Jahangir Ahmad Malik and Another vs State and Others

Nisar Ahmad Kakru, J.—Two writ petitions stand clubbed and are taken up together for final disposal. SWP 1218/2004 captioned

Jahangir Ahmad Malik v. State of J&K was listed before me on 20.09.2004 wherein a direction was sought by the petitioner for his continuation

as a Junior Assistant on the strength of Order No. Estt/7149-51 dated 21.02.2004 which reads:

Pending clearance by the departmental Promotion Committee and in the interest of smooth running of government work, Sh. Jahangir Ahmad

Malik senior most matriculate orderly of this office, is temporarily promoted to the post of Junior Assistant (District Cadre) as a stop gap

arrangement in his own pay and grade with charge allowance as permissible under rules.

In case the arrangement made vide this office No.: Estt/3 142-45 dated 22.10.2003, is reversed, Sh. Jahangir Ahmad Malik shall get automatically

reverted to the post of orderly.

This order will have immediate effect,

Sd/-

Chief Horticulture Officer, Kupwara (Handwara)

The writ petition received consideration and the following order was passed:

Notice to the respondents returnable within ten days. Notice in the CMP also returnable 'within the same period. It is a case 'where the Chief

Horticulture Officer Kupwara shall have to explain -whether he has authority under rules to make the promotion to the Post of Junior Assistants.

He shall point out in his affidavit to be filed by him by next date as to -whether it is permissible for him to make the promotion at the District level

The direction has become imperative to ensure the disposal of the matter at the admission stage itself as otherwise pendency of the writ petition is

bound to provide an excuse to the respondents to make the arrangement to continue. In the meantime, subject to objections of other side and till

next date before the bench, let there be status quo in respect of the position of the petitioner. Needless to say that in case respondent No. 3 comes

to the conclusion that he has breached the rule pendency of the petition and the ad interim direction will not work as an impediment for him in

taking corrective measures.

As a matter of coincidence same day another petition SWP 1189/2004 entitled Muhammad Akber Mir Versus State came up before me

seeking the following relief:

i. issue writ, direction or for the nature of prohibition restraining the respondents from discontinuing the temporary promotion of the petitioner as

Senior Assistant in District Kupwara made in terms of Order No, Estt/3135-38 dated 22.10.2003 (Annexure P2) till the case of the petitioner is

considered by the Departmental Promotion Committee as per terms and conditions of The said order.

ii. Petitioner further prays for issuance of writ, direction or order in the nature of mandamus commanding the respondents to convene the

Departmental promotion Committee in this behalf and place the service record of the petitioner before the said Committee for confirmation of his

services as Sr. Assistant in accordance with recruitment rules; and ii. by issuance of writ of mandamus, the respondents be further directed to pay

all the service benefits to the petitioner of the post of Sr. Assistant including pay, salary, seniority, retrospectively from the date of temporary

promotion i.e. 22.10.2003.

The relief was sought on the strength of Order No. 3135-38 dated 22.10.2003 which is extracted hereunder;

Pending confirmation by the Departmental promotion Committee, sanction is hereby accorded in the interest of administration and smooth running

of the office work, to the temporary promotion of Shri Mohd. Akber Khan, Jr. Assistant (Pay Scale 3050-4590) to the available post of Sr.

Assistant (Dist. Cadre Pay Scale 4000-6000) in his own pay and grade with charge allowance as admissible under rules.

Sd/-

Chief Horticulture Officer, Kupwara (Handwara)

Upon consideration of the matter following direction was passed:

Notice- Notice in the CMP also,

I have tome across writ petition No. SWP 1218/2004 incidentally on the said date when this writ petition was listed and have found that the Chief

Agriculture Officer herein has passed the order of promotion in the above said petition also, therefore, it will be appropriate to club both the

petitions. The Chief Agriculture Officer owes an explanation to the Court whether he has the competence. Till then there shall be status quo with

respect to the position of the petitioner. List along with writ petition SWP No. 1218/2004 week following next.

Subsequently writ petition was sought to be amended. Permission was accorded and amendment was introduced challenging the order of reversion

impliedly contending in one of the paras of the amended writ petition that knowledge of the order sought to be impugned had accrued to the

petitioner from reply filed by the respondents. How far attempt helps him needs to be appreciated in the light of the fact that in the unamended writ

petition while pleading ignorance of the order of reversion the petitioner admits that an adverse order has been passed against him on 16.08.2004.

While appreciating the averment it has to be borne in mind that the petitioner as a Junior Assistant continued in the same office where here that an

Orderly namely Jahangir Ahmad Malik, writ petitioner in SWP 1218/2004 clubbed one, was promoted to the post of Junior Assistant held by the

petitioner prior to his promotion. His promotion order contained a condition that cancellation of order of promotion favouring writ petitioner

Muhammad Akber will revert him (Jahangir) to his substantive position, a post of an orderly. Assuming that both the beneficiaries were not

associated with the drafting and issuance of the impugned reversion order and someone other than them prepared it but fact remains that it was

prepared by a typist and a junior Assistant who worked under the control pf the Senior Assistant, petitioner herein. Control apart they are

colleagues of the two petitioners. Can a story work that they didn't know the contents of the order. Going by the averments made in the writ

petition, it emerges that the petitioner knew that an adverse order was passed against him, that is how he has named the date of the impugned

order. Even believing that contents of the order were kept a guarded secret and his colleagues did hot serve it on him but what prevented him to

approach the officer who was otherwise kind to him and had set at naught the order subsequent to the direction of the Court reproduced

hereinabove. Pleadings are wanting. Another instance is evident from the CMP No. 2787/2004 filed by the petitioner on 03.01.2004 seeking

amendment of the writ petition but did not make a feeble mention even about lack of knowledge of the order.

Stand of the respondents disclosed in their reply worsens the petitioner's case whereto it is contended that the petitioner is the sole author of one

of the documents prepared fraudulently which helped him to obtain the order of promotion on the post of Senior Assistant. The statement is

supported by an affidavit, obviously, denying knowledge is unfounded. It is not inapt to mention that the allegations of fraud having been supported

by an affidavit the gravity of the charge is manifest for which petitioner could have been booked under substantive law but respondents have

chosen to be very lenient to him and instead of resorting to that course of action a departmental inquiry has been initiated. Reverting to the denial of

knowledge of contents it is clear that the petitioner has withheld the impugned order because had he produced it with the unamended petition he

would not have succeeded to obtain the relief and I am of the considered opinion that relief was obtained by sheer misrepresentation I and

concealment of a very important fact is sufficient to entail dismissal of the writ petition even without addressing to other issues.

Now coming to the attempt of the petitioner to persuade the Court to allow him to continue on the basis of the Full Bench judgement passed in

lead case SWP No. 1309/1998 entitled Rafiq Ahmad Dar Versus State of J&K. To appreciate the contention reference to the judicial decisions

becomes imperative and the relevant paras are extracted:

Union of India and Anr. v. Malik Lal Banerjee AIR 2006 SC 3889

Our attention has also been drawn to the fact that the Central Administration Tribunal, Principal Bench in OA N6.700 of 2004 in the matter of

Federation of Central Government Pension's Association Organizations, Calcutta v. Union of India by a judgement and order dated 1st October,

2004 held that the decision of the Tribal in Sigh was rendered per incuriam and, thus, did not create any precedent. The Railway Administration in

terms of its speaking order, dated 4.6.2004 also held so, The Tribunal, unfortunately, did not apply to mind to that aspect of the matter and

proceeded to grant relief to that respondent herein solely relying on or on the basis of the said decision, Pritam Singh, in our opinion, did not create

any' binding precedent. Only because this Court dismissed the special leave petition, the same would not mean that any law within the meaning of

Article 14A of Constitution was laid down thereby. Pritam Singh was evidently rendered per incuriam as the statutory provisions relevant for

determining the issue had not been taken into consideration.

It is well settled that a decision in an authority for what it decides and not what can logically be deduced there from. The decision ins Pritam

Singh having indisputably not taken into consideration, the exclusionary clause contained in Section 2(e) of the 1972 Act cannot be held to be an

authority for the proposition that despite the provisions of the 1993 Rules, the 1972 Act would apply in the case of the railway servants.

It is now well settled that if a decision has been rendered without-taking into account the statutory provision, the same cannot be considered to

be binding precedent. This Court, tot Pritam Singh, while' Its discretionary jurisdiction, might have refused lo Interfere with the decision. The same,

therefore, did not constitute any binding precedent, The Tribunal and consequently the High Court, therefore, committed a manifest error in holding

otherwise.

Principal, Mehar Chand Polytechnic, Jalandhar City and Anr. v. Anil Lamba and ors. 2006 AIR SC 4373.

The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by

them that prior to their appointment, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with 35-36....

Yet again in National Fertilizers Ltd. and Others Vs. Somvir Singh, , it was held: ""Regularization, furthermore, is not a mode of appointment is

made without following the Rules, the same being a nullity the question of confirmation of an employee upon the expiry the purported period of

probation would notarised.

Uttaranchal Road Transport Corp and Ors. v. Mansaran; Nainwal 2006 AIR SC 3928.

...A decision is a precedent, on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment

that constitutes a precedent. The only thing in a judge's decision tinding a party is the principle upon which the case is decided and for this reason it

is important to analyse a decision isolate from it the ratio decidendi. According to the well-settled of precedents, every decision

contain...basicpostulates findings of fads, direct and Inferential An Inferential finding, of facts Is the inference which the Judge draws from the

direct, perceptible facts; (ii) statements of the principles of law applicable the legal problems disclosed by the facts; and, (iii) judgment based on the

combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision...its ratio and not every

observation found therein nor what logically flows from the various observations made in the judgement. The enunciation the reason or principle on

which a question before a Court has beet decided is alone binding as a precedent. (See The State of Orissa Vs. Sudhansu Sekhar Misra and

Others, and Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, , case is a precedent and binding for what is explicitly decide and

more....

I have sent for the writ record which reveals that the petitioner was directly appointed as Medical Assistant against a leave vacancy caused due to

migration of one Shri Chuni Lai wherein un interim direction was passed in CMP 4970/1994 on 07.09.1991 requiring the respondents to allow the

petitioner to continue till matter is considered or till the migrant rejoins his duty whichever is earlier and continues by direction. During the pendency

of the petition migrant Shri Chunni Lal retired and the petitioner sought permanent absorption. The State being alive to the fact that it was the

creation of its functionaries who made appointments in thousands in a manner as if it was a direct recruitment drive inducting unemployed youth

Directly which continued for years together, therefore, consented to the continuation of the petitioners therein who were before the Court on

28.06.2001 with liberty to the State to oust with a rider to defer implementation of ouster by a month. By now half a decade is over, much water

has flown down the river Jhelum and situation has changed in the State. People are conscious now that adjustment against leave arrangements of

migrant vacancies has worked as a source of permanent employment as if by a full-fledged Recruitment Board notwithstanding the fact that their

continuation is in violation of rules and sufferers are those who did not have access to the corridors of the power or did not have; other means to

obtain it. In the process highly qualified with expertise go ignored. Be that as it may, petitioner is not a direct recruit against a migrant vacancy,

refusal of his continuation will not result in his ouster i from the job but he is going back to his substantive post that is a post of Junior Assistant. A

dispute to his promotion raised by a senior hand who was not considered at all. If contention is accepted it would mean that any in-service member

who manages an order of appointment by promotion as a stop gap arrangement Against higher post attains a right of regularization of such

promotion without according consideration to the eligible persons. If that be so the very statute will be rendered ineffective and unenforceable

leading to an anomalous situation. Apart from that admittedly promotion has been made against a nonexistent post. In the given facts 1 am of the

opinion that the Full Bench judgement cannot come to the aid of the petitioner and the argument fails. Apart from that temporary appointment by

promotion was accorded to the petitioner against a nonexistent post. Being a glaring illegality the respondent 5 could not afford to be a spectator

and keep his eyes shut, obviously, undoing the order of promotion of the petitioner was called for and the writ petition of Muhammad Akber Khan

fails and dismissed.

I would now like to deal with SWP, No. 1218/2004 captioned Jahangir Ahmad Malik v. State and Ors. which is bound to fail and reason is

traceable to the very order of promotion of the petitioner which stands reproduced on the very first page of his writ petition. The order provides in

unambiguous terms that in case arrangement made vide Order No. Estt/3142-45 dated 22.10.2003 is reversed Shri Jahangir Ahmad Malik

petitioner herein shall revert back to the post of an Orderly.

The order No. Estt/3142-45 is the order of promotion favouring Muhammad Akber Khan which stands cancelled by the department and is

upheld for the reasons detailed hereinabove. As a corollary the order of promotion passed in favour of the petitioner-Jahangir Ahmad Malik also

does not survive, consequently, petition also fails and is dismissed along with CMPs.