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2020 DIGILAW 82 (JK)

Anupam Dutta v. State Of J&K

2020-02-14

SANJEEV KUMAR

body2020
JUDGMENT 1. The petitioners possess the Bachelor Degree in Electrical Engineering. Pursuant to the selection made by the J&K Service Selection Board, the petitioners came to be appointed as Junior Engineers (Electric) Grade-II on 30.12.1988. In the final seniority list of Junior Engineers (Electrical) Degree/Diploma Holders promulgated vide Govt. Order No. 314-PDD of 2008 dated 23.10.2007, the petitioners figured at S.Nos. 84, 87, 93, 94, 95 and 96 respectively. At the time of appointment of the petitioners as Junior Engineer (Electric) Grade-II, there were no statutory recruitment rules framed by the respondents to regulate the service conditions of the Junior Engineers of the Power Development Department. The statutory recruitment rules came to be framed in the year 1997 vide SRO No. 180 dated 26.05.1997 called as the Jammu and Kashmir Engineering Subordinate Service Recruitment Rules, 1997 (hereinafter called as the Rules of 1997). As per schedule-II A appended to the Rules of 1997, the Junior Engineer- Grade II is entitled to be promoted to the post of Junior Engineer (Electric) Grade-I provided he has at least five years continuous service as Junior Engineer (Electric) Grade-II viz Rs. 1760-3200 (pre-revised) in the case of Degree Holders and Ten years continuous service in case of diploma holders. The note appended provides that the posts earmarked for Junior Engineer Grade-I shall be 1/3 rd of the total strength of the Junior Engineers Grade Rs. 1760-3200 and Rs. 1400-2300 put together. The petitioners claim that under the Rules of 1997, all the petitioners became eligible for being promoted to the posts of Junior Engineers (Electric) Grade-I on rendering 05 years continuous service as Junior Engineers (Electric) Grade-II. The petitioners, therefore, claim that they were entitled to be promoted to the posts of Junior Engineers Grade-I w.e.f. 31.12.1993. The petitioners, however, were not granted the promotion to the posts of Junior Engineers Grade-I, but, instead they were promoted to the post of Assistant Engineer (Electric) in incharge capacity under the J&K Engineering (Gazetted) Service Recruitment Rules, 1978 (hereinafter referred to as the Rules of 1978). It is submitted that for promotion to the post of Assistant Engineer (Electrical), the petitioners were only required to possess three years service as Junior Engineer Grade-I. The Rules of 1978, it is submitted, were deviated from and the petitioners were not only promoted as Incharge Assistant Engineer, but, were later on placed as Incharge Assistant Executive Engineer as well. It is submitted that for promotion to the post of Assistant Engineer (Electrical), the petitioners were only required to possess three years service as Junior Engineer Grade-I. The Rules of 1978, it is submitted, were deviated from and the petitioners were not only promoted as Incharge Assistant Engineer, but, were later on placed as Incharge Assistant Executive Engineer as well. The petitioners further contend that while they were working as Incharge Assistant Engineers and were also eligible for substantive promotion to the posts of Junior Engineers (Electric) Grade-I, they were not so promoted and as against this 111 persons, all juniors to the petitioners in the final seniority list issued on 23.10.2007 figuring from S.No.98 upto S.No.211, were promoted as Junior Engineers (Electric) Grade-I (degree holders). The petitioners were left out on the plea that they were already holding the higher posts of Assistant Engineers though in incharge capacity and in their own pay and grade. The petitioners, who were seniors to 111 persons promoted as Junior Engineer (Electric) Grade-1, vide Govt. Order No.330-PDD of 2005 dated 18.11.2005, represented before respondents. They were all along assured that their services as Assistant Engineers would be regularised from the date they have been put as such, and therefore, no prejudice would be caused to them by promotion of their juniors from Junior Engineer(Electric) Grade-II to Junior Engineer (Electric) Grade-I. The matter, however, was brought to the notice of the Chief Secretary of the State, who convened a meeting in his office Chamber on 23.10.2009. The grievance raised by the petitioners, who were 85 in number was thoroughly discussed and it was decided that as an interim measure the department can, apart from using available 70 vacancies, also utilize 04 vacancies of Assistant Engineers and 11 vacancies of Assistant Executive Engineers so as to accommodate all the 85 Junior Engineer (Electric) Grade-II, who had been left out while making promotions in the year 2005. The department was, accordingly, advised to send the case to the Finance Department for their concurrence before proceeding further. Pursuant to the decision taken on 23.10.2009 in the office chamber of the Chief Secretary of the State, the respondent No.1 vide Govt. Order No. 199- PDD of 2010 dated 29.07.2010 placed 70 Junior Engineers Grade-II (degree holders) as Junior Engineer (Electric) Grade-I till the time they were placed/promoted as incharge/regular Assistant Executive Engineers. Pursuant to the decision taken on 23.10.2009 in the office chamber of the Chief Secretary of the State, the respondent No.1 vide Govt. Order No. 199- PDD of 2010 dated 29.07.2010 placed 70 Junior Engineers Grade-II (degree holders) as Junior Engineer (Electric) Grade-I till the time they were placed/promoted as incharge/regular Assistant Executive Engineers. In this way, the grievance of 70 Junior Engineers Grade-II out of 85 left out was redressed. 15 Junior Engineers Grade-II, who were junior to 70 Junior Engineers (Electric) Degree Holders Grade-II, promoted vide Govt. Order No.199-PDD of 2010 dated 29.07.2010 and seniors to 111, who were so promoted vide Govt. Order No.330-PDD of 2005 were again left out. The grievance of the petitioner in short is that how can the respondents ignore the petitioners for promotion to the post of Junior Engineer Grade-I when 111 Junior Engineer Grade-II, juniors to the petitioners, have been promoted in the year 2005. It is further urged that in a meeting held in the office chamber of the Chief Secretary of the State on 23.10.2009, it was in principle decided to mitigate the hardship of all the 85 left out Junior Engineer Grade-II, which included the petitioners and the department was asked to utilize even the vacancies of the Assistant Engineers and Assistant Executive Engineers as one time exception, but, the respondent No.1 issued Govt. Order No.199- PDD of 2010 dated 29.07.2010 giving promotion only to 70 Junior Engineers (Electric) Grade-II to Junior Engineers (Electric) Grade-I and, thus, again left out the petitioners. 2. It is in the backdrop of this grievance, the petitioners are before this Court praying for a direction to the respondents to place the petitioners also as Junior Engineers (Electric) Grade-I w.e.f. 30.12.1993 or at least from the date their colleagues 70 in number were so placed vide Govt. Order No. 199-PDD of 2010 dated 29.07.2010. 3. The respondents have filed their objections and have not contradicted the averments averred in the petition on facts. It is virtually conceded that the petitioners at the relevant point of time were not placed/promoted to the posts of Junior Engineers Grade-I for the reason that they were already holding the higher post of Assistant Engineers (Electrical) though in incharge capacity and were entitled to be regularized from the date of their placement as Incharge Assistant Engineers. It is virtually conceded that the petitioners at the relevant point of time were not placed/promoted to the posts of Junior Engineers Grade-I for the reason that they were already holding the higher post of Assistant Engineers (Electrical) though in incharge capacity and were entitled to be regularized from the date of their placement as Incharge Assistant Engineers. It is, thus, submitted that because of above, the petitioners were ignored when 111 juniors to the petitioners were placed as Junior Engineer (Electric) Grade-1 in the year 2005. It is sought to be explained that though in the meeting chaired by the Chief Secretary of the State, a decision was taken to accommodate all the 85 left out, but, there were only 70 vacancies of Junior Engineers (Electric) Grade-I available, as such, only 70 out of the 85 left out Junior Engineers (Electric) Grade-II were accommodated vide Govt. Order No.199-PDD of 2010 dated 29.07.2010. The senior most 70 Junior Engineers (Electric) Grade-II were accommodated leaving behind 15 including the petitioners, who could not be accommodated for want of vacancies. It is further pleaded by the respondents that Establishment-cum-Selection Committee in its meeting held on 16.02.2010 discussed the issue of distortion in the pyramid structure of Engineering Departments, post reorganization, wherein the posts of Assistant Engineers were converted into Assistant Executive Engineers. It was observed that there were severe bottlenecks at the level of Assistant Engineer, which is the primary reason for stagnation of the officers in the Engineering Department. Accordingly, it was recommended to convert the posts of Junior Engineers Grade-I into Assistant Engineers in all the Engineering Departments to the extent that total number of Assistant Engineers becomes at least 15% more than the strength of the Assistant Executive Engineers in each department. The respondents have further explained the impact of reorganization and the decision taken by the Establishment-cum-Selection Committee to remove the stagnation of the officers in the Engineering Departments. In nutshell, the respondents do not dispute the better right of the petitioners for being promoted to the posts of Junior Engineer Grade-I vis--vis those 111, who were promoted in the year 2005. 4. In nutshell, the respondents do not dispute the better right of the petitioners for being promoted to the posts of Junior Engineer Grade-I vis--vis those 111, who were promoted in the year 2005. 4. Having heard learned counsel for the parties and perused the record, I am of the view that the petitioners will not be entitled to be placed as Junior Engineers (Electric) Grade-I w.e.f. 30.12.1993 as claimed by them, but, they cannot be treated differently from those 70 Junior Engineers Grade-II who were placed in Junior Engineer Grade-I vide Govt. Order No.199-PDD of 2010 dated 29.07.2010. Admittedly, the petitioners were appointed as Junior Engineer (Electric) diploma holders in the year 1988 and at the relevant time there were no statutory rules regulating their service conditions. The Jammu and Kashmir Engineering Subordinate Service Recruitment Rules came into force in the year 1997 and at the time of promulgation of the statutory rules, all the petitioners had more than 05 years continuous service as Junior Engineer Grade-II to their credit and therefore, were eligible for promotion to the posts of Junior Engineers Grade-I subject to the availability of the posts. No effort was made by the respondents to convene the Departmental Promotion Committee (DPC) and grant timely promotion to the petitioners and other eligible Junior Engineers (Electric) Grade-II as per the Rules of 1997. The petitioners, however, were promoted to the higher post of Assistant Engineers in incharge capacity and in their own pay and grade. This Incharge promotion, on the face of the rules position was not permissible. It is only Junior Engineers Grade-I, (Degree Holders), who after rendering three years continuous service become eligible for promotion to the post of Assistant Engineers. 5. Be that as it may, to meet the exigencies of the situation of the particulars time, the petitioners were granted jump promotion and were placed as Incharge Assistant Engineers. It is because of this reason that they were never considered for substantive promotion to the post of Junior Engineers Grade-I. However, the Junior Engineers Grade-II, who were juniors to the petitioners and had not been placed as Incharge Assistant Engineers got the benefit of substantive promotion to the posts of Junior Engineers (Electric) Grade-I in the year 2005. In as many as 111 Junior Engineers Grade-II juniors to the petitioners were so promoted and superior claim of the petitioners for such promotion was ignored. In as many as 111 Junior Engineers Grade-II juniors to the petitioners were so promoted and superior claim of the petitioners for such promotion was ignored. The explanation given by the respondents is that since the petitioners were occupying higher post of Assistant Engineers and therefore, they were not considered. The petitioners were not even regularised/confirmed as Assistant Engineers. They made representation to the respondents for according them promotion to the posts of Junior Engineers Grade-I. This was considered in a high level meeting chaired by the Chief Secretary of the State and it was in principle decided to extend the benefit of promotion to the posts of Junior Engineers Grade-I to 85 candidates who were left out, which included the petitioners. 70 out of 85 were accommodated vide Govt. Order No.199-PDD of 2010 dated 29.07.2010 on the ground that only 70 posts of Junior Engineers Grade-I at the relevant time were available. This left 15 Junior Engineers Grade-II, who were admittedly senior to 111 persons placed in the grade of Junior Engineer Grade-I in the year 2005, high and dry. The petitioners are amongst those 15 unfortunate Junior Engineers Grade-II. 6. I have carefully gone through the decision taken in the high level meeting chaired by the Chief Secretary of the State and find that a conscious decision has been taken to accommodate all the 85 left out Junior Engineers (Electric) Grade II. 70 Junior Engineers Grade-II out of the 85 were to be accommodated against the available vacancies whereas 15 were to be accommodated by converting some posts of Assistant Engineers and Assistant Executive Engineers. The modalities to be worked out were left to the concerned departments in consultation with Finance Department. It appears that the respondent No.1, that is, the Department of Power Development ordered the promotion of 70 senior most left out Junior Engineers (Electric) Grade-II to the post of Junior Engineers (Electric) Grade-I against the available vacancies, but, did not pursue the matter with the Finance Department to accommodate left out 15 Junior Engineers Grade- II, which include the petitioners. It is how the petitioners have been deprived of their right of promotion to the posts of Junior Engineers Grade-I. 7. Viewed the controversy from any angle, I find no justification in the action of the respondents. It is how the petitioners have been deprived of their right of promotion to the posts of Junior Engineers Grade-I. 7. Viewed the controversy from any angle, I find no justification in the action of the respondents. Once it is not disputed that 111 Junior Engineers Grade-II who were admittedly juniors to the petitioners have been granted promotion to the post of Junior Engineer Grade-I and even 70 persons seniors to the petitioners, who were left out in the year 2005, have been granted the benefit of promotion to the posts of Junior Engineers Grade-I, it is not understandable as to how the petitioners can be denied the said benefit. Thus, it would be complete travesty of justice if the respondents are allowed to treat the petitioners in the manner they have done so far. I find no justification in issuing Govt. Order No.199-PDD of 2010 dated 29.072010 only for 70 persons and ignoring the petitioners. The Govt. Order No.199-PDD of 2010 dated 29.072010, on the face of it, is contrary to the decision taken in the high level meeting chaired by none other than the Chief Secretary of the State. No justification or explanation is coming forth either from Govt. Order No.199-PDD of 2010 dated 29.072010 or from the reply affidavit filed by the respondents for implementing the decision of the high power Committee headed by the Chief Secretary of the State in the selective manner. When the decision of the Committee was to promote all the 85 Junior Engineers Grade-II to the post of Junior Engineer Grade-I, there was no reason or justification for the Department to promote only 70 Junior Engineers Grade-II and ignore 15 Junior Engineers Grade-II including the petitioners, who were similarly situated and had been similarly left out while making promotion in the year 2005. 8. In view of the foregoing discussion, I find merit in this petition and the same is, accordingly, allowed. The petitioners are, thus, held entitled to the promotion to the post of Junior Engineers (Electric) Grade-I, on the same terms as has been done in the case of 70 Junior Engineers (Electric) Grade-II in terms of Govt. Order No.199-PDD of 2010 dated 29.07.2010, as if the petitioners too stand promoted along with aforesaid 70 Junior Engineers Grade-II. The petitioners are, thus, held entitled to the promotion to the post of Junior Engineers (Electric) Grade-I, on the same terms as has been done in the case of 70 Junior Engineers (Electric) Grade-II in terms of Govt. Order No.199-PDD of 2010 dated 29.07.2010, as if the petitioners too stand promoted along with aforesaid 70 Junior Engineers Grade-II. The benefits, which have been paid to those 70 Junior Engineers Grade-II, who were promoted to posts of Junior Engineers GradeI pursuant to Govt. Order No.199-PDD of 2010 dated 29.07.2010, shall also be released in favour of the petitioners. Let this exercise be done and completed by the respondent No.1 within a period of two months from the date of receipt of copy of this order. 9. Disposed of as above along with connected CM(s).