Ghulam Mohd.Dar & Ors. vs State of J&K & Ors.

The petitioners employees of Respondents 1 to 3 by way of this writ petition under S 103 of the State Constitution read with Art. 226 of the Constitution of India challenge and seek quashing of the order of promotion of respondent No. 4 on the following grounds:

The petitioners 1 to 3 claim their seniority over the respondent No. 4 with effect from first appointment ranging from 251168, 301079 and 121968 respectively. Further they claim to be Matriculates and trained Multipurpose Workers The petitioners have filed a seniority list indicating the names of the petitioners including the respondent No 4. It is alleged that respondent No. 4 has been appointed on 301280 and is a far junior employee compared to the petitioners but with utter disregard to the rules of promotion and principles of natural justice the respondent No. 2 has promoted respondent No. 4 as a junior Health Inspector without considering the petitioner's claim having same qualification and being senior to

him. The petitioners claim that the only rule for Field Worker for promotion as Junior Health Inspector, is on the basis of seniority together with being a Matriculate and trained in Multipurpose works which the petitioners possess but their claim has been ignored while promoting respondent

No. 4 by respondents.

On admission of the writ petition, the respondents 1 to 4 were given opportunity to file counter affidavit, only respondent No. (4) has filed reply affidavit but respondents 1 to 3 have not chosen to file the counter which right stands closed to them vide court order dt. 11287.

Respondent No. 4 while contesting the claim of the petitioner in his reply affidavit has decategorised himself from the category of petitioners and claimed his separate seniority being member of a distinct class, thus, the petitioners have no cause of action against him being members of two distinct classes. Further the petitioners have obtained training in their own field while petitioner No. 3 stands already promoted, the writ petition is misconceived on the grounds taken by the petitioners.

I heard learned counsel for the parties.

Mr. Hagroo argued that the petitioners and respondent No 4 are from one category of service, being Field Workers in the Medical Deptt. having combined seniority with equal qualifications, the promotion, if any, made should be on the basis on seniority alone in absence of adverse record against the petitioners and any special reason in favour of the respondent No 4, the promotion of respondent No 4 without considering the petitioners of the same category is not only arbitrary but discriminatory too.

Mr. Mir for respondent No. 4 argued that in fact the respondent No. 4 has not been promoted but allowed him to work under the order impugned on the next higher post as junior Health Inspector in his own pay and due to exigencies of service in accordance with Art. 25 (3) of J&K Civil Service (Classification, Control and Appeal) Rules, 1956, and on this ground the writ petition is not maintainable, being premature.

To appreciate the arguments of learned counsel for the parties, it has to be seen:

i) Whether the petitioners, and the respondent No. 4 contesting parties in writ petition belong to same class and category of service having equal qualification;

ii) Whether the petitioners are senior to respodent No. 4: and

iii) Whether the impugned order Annexure C amounts to promotion of respondent No. 4 without considering the petitioners.

As regards 1st and 2nd points, the respondent No. 4 in his reply affidavit has contended that he belongs to a different class of service having separate seniority, therefore no clash of interest arises between the petitioners and the respondent No. 4. The averment of the respondentpromote is not supported by any material projected before the Court. He has made, no doubt, reference of his separate seniority which fact however, gets believed by a latest Combined seniority list issued by the respondent No. 2 in respect of Matriculate Class IV Servants of Kashmir Division in the pay scale of (390500)/ 345460). The petitioners, according to the list, not disputed by Counsel for the respondents at the time of arguments, show petitioners and respondent No. 4 in the grade of 345460. Petitioner No. 1 figure at Serial No. 1 (390500) while petitioner No. 2 at serial No. 6 (345460); petitioner No 3 figures at serial No. 10 (345460) while respondent No. 4 promote figures in the list at serial No. 99. The seniority list appears in accordance with the first appointment of the petitioners and respondent No. 4. No material has been brought on record contrary to the seniority list which establishes that the petitioners are decidedly far senior to the respondent No. 4 promote, therefore, the seniority of the petitioners as per seniority list gets established against respondent Ns. 4. The plea of the respondent No. 4 further gets belied that he forms a distinct class than the petitioners. Seniority list establishes that the petitioners and respondent No. 4 belong to same class and category of service in the Health Deptt. carrying the grade and admitted the petitioners have the same qualification which the respondent No. 4 possess.

Thirdly, the only crucial point for determination is whether the order impugned sought to be quashed amounts to promotion of respondent No.

4?

I, for ready reference reproduce the order impugned, Annexure C to the writ petition in the following words;

Pending clearance by the D.P.C. and as recommended by the Chief Medical Officer, Anantnag Shri Gh. Hassan Rather Field Worker Primary Health Centre, Veering is promoted against the available post of Junior Health Inspector Primary Health Centre, Salary in his own pay and grade"", From the bare perusal of the order, it is revealed the respondent No. 4 has been promoted to a higher category of service as Junior Health Inspector in his own pay and grade subject to final selection by the D. P. C. To settle the point the word 'promotion' in the light of rules need lo be interpreted.

Rules 2 clause (h) of the Gasification, Control and Appeal Rules, defines the same in these words:

(h) 'Promotion' means the appointment of a member of a service or class of a service, in any category or grade to a higher category or grade of such service or class.

The rule categorically defines promotion of a member of a service of any category or grade to a higher category or grade of such service or class which amounts to promotion must be either to a higher grade or to higher category which connotes that even if a member of a service is placed to discharge his duties in a higher category without giving benefit of grade, it amounts to promotion and merely being short of award of higher grade in the higher category of service, it does not lose the meaning of word promotion what identically has happened in the case in hand.

Respondent No 4 has not been given benefit of the grade but he has been expressly promoted to a higher category of service as junior Health Inspector though subject to approval of the Departmental Promotion Committee. The D P. C has not met till date as no such argument was advanced by the counsel for the respondents 1 to 3 the authority competent to take such step. The appointment of respondents No. 4 in a higher category continues indefinitely.

Mr. Mir, appearing for respondent No. 4 drew my attention to rule 25 clause (3) of J&K CS (Classification, Control and Appeal) Rules under which the appointing authority or head of the Deptt. is competent to make ad hoc appointments for a fixed period in the exigencies of service.

Argument of learned counsel for the respondent No. 4 gets defeated by the fact that the respondent No, 4 has continued indefinitely and without break till date as Junior Health Inspector and no break appears to have been applied to his appointment from the date he was promoted in the higher category of Service, therefore, it cannot be conceived that appointment made by the respondent No. 2 was on adhoc basis. Even if, it is presumed on ad hoc basis, the Head of the Deptt or a proper authority has not to lose sight of, to consider the other available eligible members of service for adhoc promotion and he has to supply reasons while passing of promotion to the effect why a preference is given to a particular and ignoring the others equally situated having same qualifications, even being far senior to the incumbent proposed to be promoted. Since the impugned order of promotion loses the colour of adhoc appointment it has to be decided on the established principle of promotion laid in rule 25 of J&K CS (Classification, Control & Appeal) Rules, 1956 which provides that the promotions to a service or class or to a selection category or grade in such service or class shall be subject to the passing of any test prescribed by the Govt. if the promotion is not done in accordance with this rule, the promotion has to be made in accordance with seniority when merit and ability is equal between the eligible members of service.

In the case in hand since the appointment of the petitioner as Junior Health Inspector has been held as a promotion to higher category, the option open to the respondent was to consider the petitioners also in view of the petitioners and the respondent No. 4 fulfilling equal conditions regarding their qualification and the petitioners decidedly, as per seniority list, are far senior to the respondent No. 4. The respds. No. 2 had not to miss sight of the established rule while promoting respondent No. 4 to higher category looking to the seniority of the petitioners, what has not been

done. The respondents 1 to 3 have not in fact contested the writ petition nor projected in their argument that the respondent No. 4 possessed extra or any special qualification required for the post, to which he has been promoted which would result in ignoring the petitioners.

Keeping in view the observations that the petitioners, according to the record in the shape of seniority list being senior to respdt No. 4 and having equal qualification and the promotion of respondent No. 4 to a higher category of service without applying Rule 25 (3) of J&K CS (Classification Control and Appeal Rules, 1956, the promotion of respondent No. 4 as Junior Health Inspector appears not justified under the rules without considering the petitioners. The promotion of respondent No. 4 appears arbitrary and without adhering to the rules of service on the subject.

The result is that the writ petition is allowed, order No. 70g/NG of 1984 dated 971984 issued by respondent No. 2 is quashed and it is ordered that the promotion to the post of Junior Health Inspector shall be made by the respondent No. 2 in accordance with the observations and the rules referred hereinabove considering the claim of the petitioners also.

The petition is allowed and disposed of accordingly.