Ghulam Ahmad Dar vs State and Ors.

The petitioners came on the establishment of the Education Department for a specific spell of 89 days against class IV posts of Gasman and

Laboratory Bearer respectively by order of the Deputy Commissioner Badgam. In an attempt to fortify the action of the Deputy Commissioner, the

Principal Govt. Higher Secondary School Khanda, Badgam prepared their Service Books. The illegality did not end here but it was perpetuated

by promoting the petitioners to the posts of Laboratory Assistants. The action being quite contrary to law, Mr. Masood Samoon, the Director

Education refused to be a party to it and rescinded the order relegating the petitioners to the adhoc assignment vide his order No.. DSEK/1003 of

2001 dated 28.06.2001. This order is called in question by medium of this writ petition.

To appreciate the controversy in its right perspective it needs to be reiterated that admitted position is that the petitioners have entered the

Department for a specific spell under the order of the Deputy Commissioner and have continued on adhoc basis. The rule position is that the

Deputy Commissioner is not the appointing authority for Class IV posts of Education Department, therefore, the order of appointment of the

petitioners is liable to be quashed but what bales them out is that while residing their order of promotion, the Director has not only allowed their

adhoc appointment to go undisturbed but has impliedly maintained it. That apart, the petitioners have been allowed to work by the principal, who

has also paid them, that too regularly. These are the events which have persuaded me to keep adhoc appointment of the petitioners as Gasman and

Laboratory Bearer intact till these posts are filled up on substantive basis in accordance with the rules considering all eligible candidates including

the petitioners subject to their eligibility.

Having allowed the ad hoc appointment of the petitioners to go uninterfered with, does and right accrue to them for pro motion to the next

higher post. The fate of the proposition shall depend on the answer to a question which may be summarized:

Whether an ad hoc appointee can be considered for promotion

Before adverting to the question, it needs to be appreciated that settled law is that appointment, be it by direct recruitment or by promotion, has

to be in conformity with the rules. A government employee has undoubtedly a right of consideration for promotion provided he is a member of the

service which fall within a feeding cadre of the higher post sought to be filled up and the prerequisite condition is that his appointment is of

substantive character. To be crystal clear it needs to be stated that in absence of substantive appointment the employee has no right of

consideration. Moreso, the membership of service presupposes an order of appointment to the post validly made in the substantive capacity in

accordance with the rules and as per eligibility criteria.

Thus what emerges is that an ad hoc appointment being not a substantive appointment, therefore, such appointee cannot acquire eligibility for

promotion to the next higher post by whatever length of service he may have to his credit even if the post held by such appointee falls within the

feeding cadre of the promotional post. The question is answered accordingly. In the aforementioned backdrop, promotion accorded to the

petitioners is without authority under law therefore, interference with the order of reversion impugned by this writ petition is not possible.

Now a word about the erring officer. Power to accord promotion must be traceable to the rules. Once the power flows from statute, a duty is

cast upon the officer to make the promotion strictly in accordance with the rules. Deviation from the rules amounts to dereliction of the statutory

duty and unless such dereliction is satisfactorily explained and accounted for the officer is liable to action. By promoting the petitioners the

respondents have on the one hand deprived the eligible persons of promotion and on the other favour has been bestowed on ineligible persons in

contravention of law. Had there been any laxity on the part of the Director, the petitioners would surely succeed in getting the next higher

promotion. No wonder if they would reach higher echions of the service. Being manifest that ineligible persons have been pumped up into higher

class of service in utter disregard to the rules and the norms, competent authority is at liberty to initiate action in accordance with law against the

erring officers/officials adhering to the principle of audi alteram partem. Registry to send copies of the judgement to the Chief Secretary of the State

and Director School Education, Kashmir.

Writ petition is disposed of accordingly alongwith CMPs.