SHAHNAZ AKHTER Vs. STATE OF J&K & ORS.

JUDGEMENT

(1.) By the medium of this writ petition, the petitioner is seeking a writ in the nature of Mandamus, commanding Commissioner/Secretary to Government. In dustries & Commerce Department, respondent no. 3 herein, to include her name in the final seniority list of Project Managers in the Industries & Commerce Depart ment after deleting her name from the final seniority list of Functional Managers. She has also sought a direction to the respondents to induct her name in the Kashmir Administrative Services (KAS) with effect from 22.07.2008 under the Scheduled Tribe Category (for short, ST Category) with all consequential benefits, on the grounds taken in the writ petition, which can be aptly and precisely enumerated as hereunder.

(2.) As per the averments made in the writ petition, the petitioner appeared in the Combined Competitive Examination, 1999 and she successfully made the grade under the ST Category. She was allotted Industries & Commerce (Gazetted) Service and her name figured at Serial No. 18 of the said list under the head Scheduled Tribe Category. Thereafter, vide Government Order No. 137-GAD of 2002 dated 22.01.2002, the General Administration Department on the recommendation of J& K Public Service Commission, issued appointment order in favour of the selected candidates and the name of the petitioner figured at Serial No. 23 of the said Government Order and was allotted J&K Industries & Commerce/Handi craft/Handlooms (Gazetted) Service(s). After undergoing the requisite training, she was transferred and posted as Functional Manager/Project Manager, DIC, Rajouri. Thereafter, she was adjusted as Project Manager, DIC, Rajouri against a clear vacancy till 11.06.2010, when her services were placed at the disposal of Rural Development Department against a higher post equivalent to KAS Cadre in her own pay and grade. She was adjusted as Project Officer Watershed (Haryali), Rajouri. It has been further averred that she has been discharging her duties as a Project Manager since 22.10.2003, but her name was not included in the final seniority list of Project Manager which was issued vide order dated 10.07.2008. On noticing the same, petitioner made a representation to respondent no. 3 on 20.02.2009 seeking inclusion of her name in the final seniority list of Project Manag ers under Scheduled Tribe Category and also for making a recommendation to respondent no. 2 for her induction into KAS.

(3.) It is further averred that during the pendency of said representation, respondent no. 3 vide Government Order No. 72-Ind of 2009 dated 16.03.2009 issued tentative seniority list of Functional Managers of Industries and Commerce Depart ment. It was provided that if any person is aggrieved of the order, he/she could file objections within a period of 21 days from the date of issuance of said order. Petitioner filed objections that she has been wrongly shown in the list of Functional Managers. It is contended that respondent no. 3 without considering her objections, issued the final seniority list of Functional Managers vide Government Order No. 16-Ind of 2010 dated 15.01.2010. It is also contended that her representation dated 20.02.2009 was also sent to the Law Department for obtaining legal opinion, which was never communicated to her. She filed an- application under Right to Informa tion Act and obtained copy of the legal opinion made by the Law Department, which had opined that she does not possess the qualification required for the post of Project Manager, therefore, her seniority cannot be fixed in the said cadre. It is further contended that she appeared in the Combined Competitive Examination as per the advertisement notice and the rules applicable. The basic qualification required was Graduation and the competing candidate(s) had to appear in the Preliminary Examination, followed by Mains Examination and thereafter the suc cessful candidates had to appear in the interview. It is contended that for filling up the posts of Project Manager it was no where mentioned in the advertisement notice that the candidates aspiring for the said post must have some additional qualifica tion, therefore, the stand taken by the respondents is quite contrary to the law and rules quoted in the writ petition.