SHEIKH FAYAZ AHMAD Vs. STATE OF J&K

JUDGEMENT

(1.) THE Petitioner having become a member of the Jammu and Kashmir Administrative Service (for short Administrative Service) by dint of, Rule 9 read with Rule 5(1)(c) of the Jammu and Kashmir Administrative Service Rules, 1979 (for short KAS Rules) is positioned as Regional Transport Officer (for short RTO), a post borne on the cadre of the Administrative Service. He has been posted as Secretary, Srinagar Development Authority an ex -cadre post and is sought to be replaced by respondent 3 who happens to be a member of the Jammu and Kashmir Hospitality and Protocol (Gazetted) Service vide Government Order No. 757 -GAD of 2002 dated 26.04.2002. The challenge thrown to the order gives rise to substantial questions of law which may be summarised:

(2.) TO deal with questions Rules 5, 6, 7, 8, 9, 10, 11, 12, 13, 18 of the KAS Rules and Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (for short CCA Rules) may be noticed:

(3.) MR . Jan has laid much emphasis on rule 9 of the KAS Rules to canvass that the posting of an officer on the cadre post, be it temporary or officiating cannot be made unless such officer is included in the select list. Undoubtedly in terms of rule 9 it is a condition precedent that the candidate should be in the select list prepared by the Selection committee on the touchstone of rule 8 but question arises whether at all such selection has relevance to the posting of an officer. If the answer is in the affirmative, the contention of the LC that a cadre Officer cannot be transferred to an ex -cadre post has to sustain irrespective of the fact that it may lead to an anomalous situation. Thus fate of the writ petition centres around the interpretation of the rules and with a view to construe the rules in a harmonious way, scheme of the rules assumes significance which can be aptly appreciated in their sequence. To begin with reference may be made to Rule 5 which gives the mode and method of appointment to the service. Rule 6 envisages constitution of a committee by the government for making selection for appointment to the service. Rule 7 requires the Secretary of the Administrative Department to furnish a list of the officers who are eligible for appointment to the service. Rule 8 confers power on the selection committee to prepare a list of the officers among members of the feeding services who are found suitable on the basis of their merit for appointment to the service. Rule 9 makes it obligatory upon the government to appoint the selected candidates to the service in the order in which their names appears in the select list on the occurance of the vacancies and sub rule (1) of rule 9 postulates appointment on the vacancies in the service. No rule refers to the posting but the categoric expression used is "appointment to the service" which is the Administrative service. Thus it is manifest that scheme of the rules envisages of the officers to the Jammu and Kashmir Administrative Service from other services of the state. What emerges in this backdrop is that the expression "appointment" used in rule 9 is an appointment which is substantive in character and the rule has no relevance to the posting and as a matter of fact it is the first entry of an officer to the Administrative service of the state. The interpretation so placed is as per the literal meaning of the rule without any external aid to the rules. The view so taken receives support from rule 10(1), for, the said rule requires the officers appointed to the service under rule 9 to be on probation for a period of two years which is an attribute of a substantive appointment. Having carefully attended to the scope and scheme of the rules, I am of the considered opinion that the ban imposed by rule 9(2) is on substantive appointment and not on the posting. In fact it will be beyond any non cadre officer on a cadre post in the exigencies of service. However, appointment of an officer to the administrative service on substantive basis is not permissible unless he is brought on the select list prepared by the selection committee in terms of rule 8. Accordingly question (i) is answered in negative.