ROSHAN LAL GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioners are degree holders in the discipline of Mechanical Engineering. They came to be appointed as Junior Engineers (Mech) in the pay scale of Rs 450 -700 against the posts sanctioned vide Govt order No. 233 -PDD of 1973 dated 28 -5 -1973. This order contained a stipulation that they will be born on the seniority list of the Junior Engineers (Mechanical) Public Works Department and their inter -se seniority shall also be determined by that department. Petitioners figure at S.No. 2, 9, 13, 16 and 20 in the Annexure to this order. Vide Govt order No. 416 WIP of 1973 dated 29 -5 -1973, 40 posts of Junior Engineers (Mechanical) in the pay scale of Rs 450 -700 were created and their selection was made to different departments as indicated in the said Government order. Vide Govt order No. 417 -WIP of 1973 dated 29 -5 -1973 private respondents No. 7 to 18, 23 to 27, 29, 35,36, 37 & 47 came to be appointed as Junior Engineers (Mechanical) on the recommendation of the State Recruitment Board. They were allocated different departments as shown against their names. It is relevant to notice that the names of the petitioners also exist in this order at S.No. 2,9, 13, 20 and 27 against the posts meant for Power Development Department. This order also contained the following endorsement at the foot: -

(2.) SUBSEQUENTLY the Government issued another Govt order No. 440 -WIP of 1973 dated 12 -6 -1973 creating additional 20 posts of Junior Engineers (Mechanical) in the irrigation and Flood Control Department as also Public Health Engineering Department both at Jammu and Kashmir as per the details contained therein. Vide Govt order No. 441 -WIP of 1973 dated 12 -6 -1973 private respondents No. 5, 19, 20, 21, 22, 30 to 34 came to be appointed in various departments as Junior Engineers (Mechanical) on the recommendation of the State Recruitment Board. A similar endorsement on the foot of this order was made regarding seniority based upon the merit in the last examination and the candidates of earlier batch getting precedence as was the position indicated in Govt Order No. 417 -WIP of 1973 dated 29 -5 -1973. Vide Govt order No. G -606 -WIP of 1973 dated 7 -8 -1973, the appointment of three persons made vide Govt order No. 417 -WIP of 1973 dated 29 -5 -1973 was cancelled on their failure to report for duty within the stipulated period and subsequently, respondents No. 6 and 20 were appointed against the consequential vacancies. This order also contained similar stipulation regarding the fixation of seniority as referred to above in the earlier two orders. It appears that a tentative seniority list of Junior Engineers (Mechanical)/Degree Holders was circulated by the Public Works Department vide Circular No. 2 -PW of 1977 dated 17 -1 -1977 inviting objections. Some of the objections were received and on consideration of the same a final seniority list of Junior Engineers (Mechanical)/ Degree Holders came to be issued vide Govt order No. 309 -PW of 2000 dated 10 -8 -2000.. Petitioners were shown at S.Nos 67, 71, 73, 76 and 86 of this seniority list. Private respondents appointed vide Govt orders dated 29 -5 -1973, 7 -8 -1973 and 12 -6 -1973 were shown senior to the petitioners. In this order the date of appointment of the petitioners was shown to be 29 -5 -1973 instead of 28 -5 -1973.

(3.) A dispute regarding seniority in the Engineering Department of the State arose and the matter finally landed in the Apex Court. The Honble Supreme Court passed judgment in Suraj Parkash v. State of Jammu and Kashmir and others (AIR 2000 SC 2386) settling the seniority dispute, besides the directions with regard to fixation of seniority in Engineering Departments, certain general directions were also issued. Respondent -State was directed to settle the issue in the light of the directions issued by the Apex Court and consequently a tentative seniority list of AEs (Mechanical) was circulated vide Circular No. Works/M&S/70/2001 dated 22 -6 -2001 inviting objections from the concerned. On consideration of the objections received and the judgment of the Supreme Court in Suraj Parkashs case a final seniority list was issued vide Govt order No. 64 -Works of 2002 dated 12 -2 -2002. Petitioners have been placed at S.No. 76, 80, 82, 85, & 90 of this final seniority list. One Khurshid Ahmed Jeelani was shown at S.No. 78 of this seniority list and as per Note -I appended to Annexure the seniority of said Khursheed Ahmed Jeelani was fixed as per Govt order No. 1012 -PW of 1987 dated 13 -11 -1987. A copy of this Govt order has been placed on record as Annexure -A with the rejoinder. It is alleged that name of Khursheed Ahmed Jeelani does not figure in this Government order. Vide Govt order No. PW -262 of 1979 dated 12 -4 -1979 certain promotions were made to the post of Assistant Engineers (Mechanical) from the category of Engineering Graduates. Name of Khursheed Ahmed Jeelani is shown at S. No. 5 under Column IV of this order and he is shown to be from Animal Husbandry Department. It is relevant to mention that while the petitioners were appointed vide Govt order No. 273 -PDD of 1973 dated 28 -5 -1973 the Government issued another Govt order No. 234 -PDD of 1973 dated 28 -5 -1973 regarding the fixation of inter -se seniority of the incumbents appointed vide Govt order No. 233 -PDD of 1973 separately. Petitioners have placed on record copies of the service books of petitioners No. 2,3 and 5. In their service books, the entries have been made regarding their initial appointment vide order dated 28 -5 -1973. As far as private respondents No. 22, 38 to 56 are concerned they were directly appointed as Assistant Engineers on 15 -2 -1997.