JkBose Through Its Chairman vs Ashok Kumar Gandotra And Ors

Gita Mittal, CJ

These two appeals lay a challenge to the judgment dated 1st of November, 2017 passed by the learned Single Judge in SWP No.1741/2013 a writ petition filed by the private respondent Nos.1 to 7 in LPA(SW) No.235/2017.

Aggrieved thereby, the appellants (who were respondents in the writ petition) have filed LPASW No.235/2017, while the J&K State Board of School Education has filed LPASW No.01/2018 assailing the correctness of the judgment dated 1st of November, 2017.

For convenience, we have recorded the nomenclature of the parties as recorded in LPASW No.235/2017, Ghulam Hassan Wani and ors. v. Rakesh Choudhary and ors

The writ Court accepted the challenge made by the respondents 1 to 7 and set aside the order dated 23rd of July, 2013 which had been issued by the J&K Board of School Education to the extent it pertained to the regularization and promotion of the appellants before us as Assistant Secretaries with retrospective effect. The official respondents were directed to consider the writ petitioners i.e. the respondents 1 to 7, for promotion to the post of Assistant Secretary from the date they completed seven years of satisfactory service as Section Officers and were designated as Incharge Assistant Secretaries in terms of the seniority list of the Assistant Secretaries and Section Officers. The learned Single Judge had further directed the official respondents to consider the promotion of the appellants to the post of Assistant Secretary subject to availability of posts and strictly as per their position in the seniority list of Assistant Secretaries and Section Officers.

The appellants as well as the private respondents 1 to 7 in this case who had been working as Section Officers in the J&K State Board of School Education stood placed in the higher pay scale of Assistant Secretary after completion of their respective seven years of satisfactory consistent service in this position. They came to be designated as Assistant Secretaries as well subject to confirmation/regularization by the Departmental Promotion Committee (for short 'the DPC').

It appears that a decision was taken by the J&K State Board of School Education to the effect that 75 per cent posts of Assistant Secretaries shall be filled up by promotion from the category of Section Officers with minimum of seven years of service while the remaining 25 per cent posts would be filled up by direct recruitment. A second order was issued by the J&K State Board providing fresh norms of promotion to various posts including the post of Assistant Secretary. By this Circular, the Board relaxed the minimum qualification criteria of Graduation for the candidates who were in service prior to the issuance of an order bearing No.12-B of 1994 as there was no rules/order in vogue providing for minimum qualification of Graduation for the promotion of Assistant Secretary.

It appears that there were many section officers who stood appointed in service prior to the issuance of the order stipulating the graduation as the minimum qualification for promotion to the post of Assistant Secretary. As a consequence of notification of this minimum qualification, many section officers, including some of the appellants in LPASW No.235/2017 as well as some of the respondents who were not graduates, would have stagnated on the post of section officers. In order to overcome such hardship and stagnation, the official respondents relaxed the qualification criteria completely and referred the matter to the DPC for regularization/promotion of the Incharge Assistant Secretaries. Based upon the APR ratings of the candidates, the DPC recommended the regularization and promotion of the appellants along with other employees, who were thereafter regularized/promoted as Assistant Secretaries by the J&K State Board.

These appointments which stood permitted by the order No. 398-B of 2013 dated 23rd of July, 2013 were the subject matter of challenge by way of SWP No.1741/2013. This order was subject matter of challenge by the respondents 1 to 7 by way of SWP No.1741/2013 which came to be accepted by the writ court resulting in quashing of the appointment of the appellants.

It appears that during the pendency of the two appeals challenging the order of the learned Single Judge, certain subsequent facts have intervened. It appears that in order to put an end to the controversy and to protect promotions which stood granted to the appellants as well as the others, and purely as one time exception, the J&K State Board of School Education took a decision that the respondents before us/writ petitioners shall also be promoted with effect from the date they were holding the charge of the post of Assistant Secretaries. This view of the Board was communicated and recorded by this Court in the order dated 13th of March, 2018 when time of six weeks was granted to the respondents to pass the appropriate orders. The impugned judgment dated 1st of November, 2017 passed in SWP No.1741/2013 was modified in view of the statement made on behalf of the Board.

Mr. B S Bali, learned counsel who appears for the J&K State Board of School Education today handed over a copy of the order dated 16th of April, 2018 passed by the Board whereby by the order dated 13th of March, 2018, purely as an exceptional case, the order of sanction stands accorded to the regularization and promotion of the seven respondents who were working as Ex-incharge Assistant Secretaries, In charge Assistant Secretaries as Assistant Secretaries in the appropriate pay band with effect from the date they were holding the charge of the post of Assistant Secretaries. Copy of this order is taken on record.

It would appear that in view of this order, the prayer made by the private respondents by way of SWP No.1741/2013 itself stands satisfied.

Mr. B S Bali and Mr. Himanshu Beotra, learned counsels appearing for the appellants in both the appeals as well as Mr. Abhinav Sharma, learned counsel appearing for the private respondents jointly request that in view of the order dated 16th of April, 2018, the impugned judgment dated 1st of November, 2017 may be set aside and quashed. We are informed by Mr. Abhinav Sharma that the private respondents 1 to 7 (present in court) are also fully satisfied with the order dated 16th of April, 2018 passed by the official respondents.

It would also appear that by way of the writ petition, a challenge had been laid to the appointment of only the appellants in LPASW No.235/2017 whereas there were several other persons who had been promoted/regularized by way of same order which appointments were not the subject matter of the challenge or the impugned judgment dated 1st of November, 2017.

For all the foregoing reasons as well as in view of order dated 16th of April, 2018 passed by the J&K State Board of School Education, we hereby set aside and quash the judgment dated 1st of November, 2017 in SWP No.1741/2017.

These appeals are allowed in the above terms.