RAKESH CHANDER Vs. STATE OF J&K

JUDGEMENT

(1.) The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 17.05.2001 rendered by the learned Single Judge of this Court, holding that the appellant-petitioner was not entitled to be considered for promotion from the post of Store Khalasi to that of Store Assistant ahead of Krishan Dutt-respondent no.5. The basic reason which permeate the judgment of the learned Single Judge is that the appellant-petitioner had entered the service as Store Khalasi on 07.08.1985 whereas respondent no.5 had joined on 01.07.1978. The view of the learned Single Judge is discernible from the following para of the judgment which reads thus:-

(2.) Facts in the present case need to be revisited. The appellant-petitioner was working as a Daily wager in the respondent department for a number of years. He was regularized on the post of Store Khalasi in the pay scale of Rs.170-230 vide order dated 22.07.1981 (annexure PA). According to the official record, respondent no.5 was appointed as Store Khalasi on 08.08.1985. It has also come on record that like the appellant-petitioner, respondent no. 5 was also working on Daily wage basis. Some seniority lists in respect of a particular period were issued. However, the aforesaid seniority list would not be of much assistance as the inter se seniority of the appellant-petitioner viz-a-viz respondent no.5 had not been determined for the purposes of further promotion to the post of Store Assistant.

(3.) The service of the appellant-petitioner as well as that of respondent no.5 is governed by the Statutory Rules known as the Jammu and Kashmir Geology and Mining Department (Subordinate) Service Recruitment Rules, 1990 ( for brevity 1990 Rules). For appointment to the post of Store Assistant, a provision has been made by Rule 5 read with Schedule II. According to Schedule II, entry F (IV), the post of Store Assistant is incorporated. It provides that 80% of the posts are to be filled up by direct recruitment and 20% by promotion from Store Khalasi (category V) with five years experience on the basis of seniority-cum-fitness. However, Director Geology and Mining Department-respondent no.2 granted promotion to respondent no. 5 on the ground that directions were issued by this Court in SWP no. 653/1992 filed by respondent no.5 along with others on 31.01.1995. According to the directions the official respondents were asked to consider the cases of the petitioners for promotion to the post of Junior Assistant against the available posts subject to their eligibility under the Rules. As a consequence of the aforesaid direction, the Directorrespondent no.2 passed an order dated 30.08.1995 (Annexure PF) and while accepting the recommendations made by the Departmental Promotion Committee, respondent no.5 was given promotion as Store Assistant with effect from 01.12.1994. Feeling aggrieved the appellant-petitioner challenged the aforesaid order, claiming that he has a prior right of consideration for promotion to the post of Store Assistant because he was appointed to the feeder cadre of Store Khalasi on 22.07.1981 whereas the respondent no.5 could secure appointment to that post on 07.08.1985. The learned Single Judge, on the basis of a mistaken impression that respondent no.5 has actually entered service as Store Khalasi in January 1978 upheld the order of his promotion and dismissed the writ petition.