Dayal Singh vs State

The petitioners by means of this petition are seeking relief of issuance of a writ of certiorari quashing the seniority list circulated under No.ES4/ 58475907 dated 0.7.1988 issued by respondent No. 3 so far as it pertains to the respondents 4 to 33 and to quash the promotions of respondents 4 to 16 and 26 to 33 with a further direction to the respondents 1 to 3 to consider the cases of the petitioners for promotion to the post of Laboratory Technicians in the grade of Rs. 11502050.

The petitioners have stated in the petition that the petitioners were appointed as Reid worker/Surveillance worker on 1081960 and 19.3.1968 respectively and subsequently appointed as Microspists on 2.4.1964 in the Malaria Unit of the Health Deptt. to undergo training of Laboratory Technician/reorientation Microspists in the year 1963 and else for training in the year 1969, which the petitioners have successfully undergone. The petitioners have also undergone Laboratory Technicians Course from the Jammu and Kashmir State Faculty in the year 1972. Under order No.LB4/ 177/104556 dated 5.10.1972, the petitioners were adjusted as Laboratory Assistants by the Health Services Department as the Malaria Unit of the Health Department stood wound up and merged with the Health Department. The respondent No.3 issued tentative seniority list of Laboratory Assistants under No.ES4/67486807 dated 26.2.86 and the date of the first appointment of the petitioners as Laboratory Assistants was shown as March 1972. The petitioners filed objections to the placement of the petitioners in the seniority list at Serial Nos. 23 and 25 asserting their claim that the seniority be assigned to the petitioners from their first date of appointment and the respondents 4 to 33 be placed as junior to the petitioners. The respondent No, 3 issued final seniority list vide No.ES4/58475907 dated 8.7.1988 showing the respondents 4 to 25 senior to petitioner No.2. Subsequently, the respondent No.3 has promoted respondents 4 to 16 to the post of Laboratory Technicians under No.557/NG of 1988 dated 5121988 and also respondents 26 to 35 were similarly promoted as Laboratory Technicians under No.282/NG of 1987 dated 12.12.1987. The petitioners claim to be senior on the basis of their first appointment in the service and have challenged the promotion of the respondents 4 to 16 and 26 to 33 as the said respondents are allegedly junior to the petitioners. The petitioners have also averred in the petition that the seniority of the petitioners have not been fixed in terms of Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (here in after referred to as Rules of 1956).

The respondent No.3 has filed the objections to the petition duly supported by an affidavit. The respondents 4 to 33 have been set exparte in terms of order dated 15.2.1990. The respondent No.3 has stated in the objections that the petitioners were appointed as Microscopists in the year 1964 in the Malaria Organisation of the Health Department and remained working till 1972, while they were adjusted as Laboratory Assistants.

The respondents 4 to 33 were initially appointed as Laboratory Assistants prior to the adjustment of the petitioners as Laboratory Assistants. The petitioners could only be appointed as Laboratory Assistants peti from the State Medical Faculty. The petitioners were not eligible for appointment as Laboratory Assistants before passing of the training and undergoing the Diploma course. The respondents 4 to 33 were appointed as Laboratory Assistants earlier to the adjustment of the petitioners as Laboratory Assistants and the petitioners were shown as junior to the said respondents in accordance with Rule 24 of the Rules of 1956. The promotion of the respondents 4 to 16 and 26 to 33 have been made on the recommendation of the Departmental Promotion Committee.

I have heard the learned counsel for the parties and perused the record

The claim of the petitioners is that since they and the contesting respondents have been appointed in the service of the Health Department, the petitioners are senior on the strength of their date of first appointment. The dispute to be resolved in the petition is as to whether the petitioners can be declared to be senior to the contesting respondents and if the petitioners are determined as senior, the promotion of respondents 4 to 16 and 26 to 33 need any interference. The seniority of an employee is to be determined in accordance with the intent of Rule 24 of the Rules of 1956, the relevant portion of which is reproduced here under:

Seniority. (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be."" ""According to Rule 24 of the Rules of 1956, seniority of a person has reference to the service, class, category or grade with reference to which the question has arisen and these terms have been defined under Rule 2 of the Rules of 1956, which are also reproduced here under

Definitions.For the purposes of these rules, unless there is anything repugnant, in the subject or context

(a) 'Cadre' means the sanctioned strength of service, class, category or grade, (permanent or temporary):

(b) 'Category' means the posts borne on the cadre of a service or class:

(d) 'Class' means the posts borne on the cadre of a service between which and the other posts borne on the cadre of the same service, promotions

and transfers are not ordinarily admissible,

(k) 'Service' means a group of posts declared by Government to be a service.

For fixation of seniority of a Government Servant he must be a member of the service, must hold a post borne on the cadre of the same service.

Amongst the post held and the other posts borne on the same cadre, category or grade, promotion and transfers must not ordinarily be admissible.

To put the things straight, it means that the seniority can be fixed of the two posts of the same grade carrying different designations provided the posts are intertransferable and the promotional avenue is/are common. Admittedly, the petitioners belongs to the service of the Health Department, but the posts borne on the cadre of Microsopist and the other posts of Laboratory Assistants of the same grade are not intertransferable. The Microspist and the Laboratory Assistants are not a common feeding source for promotion to the next post of Laboratory Technician. The Microsopist, unless brought on the cadre of Laboratory Assistant, is not eligible for promotion to the post of Laboratory Technician. Indeed the posts are borne on the cadre of the service, but the posts do not form one class and, being not intertransferable, cannot be clubbed for seniority and promotion purposes.

For its more clarity, the posts of Medical Assistants, Clerks, Microsopists and Laboratory Assistants, though may be of the same service, borne on the cadre, in the same grade still do not form one class and such posts are not intertransferable. Seniority of such Government Servants holding different and distinct pots cannot be common and date of first appointment to that extent for determining seniority is not justified. Seniority of each of such class or category is required to be maintained separately. The petitioners were appointed as Reid Surveillance Workers on 1.9.1960 and 19.3.1962 respectively and are silent about the pay scale of the post. Subsequently on 2.4.1964, the petitioners were appointed as Microsopists, the posts of Microsoists and Laboratory Assistants carry the same pay scale. The post of Field Worker/ Surveillance Worker, Microsopists and Laboratory Assistants do not form one class and are not inter transferable in terms of the definition of 'Class' and "Category" contained in Rule 2 of the Rules of 1956.

The contention of the petitioners that they are entitled to the seniority from the date of their appointment, being borne on the cadre strength of the service of the department, appears to be unfounded.

The learned counsel for the petitioners have cited a judgement of this Court delivered in Writ Petition No.257 of 1980 titled Shri B.L.

Choudhary Vs. State of J&K and others in support of his contention, which is distinguishable and is not directly applicable to the present case.

It is also gathered from the facts of the case, that the respondents 1 to 3 appointed only those persons as Laboratory Assistants, who have qualified the Diploma Course of Laboratory Assistant from the Jammu and Kashmir State Medical faculty. The petitioners have admitted in the petition that they qualified the said course only in the year 1972. Having [SIQ thus eligible, the respondents adjusted the petitioners against the posts of Laboratory Assistants. The petitioner were earlier working as Microsopists and adjusted as Laboratory Assistants only in 1972.

According to their first date of appointment as Laboratory Assistants have rightly been placed junior to the contesting respondents in terms of Rule 24 of the Rules of 1956. The petitioner accordingly cannot be declared to be senior and are not entitled to any further relief.

For the foregoing reasons, the petition is dismissed. No order as to costs.