BASHIR AHMAD JAN Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition for the issuance of a writ of mandamus or any other appropriate writ, order/direction for quashing the order of the respondent No : 2 (Director Handicrafts J&K) issued under His No : 102/HB/78 dt 14 -6 -1978 in consequence whereof the said respondent No : 2, promoted respondents 3 to 9 to the higher grade of Rs. 450 -700, and it has been prayed that the petitioners be considered for such promotion also.

(2.) THE petitioners were selected by the Divisional Recruitment Board and posted as Census Assistants in the Mulbury Culture Deptt. by virtue of Government Order No : 3 -5/75 dt. 16 -12 -71. The petitioners worked as trainee -Stipendiarys upto the end of September, 1974 and on 1.X.74 he appointed as Census Assistants in the grade of 280 -520 the same having been brought into existence vide Govt. Order No : 3 -5/75 of 1975. The petitioners drew their salary accordingly. They worked in the Department of Sericulture upto 18 -11 -77 when by virtue of Govt. Order No 409 DOH of 1977 dt: 15 -11 -77 the petitioners were declared surplus in the said department and thereafter were adjusted by transfer against the available posts of Accountant cum -Stores Supervisors in the same pay -scale in the deptt of Handicrafts. The petitioners reported for duty on various dates and were working in the Sericulture Deptt since then. Respondent No : 2 by virtue of an order dt. 14 -6 -78 promoted the respondents 3 to 9 who were already working in the Handicrafts Deptt in the same grade as petitioners and placed them in the grade of 450 -700 and allegedly ignoring the claims of the petitioners to be promoted to the said higher grade in spite of the fact that the petitioners claimed to be senior to the respondents 2 to 9. The petitioners made representations to the authorities concerned but the representations of the petitioners were ignored. It has further been alleged in the petition that the petitioners were discriminated against and the principles of Natural Justice were violated by respdt No : 2 in not considering the claim of the petitioners for promotion to the higher grade. The respondents 3 to 9, it is alleged, were all juniors to the petitioners in accordance and in terms of rule 24 of the J&K Civil Service (Classification, Control and Appeal) Rules, 1956 and could not have been given any preference over the petitioners. After the promotion order of respondents 3 to 9 was issued, the respondent No : 2 issued also departmental seniority list on 10 -10 -1978. This, according to the petitioners, was done only to justify the promotion of respondent

(3.) TO 9 to the higher grade. It has been alleged that the respondent No: 2, has acted arbitrarily and in a malafide manner in promoting respondents 3 to 9 to higher grades without taking into consideration the right of petitioners. It has been prayed that the order promoting respondent 3 to 9 to higher grade be quashed and petitioners on the basis of their seniority, merit, and experience and suitability be declared to be entitled to the promotion to the higher grade 3. The Director of Handicrafts, respondent No: 2, in his reply affidavit has affirmed that the appointment of the petitioners was temporary in nature from the beginning. They were working in Sericulture Development Department but were later adjusted by Transfer in Directorate of handicrafts in the same pay scale in which they were working in the Sericulture Deptt. This appointment also was temporary. The order appointing petitioners by adjustment in the Handicrafts Deptt. contained the condition that the appointments would be purely temporary and terminable at any time without any notice. The order of the Govt. did not specifically stated that the services rendered by the petitioners in the Mulbury Deptt. shall count in the Directorate of Handicrafts for purposes of seniority. It has been alleged that the service rendered by them in the Sericulture Deptt. was quite different from the service rendered or to be rendered by them in the Deptt. of handicrafts. The class, and category of service of the petitioners was different from those of the Accountant -cum supervisors in the deptt. of Handicrafts.