to the respondents to consider the appellant’s claim. In the meanwhile, the Milk Supply Scheme merged with the Jammu and Kashmir Co-operative Milk Producer Federation Limited, Jammu. The aforesaid Federation considered the claim of the appellant and vide order dated 29.11.2001 rejected the same. Being aggrieved, the appellant again approached this Court by filing a writ petition in which he sought his promotion against the post of Dairy Engineer from 1972 onwards. The aforesaid Federation considered the claim of the appellant and vide order dated 29.11.2001 rejected the same. Being aggrieved, the appellant again approached this Court by filing a writ petition in which he sought his promotion against the post of Dairy Engineer from 1972 onwards. The aforesaid writ petition was decided by the learned Single Judge vide order dated 03.03.2010 and it was inter alia held that the appellant had accepted the appointment as Mechanical Overseer in 1967 without any demur and did not question the appointment of the persons, who came to be appointed later as Dairy Engineer during the course of his training and even thereafter, the appellant had no right to claim consideration against the post he does not appear to have ever applied seeking consideration therefor. Accordingly, the writ petition preferred by the appellant was dismissed. In the aforesaid factual background, the appellant has approached this Court. 4. Mr. Sunil Sethi, learned senior counsel for the appellant submitted that the learned Single Judge ought to have appreciated that the appellant was appointed in the year 1967, i.e. prior to the enactment of 1970 Rules, therefore, his claim for appointment on the post of Dairy Engineer could not have been rejected with reference to the requirement contained in 1970 Rules. It is further submitted that in any case after merger of the Milk Supply Scheme with the Federation and when similarly situate persons, who were having either similar or lesser qualification than the appellant were given promotion w.e.f. 28.03.1980, the appellant is entitled to seek parity especially in view of the fact that the Rules, which contained requirement of having degree in Dairy Engineering were not in vogue. Our attention has also been invited to the averments contained in paragraph No.16 of the memo of the writ petition. On the other hand, learned Government Advocate has supported the order passed by the learned Single Judge. 5. We have considered the submissions made by the learned counsel for the parties and have perused the records. Admittedly, the appellant was appointed on the post of Mechanical Overseer against the post of Dairy Engineer in the year 1967, prior to the enactment of 1970 Rules. Thereafter the appellant acquired Diploma in Dairy Engineering in the year 1971, i.e., after the enactment of 1970 Rules. Admittedly, the appellant was appointed on the post of Mechanical Overseer against the post of Dairy Engineer in the year 1967, prior to the enactment of 1970 Rules. Thereafter the appellant acquired Diploma in Dairy Engineering in the year 1971, i.e., after the enactment of 1970 Rules. In the 1970 Rules, for appointment to the post of Dairy Engineer, the minimum qualification prescribed was degree in Dairy Engineering, which the appellant did not possess. The appellant acquired the diploma in Dairy Engineering admittedly after 1970 Rules came into force. Therefore, the appellant is not entitled to claim appointment on the post of Dairy Engineer with effect from his initial date of appointment. However, we find substantial force in the submissions made by the learned senior counsel for the appellant that after the merger of the Milk Supply Scheme with the Co-operative Milk Producer Federation and in the absence of any requirement in the Rules of possessing degree in Dairy Engineering for appointment on the post of Dairy Engineer, and especially in view of the fact that similarly situate employees, namely, H.R. Gupta, A.K. Kotha, R.M. Dhar and M.K. Choudhary, who were having lesser or similar qualification like the appellant, were promoted to the post of Assistant Manager, which is equivalent to the post of Dairy Engineer, we find no reason to deprive the appellant of the same benefit. 6. It is also pertinent to mention here that the averments made in paragraph No.16 of the writ petition with regard to the grant of benefit of promotion to the aforesaid persons have not been denied on behalf of the respondents. Admittedly, the aforesaid persons have been given the benefit of promotion w.e.f. 28.03.1980. However, the learned Single Judge has deprived the appellant of the aforesaid benefit merely on the ground that the appellant had never claimed consideration for appointment as Dairy Engineer. The aforesaid fact is contrary to the record as from the communication dated 28.09.1972, we find that recommendation was made in favour of the appellant for appointment on the post of Dairy Engineer under ICAR Scheme. Similarly, a proposal was made for amendment in the Rules on 05.02.1973. Therefore, in our considered opinion, learned Single Judge grossly erred in denying relief to the appellant on this ground. We are informed that the appellant has already superannuated in the year 1999. 7. Similarly, a proposal was made for amendment in the Rules on 05.02.1973. Therefore, in our considered opinion, learned Single Judge grossly erred in denying relief to the appellant on this ground. We are informed that the appellant has already superannuated in the year 1999. 7. For the reasons mentioned above, the order passed by the learned Single Judge is set aside and quashed and the appeal is disposed of with a direction to the respondents to accord the benefit of promotion of the post of Dairy Engineer/Assistant Manager to the appellant with effect from the date it was given to the similarly situated persons and accord him all consequential benefits. Let the aforesaid exercise be carried out within a period of four months from today. 8. With the aforesaid directions, the appeal stands disposed of.