SYED MOHD YOUSUF QURESHI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a writ petition under section 103 of the Constitution of Jammu and Kashmir. The facts are these: The petitioner was employed as a clerk in the Education Department in the year 1942 and was promoted as Head Assistant substantively on 22 -7 -1958. Respondent No. 2 was likewise promoted as Head Assistant substantively on 28 -2 -1962. By Govt. order No. 70 of 1969 dated 21 -4 -1969 the said respondent was promoted as officiating Superintendent in the office of the Joint Director Womens Education. The said order reads as under: -

(2.) AS the material time the promotions were admittedly governed by Rules 25 of the J &K Civil Service (Classification, Control and Appeal) Rules 1956. That rule reads:

(3.) THE learned counsel for the respondent tried to justify the order on the ground that the promotion made thereunder was purely on an officiating basis. Sub -rule (2) or sub -rule (3) of Rule 25 does not, however, make any exception in regard to officiating promotions. These apply with equal force to all the promotions, be they officiating or substantive. The only exception is that provided in sub -rule (4). In terms thereof an officiating promotion may be made without regard to sub -rule (2) or sub -rule (3), as the case may be for a period not exceeding three months at one time provided the public interest so demands owing to an emergency which could not be foreseen and strict adherence to sub -rule (2) or sub -rule (3), as the case may be would involve undue delay or expenditure or cause administrative inconvenience. Putting it differently an officiating promotion may be ordered for a period not exceeding three months without consideration ofseniority -cum -merit or seniority, as the case may be, only if the case fulfils the requirements of sub -rule (4) and not otherwise. It is not in the case of every officiating promotion, therefore, as the learned counsel for the respondent put it, that a supersession can be justified. That can be so only if the case satisfies the requirements of sub -rule (4). Moreover there is no presumption that an officiating promotion fulfils the requirements of sub -rule (4) unless the order of promotion expressly so provides or at least the contemporaneous record so reflects. In the absence of either circumstances the order cannot be upheld as one under sub -rule (4). In the instant case the impugned order does not ex -facie satisfy the requirements of sub -rule (4) nor also has any contemporaneous record been produced to prove that fact. The order cannot therefore be constructed as one falling under Sub -rule (4) justifiying the petitioners supersession.