Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 454 (JK)

Sonaullah Buhroo v. State of J&K

2019-10-17

SANJEEV KUMAR

body2019
Judgment 1. In this petition, petitioner has, inter alia, prayed for following reliefs: “To consider the petitioner for promotion to the post of Officer Incharge Yatch Club and grant the benefit of promotion to the petitioner retrospectively against the said post from the date he has completed requisite five years of experience as Senior Yatchman.” 2. Briefly stated, the facts leading to filing of this petition as gathered from the pleadings are that the petitioner came to be recruited as Class-IV employee in the Department of Tourism somewhere in the year 1986. Petitioner was, vide order No. Est/CC/2869-71/DT dated 18.05.2007 issued by Director Tourism, Kashmir, promoted to the post of Senior Yatchman carrying the Pay Scale of Rs. 5000-8000, but he was given lesser Pay Scale of Rs. 4000-6000, which pay scale is attached to the post of Junior Yatchman. The pay scale of Rs. 4000-6000 was given to petitioner till he successfully completed two years” probation period. The petitioner claims, and which claim of the petitioner is not denied by the respondents, that he completed his probation successfully in the year 2009 and since then he has been holding the post of Senior Yatchman in the Pay Scale of Rs. 5000-8000 (pre-revised). 3. The short grievance of the petitioner, as projected in this petition, is that despite the fact that he has been working as Senior Yatchman for the last more than 10 years, he has not been considered for promotion to the next higher post of Officer Incharge, Yatch Club. 4. Respondents have filed their objections and the stand taken by the respondents is that, in terms of J&K Tourism (Subordinate) Service Recruitment Rules, 1990, issued vide SRO 235 dated 12.07.1990, the post of Officer Incharge Yatch Club is to be filled up 100% by promotion from Class IV, Category “A” on the basis of merit-cum-seniority with five years experience as such and having a certificate in Yatching from a recognized Institute. The petitioner, it is contended, does not possess the technical qualification and a certificate of Yatching from a recognized Institute, and, therefore, is not eligible for the promotion to the post of Officer Incharge, Yatch Club. 5. The petitioner, it is contended, does not possess the technical qualification and a certificate of Yatching from a recognized Institute, and, therefore, is not eligible for the promotion to the post of Officer Incharge, Yatch Club. 5. It may be pertinent to note that during the pendency of instant writ petition, this Court, vide Order dated 23.12.2014, had directed the respondents to consider the representation of the petitioner and take a decision thereon in accordance with rules. In compliance to the aforesaid interim order, respondents have considered the case of the petitioner and vide Government Order No. 283 TSM of 2017 dated 18.08.2017 have rejected the claim of the petitioner for promotion to the post of Officer Incharge, Yatch Club on the ground that the petitioner does not possess the requisite Technical certificate as provided in recruitment rules and therefore, his case is devoid of any merit. 6. Having heard the petitioner in person and Mr. M. A. Chashoo, learned AAG, appearing for the respondents, I find that the only question that begs determination in this case is whether the petitioner is eligible for promotion to the post of Officer Incharge, Yatch Club in terms of Rules, of 1990. 7. Rule 5 of Rules of 1990, which provides for qualification and method of recruitment, is relevant in this context and same is reproduced 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 of grade in 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 schedule –II. II-A and II-B” 8. As is apparent from Schedule-II of Rules of 1990, the post of Officer Incharge, Yatch Club, is required to be filled up 100% by promotion from amongst the persons which have following qualifications/ experience. a) Should be the employee of Class IV, Category “A”, b) Should have 5 years of experience in the said Category, c) Should have certificate in Yatching from the recognized Institute. 9. a) Should be the employee of Class IV, Category “A”, b) Should have 5 years of experience in the said Category, c) Should have certificate in Yatching from the recognized Institute. 9. From the perusal of the Recruitment Rules, it is abundantly clear that the qualification of having certificate in Yatching from the recognized Institute, is one of the essential qualifications for promotion to the post of Officer Incharge, Yatch Club. Admittedly, from the averments made in the petition and documents appended therewith, the petitioner does not possess the aforesaid certificate from any recognized Institute. That being the position, the stand of the respondents that petitioner, in terms of Recruitment Rules of 1990, is not eligible for promotion to the post of Officer Incharge, Yatch Club, is not without substance. Having said that, this Court also cannot loose sight of the fact that though the petitioner does not hold the certificate of Yatching from the recognized Institute, yet he has been accommodated and given promotion from the post of Chowkidar to the post of Senior Yatchman directly, by skipping the intermediate post of Junior Yatchman, probably, because of his experience in the field. 10. As noticed above, the petitioner was promoted to the post of Senior Yatchman in terms of Order dated 18.05.2007, but was given the pay scale of Rs. 4000-6000 during probation. The pay scale of Rs. 4000-6000 is attached to the post of Junior Yatchman. The petitioner claims, and the said claim does not appear to be illusory, that he has participated in several events pertaining to Yatching and has acquired sufficient experience in the field. Be that as it may, that alone cannot confer upon the petitioner the eligibility for promotion to the post of Officer Incharge, Yatch Club. 11. From the perusal of Rules of 1990 and Schedule-II thereto, it is clear that there is only one post of Officer Incharge, Yatch Club, available in the Department and the said post is lying vacant for the last more than one decade due to non-availability of eligible candidate. It is not in dispute that the petitioner is a senior most Yatchman, having experience of more than 10 years. Keeping in view the peculiar facts and circumstances of this case, it is a fit case where the case of the petitioner should be considered by the respondents in terms of Rule 9 of Rules of 1990. It is not in dispute that the petitioner is a senior most Yatchman, having experience of more than 10 years. Keeping in view the peculiar facts and circumstances of this case, it is a fit case where the case of the petitioner should be considered by the respondents in terms of Rule 9 of Rules of 1990. For facility of reference, Rule 9, which delegates the power to the Government to relax the rules in appropriate cases, is reproduced as under:- “9. Power to relax:- Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order for reasons to be recorded in writing and in consultation with the Adm. Reforms and Inspection relax any of the provisions of these rules with respect to any class, category of persons or posts provided that while exercising this discretion the Government would keep the following principle in view:- 5 SWP No. 2350/2014 a/ that the discretion exercised is bona fide; b/ that such an exercised specifies objective test, c/ that it would satisfy any responsible men in place of the authority competent to relax; and d/ that the power should be vested with the Chief Minister only.” 12. In view of the foregoing, while repeating that the petitioner may not be and is not eligible for holding the post of Officer Incharge, Yatch Club, in view of the fact that he is not in possession of certificate of Yatching from the recognized Institute, a direction is issued to respondent no.1 to consider the claim of petitioner in terms of Rule 9 of the Rules of 1990, keeping in view the petitioner”s vast experience and training in Yatching as also the fact that he is a Senior most Yatchman available in the Department, having more than 10 years of service as such. While according consideration to the case of the petitioner, it shall be kept in mind that the post of Officer Incharge, Yatch Club, is lying vacant for last several years due to the non-availability of eligible candidate. Let a decision in this regard be taken by respondent no.1 within six weeks from the date certified copy of this order is made available to respondent no.1. 13. Let a decision in this regard be taken by respondent no.1 within six weeks from the date certified copy of this order is made available to respondent no.1. 13. It would be open to the Government to consider similar claims of other Senior Yatchmans, if they are available and are similarly situated with or better placed than the petitioner. 14. Disposed of as above along with connected CM(s).