RAJA RAM Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition under Article 322 -A of the Constitution of India as applied to the State of Jammu and Kashmir read with section 103 of the Constitution of the State for issue of an appropriate writ, direction or order quashing Government Order No. 446 -Md/G of 1967 dated October, 17. 1967, prompting respondents No. 2 to 5 as Assistant District Medical Officers and respondents Nos. 6 and 7 as Medical Officer Leprosy in the scale of 250 -500 as also for a writ of Mandamus directing the State to declare the petitioners senior to respondents Nos 2 to 7 and place them in the position in which they were in the seniority list prepared before 1961.

(2.) THE case of the petitioners, the first two of whom are Matriculates and the last two of whom have obtained High Proficiency in Sanskrit, is that the first three of them joined the Ayurvedic Section of the Medical Department of the State on Phagan 30th, 2003, March 12, 1947, that petitioner No. 4 joined the said service on Sawan 13th, 2004, May 25th, 1947, that initially the petitioners were placed in the same scale of pay i. e. 70 -6 -130 as respondents No. 2 to 7 who are holders of five years Diploma course, that a combined seniority list of the petitioners and respondents Nos. 2 to 7 and of other Vaids and Hakims serving in the Department was maintained, that in 1961 the State Government vide its order No. 519 -MD/G of 1961 dated August 3rd, 1961 ordered that the Vaids and Hakims who are degree holders from the recognized universities be allowed the scale of 150 -10 -250 that the petitioners were sought to be excluded from the benefit of this pay scale of Rs. 150 -10 -250 whereupon they represented to the Government that the nature of their duties and responsibilities were the same as those of respondents Nos. 2 to 7 and they had been subjected to great hardship in consequence of the discrimination flowing from the Government order dated August 3rd, 1961, that in the year 1964 the Government issued order No. 119 -MD/G of 1964 dated April 8th, 1964, amplifying the earlier order No. 519 -MD/G of 1961 dated August 3rd, 1961 and directing that the holders of the Diploma of four years course from the institutions in Punjab prior to the year 1947 as mentioned in the Punjab Medical Manual and possessing a Matriculation certificate or a certificate of having passed proficiency Examination in Sanskrit be given the benefit of the grade of 200 -400, that the petitioners who fulfilled the conditions laid down in Government order No. 119 MG of 1964 and were held entitled to the grade of 200 -400 claimed that they were entitled to the grade of 150 -10 -250 which was subsequently revised to 200 -400 with effect from August, 3rd, 1961 that after exchange of some correspondence between the Accountant General and the Government the latter vide its letter No. 135 -MD/G dated February 16th, 1968 addressed to the former admitted the claim of the petitioners and held them entitled to the higher grade namely 150 -10 -250 with effect from August 3rd, 1961 that the petitioners and respondents Nos. 2 to 7 having been simultaneously given the benefit of the grade of 150 -10 -250 with effect from August, 3rd, 1961, the seniority which the petitioners enjoyed in the lower grade of 70 -6 -30 had to be maintained in the higher grade as well according to rule 24 of the Jammu and Kashmir Civil Service Classification, Control and Appeal Rules, 1956 hereinafter referred to as the rules, that the Government prepared and maintained a separate seniority list of the Vaids and Hakims holding the grade of 200 -400 on the assumption that they held a higher grade than the one held by the petitioners that the petitioners are senior to respondents Nos. 2 to 7 as it could not be said that the latter were promoted or given the benefit of the higher grade before the petitioners, that whereas in the seniority list as it stood in 1961 petitioner Nos. 1 to 3 were shown at Serial Nos.

(3.) , 4 and 5 respectively, petitioner No. 4 at serial No. 12. Respondent No. 6 at Serial No. 18 respondent No. 3 at serial No 39, respondent No. 7 at serial No. 44, respondent Nos. 2 and 5 did not figure in the said list and respondent No. 4 appeared in the seniority list of Kashmir that as the petitioners were senior to respondents Nos. 2 to 7 they were entitled to claim the maintenance of the same position, that by the impugned order respondents Nos. 2 to 7 were promoted by the Government to the grade of 250 -500 in complete disregard of their Seniority, that petitioner No. 1 filed a review petition before the Government against the order, dated November 15th. 1967 but the same was dismissed by Government Order No. 527 -MD/G of 1968 dated October 3lst, 1968 that the remaining petitioners also made representations challenging the correctness of the order but no action was taken oh their representations, that after the dismissal of the review petition filed by petitioner No. 1, he met the Chief Secretary who asked him to put in a fresh representation but despite the fact that the same was made, no action was taken there on that regardless of the fact that the Department prepared a seniority list showing therein the interse position of the petitioners and respondents Nos. 2 to 7 the petitioners are by force of rules 24 and 25 2 senior to respondents Nos. 3 to 7 that the petitioners are by force of petitioners have a valuable right in regard to their seniority and any arbitrary fixation thereof which affects their right is hit by Article 16 of the Constitution and that the order of promotion of respondents Nos 2 to 7 in supersession of the petitioners seniority not being a speaking one is not maintainable. 3 The petition has been contested by the respondents interalia on the grounds that respondents Nos. 4 and 6 joined the Medical Department of the State in 2003 and 2010 Bikrami respectively, that respondent No. 5 joined the said Department in 1057 A. D and respondent Nos. 2 and 3 joined the Department in the year 1961 A. D. that at the time of joining the service respondents Nos. 2, 3, .5, and 7 were Degree holders and respondents No. 4 and 6 were Diploma holders in Ayurvedic System of Medicine, that whereas before April ,1st, 1962, respondents Nos, 2 to 7 also obtained Degrees in the above system of Medicine from the institutions recognized by respondent No. 1, the petitioner continued to remain only Diploma holder in the aforesaid system of medicine, that respondent No. 2 was first appointed as a Lady Vaid in the grade of 150 -10 -250, that Government order No. 519 -MD/G of 1961 dated August 3, 1961 is not relevant, that by SRO 160 dated August 6th 1962 that only petitioner No, 1 made a representation and got the pay scale of 200 -400 vide Government Order No. 119 -MD/G of 1964 with effect from April 8th, 1964, the respondents Nos. 2 to 7 who fulfilled all the conditions laid down in SRO 160 dated August 6th, 1962 having got the grade of 200 -400 long before the issue of Govern - ment Order No. 119 -MD/G of 1964 dated April, 8 1964, had become senior to the petitioners, that Government order No. 119 -MD/G of 1964 took effect from April 8th 1964 and was not retrospective in operation, that letter No 135 -61 dated Feb. 16th, 1968, contained only the opinion of the Under Secretary which was not binding on the Government, that the petitioners did not get the benefit of the higher grade simultaneously with respondent Nos. 2 to 7 as alleged but on the other hand respondents got the higher grade of 200 -400 by virtue of SR016C with effect from April 1st, 1962, and became senior to the petitioners from that date, that the petitioners were rightly excluded from the seniority list pertaining to grade 200 -400. that respondents Nos. 2 to 7 are senior to the petitioners from April 1st 1962 and this position has all along been accepted by the latter, that the seniority list as it stood on August 3rd, 1961, stands superseded as a result of SRO 160 with effect from April, 1st, 1962 and "respondents Nos. 2 to 7 having been placed in the higher grade of 200 -400 became senior to the petitioners from that date, that tbe petitioners not being senior to respondents Nos. 2 to 7 the question of disregard of their seniority does not arise, that the minimum qualification prescribed by respondent No. 1 for the post of an Assistant District Medical Officer is a degree in Avurvedic System of Medicine and for the post of Medical Officer, Leprosy, the minimum qualification so prescribed is a degree in Ayurvedic system of Medicine and training in the treatment of Leprosy, that whereas the petitioners not being Degree holders are not eligible to be appointed to any of the posts mentioned in the impugned order, respondents Nos. 2 to 7 are Degree holders in Ayurvedic System of Medicine and two of them viz respondents Nos. 6 and 7 have also undergone training in the treatment of leprosy that respondents Nos. 2 to 7 were appointed to the impugned posts as they were senior to the petitioners and possessed higher qualification than the petitioners, that the petitioners being merely Diploma Holders are not eligible for the posts mentioned in the impugned order and cannot maintain the petition, that the appointments made by the impugned order are only adhoc and subject to the approval of the Public Service Commission, to whom a reference has already been made, that as already stated it was only petitioner No. 1 who filed the review petition which was dismissed and the rest of the petitioners did not move against the impugned order, that none of the petitioners held a Diploma of four years course granted by any institution in Punjab prior to the year 1947 as mentioned in the Punjab Manual and that the petitioner not having undergone a condensed course of three years duration organized by the Principal of Ayurvedic and Unani College as prescribed by Government Order No. 119 -MD/G of 1964 were not eligible to the higher grade and that the higher grade too was given to the petitioners only as a matter of concession.