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2019 DIGILAW 483 (JK)

Rajinder Kumar v. State

2019-11-04

SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. Petitioners were promoted as Incharge Assistant Compilors vide Office Order No. 160-DF of 2007 dated 28.06.2007 and posted in the Office of Divisional Forest Officer, Doda. Their promotion was in their own pay and grade in terms of Article 85 of the Jammu and Kashmir Civil Service Regulations and were given only charge allowance. They applied for regularization of their services as Assistant Compilors, but their representations were not decided. 2. Aggrieved by the delay in deciding their representations, they filed SWP No. 581/2014, which was allowed on 06.03.2014, with the following directions:- "The writ petition is, accordingly, disposed of with a direction to the respondents to accord consideration to the representations dated 27.12.2013 and 20.01.2014, contended to be filed by the petitioners before the authority concerned, within a period of two months from the date copy of this order is made available to them." Their representation for regularization was considered by the Joint Director, Jammu and Kashmir Funds Organization, who vide Order dated 28.01.2015 rejected their claim on the ground that their retrospective promotion would affect the hierarchy of Sh. Ravi Dutt Sharma and Sh. Swarn Singh, direct recruit Assistant Compilors. 3. Petitioners, however, in para 10 of the writ petition have pleaded that they figure at serial Nos. 3 & 4 while Ravi Dutt Sharma and Swarn Singh figured at serial Nos. 6 and 7 in the seniority list of the Assistant Compilors. This contention of the petitioners had not been denied by the respondents. There was no reference on which date the applications for direct recruitment of Assistant Compilor were invited and when they were appointed. However, photo copy of seniority list of Assistant Compilor marked as Annexure-K (page 29-31) in the writ petition, which has been signed by the Joint Director Funds Organization, Jammu gives the date of appointment of Ravi Dutt Sharma on 04.12.2007 under SRO 43 and that of Swarn Singh as 07.05.2008. Thus none of them is senior to the petitioners as it was a false statement made by the Joint Director Funds Organization in his order dated 28.01.2015 while considering the court directions dated 06.03.2014 in SWP No. 581/2014. 4. Thus none of them is senior to the petitioners as it was a false statement made by the Joint Director Funds Organization in his order dated 28.01.2015 while considering the court directions dated 06.03.2014 in SWP No. 581/2014. 4. The other ground of rejection of the representations is in the last but one para of the order dated 28.01.2015, which is reproduced below:- "Whereas whether bearing about the bush, it is clear that on 20.01.2010 Shri Inderjeet Parihar was not a regular Asstt. Compilor as per Rule 5 of J&K Subordinate Accounts (unfunded Debit) service Recruitment Rules, 1980 Schedule II amended vide SRO 3 dated 01.01.1991, but he was in his own pay scale and grade of 4440-7740 GP-1300." 5. This again is an attempt to justify the arbitrary and illegal order. Firstly, the ground is contrary to the admission made by the respondents in para 4 of the counter affidavit filed by the Joint Director Funds Organization. Relevant portion of para 4 of the order is extracted below:- "the services of the petitioners are governed by Jammu and Kashmir Subordinate (Unfunded debt) Services Recruitment Rules of 1980. As per the Rules, the post of Assistant Compiler is required to be filled up by promotion and that of by direct recruitment. 25% of the available posts are required to be filed up by promotion from amongst such of the in-service Class-IV employees of the Funds Organization who may be possessing Matriculation as a minimum qualification. 75% of the posts are required to be filled-up by direct recruitment. In the year 2007, six number of posts (three each for Kashmir/Jammu Province) were required to be filed up by promotion from the Orderlies of the Funds Organization. Having regard to the inter-se seniority of the Orderlies and that of possessing the minimum qualification of Matriculation, the case of the petitioners was considered by the Departmental Promotion Committee and thereto was recommended for promotion against the newly created post of Assistant Compilers for Jammu Province. Consequently thereto, the petitioners under and in terms of Order No. 160-DF of 2007 dated 28.06.2007 were placed as Incharge Assistant Compilers. Subsequently the Departmental Promotion Committee considered the case of the Incharge adjustments made in the department for their regularization. The Departmental Promotion Committee held its meeting on 18.12.2013. The Departmental Promotion Committee on consideration of the matter in its totality, recommended regularization prospectively. Subsequently the Departmental Promotion Committee considered the case of the Incharge adjustments made in the department for their regularization. The Departmental Promotion Committee held its meeting on 18.12.2013. The Departmental Promotion Committee on consideration of the matter in its totality, recommended regularization prospectively. Documents evidencing the fact in the form of minutes of Departmental Promotion Committee meeting held on 18.12.2013 are placed on record as Annexure-R. Consequent to the acceptance of the recommendations made by the Departmental Promotion Committee, under and in terms of Order No. 392 dated 24.12.2013, the petitioners were regularized as Assistant Compliers with effect from 20.12.2013. Having regard to what has been stated herein above, the case of the writ petitioners was considered and rejected in terms of impugned order bearing No. 91 of 2015 dated 28.01.2015. The writ petition filed by the writ petitioners is legally misconceived, untenable and in sequel thereto merits dismissal." 6. So as per the Amended Recruitment Rules, petitioners being Class IV employees were found suitable and eligible for appointment as Assistant Compliers and there was no reason to promote the petitioners in their own pay and grade and pay them charge allowance. This order has to be construed as regular appointment because as per the Amended Recruitment Rules, as orderlies found eligible were entitled to be promoted. There was no provision for stop gap promotions. 7. Even if it is assumed that the department was justified in promoting the petitioners by placing them Incharge of the higher post though "it could not be justified on any account in view of the rule position" why they were denied regularization cannot and has not been explained, (on any ground except that of lack of understanding of the recruitment rules on the part of the concerned respondent). Order 392-DF of 2013 dated 24.12.2013 regularizing the petitioners with effect from 20.12.2013 is not only arbitrary but also against Government Order No. 743-GAD of 2007 dated 28.06.2007 and 160-DF of 2007 dated 28.06.2007 in which para 7 of the guidelines issued vide Government Order No. 107-GAD of 2002 dated 16.01.2002 have been clarified as under: "Promotion of a Government employee shall take effect from the date, he has been formally put in charge of the higher post subject to his eligibility in accordance with the recruitment rules and availability of the vacancy. His clearance/regularization shall take effect from the date of his placement against the higher post or availability of vacancy or the date of his eligibility, whichever is later. In all other cases, the promotion of a Government employee to the next higher post shall take effect from the date of issuance of the order." 8. The conditions stipulated for retrospective regularization are: i) The official proposed to be promoted must be eligible under the recruitment rules, (ii) The vacancy should be available, (iii) If both the conditions are satisfied then the official should be regularized from the date of available vacancy of eligibility. 9. Both these conditions were satisfied in case of the petitioners, who were found eligible but instead of formally promoting them against the newly created post they were promoted as Incharge Assistant Compilors which was wholly unjustified and arbitrary on the part of the department. The above clarification is in accord of the judgment of the Apex Court in Suraj Parkash Gupta & others v. State of J&K & Ors., AIR 2000 SC 2386 holding that, "summarising the position, we, therefore, hold that the ad hoc/stop gap arrangement of the promotees cannot be treated as non-est merely because the PSC was not consulted in respect of continuance of ad hoc/stop gap service beyond 6 months. Such service is capable of being regularized under Rule 23 of J&K CCA Rules, 1956 and rectified with retrospective effect from the date of occurrence of a clear vacancy in promotion quota subject to eligibility, fitness and other relevant factor...." Rule 23 applies to both the gazetted as well as non-gazetted employees. 10. Since the petitioners were eligible for promotion and vacancies were available, so they were entitled to regularization from the date of their appointment i.e. 28.06.2007 as they were not ad hoc employees and continued to discharge duties from the date they joined on the promotional post. 11. This apart, both the petitioners were approved by the Departmental Promotion Committee as per its minutes issued on 27.06.2007 and they were promoted and placed as the Incharge of the post. Why the minutes of the Committee dated 27.06.2007 have been withheld speaks volumes against the appointing authority as withholding would mean that stop gap arrangement was against the recommendation. This apart, both the petitioners were approved by the Departmental Promotion Committee as per its minutes issued on 27.06.2007 and they were promoted and placed as the Incharge of the post. Why the minutes of the Committee dated 27.06.2007 have been withheld speaks volumes against the appointing authority as withholding would mean that stop gap arrangement was against the recommendation. Thus, regularization of the petitioners with effect from 20.12.2013 is arbitrary, illegal and against the law laid down in AIR 2000 SC 2386 and Government Order No. 743-GAD of 2007 dated 28.06.2007. 12. Thus, the order regularizing the petitioners with effect from 20.12.2013 is illegal, arbitrary, being against Government Order No. 107-GAD of 2002 dated 16.01.2002 read with Government Order No. 743-GAD of 2007 dated 28.06.2007 on the law laid down in AIR 2000 SC 2386 . 13. The contention of the respondents is that since order dated 24.12.2013 regularizing the petitioners' services as Assistant Compilors has not been challenged, this writ petition is, thus, liable to be dismissed. However in the entire writ petition, the challenge is to the order (Annexure C) as the case of the petitioners is that their regularization vide this Annexure is illegal as they have completed 3 years as Assistant Compilors on 28.06.2010 and thus are entitled to be promoted to the post of Compilors. But this plea is not available to the respondents because the challenge to Order No. 91 of 2015 dated 28.01.2015 which justifies the order dated 24.12.2013 is on the ground of it being illegal, arbitrary and against law. 14. The order dated 24.12.2013 has been justified by the respondents by placing reliance on the judgment of this Court reported in 2005 (1) JKJ 601 and AIR 1984 SC 1595 . However, neither the case of Sh. Abdul Rashid and Ors. v. State of J&K & 133 Ors., as reported in 2005 (1) JKJ, 601 and the judgment of O.P. Singla and another v. U.O.I. and Ors., AIR 1984 SC 1595 applies to the facts of the case because in the case of Sh. Abdul Rashid, this Court had decided the case with reference to the Police Rules, 382, 384 and 390 as applicable to the Sub-Inspector and Assistant Sub-Inspector of Police. Abdul Rashid, this Court had decided the case with reference to the Police Rules, 382, 384 and 390 as applicable to the Sub-Inspector and Assistant Sub-Inspector of Police. Therefore, the observation made by the court about the retrospective promotion with respect to direct recruit and promotees have been abolished and has no relation to the facts of this case. 15. Similarly, in the case of O.P. Singla (supra) is with regard to the recruitment rules applicable to the direct recruitment of Higher Judicial Services where the issue of seniority and retrospective promotion has been considered with reference to the direct recruits and promotees. This judgment is also distinguishable because of the recruitment rules applicable to the petitioners. There is no conflict between the promotees and direct recruits as has been discussed above. According to the amended rule, 25% of the posts of Assistant Compilors have to be filled up from promotees of Class IV and 75% by direct recruitment. 16. The petitioners are promotees, who despite the rule position being clear, were promoted on stop gap basis though they were entitled to be promoted against the available posts on regular basis. Thus, the consideration order is against law laid down by the Apex Court and also against the mandate of Government Order referred above. If the consideration order is held to be bad in law, order dated 24.12.2013 cannot survive. So there is no infirmity in the writ petition on the alleged grounds that order dated 24.12.2013 by virtue of which the petitioners were regularized has not been separately challenged. It has already been held that the petitioners were deemed to have been appointed on regular basis but since they were appointed on stop gap basis without any break they are entitled to be regularized with effect from 28.06.2007, the date on which they were appointed. On completion of 3 years, i.e., on 28.06.2010 both have completed the probation period. On completion of the probation period successfully they have to be considered for the post of Compilors but this opportunity was denied to them on the plea that they were not regularly appointed which is wrong as there is no reason for appointing them on stop gap basis. 17. On completion of the probation period successfully they have to be considered for the post of Compilors but this opportunity was denied to them on the plea that they were not regularly appointed which is wrong as there is no reason for appointing them on stop gap basis. 17. In view of the clear rule position as amended by SRO 99 of 1998, thus, the order dated 28.01.2015 is quashed by a writ of certiorari being illegal and against the rule position in view of the law laid down by the Supreme Court and also Government Order No. 107-GAD of 2002 dated 16.01.2002 read with Government Order dated 28.06.2007. Consequently, the respondents are directed to regularize the petitioners with effect from 28.06.2010 and consider them for promotion to the post and likewise order dated 24.12.2013 insofar as the petitioners are considered is also quashed, being against law laid down by the Supreme Court and Government Order referred to hereinabove. 18. The respondents are directed to promote the petitioners for the post of Compilors because both Ravi Dutt Sharma and Swarn Singh were appointed under SRO 43 of 2007 and Government Order No. 175 dated 07.05.2008 respectively and would complete the probation period much after the petitioners. 19. The respondents are further directed to consider the petitioners to the post, which according to the information provided to the petitioners, under the RTI has been reserved for them within a period of 2 months from the date of this order. 20. Disposed of as such.