INDU BHUSHAN Vs. STATE OF J&K

JUDGEMENT

(1.) The instant appeal under Clause 12 of the Letters Patent seeks annulment of judgment and order dated 24.05.2013 rendered by a learned Single Judge of this Court while dismissing SWP No.1170/2012 filed by the appellant. The writ petitioner-appellant has sought directions to respondents to promote him as Chief Enforcement Officer w.e.f. 31.10.2010 in the Jammu Municipal Corporation from the post of Enforcement Officer. The vacancy on the post of Chief Enforcement Officer was caused on 31.10.2010 when Sh. Ravi Kant Sharma superannuated. The writ petitioner-appellant, admittedly a senior most Enforcement Officer had represented to the Commissioner, Jammu Municipal Corporation-respondent No.2 to promote him to the post of Chief Enforcement Officer keeping in view his qualification, meritorious service record and seniority. On 10.11.2010, the Commissioner Jammu Municipal Corporation recommended his case for consideration of his promotion on the vacant post of Chief Enforcement Officer (Annexure-B). However, the recommendations made by the Commissioner, JMC-respondent No.2 did not find favour with respondent No.1. The writ petitionerappellant then filed representation for consideration of his case. However, on account of his ensuing superannuation he filed firstly SWP No.287/2012 along with CMA No.399/2012. The Writ Court while issuing notice to the respondents issued directions on CMA No.399 to consider the case of the writ petitionerappellant in accordance with the rules and precedents. Respondents were required to take decision within the notice period. In terms of Section 67 of the J&K Municipal Corporation Act, 2000, the respondents constituted Departmental Promotion Committee vide order dated 27.04.2011. In its meeting a decision was taken and it was found that the claim of the appellant for promotion directly to the post of Chief Enforcement Office (Chief Khilafwarzi Officer) was not tenable on account of absence of gazetted recruitment rules and he had never discharged duties against the aforesaid post as an incharge incumbent. Order dated 25.04.2012 was placed on the record of SWP No.287/2012 and the aforesaid writ petition was dismissed by reserving the right of the appellant to re-agitate the matter in view of fresh cause given by order dated 25.04.2012. As a consequence SWP No.1170/2012 relatable to the instant appeal was filed challenging order dated 25.04.2012.

(2.) The learned Single Judge has dismissed the writ petition filed by the writ petitioner-appellant by accepting the stand of the respondents asserting that respondent No.2 had forwarded his case to the Government for consideration for promotion to the post of Chief Enforcement Officer vide letter dated 10.11.2010. Thereafter some documents were sought to process the case viz. seniority list of Enforcement Officers, vacancy position and work and conduct certificate of the writ petitioner-appellant, which were sent to the Housing and Urban Development Department on 18.12.2010. The Commissioner, Jammu Municipal Corporation sent his reply to the representation made by the appellant to the Government. The learned Single Judge also accepted that prior to coming into force the Jammu and Kashmir Municipal Corporation Act, 2000, the promotions and appointments were being made in accordance with Sections 51 and 52 of the J&K Municipal Act, 2008 (Svt.). After enforcement of J&K Municipal Corporation Act, 2000, (for brevity, the Act of 2000) Section 67 of the Act deals with the posts in the Corporation. In view of the provisions of Section 67 of the Act of 2000 selection committee for direct recruitment and Departmental Promotion Committee in the Municipal Corporation was constituted on 27.04.2011. The Departmental Promotion Committee met and rejected the claim of the writ petitioner-appellant to promotion against the vacant post of Chief Enforcement Office (Chief Khilafwarzi Officer) on account of absence of gazetted recruitment rules and for the reason that the writ petitioner-appellant was not holding the post of Chief Enforcement Officer as he was never given charge of that post before his superannuation. He was claiming consideration for promotion after his superannuation. Accordingly, his claim was rejected by passing order dated 25.04.2012.

(3.) We have heard learned counsel for the parties at a considerable length.