Naresh Kumar Gupta vs S.F.C.

T.S. Doabia, J.

Petitioner is seeking a writ of certiorari as also quo warranto. He wants order No. 357 of 1993 passed on 14.9.1993 by which respondent No. 3

has been appointed as Divisional Manager Finance, be quashed. The controversy has arisen under following circumstances :

The petitioner is a Junior Accounts Officer with the J&K State Forest Corporation (hereinafter referred to as the Corporation). He came to be so

appointed vide order Annexure ""1"". This order was passed on 27.2.1993. This was to take effect with effect from 1.3.1993. The further fact is

that respondent No. 3 came to be appointed as Junior Accounts Officer vide order passed by the Corporation on 3.8.1989. This order bears No.

428 of 1989. This order contains a recital to the effect that a post of Junior Accounts Officer is being created in the Corporation in the pay scale of

Rs. 16002950 for a period of six months at the first instance. Shri Showkat Ali Sheikh Respondent No. 3, the Senior Most Accountant in the

Corporation was appointed against this post. Various proposals were submitted before the Board of Directors. One of the orders which is referred to in this communication makes mention of Order No. 428 of 3.8.1989 also. This is at S. No. 18. As per the petitioner Board of

Directors never approved the appointment of Showkat Ahmad Sheikh to the post of Junior Accounts Officer. This aspect of the matter is disputed by the respondents. Had this controversy arisen for the first time, something could have been said one way or the other. The matter, however,

stands concluded by a decision given by this Court in SWP No. 475/1991. The present petitioner had challenged the appointment of Showkat

Ahmad Sheikh to the post of Junior Accounts Officer. The writ petition was dismissed. Letters Patent Appeal was preferred (being LPA(SW)

175/1991). The judgment given by the learned Single Judge was affirmed. The present petitioner Naresh Kumar, who figured as the appellant was however left free to make a representation to the Competent Authority. It was indicated that as and when promotions are made to the post of

Junior Accounts Officer or the matter is taken up for regularisation of promotion of Showkat Ahmad Sheikh, then the claims of the petitioner be also considered. This order was passed on 18.5.1992. Thus, a challenge was made to the appointment of Showkat Ahmad Sheikh to the post of

Junior Accounts Officer. This challenge was unsuccessful. The view expressed by the learned Single Judge was affirmed in appeal. Therefore, it is not possible to reopen the matter visavis Showkat Ahmed Sheikh so far his status as Junior Accounts Officer is concerned.

It is a cardinal principle of judicial administration that matters must attain finality. This concept of res judicata stands as incorporated in the Code of

Civil Procedure is applicable to the proceedings in writ jurisdiction also. Thus the petitioner is not within his rights to challenge the appointment of

Showkat Ahmed Sheikh to the post of Junior Accouns Officer in the present petition.

So far as the appointment of respondent No. 3 to the post of Divisional Manager Finance is concerned, it be seen that there is an earlier judgment of this Court. This is SWP No. 1342/1995. In the above writ petition, the appointment of Sant Ram and G.M. Patloo who were working as Junior

Accounts Officers and who were promoted to the post of Divisional Manager Finance, was subject matter of challenge. This Court expressed an opinion that as the officers named above did not possess seven years experience as Junior Accounts Officer and therefore, their appointment was held to be not in accordance with the Rules. The view expressed by the learned Single Judge in SWP No. 1342 of 1995 was subject matter of challenge before the Letters Patent Bench. That appeal came to be dismissed. That bears No. 133 of 1996 and 92 of 1996. The view expressed by the learned Single Judge was affirmed. Therefore, the petitioner is theoretically right in contending that a person who does not possess the requisite experience cannot be promoted.

To meet the above argument, the learned Counsel appearing for the respondent submitted that the aforementioned judgment proceeded on the assumption that promotions were made on regular basis. It was on that assumption that the eligibility criteria was taken note of. It is submitted that the judgment rendered by the learned Single Judge was per incurium and therefore, anything said in that should not be taken as final word on the

matter.

I am of the opinion that the argument sought to be projected by the learned Counsel for the respondentCorporation that the learned Single Judge was not conscious of the fact that promotions were ad hoc, is incorrect. This aspect of the matter was duly taken note of. A view was expressed that promotions though ad hoc are made in such a manner that the person so appointed would exercise all powers of the post to which he has been

appointed. It was on this rationale it was held that the above course could not be resorted to.

The learned Counsel for the respondents have relied upon a judgment of this Court passed in SWP No. 535/1995. In the above petition, the appointment of Shakeel Ahmad Mir a Junior Accounts Officer was challenged by one Sant Ram. The view expressed by this Court was that the arrangement being ad hoc, therefore, no valid challenge can be made to the appointment of Shakeel Ahmad Mir as Divisional Manager Finance.

There can be dispute with the proposition that ad hoc appointment can be made, but at the same time, the consistent judicial view is that this arrangement cannot be permitted to go on for years. That aspect of the matter has to be taken note of.

Coming to the present controversy.

So far as Showkat Ahmad Sheikh is concerned, his appointment as Junior Accounts Officer was made on 3.8.1989. The only hurdle in his way was that he did not possess seven years experience. That hurdle is now over. He has by now acquired seven years experience. His appointment as

Junior Accounts Officer was challenged by the petitioner. He was unsuccessful. Therefore, on account of respondent No. 3 having acquired the experience of seven years (even though during the currency of this writ petition) this experience cannot be ignored. Therefore, even if the view expressed by the learned Single Judge in writ petition No. 1342/1995 is taken as the only view, even then so far as Showkat Ahmad Sheikh is concerned he by now does possess the requisite experience of seven years. Any initial lacuna in his appointment shall stand cured. Supreme Court of India in the case reported as State of Bihar v. Ramesh Chandra, AIR 1998 SC 2384 : 1997(2) SCT 373 (SC), has observed that if experience is gained by a particular person while working on a particular post, then that experience can be taken note of.

In view of the above, even though at the time of initial appointment Showkat Ahmad Sheikh was not possessing seven years experience, but by

now he does possess so.

This petition as such is found to be without any merit and is dismissed.