Mohd.Ismail & Others vs State of J&K and Others

The facts of this case in brief are these:The petitioners were selected for appointment as officiating SubInspectothers (Urdu Shorthand

Reporters) Subject to the condition that they successfully complete and qualify in Urdu Stenography course of six months duration from Grewal's

College, Ludhiana. The order of their appointment was issued by the respondent no.2 on 31.07.1979. They completed the course from Grewal's

College, Ludhiana and were relieved on 20.02.1981. After they reported for duty, respondent no.2 vide order dated 21.04.1980 directed that

their practical working with regard to their actual proficiency in Urdu Stenography will be tested after six months. Vide order dated 03.01.1981

they were reverted the post of Head Constable because they were not found proficient in Urdu Stenography. It is this order which is impugned by

the petitioners, on the following ground:

That they were promoted subject to successfully completing the Urdu stenography course of six months duration from Grewal's College,

Ludhiana which they completed.

Since the order did not contain any stipulation that they will have to appear in any examination, their reversion was bad.

The respondents have admitted that the petitioners had successfully completed the Urdu Stenography course and obtained diploma from

Grewal's College, Ludhiana. But their stand is that this was not sufficient for promotion. They had to further proved their proficiency because the

promotion was officiating.

Heard Learned Counsel forthe parties. The order of promotion dated 31.7.1979 passed by the respondent no.2 reveals that both of them were

selected as SubInspectothers (Urdu Shorthand reporters) by the Board of officers. They were provisionally selected for appointment as officiating

SubInspectothers ""Subject to the condition that they successfully completed and qualify in Urdu Stenography Course of six months duration from

Grewal's College, Ludhiana. As per certificate issued by the Principal, Grewal's College, Ludhiana dated 20.2.1980 both of them completed the

course. In the counter filed by respondents, it is admitted that they had successfully completed the course and diploma was issued by the Institute

in their favour. Vide order dated 21.04.1980 respondent no. 2 subjected their appointment to further test. Para2 and 3 of this order read as under:

Vide this office order no. 524 of 1979 dated 31st of July 1979 Head constable Pushkar Nath Dhar No. 870/CID and Mohd. Ismail No.

210/CID were provisionally selected for appointment as officiating SubInspectothers (Urdu Shorthand Reporters) Subject to the condition that

they successfully completed and qualify in Urdu, Stenography course for six months' duration from the Grewals College Ludhiana.

They were relieved by the Principal Grewal's College Ludhiana on 19th Feb. 1980 on completion of Urdu shorthand course. The certificates

issued by the Principal Grewal's college reveals that both of them have attained speed of 100 words per minute and could improve further.

Both these Head Constables who have reported in this office after completing the said course shall be deemed to be officiating

SubInspectothers (Urdu Shorthand Reporters) with effect from the date of this order. However, they will be tested after six months of practical

working with regard to their actual proficiency in Urdu Stenography and only thereafter their continuance / confirmation will be considered.

They are attached with the S.P. CID SD Kashmir against two vacancies of Urdu Shorthand Reporters. The SP CID SBK Will put them on

Urdu Shorthand Reporting duties so that they take up the work and gain necessary proficiency.

It appears they were put to test but failed. This is evident from the order dated 03.01.1981 which reads as under:

Head constable Pushkar Nath Dhar No: 870/CID and Mohd., Ismail No. 210/CID who were ordered to be deemed as officiating

SubInspectothers (Urdu Shorthand Reporters) vide this office order No. 269 of 1980 dated 21.4.1980 for a period of six months, having not

been found proficient in Urdu Stenography, continuance to their being treated as such is not accorded as was required under the said order. They

should be deemed to be HCS and are adjusted in Special Branch Kashmir, However, they can again appear in the proficiency test after six

months.

It is this order, which is challenged in the petition. A plain reading of the order dated 31.07.1979 makes it clear that the officiating appointment

of the petitioners was subject only to their successfully completing Urdu Stenography course of six month's duration from Grewal's College

Ludhiana. This they completed successfully as admitted. This order further shows that they were selected by a Board of Officers as

SubInspectothers (Urdu Shorthand Reporter). Since this order was not subject to any other proficiency test, the order dated 21.4.1980 was

without jurisdiction, as there was no such condition imposed to the order of their selection/ appointment. This new condition could not have been

imposed. Moreover, the officiating appointment was not subject to the petitioners' qualifying in the internal proficiency test to be held by the

department. Further, the order of reversion gives them a chance to appear again after six months, though it should have been that their confirmation

would be subject to their successfully completing the test. It is like imposing the punishment before giving a person opportunity to defend himself.

The order dated 3.1.1981, therefore, is bad because the order of appointment of the petitioners was not subject to their qualifying in the

proficiency test. It is quashed accordingly and the petitioners shall be deemed to have substantively appointed.