D.P. GAIND Vs. STATE OF J&K

JUDGEMENT

(1.) This is a Writ Petn. filed under Art. 32 (2-A) of the Constitution of India read with Sec. 103 of the Jammu and Kashmir Constitution for the issue of a writ of certiorari filed by Shri D.P. Gaind with the following averments:- The petitioner has alleged that he joined the State service in 1944 as Inspector in the Food and Supplies Department. After serving in that capacity for some time he was promoted as Assistant Controller Supplies in the year 1949 on one year probation and was later on confirmed on that post. The petitioner worked as Assistant Controller Supplies up to 8-4-1965 when he was promoted as Deputy Director Supplies (which is now equivalent to the post of Assistant Commissioner). The petitioner being senior most confirmed hand was appointed as Deputy Director and the order was conveyed to the Director Food and Supplies by the Under Secretary to Government vide letter No. FR-181/69 dated 8-4-1965. The petitioner took over the charge of the post on 8-4-1965 and has been working as such since then. The post of the Deputy Director Supplies was categorised as senior scale K.A.S. Vide S. No. 22 in the Schedule 'A' annexed to SRO-1831 dated 3-6-1965. The petitioner was accordingly holding this post before 3-6-1965. According to SRO-188 of 3-6-1965 the initial constitution of the service was created vide Rule 18 which inter alia provided, "The Government may at the commencement of the rules appoint to the service any person :

(2.) In this case objections have not been filed by the respondent. Shri A. N. Raina the Advocate General appearing for the State has, however, addressed the Court without filing objections.

(3.) The precise point that needs to be considered in this petition is whether the petitioner was appointed as Deputy Director (Assistant Commissioner) Food and Supplies on 8-4-1965 or on 26-10-1965. If the petitioner is held to have been promoted from the former date i. e. 8-4-1965 then according to SRO-188 of 3-6-1965 when initial constitution of the list was created vide Rule 18, the Government could appoint to the cadre service any person at the time of commencement of these Rules who was holding the post included in the cadre of service. The petitioner in that case would have been eligible to be included in the seniority scale of K. A. S. with effect from 1-6-1965. But it would appear from annexure 'A' that is letter No. FK-181/64 dated 8-4-1965 from the Under Secretary to Government. Civil Secretariat Finance Department, Jammu to the Director Food and Supplies, Jammu that the petitioner was only given the charge of the post of the Deputy Director. It is useful to repro- duce the very letter which is as follows:-