S K KHAJURIA Vs. STATE OF J&K

JUDGEMENT

(1.) THE dispute in this letters patent appeal arising from a writ petition, SWP No. 866/1989, relates to seniority between the appellant on the one hand and respondent No. 3, Shamim Ahmad Leharwal, on the other hand. The facts, briefly, are as follows. The appellant was appointed as Stores Officer in the State Motor Garages in 1973 upon his selection for the post by the Jammu and Kashmir Public Service Commission, pursuant to advertisement notice No. PSC/TR/67 of April, 1967. He claims to be a diploma holder in Automobile Engineering. On 31st October, 1981 he was posted as incharge Works Manager. On 21st October, 1983, he was given ad hoc appointment on the post for six months. After a few extensions, finally on 31st May, 1989 the ad hoc appointment was regularized in terms of Rule 3(2) of the Jammu and Kashmir State Motor Garages (Gazetted) Service Recruitment Rules, 1986 (hereinafter referred to as 'the recruitment rules) with effect from 21st July, 1986. In the meantime, respondent No. 3, Shamim Ahmad Leharwal, had been appointed to the post of Works Manager by direct recruitment on 16th June, 1987. The appellants services having been regularized with retrospective effect from a date prior to the date of appointment of respondent No. 3, he filed writ petition, SWP No. 866/1989, challenging the relevant government order dated 31st May, 1989 contending that the order affecting his seniority had been passed without hearing him. The respondent also challenged eligibility of the appellant for appointment. On 12th March, 1991 the writ petition was allowed. The learned Single Judge held that the order had been passed affecting respondents seniority - - without giving any opportunity to him. The learned Single Judge also held that retrospective promotion of the appellant was contrary to rules. He did not interfere with the appointment of the appellant but quashed the order to the extent it was retrospective i.e. for the period from 21st July, 1986 to 31st May, 1989 (Sic for 30th May, 1989). Learned Single Judge directed that the appointment shall have prospective effect from the date of order i.e. 31st May, 1989 and the seniority on the post of Works Manager in the State Motor Garages shall be maintained accordingly.

(2.) MR . K.S. Johal, learned counsel for the appellant submitted that the writ petition was decided ex -parte without hearing the appellant. Though the appellant had filed objections the same was not taken into consideration. It was stated that when the writ petition was finally heard in 1991, militancy was at its peak and the entire Kashmir Valley was in a state of turmoil and it was not possible for the appellant to have representation at the time of hearing. On merit, Mr. Johal submitted that rule 23 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 permits retrospective appointment and, therefore, the impugned order making the appellants appointment retrospective from 21st July, 1986 cannot be said to be contrary to rules. In support of the submission, he placed reliance on Suraj Parkash Gupta v. State of Jammu and Kashmir, AIR 2000 SC 2386 : (2000) 7 SCC 561. Mr. Johal also submitted that the appellant had been officiating on the post of Works Manager right since 31st October, 1981 and the entire period of officiation could be counted for the purposes of seniority, but as the Jammu and Kashmir State Motor Garages (Gazetted) Service Recruitment Rules, 1986 came into force on 21st July, 1986, his appointment on the post of Works Manager could not relate back to a date prior to the commencement of the Rules and, therefore, it was made effective from 21st July, 1986. In support of the submission that the period of officiation or ad hoc appointment is to be counted for the purpose of seniority, reliance was placed on L. Chandrakishore Singh v. State of Manipur, 1999 AIR SCW 3631 : (1999) 8 SCC 287 and L.K. Sukhija v Union of India, (1997) 6 SC 406. As regards the question of opportunity of hearing to the respondent, counsel submitted that much water has flown since 1991 when the writ petition was decided. Considering that only two persons i.e. the appellant and respondent No. 3 are involved and both of them have been promoted on the higher posts in the meantime, the question of opportunity of hearing at this stage is merely academic, but if still the Court is of the view that the respondent should have been given opportunity of hearing, as retrospective appointment of the appellant was likely to affect his seniority, the matter may be sent back to the Government for fresh decision after giving opportunity of hearing or, alternatively, this Court itself may decide the issue. Mr. J.P. Singh appearing for respondent No. 3 submitted that retrospective promotion of the appellant has been held to be illegal by the learned Single Judge and there is no scope for taking a different view. According to the learned counsel, as a matter of fact, the learned Single Judge could have quashed the impugned order dated 31st May, 1989 entirely as being violative of the rules ,but applying judicial discretion, moulding the relief he did not interfere with the promotion; he set aside only retrospective part of the order. Counsel pointed out that apart from equity involved, there was another ground for not interfering with the appellants appointment as the appellant and respondent came from different sources. While the appellants services were regularized on the post of Works Manager in terms of Rule 3(2) of the recruitment rules, the respondent was appointed by direct recruitment. Mr. Singh submitted that more significant aspect of the case is that the appellant was not holding any post in the cadre of the Service i.e. Jammu and Kashmir State Motor Garages (Gazetted) Service and, therefore, was not covered by Rule 3(2) of the recruitment rules. His appointment as incharge Works Manager was in his own pay and grade and though extension was granted to said appointment from time to time, the extended period finally expired on Ist November, 1985, and on the date of commencement of the recruitment rules i.e. 21st July 1986, the effective date of his appointment, the appellant was not holding the post and, therefore, could not be taken in Service by virtue of the provisions of Rule 3(2) of the recruitment rules. Counsel submitted that rule 3(2) could be applied only in case of a person who at the commencement of the rules was "holding any post included in the cadre of the Service "in its sanctioned scale of pay". Mr. Singh also submitted that the appointment cannot also be treated as one made in relaxation of the rules in terms of Rule 9 of the recruitment rules, for, such relaxation can be made only for reasons to be recorded in writing and in consultation with the Public Service Commission. Mr. Singh also referred to the proviso to Rule 3(2) of the recruitment rules and submitted that in view of the matter, the power under rule 3(2) could be exercised only within 15 days of commencement of the rules. Finally, he submitted that the rules do not contemplate retrospective appointment. The rules in fact contemplate appointment on probation vide rule 6. In support of the submissions counsel placed reliance on State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and Sanjay K. Sinha -II v. State of Bihar, 2004 (5) Supreme 312.

(3.) MR . B.S. Salathia, learned AAG, appearing for the official respondents, submitted that the appellant was holding the post of Working Manager - - a post in the cadre of Jammu and Kashmir State Motor Garages (Gazetted ) Service at the commencement of the rules and, therefore, was covered by rule 3(2) of the recruitment rules. He further submitted that though the recruitment rules do not specifically provide so, rule 23 of the the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, which are applicable by virtue of Rule 11 of the recruitment rules, provided for retrospective appointment in certain situations and, therefore, the impugned order dated 31st May, 1989 regularizing the appellants service in terms of Rule 3(2) with effect from the date of commencement of the rules cannot be said to be illegal or violative of the rules. Regarding opportunity of hearing, Mr. Salathia submitted that during pendency of this case both, the appellant and respondent were promoted as Deputy Director and Director. While the appellant now is Director, State Motor Garages, respondent is Officer on Special Duty (OSD) in the Transport Department in the same rank. Before considering the rival submissions of the counsel for the parties, it would be appropriate to notice the relevant provisions of the recruitment rules. The rules titled the Jammu and Kashmir State Garages (Gazetted) Recruitment Rules, 1986 framed under proviso to section 124 of the Constitution of Jammu and Kashmir (corresponding to Article 309 of the Constitution of India) came into force on 21st July, 1986. Rule 3 provides for constitution of Service, i.e. the Jammu and Kashmir State Motor Garages (Gazetted) Service. Rule 4 provides for strength and composition of the Service. Rule 5 lays down the qualification and method of recruitment. Rule 6 deals with probation. Rule 9 confers power on the Government to relax any of the provisions of the rules with respect to any class, category of persons or posts. Rule 11 lays down that in regard to matters not specifically covered by these rules the members of the Service shall be governed by the rules, regulations and orders applicable to the State Civil Services in general.