Riyaz Ahmad vs State of J & K

The petitioner held the post of Grading/ Marketing Inspector on substantive basis which was the position on 29151 \ 990 and was assigned the

charge of Assistant Grading and Marketing Officer on the said date in his own pay and grade, subsequently charge allowance was released in his

favour in the year 1991. In terms of order bearing No:247Agri/1998 dated 29/5/1998 the petitioner has been adjusted on the post of Assistant

Grading Officer and through the medium of this writ petition he seeks indulgence of the court for making his adjustment effective from the date he

was seized of the charge of the post. The petition is contested by the respondent state on the ground that the petitioner has no right to seek such

relief. It is stated in the reply that the petitioner figures at serial No: 14 of seniority list of Grading/Marketing Inspector and if the relief is granted to

him by the court it will be detrimental to those who rank senior to the petitioner in the class and category of Grading and Marketing Inspectothers

It is also contended by the respondent state that charge of the post of Assistant Grading Officer was assigned to the petitioner by an incompetent

authority and had no right to continue on such order but because of an interim direction passed by the court he could not be divested of the charge.

Mr. Attar, AAG has also contended that the petitioner's adjustment against the post was neither an adhoc nor a stop gap arrangement for, the

petitioner has been simply assigned the charge of the post in terms of regulation 85 (b) of the J and K Civil Service regulations and the assignment

having been made by an incompetent authority no benefit can order.

2.Regarding challenge in respect of competence of the officer assigning the charge, it requires to be noticed that vide Govt. order No:427of 1991

dated:26/6/1991 charge allowance has been released in favour of the petitioner by the Government and the basis of assignment stands merged in

the Government order as is reflected from the contents of the said order, thus 1 am of the opinion that the challenge on the ground of incompetence

fails. Contention of Mr. Attar that the adjustment of the petitioner is not an adhoc appointment is justified but his contention that assignment of

charge is not a stop gap arrangement does not appear tenable because assignment of the charge is essentially against a post which awaits formal

appointment to be made by a mode prescribed under rules and such assignment falls within the ambit of stop arrangement.

Now coming to the relief seeking regularisation retrospectively from the date the petitioner is assigned the charge of the post and it is relevant to

notice that it is the case of the petitioner that he was asked to work against a higher post. It is also admitted position that the petitioner held a lower

post i.e. Grading/Marketing Inspector and by asking an officer to work against a higher post cannot be termed to be a promotion. It also requires

a mention that the petitioner has annexed the order of Government which indicates that charge allowance was sanctioned in his favour and grant of

charge allowance substantiates case of the respondents that the petitioner was not allowed pay scale attached to the post and the petitioner

continued to hold the post of Grading/Marketing Inspector substantively. No doubt there may be cases where the stop gap arrangement may

confer right of regularisation if the facts and circumstances of the case warrant so because each case has to be decided on its facts and

circumstances but where the retrospective regularisation sought is likely to effect adversely those who rank senior to an officer/official,

retrospective regularization is out of question. In the case in hand it is the positive case of the respondents that the petitioner figures at serial No.14

and in case the relief prayed for is granted in his favour, it will be to the detriment of all those senior whose merit and suitability is not in dispute.

Moreso those who rank senior to the petitioner were not considered Cut assignment of charge for no fault of their's and when the respondents

aimed at undoing the wrong done, the petitioner chose to seek indulgence of the court and obtained an interim direction which place a restraint on

the respondents from disturbing the assignment and crux of the matter 15 that the petitioner managed his continuation on stop gap arrangement and

now seeks recognition to the said service so as to have reckoned towards his seniority which is neither fair nor reasonable and fact of the matter is

that it will be grossly unjust if officiating appointment of the petitioner is not ignored because it will otherwise unable the petitioner to steal a march

on those who rank senior to him.

For the aforementioned reasons this writ petition fails, however, this order shall not deprive the petitioner of the prospective benefits which may

accrue to him on the strength of adjustment order against the post of Assistant Grading Officer in terms of the rules governing the field.