S S DUA Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner seeks to quash the Government Order No. 628 -Agri of 1969 dated 21 -8 -1969 by a writ of certiorari on the ground that the order offends Rule 25 (3) of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 and also violates Articles 14 & 16 of the Constitution of India.

(2.) THE petitioner has averred that he holds diploma in Veterinary Science and had a special study for two years in Sheep Development which training and diploma have been held to be equivalent to a degree in Veterinary Science. The petitioner studied at Sydney in Australlia and was awarded with a credit grade Students Award. The petitioner was directly appointed as Field Extension Officer on 11 -7 -1963 in the grade of 300 -600 as obtaining now. The persons shown at Nos. 1 to 11 in the list (Annexure A) were promoted to the cadre of the petitioner on 11 -7 -1963 simultaneously. Respondents Nos. 2 and 3 who are shown at Nos. 12 and l3 in the said Annexure A were promoted to the cadre of the petitioner on 19 -3 -1965 and respondent No. 4 who is shown at No. 14 in Annexure A was promoted to the petitioners cadre on 23 -4 -66. As such the respondents 2 to 4 are much too junior to the petitioner. Vide Government Order No. 48 -VD/61 dated 20th June 1961, the Animal Husbandry Department was bifurcated into (a) Sheep Breeding and Sheep Development Department and (b) Animal Husbandry Department. The Department of Sheep Breeding and Sheep Development was declared as Major Heard vide Government Order No. 532 -F of 1968 dated 15 -11 -1968 and S.R. O. No. 451 (Annexure B). The petitioner has further averred that he has been working in the capacity and cadre of Field Extension Officer in the grade of 300 -600 and the grade was 250 -500 at the time of his first appointment and having the experience of more than 5 years is fully qualified for promotion to the next higher grade of Project Officer and Deputy Director. Respondents 2 to 4 having been appointed in 1965 -66 have not got the requisite experience and are not qualified for the promotion in the next higher grade. The method and qualification for recruitment were given in the Government Order No. 154 -VD/65 dated 23 -10 -1965 (vide Annexure D). Respondent No. 1 promoted the respondents Nos. 2 to 4 and 12 others to various posts in the next higher grade vide Government Order No. 628 -Agri of 1969 dated 21 -8 -1969. While making these promotions respondents 2 to 4 have been promoted without any regard to the seniority of the petitioner and also that the said respondents were not qualified and were not eligible for promotion. The other officers respondents Nos. 6 to 16 though promoted on the same date i. e. 11 -7 -1963 as the petitioner, but they are not equal to the petitioner as he ranks senior to them because he was directly recruited. The petitioner has been ignored for promotion without assigning any reason and without affording any opportunity to the petitioner being heard before his supersession although he has a brilliant record of service. His name was proposed and approved for the post of Deputy Director Leh but later on he was ignored. The seniority of the Animal Husbandry and Sheep Breeding Department is separate from the date of bifurcation of the departments and the petitioner is senior to respondents 2 to 4, 6 to 16 and being fully qualified was eligible to be promoted. The order (Annexure C) is against Rule 23 of the J & K - Civil Service (Classification, Control and Appeal) Rules 1956, and also violates Articles 14 and 16 of the Indian Constitution and the rules of natural justice. The said order also runs counter to the directions laid down in the Full Bench judgment of the High Court in Lal Chand Pargals case. The petitioner has, therefore, prayed that the impugned order (Annexure C) be quashed by a writ of certiorari declaring that the respondents are not eligible for promotion and also for the issue of a writ of mandamus directing the respondent No. 1 to promote the petitioner. The petition is supported by an affidavit. Annexures A to G have been filed alongwith the petition.

(3.) SHRI R. C. Bhargava, Secretary to Government C. D. and Agriculture Department has in his reply affidavit sworn to the following facts. He has averred that the petition is not competent - as there has been no infringement of any of the petitioners legal or fundamental rights. The petitioner is a temporary employee holding a temporary post as such he has no locus standi to file this petition. According to the Recruitment Rules (vide Annexure D) for the promotion to the post of Deputy Director the officer should possess a degree in Veterinary Science with at least 5 years experience. The petitioner has not obtained degree in Veterinary Science and is only a diploma holder. Training in the Shearing Shed Management and Book Keeping course in Australlia cannot be deemed to be a substitute for the qualifications for the said post, nor can the petitioner be termed as a degree holder for purpose of promotion to the higher grade. The petitioner not being qualified for the said post has no right to file the petition. According to the tentative seniority list of the department prepared in consequence of Order No. 29 -VD of 1965 dated 19 -3 -1965, the petitioner is not senior to the respondents. Seniority has been determined according to rules and the observations of the Public Service Commission by the Departmental Promotion Committee. The Departmental Promotion Committee comprised of the honest, efficient and senior officers has considered all the relevant facts, the nature of appointment, the qualifications of the persons, the nature of the posts held by them and after determining all such factors, the tentative seniority list has been prepared. In view of the placement of the petitioner being much below the respondents 2 to 16, in the seniority list, he is not entitled to claim any relief by way of writ. The impugned promotions have been made temporarily and subject to the scrutiny and approval of the Public Service Commission. In view of the said fact the petition is premature and not maintainable. The petitioner has also filed representations against the fixation of his seniority in the tentative seniority list and the said representation is under the consideration of the Government. The petitioner has not availed of the remedies available under rules against the impugned order so the present petition is not maintainable. It is admitted that the petitioner holds diploma in Veterinary Science and has undergone some training in shearing but cannot be a substitute for the qualifications required under rules for promotion to the post of Project Officer/ Deputy Director as he is not a Veterinary graduate. It is admitted that the appointment of the petitioner was made on 11 -7 -1963 alongwith other respondents including respondents Nos. 14 to 16, but the said order was further scrutinized by the Government and the final order of appointment was made in supersession of all previous orders. The seniority of both the branches of the department are combined and continue as such up to date. The petitioner has not qualified for the promotion to the higher grade of Deputy Director which is equivalent to the post of Project Officer. The requisite qualifications for all these posts is graduation in Veterinary Science and minimum experience of 5 years which the petitioner does not possess. Respondents 2 to 4 are graduates in Veterinary Science and have the experience of more than 5 years as required under rules. The petitioner was not promoted as Deputy Director Leh on account of the fact that he was not possessed of the requisite qualifications. Respondents Nos. 2 to 16 have also filed their objections and they have toed the line of respondent No. 1 of course with some additions and variations peculiar to the case of each individual respondent.