MS. SHAHNAZ MUGHAL Vs. STATE

JUDGEMENT

(1.) Petitioner allegedly posted as Junior Assistant with three years Certificate Course in Calligraphy in J&K Academy of Art, Culture and Language Srinagar prays for consideration to promotional post of Calligrapher occupied by Respondent No. 4, a teacher of School Education Department. He is alleged to hold the post under the order (Annexure-C) of the concerned authorities including respondents, even though not eligible and qualified to hold the post. The impugned order dated 9.7.2001 (Annexure C) is stated to have been issue without observing any procedure and in malafide exercise of powers. The matter of appointment of respondent No. 4 has been also objected by the Employees Welfare Association Directorate of Archeology, Archives and Museum Srinagar. Appointment of Respondent No. 4 is stated to be unfair and in breach of equality clause of the Constitution.

(2.) Official respondents as well as the private respondents have filed reply. In reply on the affidavit of Dy. Director, Archives, Archeology and Museum Srinagar on behalf of respondents 1, 2 and 3, it is averred that the petitioner is a class-IV employee and is not even a Diploma Holder, she is just having a three years Certificate Course in Calligraphy which is not tantamount to having diploma Course as alleged by her. No rules have been as yet framed for appointment to the post of Calligrapher, even though the Rules are being finalised. Even so, in terms of the proposed rules, petitioner is three steps down and cannot claim the post of a Calligrapher. The post of Calligrapher is proposed to be filled up by direct recruitment. In any case in absence of the Recruitment Rules, the Government is within its rights to adjust the appoint a suitable person like respondent No. 4 in the post. Respondent No. 4 is MA in History and M. Phil. in Archaeology Topic (Kashmir Architecture from 14th to 17th Century). He is presently doing Part Time Ph.D. in Influences of Kashmir Architecture from 5th to 17th Century. He has to attend the work of Research and Documentation in the Department for which none in the department except Respondent No. 4 is qualified. The action of Government in appointing respondent No. 4 is fair and does not in any manner violate the equality clause. Merely because respondent No. 4 has been adjusted in Directorate of Archives, Archeology and Museum Srinagar from the School Education Department on mutual agreement of the Department (with the consent of) the Education Department, the appointment of Respondent No. 4, who possess far superior qualification than petitioner, cannot be said to be bad. No question of malafide exercise of power arises. The adjustment of respondent No. 4 is in the interest of the department. Petitioner is not entitled to promotion. Petitioner is not discriminated against.

(3.) Respondent No. 4, besides supporting the above averments of the respondents, has additionally alleged that petitioner is facing trial before Special Judge, Anti-corruption in FIR 62/97 in connection with entering service in Directorate of Archeology Archives/Technical Education of the Department illegally. Petitioner he has herself submitted an undertaking (Annexure) before the Deputy Director Archaeology, Archives and Museum Srinagar that she has no objection in case the she is adjusted as orderly on regular basis and the period she spent as Junior Assistant may be considered for seniority notionally. Besides, respondent No. 4 alleges that his father was already working as conservation Assistant in the Directorate of Archeology Archives and Museum, Srinagar who died on 29.10.1995. He had applied for compassionate appointment to the Directorate, but in the meantime he was selected and appointed as Teacher, therefore, he made a representation to the department for adjustment in Archeology Achieves and Museums Department Srinagar After inter-departmental communications and after School Education Department conveyed 'No Objection' he was transferred to and posted in Directorate of Archeology Achieves and Museum Srinagar on 22.10.1999 (Annexure R-9). This transfer and posting of the respondent was extended from time to time till the impugned order dated 3.7.2001 (Annexure-19) was passed to communicate the decision of the Government through Special Secretary, Education Department, that the service of respondent No. 4 on deputation to Directorate of Acheology Achieves and Museums Srinagar is adjusted in the said department against the available post of Calligrapher in his own pay and grade. He was put on probation for a period of one year and during the period he was to retain lien in the School Education Department and thereafter in the event of successful completion of probation period he was to get the grade of Calligrapher and his lien in the School Department would dis-continue.