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2019 DIGILAW 393 (JK)

State of J&K v. Ajay Kumar Raju

2019-08-21

RAJESH BINDAL, SINDHU SHARMA

body2019
JUDGMENT : Rajesh Bindal, J.—Being aggrieved against the order passed by the learned Single Judge dated 29.07.2010, allowing the writ petition, the State has filed the present intra-court appeal. 2. The writ petition was filed challenging the communication dated 12.07.2001, vide which induction of the writ petitioners into Kashmir Administrative Service (for short ‘KAS’) was withdrawn. It was for the reason that when the order dated 23.09.1997 was passed inducting them in KAS, the writ petitioners already stood retired from service. None had represented the State at the time of the hearing of the writ petition. The learned Single Judge allowed the writ petition holding that promotion of the writ petitioners was against the vacancies which were available on 01.01.1996 i.e., before their retirement, hence, they were rightly given promotion though after their retirement. The order has been impugned by filing the present appeal. 3. Learned counsel for the State submitted that on account of grave error committed by the persons concerned at that time, vide order dated 23.09.1997, the writ petitioners were inducted in KAS. The order did not provide that the same was effective from any back date. The date on which the aforesaid order was passed, writ petitioners stood retired from service on 31.01.1996, 31.07.1996 and 31.03.1996, respectively. When the matter came to the notice of the authorities notices were issued to 34 persons, who had wrongly been granted the benefit. After affording opportunity of hearing to them, vide order dated 09.10.2001, it was directed that the writ petitioner shall not be treated as inducted in KAS and their names shall be deemed to have been deleted from the list. It is only three writ petitioners who challenged the aforesaid order otherwise it pertained to 32 officers. All other accepted the same knowing well that they had been granted the benefit wrongly. 4. Mr. H. A. Siddiqui, learned counsel for the State further argued that it was the mistake on the part of the authorities at that stage while they directed induction of officers into KAS, who had already retired from service. Jammu and Kashmir Administrative Service Rules, 1979 (for short ‘the Rules’), as were applicable to the members of the cadre at that time, deal with the method of recruitment and other conditions of service. After an officer is inducted into KAS he has to remain on probation and thereafter confirmation follows. Jammu and Kashmir Administrative Service Rules, 1979 (for short ‘the Rules’), as were applicable to the members of the cadre at that time, deal with the method of recruitment and other conditions of service. After an officer is inducted into KAS he has to remain on probation and thereafter confirmation follows. He further submitted that the learned Single Judge had gone wrong in recording a finding that the vacancies existed as on 01.01.1996, hence, the writ petitioners had to be treated as promoted from the date before their retirement. In fact the vacancies were notified on 23.09.1997. The result of the order passed by the learned Single Judge is that the writ petitioners were granted promotion with retrospective effect which even the order did not suggest. 5. On the other hand, learned counsel for the respondents-writ petitioners submitted that in exercise of powers conferred under Rule 5(b) of the Rules exercise was done by the competent authority for filling up the vacancies. The writ petitioners were in the zone of consideration. They were rightly inducted in KAS from the date prior to the date of their retirement. There were 34 officers who had been inducted in KAS after their retirement. It was not an order in isolation. In fact the vacancies existed as on 01.01.1996, however, because of some delay on account of seniority dispute pending in the Court, the matter could not be finalized. He also referred to earlier orders passed by the State whereby induction of the officers who had retired or had even expired was made in KAS. Reference was made to two earlier orders dated 18.09.1991 and 09.07.2004. He further submitted that these orders were placed on the record before the learned Single Bench, which were even relied upon by the learned Single Judge to granted relief to the writ petitioners. There is no response to the aforesaid orders by the State. In support of his argument reliance was placed upon judgment of Hon’ble the Supreme Court reported in AIR 2004 SC 255 titled as P. N. Premachandran Vs. State of Kerala and on a judgment of this Court in SWP No. 2275/2010 titled as Dwarka Nath Koul vs. State of J&K and Ors., decided on 09.12.2014. 6. Learned counsel for the applicant in IA No. 01/2016 submitted that applicant is similarly placed as are the respondents. He filed SWP No. 204/1998, praying the same relief. State of Kerala and on a judgment of this Court in SWP No. 2275/2010 titled as Dwarka Nath Koul vs. State of J&K and Ors., decided on 09.12.2014. 6. Learned counsel for the applicant in IA No. 01/2016 submitted that applicant is similarly placed as are the respondents. He filed SWP No. 204/1998, praying the same relief. He is even senior to the writ petitioners. The writ petition filed by the applicant was disposed of on 02.12.2010, to be subject to decision in the present appeal. The submission is that in case the present appeal is dismissed the applicant will also be entitled to the same relief. 7. In response learned counsel for the appellant submitted that the effective date of promotion can at the most be the date on which vacancies are notified. The induction had taken place on the date the order was passed. The order does not suggest that it is from any back date. For any delay in the process, the State cannot be said to be at fault. It was because of pendency of seniority dispute in court. The vacancies could not be determined and notified. The process for filling up the vacancies sometimes starts even in anticipation. It cannot be said that the date on which the process started will be the date on which vacancies are notified. The number of persons to be considered is always more than the vacancies available. The prayer is for acceptance of the appeal and setting aside the order passed by the learned Single Judge. 8. Heard learned counsel for the parties and perused the paper book. 9. The facts of the case in hand are really astonishing. In its wisdom State Government inducted 184 officers in KAS. These officers pertain to different departments of the State. A perusal of the list annexed with the order dated 23.09.1997 shows that 25officers have been shown as retired. It means that they had been inducted in KAS after their retirement. 10. It is admitted case of the parties that the respondents-writ petitioners retired from service on attaining the age of superannuation on 31.01.1996, 31.07.1996 and 31.03.1996, respectively. The period to which the dispute relates, the 1979 Rules were governing the field. Rule 5 thereof provides for method of recruitment into service. Rule 6 provides for appointment of a Selection Committee. 10. It is admitted case of the parties that the respondents-writ petitioners retired from service on attaining the age of superannuation on 31.01.1996, 31.07.1996 and 31.03.1996, respectively. The period to which the dispute relates, the 1979 Rules were governing the field. Rule 5 thereof provides for method of recruitment into service. Rule 6 provides for appointment of a Selection Committee. Rule 7 deals with the conditions of eligibility, whereas Rule 8 deals with the preparation of select list of the candidates who are found to be suitable for appointment. Rule 9 deals with appointment into service on the occurrence of vacancies in the order in which their names appear in the select list. Any person appointed to the service is to remain on probation for a period of two years. Any person appointed into service is also required to undergo training from time to time and pass such examination as may be prescribed. 11. As far as method of recruitment is concerned, there are three sources; 1. By a competitive examination in junior scale; 2. By promotion to the time scale of the service from amongst the members of the services holding specified time scale; 3. By selection from amongst the persons of outstanding ability and merit serving in connection with the affairs of the State other than those covered in Rule 5(1)(b); 12. In exercise of powers conferred under Rule 9 of the 1979 Rules, the Government vide order dated 23.09.1997 appointed 169 officers with reference to Rule 5(1) (b) of the Rules. The writ petitioners also from part of the list attached to aforesaid order. A perusal of the aforesaid order does not suggest that the same was to have effect from any back date. Rather the order suggests that the officer shall remain on probation for a period of two year. 25 of officers mentioned in the list annexed with the aforesaid order had already retired from service when they were inducted into KAS. When the matter came to the notice of the authorities notice dated 14.07.2001 was published in the newspaper on 17.07.2001, giving 34 officers an opportunity to show cause as to why their names should not be deleted from the list of officers inducted in KAS after their retirement. The aforesaid notice specifies that earlier also show cause notices were issued however, no reply was received. The aforesaid notice specifies that earlier also show cause notices were issued however, no reply was received. Hence, last opportunity was granted and on their failure it was to be presumed that the noticee had nothing to say in the matter. It was further provided in the aforesaid notice that induction into KAS was effective from 23.09.1997. There was no response by the petitioners. Subsequently, vide order dated 09.10.2001 the names of 32 officers were deleted from the list of offices who had been inducted into KAS, as they had been inducted into KAS after their retirement from service. 13. As claimed by learned counsel for the State only 03 out of the 32 officers challenged deletion of their names from the list of the officers inducted in KAS. All other officers accepted the order. 14. The learned Single Judge opined that the right of induction in KAS will arise on the date when the vacancies arose and not on the date when the order was passed. On that basis he directed that the process for induction in KAS having been initiated on 01.01.1996, hence, presumption is that the vacancies were available on that date. The learned Single Judge directed that the writ petitioners shall be deemed to have been promoted from 01.01.1996, the date prior to their date of retirement. 15. The order passed by the learned Single Judge is quite erroneous. A perusal of the order passed by the Government regarding induction of number of officers into KAS does not suggest that it was to take effect from any back date. Rather it was from the date of order. Process for preparation of select list may start earlier. It may be on account of availability of the vacancies or some anticipated vacancies as well. It is so provided in Rule 8 of the 1997 Rules. Rule 9 clearly provides that appointments shall be made on occurrence of vacancies. The appointments are to be made on temporary or officiating vacancies. Once the writ petitioners had already retired, there was no question they being on temporary or officiating vacancies from the date of their induction in KAS. They cannot be kept on probation as well. They cannot undergo any training or pass any examination. 16. The case of the writ petitioners is not that any person junior to them was inducted into KAS ignoring their claim. They cannot be kept on probation as well. They cannot undergo any training or pass any examination. 16. The case of the writ petitioners is not that any person junior to them was inducted into KAS ignoring their claim. Rather it was a case whereby number of officers were inducted vide order dated 23.09.1997. Out of these 169 officers, 25 Officers had already retired when the order of induction was passed, whereas others were in service. 17. The learned Single Judge has referred to order dated 09.07.2004 issued by the Government providing for induction of certain officers in KAS. It was sought to be claimed by the writ petitioners that vide aforesaid order many officers who had retired or even expired had been inducted into KAS. Apparently, counsels for the parties have failed to point out that in the aforesaid order the induction was from a back date and the officers retired or died thereafter. 18. Reliance on earlier order dated 18.09.1991 is misplaced at this stage for the reason that two wrongs will not make one right. Even if illegal order was passed by the State more than two decades back, the same will not confer any right on the writ petitioners now. Realizing the mistake State had corrected the earlier order and had withdrawn the order of induction of the officer in KAS, who had retired from service. 19. There was nothing pointed out by the learned counsel for the respondents from the record to show that the vacancies were existing as on 01.01.1996 and that the induction of officers into KAS was from the same date, though the order was passed on 23.09.1997. Even existence of vacancies may also not confer any right on an employee to seek promotion from a back date in every eventuality, however, the position may be different if some junior is appointed. 20. For the reasons mentioned above, we find merit in the present appeal. The same is accordingly, accepted. The impugned order dated 29.07.2010 passed by the learned Single Judge is set aside. However, it is directed that whatever monetary benefits have already been paid to the writ petitioners, the same shall not be required to be returned back to the State. 21. As the present appeal has been accepted and the order of the learned Single Judge has been set aside, nothing survives in IA No. 01/2016. However, it is directed that whatever monetary benefits have already been paid to the writ petitioners, the same shall not be required to be returned back to the State. 21. As the present appeal has been accepted and the order of the learned Single Judge has been set aside, nothing survives in IA No. 01/2016. The same is accordingly, dismissed.