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2021 DIGILAW 129 (JK)

Bholi Devi v. SKUAST

2021-03-29

SANJEEV KUMAR

body2021
Judgment Sanjeev Kumar, J.-The petitioner is serving in Sher-e-Kashmir, University of Agriculture Science and Technology (SKUAST), Jammu as Assistant-cum-Typist and is holding the selection scale since 27.03.2013. He came to be appointed as Assistant-cum-Typist in the then pay scale of Rs.3050-75-4590 and was posted in the Directorate of Resident Instructions Wing of SKUAST vide University Order No.75(Estt) of 2002 dated 13.08.2002. 2. In the Schedule-I to Chapter III (General Administration Cadre), there is a provision for placement of 30% of sanctioned strength of Assistant-cum-Typist/Dispatch/Receipt/Stationary/Store clerk and equivalent ministerial posts in the selection scale of Rs.4000-6000 subject to such incumbents having at least five years experience and good service record. This placement is provided to be made on the basis of merit and suitability. The petitioner, who was appointed as Assistant-cum-Typist on 13.08.2002 acquired the requisite five years experience on 12.08.2007 and, therefore, became entitled to be placed in the selection grade subject, of course, to the availability of vacancy and her merit and suitability. It is pleaded that in the year 2007, when the petitioner acquired the eligibility for placement in the selection grade, the total sanctioned strength of Assistant-cum-Typist was 47 in the SKUAST and, therefore, 14 posts were the selection grade posts. It is submitted that some of the seniors amongst the Assistant-cum-Typists got promoted as Head Assistants and those falling next in the order of seniority became eligible for their placement in the selection grade under 30% quota earmarked by the Rules for the purpose. 3. The petitioner has given the details of 30% employees, who were placed in the selection grade from time to time and the last one being one Rajni Bharti, appointed along with the petitioner, was placed in the selection scale w.e.f. 21.11.2008 (substantively) and w.e.f 13.08.2007 (notionally). Next in the order of seniority was one Tabrez Ahmed who was followed by the petitioner. Both Tabrez Ahmed and petitioner having completed their five years service on 12.08.2007, were eligible to be placed in the selection scale immediately on the accrual of vacancies. 4. It is the grievance of the petitioner that despite there being vacancies available, vide order dated 07.03.2013, aforesaid Tabrez Ahmed was given the benefit of selection scale and the petitioner was dropped. 4. It is the grievance of the petitioner that despite there being vacancies available, vide order dated 07.03.2013, aforesaid Tabrez Ahmed was given the benefit of selection scale and the petitioner was dropped. It is submitted that the order dated 07.03.2013 whereby the said Tabrez Ahmed was placed in the selection scale indicates that apart from Tabrez Ahmed, some more candidates were cleared for placement in the selection scale. However, the annexure appended with the said order contains only one name i.e. the name of Tabrez Ahmed. This is how, the petitioner claims, she was ignored. The petitioner claims to have made repeated representations to the Authorities, but nothing fruitful was done. It was only on 11.09.2013, the respondents-University vide Order No. 238 (Est) of 2013 placed the petitioner in the selection scale prospectively w.e.f 27.03.2013. The petitioner submits that, though her grievance with regard to her placement in the selection scale was partially redressed, but her appointment was not given effect from the date the vacancy was available and, she was also eligible and the only candidate next in the order of seniority to be placed in the selection scale. 5. The grouse of the petitioner is that the aforesaid Tabrez Ahmed, who had acquired the eligibility along with the petitioner was placed in the selection scale w.e.f 20.06.2008, whereas the petitioner was so placed only on 27.03.2013. It is in this backdrop, the petitioner has assailed the University Order dated 11.09.2013 insofar as it has the effect of denying the placement of the petitioner in the selection scale retrospectively w.e.f the date the vacancy in the quota became available. 6. On being put on notice, the respondents have entered appearance through Mr. W.S. Nargal learned counsel and have opposed the maintainability of the writ petition by filing objections. It is the stand of the respondents that prior to placement of the petitioner in the selection scale, out of the sanctioned strength of 47 Assistant-cum-typists, 14 have been placed in the pay scale of Rs.4000-6000 as per 30% quota earmarked under the SKAUST statutes. It is submitted that due to elevation of senior most Assistant-cum-Typists to the higher posts of Head Assistants w.e.f 26.03.2013, one post of senior scale of Rs.4000-6000 for Assistant-cum-Typist became available w.e.f 27.03.2013. The petitioner, who was eligible and next in the seniority was, thus, granted the selection scale w.e.f 27.03.2013. It is submitted that due to elevation of senior most Assistant-cum-Typists to the higher posts of Head Assistants w.e.f 26.03.2013, one post of senior scale of Rs.4000-6000 for Assistant-cum-Typist became available w.e.f 27.03.2013. The petitioner, who was eligible and next in the seniority was, thus, granted the selection scale w.e.f 27.03.2013. It is submitted that with regard to Tabrez Ahmed, the respondents had adopted the similar analogy and he was placed in the selection scale w.e.f June 2008 i.e the date when the percentage of quota became available due to promotion of one Assistant-cum-Typist to the post of Head Assistant. It is further pleaded by the respondents that in compliance to the interim order dated 18.09.2013 passed in the instant writ petition, the respondents constituted a Committee for according consideration to the case of the petitioner. The aforesaid Committee considered the matter threadbare and vide memorandum dated 04.11.2013 rejected the claim of the petitioner. The said Committee was of the view that the petitioner had been rightly placed in the selection scale w.e.f 27.03.2013. The respondents have also filed supplementary affidavit in compliance to the order passed by this Court on 24.02.2020 and have explained as to how 30% quota meant for selection scale was filled up by the respondents from time to time. 7. It is sought to explain by the respondents that it is not always necessary that a person is placed in the selection grade as and when the post in the quota becomes available. In many cases, there had been delay of a year or so in making the placement, though the vacancy was available and the eligible persons were also there. 8. Having heard learned counsel for the parties and perused the record, it is necessary to first set out the relevant extract of Note (b) of Schedule I to Chapter II. “30% of the sanctioned strength of the Assistant-cum-Typists/Despatch/Receipt/Stationery/Store clerk and equivalent ministerial posts shall be placed in the selection scale of Rs.4000-6000 subject to their having at least 5 years experience as Assistant-cum Typist/Despatch/Receipt/ Stationery / Store clerk in the scale of Rs.3050-4590 and having good service record on the basis of merit and suitability”. 9. From a reading of aforequoted Rule, it is evident that 30% of sanctioned strength of Assistant-cum-Typists is a quota fixed for placement of Assistant-cum-Typists in the selection grade. 9. From a reading of aforequoted Rule, it is evident that 30% of sanctioned strength of Assistant-cum-Typists is a quota fixed for placement of Assistant-cum-Typists in the selection grade. This is subject to the fulfillment of two conditions; (i) that the candidate has at least five years experience as Assistant-cum-Typist with good service record; and (ii) that the post in the quota is available. The placement is though provided in the said Rule to be made on the basis of merit and suitability, yet in practice, the rule of seniority is adhered to by the respondents. Admittedly, the sanctioned strength of Assistant-cum- Typists in the SKAUST is 47 and, therefore, 30% quota for selection grade works out to be 14. 10. As is the admitted case of both the sides, senior most employees amongst the Assistant-cum-Typists have been placed in the selection grade from time to time subject to eligibility and suitability and availability of posts in the quota. The last person to be placed in the selection grade before the placement of Tabrez Ahmed and the petitioner, was Rajni Bharti, who was also appointed along with the petitioner as Assistant-cum-Typist and was given the benefit of selection scale w.e.f 21.11.2008 and retrospectively w.e.f 13.08.2007. As is explained by the respondents in their objections, to which there is no rebuttal by the petitioner, one post in the selection scale quota became available in the year 2007 due to promotion of senior most Assistant-Cum-Typist to the post of Head Assistant and, accordingly, Tabrez Ahmed being senor to the petitioner was placed in the selection scale from June 2008. The next post in the quota, however, became available only on 27.03.2013 when the then senior most Assistant-cum-Typist Sh. Vijay Kumar vacated the post on account of his promotion to the post of Head Assistant on 27.03.2013. Against this post, the petitioner was placed in the selection scale. That being the position, one fails to understand how the petitioner would be entitled to placement in the selection scale at any time prior to 27.03.2013. 11. Admittedly, no post of Assistant-cum-Typist between 20.06.2008 and 27.03.2013 in the selection scale became available. It became available only when aforesaid Vijay Kumar, the senior most Assistant-cum-Typist was promoted to the post of Head Assistant w.e.f 27.03.2013 and against which the respondents vide the impugned order placed the petitioner. 11. Admittedly, no post of Assistant-cum-Typist between 20.06.2008 and 27.03.2013 in the selection scale became available. It became available only when aforesaid Vijay Kumar, the senior most Assistant-cum-Typist was promoted to the post of Head Assistant w.e.f 27.03.2013 and against which the respondents vide the impugned order placed the petitioner. This way, I find no illegality in the action of the respondents. The reliance placed by the petitioner on Annexure L to the extent of indicating in the remarks column against the petitioner that though the quota stands generated due to the retirement of Head Assistant, appearing in the seniority list of Head Assistants at S.No.10 w.e.f 01/2011, yet the grant of selection scale due to the petitioner w.e.f 19.08.2007 is still awaited, would not help the petitioner in any way. The retirement of Head Assistant may make the post of Head Assistant falling vacant, but until the Assistant cum Typist is promoted against the said post, there would be no post available in the selection scale of Assistant cum Typist which could be fill up by promotion of the next eligible candidate. As is contended by the respondents, that the post of Head Assistant was filled up by promotion of Vijay Kumar, senior most Assistant cum Typist only w.e.f 27.03.2013 and, therefore, it is not possible to accept the contention of learned counsel for the petitioner that, though the post in the selection scale was available all along, but the petitioner was not given the benefit of selection scale. The petitioner got the benefit of selection scale as and when the post fell vacant. It is not the case of the petitioner that after the placement of Tabrez Ahmed in the selection scale, anybody else junior to him was placed in the selection scale. Needless to say that a person by merely acquiring the eligibility does not become entitled, as a matter of right, to be placed in the selection scale. It is subject to his suitability and availability of the vacancy in the quota. 12. In the instant case, the respondents were obliged to place only 14 senior most Assistant-cum-Typists in the selection scale and this they had to do subject to eligibility and availability of the post. It is subject to his suitability and availability of the vacancy in the quota. 12. In the instant case, the respondents were obliged to place only 14 senior most Assistant-cum-Typists in the selection scale and this they had to do subject to eligibility and availability of the post. From perusal of the records before me, I could not find that the respondents have, in any manner, violated Note (b) of Schedule I to Chapter II of the University Statutes. 13. For the foregoing reasons, I find no merit in this petition. The same is accordingly dismissed.