AI Structured Summary
Not yet generated for this judgment
Judgment
Petitioner seeks certiorari quashing Order No.CEO/Estt/2013/226 dated 13th of November, 2013 passed by respondent No.1 (Chief Electoral
Officer, Jammu and Kashmir, Jammu) as the same has been passed arbitrarily against the judgment dated 20th of March, 2013 rendered in SWP
No.440/2013 as well as SRO 166 dated 14th of June, 2005. In addition, petitioner seeks a direction to the respondents to promote him as Election
Assistant (Jr. Scale) w.e.f the date, he has qualified the typing test got conducted by the respondent-department with all consequential and monetary
benefits.
Present petition is the second round of litigation filed by the petitioner before this Court.
The facts, in a nutshell, as detailed in the present petition are that the petitioner joined the respondent-department as orderly on 18th of February,
1999 and while serving the department with permission of higher authorities, he appeared in 10th Class examination and as such passed the same. It is
contended that petitioner along with eight more employees participated in the departmental type test for promotion to the post of Election Assistant
(Jr. Scale) conducted on 20th of January, 2010 but could not make a grade and other candidates who qualify the said test stood promoted vide order
No.CEO/Estt/2010/109 dated 30th of April, 2010. It is contended that respondents again conducted typing test on 21st of December, 2010, which
petitioner had qualified but it was his dismay that despite four posts were lying vacant in District Udhampur, he has not been promoted. On inaction at
the end of the respondents, he after waiting for more than two years knocked portals of this Court to seek indulgence by filing a petition, bearing SWP
No.440/2013 which was disposed of vide order/judgment dated 20th of March, 2013 with a direction to the respondents to consider the petitioner along
with all eligible candidates for being appointed by way of promotion on the post of Election Assistant (Jr. Scale) selection as prescribed in Jammu
and Kashmir Civil Services (Reference of Vacancies and holdingof meetings of Departmental Promotion Committees),Rules, 2005) issued by the
Government vide SRO 166 dated 14th of June, 2005. It is averred that despite directions issued by this Court vide judgment dated 20th of March,
2013, respondent-department did not promote the petitioner and he filed a contempt petition bearing COA(SW) No.389/2013 wherein respondents
informed this Court by filing statement of facts that case of the petitioner has been rejected vide order dated 13th of November, 2013. The aforesaid
contempt petition was also disposed of vide order dated 1st of April, 2014 by giving liberty to the petitioner to challenge the rejection order.
I have heard learned counsel for the parties, considered their submissions and gone through the contents of the record attached with this petition.
On notice, response has been filed by the respondent No.1 resisting therein the claim of the petitioner. The main contention of the respondent No.1
is that on the directions issued by this Court in terms of judgment dated 20th of March, 2013, respondent-department issued a notice informing all the
eligible employees including the petitioner to appear before the Committee constituted by the Department headed by Under Secretary to Government,
Election Department, J&K Srinagar and its two members viz., Assistant Chief Electoral Officer, Jammu & expert nominated by Director, Technical
Education Department, J&K for the type test which was conducted on 04th of June, 2013 at Government Polytechnic College for Women, Bemina,
Srinagar to examine the eligibility of Class-IV employees. It is contended that despite informed by the department to participate in the test conducted
on 04th of June, 2013, petitioner had avoided the opportunity provided to him.
The precise ground of challenge thrown by the petitioner in this petition is that the order impugned has been issued by Chief Electoral Officer, J&K,
Jammu, having no legal competence which lies with the members of Departmental Promotion Committee (DPC). Another ground of challenge is that
respondent-department is legally estopped from not accepting the result of the typing test of the petitioner.
In terms of Jammu and Kashmir Election Department Subordinate Service (Non-Gazetted) Departmental Recruitment Rules, 1997, 25% quota is
fixed for eligible orderlies for promotion to the post of Election Assistant (Jr. Scale) and, accordingly, the respondents-department had constituted a
Committee vide Order No. CEO/Estt/2010/07 dated 6th of January, 2010 comprising of i) Deputy Chief Electoral OfficerChairman, ii) Accounts
Officer-Member, iii) Technical Expert from Director, Technical Education Department-Member, and, iv) Representative from Administrative
Department-Member, to conduct type test of eligible Class-IV employees on 21st of December, 2010 wherein eight eligible Class-IV officials were
appeared including the petitioner. The result sheet (hand written) was furnished by Stenography Instructor, ITI Jammu reflected petitioner’s speed
in type was 26 words per minute. The Chairman of the Committee (Deputy Chief Electoral Officer), upon receiving the result of the candidates
including the petitioner observed that the format for award roll on similar pattern was given to the instructor on 21st of December, 2010 i.e., the date
of test, for maintaining uniformity in evaluation, however, the award roll of the test conducted on 21st of December, 2010 furnished by the Principal,
ITIÂ Jammu vide communication bearing No.ITI/J/11/756 dated 3rd of January, 2011 is found entirely on a different format in comparison with the
format which was provided to the Instructor, therefore, the Chairman of the Committee observed that there cannot be two modes of evaluation of
some of the candidates, which may lead to litigation from unsuccessful candidates who had appeared in first test as well as second test, so the result
supplied by Principal, ITI Jammu was not entertained and accordingly, he was requested by the Chairman of the Committee to prepare a fresh award
roll as per the format already furnished along with answer scripts vide communication No.4451/Estt/2010/Class-IV/6363 dated 10th of January, 2001
but the Principal, ITI Jammu has not responded despite repeated reminders to clarify the position and therefore, the Chairman had decided on 28th of
December, 2012 to take a fresh type test of all eligible Class-IV employees. At that relevant point of time, the petition SWP No.440/2013 filed by the
petitioner was disposed of by this Court on 20.03.2013 with the following observation:-“This petition is disposed of and respondents to consider the
petitioner along with all eligible candidates for being appointed by way of promotion on the post of Election Assistant (Jr. Scale) selection as
prescribed in the SRO 166 dated 14th June, 2005 (Jammu and Kashmir Civil Service (Reference of Vacancies and holding meetings of Department
Promotion Committees Rules, 2005).â€
In order to comply with the aforesaid direction, respondentdepartment issued a notice for the information of all concerned eligible Class-IV employees
to appear in the type test on 4th of June, 2013 at Government Polytechnic College for Women, Srinagar, which was conducted by the Committee
comprising of following officers:-
I. Under Secretary to Government, Election Department, J&K Srinagar.
II. Assistant Chief Electoral Officer, Jammu.
III. One expert nominated by Director, Technical Education Department, J&K.
In the said test conducted on 4th of June, 2013, despite the fact that notice was served to the petitioner by the respondent-department to appear in the
test on the date specified above, he has chosen not to appear before the Committee, therefore the official respondents could not assess his eligibility
for promotion to the post of Election Assistant (Junior Scale).
It needs to mention here that the official respondents had acted rightly and also complied with the direction issued by this Court passed in SWP
No.440/2013 and by abiding all terms and conditions as contained in the rules, i.e., SRO 166 dated 14th of June, 2005, had decided to conduct a fresh
test so as to maintain uniformity in evaluation. Also, the award roll furnished by the Principal, ITI in earlier test of some of the candidates, is prepared
on different formats, meaning thereby different modes of evaluation were adopted in the test and even otherwise, irrespective of the direction issued
by the coordinate Bench of this Court, respondentdepartment had decided to conduct a fresh test.
It is quite evident and crystal clear from the pleadings of the respondentdepartment that the official respondents have sent repeated reminders to
Principal ITI to clarify the position about two different formats of award roll, who on his turn did not responded to query advanced by the official
respondents. As the petitioner has failed to appear in the type test which is mandatory in terms of the rules admissible to the field, therefore, he is not
entitled for further promotion.Â
It is well settled in law that the respondent-department cannot deviate from the eligibility criteria as per the rules permissible to the field and also
not competent to do so. When the petitioner has failed to avail the opportunity provided to him, as also informed well in time by the official respondents
by service of a notice, missed the chance to prove his eligibility to get promoted as Election Assistant (Jr. Scale) and deliberately avoided himself to
appear in the test, he has no right accrued for consideration of promotion to the higher post at all, on the basis of grounds projected in the petition.
On giving thoughtful consideration to the arguments advanced by learned counsel for the parties, perusal of the record attached with the petition
and in view of the all what has been discussed above, I am of the considered view that the petitioner cannot claim for his promotion to the post of
Election Assistant (Junior Scale) as he fails to make out a case.
Consequently, no interference is warranted in the order impugned No. CEO/Estt/2013/226 dated 13th of November, 2013 passed by Chief Electoral
Officer, Jammu and Kashmir, Jammu and the petition is found bereft of any merit and, as such, the same is, dismissed.Â