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J&K High Court · body

2019 DIGILAW 63 (JK)

Rehana Rashid v. State of J&K

2019-02-08

ALI MOHAMMAD MAGREY

body2019
Judgment 1. Petitioner while working as Junior Stenographer is claiming further promotion against the available post of Senior Stenographer on the strength of being only eligible officer. The respondents have admittedly placed her case before Departmental Promotion Committee (DPC), but on misconceptions, the DPC asked the Director-respondent No. 2 to seek regularization of her service against the post of Junior Stenographer made in terms of order No.27-DHPM of 94 dated 07.02.1994. Petitioner is aggrieved of such action, therefore, the instant petition. 2. Brief facts of the case are that in response to the advertisement notice made by Service Selection Board against the post of Telex Operator (State Cadre), petitioner having applied and on competing the process of selection was selected in terms of notification No. SSB/S.S/129/93/376-791 dated 22.08.1993. On receipt of the recommendations with reference to selection of petitioner as Telex Operator, the respondent No. 2 in terms of communication No.DHPM/101/164/93/4002 dated 24.11.1993 submits the case of the petitioner to respondent No. 1 for seeking orders with reference to making appointment of petitioner against the available post of Junior Stenographer as the post of Telex Operator which was under reference for selection to the Service Selection Board was already occupied by one Abdul Rashid Bhat on promotion from the post of Senior Assistant on the recommendations of DPC and with reference to the interim order passed by this Court on 29.09.1993 in the writ petition of Abdul Rashid Bhat bearing SWP No. 2198/1993. Needless to mention that the respondents had on receipt of the recommendations from Service Selection Board in favour of the petitioner with reference to filling up the post of Telex Operator realized that the post was required to be filled up by direct recruitment, therefore, there was no scope for Abdul Rashid Bhat, Senior Assistant against the post, as such, in order to compensate the petitioner and to continue with the arrangements of Abdul Rashid Bhat against Telex Operator suggested for appointing the petitioner against the post of Junior Stenographer qua having same qualification, grade and nature of duty. 3. 3. The respondent No. 1 in terms of communication dated 29.12.1993 accorded approval to the appointment of the petitioner as Junior Stenographer against the available post with only one condition that the petitioner shall furnish an undertaking to the effect that the status between the two i.e. petitioner and Abdul Rashid Bhat shall be subject to outcome of writ petition. Petitioner has submitted the affidavit on 31.01.1994. Subsequent to the appointment of the petitioner, Abdul Rashid Bhat who was promoted against the post of Telex Operator has withdrew the writ petition in terms of order passed on 05.09.1997. Admittedly, Abdul Rashid Bhat, Telex Operator was allowed to continue with the status of Telex Operator till he retired from service on attaining the age of superannuation and his case was also processed for release of pensionary benefits against said post which is evident from Pension Payment Order (PPO) issued by the Accountant General, J&K, Srinagar. The document on record also reveals that the respondents maintained the seniority of petitioner in the category of Junior Stenographers notified in terms of notification dated 17.09.1998 and that of Abdul Rashid Bhat in the category of Telex Operators. Petitioner has also been granted the benefit of 2nd in-situ promotion in terms of order dated 25.07.2012 with reference to reckoning her period of entitlement as a Junior Stenographer. Petitioner’s status with reference to Junior Stenographer on the records of the respondents and in the service record of the petitioner also not disputed so far as the documents are concerned by showing her as Junior Stenographer. 4. The process initiated by the respondent-Director seeking regularization of the service of petitioner as Junior Stenographer is not only misconceived in law but misdirected also. Admittedly, petitioner is a meritorious candidate and on competing the selection process against the post of Telex Operator has been recommended for appointment against that post by Service Selection Board. The respondents by fraud utilized the post of Telex Operator which was on a reference to Service Selection Board for filling up by direct recruitment by utilizing that post for Abdul Rashid Bhat, an in-service Senior Assistant. The respondents by fraud utilized the post of Telex Operator which was on a reference to Service Selection Board for filling up by direct recruitment by utilizing that post for Abdul Rashid Bhat, an in-service Senior Assistant. However, on realization that they received the recommendations from Board with reference to the candidature of petitioner for appointment against Telex Operator had processed her case for appointment against equivalent post of Junior Stenographer available in the department which was approved by the Government in terms of the communication supra and consequently the petitioner was also appointed as Junior Stenographer in the year 1994. The respondent-Director and the DPC after a period of having served the petitioner more than 24 years cannot join issue with reference to the appointment of the petitioner against the post of Junior Stenographer and in view of the conduct as also the admitted position, there is no requirement of any regularization of her service. 5. On consideration of the matter with reference to the claim of the petitioner and on the strength of the proposition of law, the Court is of considered opinion that there shall be no useful purpose achieved by keeping this petition pending in the Court as unnecessarily that will delay the process of consideration of the case of petitioner for promotion against the post of Senior Stenographer against which post she is held eligible in terms of the rules. 6. In that view of the matter, Mr Dar, learned Sr. AAG available in the Court is asked to take notice on behalf of the respondents. Mr Dar, learned Sr. AAG waives notice on behalf of respondents and submits that the claim of the petitioner has rightly been processed for seeking regularization of her services because the petitioner was only recommended by Service Selection Board for the post of Telex Operator and could not have been appointed against the post of Junior Stenographer. Mr Dar, learned Sr. AAG further submits that there shall be no harm in the process initiated by the Director for seeking regularization of services of the petitioner against the post of Junior Stenographer that may on regularization entitle the petitioner for such benefits. 7. Mr Dar, learned Sr. AAG further submits that there shall be no harm in the process initiated by the Director for seeking regularization of services of the petitioner against the post of Junior Stenographer that may on regularization entitle the petitioner for such benefits. 7. On consideration of the matter and with the strength of the pleadings supported with the documents and the law, Court is satisfied with reference to the claim made in the writ petition and in the above background dispose of the same by directing the respondents 1 and 2 as under:— 1. The petitioner is held entitled for benefit of promotion against the post of Senior Stenographer notwithstanding any regularization. 2. The respondent No. 2 shall process the case of the petitioner immediately and place the same before DPC for consideration of promotion in terms of the applicable rules and promote her against the post of Senior Stenographer. 8. With the above-said directions, the writ petition is disposed of along-with connected MP.