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2023 DIGILAW 307 (JK)

Ramohan Lal v. UT of J. &K.

2023-07-27

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioner was initially appointed as Draftsman (Civil) in the Public Works Department (P.W.D) of the Government of J &K, in the year 1986. Thereafter the petitioner was transferred and posted in J.D.A Division No.-I vide order bearing No. DA/Estt/PF/1515-17 dated 25.03.1986. Pursuant to the representation made by the petitioner to the respondent No.3, the petitioner was absorbed as the Draftsman in the J.D.A vide order No. 491-96 dated 02.01.2003 by the respondent No.3. The petitioner was promoted as Head Draftsman against the available vacancy vide order No. JDA/Estt/Promotion/5061-63 dated 14.07.2004. Thereafter, he was promoted as Junior Engineer Grade II vide order No. 143-JDA of 2011 dated 01.10.2011, notionally with effect from 28.06.2008 and monetarily, prospectively. The petitioner was thereafter again promoted as Assistant Engineer (Civil) notionally with effect from 01.07.2011 to 17.12.2018 and monetarily with effect from 18.12.2018. 2. The petitioner thereafter filed the writ petition bearing WP(C) No. 4329 of 2019 for directing the respondents to promote him as Assistant Executive Engineer (Civil) in the Jammu Development Authority retrospectively with effect from July 2013 and for directing the respondents to place the petitioner as Assistant Executive Engineer (Civil) in the Jammu Development Authority till such time his case is considered for promotion to the post of Assistant Executive Engineer (civil) in the Jammu Development Authority on the substantive basis, with further prayer for directing the respondents to consider the petitioner for further promotion to the post of Executive Engineer with effect from the date he acquired eligibility i.e. July 2013. This court vide interim order dated 11.12.2019 directed the respondents to consider the case of the petitioner for placement as Assistant Executive Engineer (Civil) against the available vacancy in Jammu Development Authority, under rules. 3. The official respondents during the pendency of the abovementioned writ petition, appointed the respondent No. 5 as Assistant Executive Engineer (Civil) in Division-II Sub-Division-IV by deputation, vide order No. 118- PW (R&B) of 2020 dated 13.03.2020. The petitioner filed another writ petition bearing WP(C) No. 1145 of 2020 thereby challenging the order dated 13.03.2020 and also prayed for directing the respondents 1-3 therein to promote the petitioner against the post of Assistant Executive Engineer (Civil) in the Jammu Development Authority Division No. II Sub-Division No. IV. The petitioner filed another writ petition bearing WP(C) No. 1145 of 2020 thereby challenging the order dated 13.03.2020 and also prayed for directing the respondents 1-3 therein to promote the petitioner against the post of Assistant Executive Engineer (Civil) in the Jammu Development Authority Division No. II Sub-Division No. IV. This Court vide interim order dated 13.07.2020 directed that the vacant post of Assistant Executive Engineer shall be filled up by considering the petitioner and by not sending any engineer on deputation. 4. While these two writ petitions were pending before this Court, the respondents in compliance to the interim order dated 13.07.2020 passed in WP(C) No. 1145 of 2020, considered the claim of the petitioner for promoting him as Assistant Executive Engineer and vide order bearing No. JDA/Estt/1372-73 dated 18.08.2020 rejected the claim of the petitioner on the ground that while absorbing the petitioner in Jammu Development Authority, section-5 of the Development Act has not been taken care of i.e. for absorbing the petitioner, the approval of Board of Directors of JDA , as per section-5 of the Act was required which was not taken in the instant case. 5. The petitioner being aggrieved of the order bearing No. JDA/Estt/1372-73 dated 18.08.2020, filed another writ petition bearing WP(C)No. 2595 of 2021 and prayed for quashing the orders bearing No. JDA/Estt/1372-73 dated 18.08.2020 and No. 351-PW(R&B) of 2021 dated 12.11.2021 to the extent that the respondent No.5 has been posted as Assistant Executive Engineer (Civil) in the Jammu Development Authority on deputation, the same being violation of SRO- 882 dated 26.10.2019 and the quota prescribed for deputation against the posts of Assistant Executive Engineer (Civil) in the Jammu Development Authority. 6. The petitioner has assailed the order bearing No. JDA/Estt/1372-73 dated 18.08.2020 on the ground that the same is illegal and arbitrary, as the absorption of the petitioner in the Jammu Development Authority cannot be made a ground to reject the case of the petitioner because after the petitioner was initially absorbed as Draftsman in the JDA, he was granted three promotions as Head Draftsman, Junior Engineer and Assistant Engineer (Civil). It is also urged that the respondents cannot now raise the issue of absorption of the petitioner in the J.D.A after a lapse of 18 years and that too when the petitioner has already earned three functional promotions in the Jammu Development Authority. It is also urged that the respondents cannot now raise the issue of absorption of the petitioner in the J.D.A after a lapse of 18 years and that too when the petitioner has already earned three functional promotions in the Jammu Development Authority. The petitioner has also assailed the Government Order No. 351-PW(R&B) of 2021 dated 12.11.2021 on the ground that the same is not sustainable in law as it has been passed in violation of the SRO-882 dated 26.10.2019 whereby the cadre of the Jammu Development Authority was declared by the Government and it was provided that in so far as the post of Assistant Executive Engineer (Civil) is concerned, the same shall be filled up 75% from the Union Territory of the J&K by deputation and 25% from the cadre of the Jammu Development Authority. It is also stated that there are total 8 posts of Assistant Executive Engineer (Civil), 6 posts are required to be manned by the Degree Holders and 2 posts by the Diploma Holders. The petitioner has mentioned in para-13 of the petition, the details of 7 posts of Assistant Executive Engineer (Civil), those are manned by the officials on the deputation. Only one post has been manned by an official from the cadre of Jammu Development Authority. 6. That respondent Nos. 2 & 3 have filed their response, wherein the details of the writ petitions filed by the petitioner have been furnished. It is also stated that the absorption of the petitioner in the J.D.A was contrary to the provisions of Section 5 of the Development Act 1970, as such, the petitioner cannot be promoted to the post of Assistant Executive Engineer (Civil). It is further averred in the response that as per the draft recruitment rules of J.D.A recently submitted to the Administrative Department for approval of the Competent Authority, there is a provision of 100% absorption of vacancies of Assistant Executive Engineer (Civil) through deputation from Jammu and Kashmir Engineering Gazetted Services R&B/Mechanical/Power Department and there is no post available of Assistant Executive Engineer (Civil) through promotion quota. It is also stated that at present there are six posts of Assistant Executive Engineer (Civil) as per recruitment rules submitted to the competent authority and at present the service condition of the Employees is being taken care of by the Draft Recruitment Rules of J.D.A. 7. Mr. It is also stated that at present there are six posts of Assistant Executive Engineer (Civil) as per recruitment rules submitted to the competent authority and at present the service condition of the Employees is being taken care of by the Draft Recruitment Rules of J.D.A. 7. Mr. Rahul Pant, the learned senior counsel for the petitioner submitted that the petitioner shall not press his prayer for the quashing of the Government Order No. 351-PW(R&B) of 2021 dated 12.11.2021 and the petitioner shall restrict his claim to the quashing of the order bearing No. JDA/Estt/1372-73 dated 18.08.2020 and the other relief. He vehemently argued that the respondents cannot reject the claim of the petitioner for his promotion as Assistant Executive Engineer (Civil) on the ground that the absorption of the petitioner in the year 2003 as draftsman in the J.D.A was not in accordance with law particularly when the petitioner has already earned three promotions. He further submitted that the respondents also cannot object the relief prayed for by the petitioner, for considering his claim for promotion as Assistant Executive Engineer (Civil) on the ground that at present the service conditions of the employees of the Jammu Development Authority are being taken care of by the draft recruitment rules of the J.D.A, which are yet to be approved. 8. Mr. Adarsh Sharma, the learned counsel for the respondent Nos. 2 & 3 submitted that the absorption of the petitioner as draftsman in the Jammu Development Authority in the year 2003 was not in accordance with law. The order was passed by the respondent No.3 without any approval of the Board of Directors of the Jammu Development Authority and because of this reason only, the claim of the petitioner was rejected. 9. Heard and perused the record. 10. The perusal of the order impugned dated 18.08.2020 reveals that the claim of the petitioner for his promotion as Assistant Executive Engineer (civil) has been rejected by the respondents only on the ground that the initial absorption of the petitioner in the Jammu Development Authority was not in accordance with Section 5 of the Development Act 1970, as the approval of Board of Directors of J.D.A was required. This court is of the considered view that the lack of the approval of the board of directors of the Jammu Development Authority in respect of the absorption of the petitioner in the Jammu Development Authority was merely an irregularity, which in fact got cured subsequently by three promotions granted to the petitioner with the approval of Board of Directors of the Jammu Development Authority. It is too late in a day to say that the petitioner’s absorption in the JDA in the year 2003 was not in accordance with law. In “Narender Chadha v. Union of India”, (1986) 2 SCC 157 , after taking note of the irregularity in the initial appointment, it was held as under: “But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the rules to avoid unjust results. In the instant case the Government has also not expressed its unwillingness to continue them in the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts”. 11. So far as the present case is concerned, the petitioner has been working with the J.D.A for the last 20 years and it would not only be iniquitous but unjust also to say at this stage that the initial absorption of the petitioner in the JDA was not in accordance with law and to deny him promotion on that count. 12. Though in the order impugned it has not been stated that the petitioner is not entitled to the promotion as Assistant Executive Engineer (Civil) on account of the draft recruitment rules which have not been approved as yet, by the Administrative Department, but in their response to the writ petition, the respondent Nos. 2 & 3 have stated that as per the draft recruitment rules, all the posts of Assistant Executive Engineer (Civil) are required to be filled up by deputation. 2 & 3 have stated that as per the draft recruitment rules, all the posts of Assistant Executive Engineer (Civil) are required to be filled up by deputation. This Court has already shown the concern of non-finalization of the draft recruitment rules by the Administrative Department i.e. the respondent No.1 in case titled “Pardeep Kumar Sadhotra vs. Jammu Development Authority and Ors”. bearing SWP No. 2159/2017 decided today i.e.27.07.2023 by observing as under: “The indolence on the part of the Administrative Department of the respondents has led to this litigation. The respondents have not denied that the draft rules of the year 2008 governing the appointment and promotion of the employees of the respondents, were not approved by the Administrative Department. The petitioner has placed on record the another set of Draft Rules of the year 2017 and even the said rules have not been approved by the Administrative Department. This is either the lethargy on the part of the Administrative Department or the unwillingness on the part of the officials at the helm of affairs so that the conditions governing the service conditions of the employees of the respondents remain in limbo, resulting into uncertainty. It is this uncertainty that has been exploited by the respondents to adopt pick and choose policy, to apply the draft rules or the rules governing the service of employees of other government departments, as per their whims and caprices.” 13. This Court is of the considered view that the claim of the petitioner for his promotion as Assistant Executive Engineer (Civil) cannot be rejected on the basis of Draft Recruitment Rules, which have not been approved by the Administrative Department i.e. the respondent No.1. In Pardeep Kumar Sadhotra’s case, the stand of the official respondents (JDA) was that till the rules are framed/draft rules are approved, the service condition of the employees are required to be dealt with in accordance with the service rules of other department/government/CSR. 14. The respondents have un-necessarily dragged the petitioner into the unwarranted litigation. The respondent Nos. 2 and 3 in absence of recruitment rules are acting arbitrarily and just to defeat the genuine claims of their employees, they are choosing the stand as per their convenience. 15. In view of what has been said and discussed above, the order impugned bearing No. JDA/Estt/1372-73 dated 18.08.2020 is quashed and the respondent Nos. The respondent Nos. 2 and 3 in absence of recruitment rules are acting arbitrarily and just to defeat the genuine claims of their employees, they are choosing the stand as per their convenience. 15. In view of what has been said and discussed above, the order impugned bearing No. JDA/Estt/1372-73 dated 18.08.2020 is quashed and the respondent Nos. 2 & 3 shall consider the case of the petitioner afresh for promotion as Assistant Executive Engineer (Civil) from the date he became eligible for the promotion to the said post. The entire exercise shall be undertaken by the respondent Nos. 2 & 3 with in the period of six weeks from the date the copy of this order is served upon the respondent Nos. 2 & 3. Registry shall send the copy of this order to the respondent No.1 with the expectation that the respondent No.1 would at least finalise the rules governing the service conditions of the employees of the Jammu Development Authority, as the lack of the same has led to arbitrariness and discrimination in the action of the Jammu development Authority in dealing with its Employees. As the respondent Nos. 2 and 3 have unnecessarily dragged the petitioner to litigation and the petitioner was compelled to file three writ petitions, so cost of Rs. 30,000/- is imposed upon the respondent Nos. 2 & 3, to be deposited with the Registry within a period of one month and after deposit, the same be released in favour of the petitioner. 16. All the writ petitions are accordingly disposed of. The contempt proceedings shall also stand closed.