Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 658 (JK)

Bahar Ahmad Wani v. State

2018-08-28

SANJEEV KUMAR

body2018
JUDGMENT : The case set up by the petitioner in this writ petition is that they were appointed as Village Level Workers in Rural Development Department on 17.12.1979, 08.10.1980, 04.10.1980 and 23.03.1989 respectively. The petitioners though attained the eligibility for promotion to the next post of Panchayat Inspector Grade-II after rendering five years of service as Village Level Workers, yet they were made to stagnate for years together and their cases were not placed before the Departmental Promotion Committee for their promotion. It is submitted that it is only vide order dated 18.09.2013, petitioner Nos.1 and 3 were placed as In-charge Panchayat Inspector Grade II. Similarly, petitioner No.2 was placed as In-charge Panchayat Inspector Grade-II vide order dated 04.10.2014 and respondent No.4 vide order dated 06.11.2017. It is further submitted that without placing the cases of the petitioners before the Departmental Promotion Committee for confirmation of their promotion, the official respondents placed the petitioners as Block Development Officers in In-charge capacity to run the day-today administration of the newly created Blocks. It is also stated that the placement of the petitioners as In-charge Block Development Officers was made till the said posts were filled up by the competent authority. 2. The short grievance projected by the petitioners in this petition is that due to inaction on the part of the official respondents to convene the meetings of Departmental Promotion Committee periodically, the petitioners continue to hold the post of Panchayat Inspector Grade II and their promotions as Panchayat Inspector Grade-II have not been regularized. It is further stated by the petitioners in this petition that though the official respondents have even placed them against the gazetted posts of Block Development Officer, but the same are also in In-charge capacity and liable to be terminated at any time, if the posts of Block Development Officers are filled up substantively by the competent authority. 3. In the backdrop of the aforesaid fact situation, the petitioners have claimed that the In-charge arrangements under which they are functioning as Block Development Officers may not be disturbed till the said posts are substantively filled up and the cases of the petitioners for their promotion as Panchayat Inspector Grade-II are considered upon the recommendations of the departmental promotion committee. In the backdrop of the aforesaid fact situation, the petitioners have claimed that the In-charge arrangements under which they are functioning as Block Development Officers may not be disturbed till the said posts are substantively filled up and the cases of the petitioners for their promotion as Panchayat Inspector Grade-II are considered upon the recommendations of the departmental promotion committee. The other grievance projected by the petitioners is that since they are officiating as Block Development Officers and are performing the duties of the office, as such, they are also entitled to the charge allowance which the respondents are not paying. 4. Having heard learned counsel for the petitioners and perused the record, it is found that the grievance of the petitioners, insofar as it pertains to the inaction on the part of the respondents to convene the meeting of the Departmental Promotion Committee and to consider the cases of the petitioners for substantive promotion to the posts of Panchayat Inspector Grade-II, is genuine and needs to be redressed without any further waste of time. Since the petitioners are yet to be substantively promoted as Panchayat Inspector Grade-II, as such, their further placement as In-charge BDO, ex-facie, is contrary to the law and, therefore, they cannot claim a right to hold the same. 5. In terms of Article 85 of the J&K Civil Service Regulations, a person, who is otherwise eligible to be promoted to the higher post, alone can be made In-charge of the post temporarily pending confirmation by the Departmental Promotion Committee. The Government instruction (a) inserted in the Regulations vide Notification SRO-499 makes the position abundantly clear. The Government Instruction aforesaid is reproduced hereunder: “Government Instruction(a) It is wrong in principle to appoint a Government servant to a higher post in his own cadre/line of promotion without observing the required formalities of clearance from Departmental Promotion Committee etc. where, however, for reasons to be recorded, the Administrative authority cannot without detriment to public interests wait for formal appointments temporary stop gap arrangements may be made by them against such posts. In making such arrangements, the competent authorities will ensure that only such officers are appointed who satisfy all the requirements for higher appointments and can stand the scrutiny of the Departmental Promotion Committee etc. In making such arrangements, the competent authorities will ensure that only such officers are appointed who satisfy all the requirements for higher appointments and can stand the scrutiny of the Departmental Promotion Committee etc. Persons so appointed shall be appointed in their own pay and grade as incharge of the higher posts, and will be required to discharge the full duties and responsibilities of these posts. As soon as such officers are declared by the Departmental Promotion Committee etc. fit for appointment to higher posts without any break in the stop gap arrangements, they will be allowed full pay of those posts allowance etc. if any, drawn to be adjusted in full against the retrospective increases in pay)” 6. That being so, the placement of ineligible persons, who were not holding the posts in the feeding category for promotion to the post of Block Development Officers are per se illegal and cannot sustain. However, as stated above, I find substance in the submission made by the learned counsel for the petitioners that the petitioners being eligible for promotion to the post of Panchayat Inspector Grade-II cannot be allowed to stagnate indefinitely and that the respondents are under legal obligation to convene the meetings of Departmental Promotion Committee periodically and consider the cases of all the eligible candidates for promotion. 7. Admittedly, the petitioners have rendered requisite service of five years as Village Level Workers and are, therefore, eligible to be promoted as Panchayat Inspector Grade II and thereafter on the basis of their merit and seniority, they would become entitled to further promotion as Panchayat Inspector Grade-I and Block Development Officers. It is true that due to failure on the part of the respondents to convene the meetings of Departmental Promotion Committee and consider the cases of the petitioners for regular promotion as Panchayat Inspector Grade II, the petitioners have been deprived the benefit of further promotion on substantive basis, though they have been placed on higher posts in in-charge capacity. The obligation to convene the meetings of DPC on regular intervals is statutory in nature. The obligation to convene the meetings of DPC on regular intervals is statutory in nature. Earlier SRO 166 of 2005 provided for convening of Departmental Promotion Committee’s meeting for promotion at least once in a year and now the provisions of the Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010 Act also provides for convening of Departmental Promotion Committee’s meetings periodically to ensure that promotions of the stagnated employees are made in time. Such being the mandate of law, the respondents cannot avoid their obligation to convene the meeting of Departmental Promotion Committee and to make the regular promotions periodically. 8. In the backdrop of aforementioned facts and keeping in view the nature of the controversy involved, this petition can be disposed of at this stage. The same is, accordingly, disposed of by issuing the following directions: 1. That the respondents shall immediately and forthwith convene the meeting of Departmental Promotion Committee and consider the cases of all the eligible Village Level Workers including the petitioners for their promotion to the posts of Panchayat Inspector Grade II. The promotion to the eligible VLWs including the petitioners shall be effected from the dates and in the manner envisaged in the celebrated Judgment rendered in the case of Suraj Parkash Gupta And Others vs State Of J & K and Other, 2000 (7) SCC 561 ; That such Village Level Workers, who are found eligible for promotion to the post of Inspector Grade II and given such promotion, their cases shall be considered by the Departmental Promotion Committee further for making promotion to the posts of Inspector Grade I and so on and so forth. The exercise aforesaid shall be taken by the respondents immediately and completed within a period of eight weeks from the date, a certified copy of this order is made available to them. 3. That the posts of Block Development Officers if required to be urgently filled up temporarily till the same are regularly filled up shall only be manned by the non-gazetted officials holding the posts in the feeding cadre on substantive basis i.e post of Panchayat Supervisors/Panchayat Inspectors Gr-I/ceo/Lady Project Officer/Headquarter Assistant in the ratio provided in the JK Rural Development (Gazetted) Recruitments Rules, 2003; 4. That the arrangements, if any, made for posting of non-gazetted employees including the Village Level Workers as In-charge Block Development Officers as on date shall not be disturbed for a period of two months. On the expiry of two months period stated hereinabove, all Incharge arrangements to the post of Block Development Officers made from amongst the candidates not holding the post in the feeding cadre on substantive basis shall cease to operate. 9. With the aforesaid directions, the writ petition is disposed of along with connected IA.