ALL J&K CIVIL ENGINEERS GRADUATES Vs. STATE

JUDGEMENT

(1.) PUBLIC Works Department referred as many as 30 posts of Assistant Engineers (Civil) to the J&K Public Service Commission (hereinafter for short referred to as the 'PSC) in the year 1980 -81. The PSC advertised the posts, prepared and recommended the panel of 30 selected candidates to the government for appointment as Assistant Engineers. A waiting list of 17 successful candidates prepared by the PSC was also submitted to the government for appointment. The government after the receipt of the select list, issued the appointment orders in two batches. The first batch appointed by the government in March, 1983, consisted of 9 candidates, out of which 7 candidates joined the posts as Assistant Engineers (Civil). Whereas, 21 candidates in second batch were appointed by the government in the month of December, 1983. Since the waiting list was not operated upon by the government, respondent No. 3 who figures at serial No. 12 of the waiting list commenced a writ petition (SWP No. 559/1987) in the Court and asserted inter alia that ratio prescribed in the Recruitment Rules has not been observed in the matter of appointment/promotion of Assistant Engineers (Civil) and claimed a relief on the analogy of Navdeep Gupta who also figured at serial No. 12 in the waiting list of Assistant Engineers (Electrical) and was appointed as Assistant Engineer on the basis of Court directions. The writ petition of the respondent No. 3 stood disposed of with the directions that the official respondents shall fill up the vacancies of Assistant Engineers (Civil) substantively and shall consider the petitioner for promotion to the post of Assistant Engineer (Civil) in accordance with the Rules of 1978 and, accordingly, his seniority be fixed thereafter. This writ petition was disposed of on 13.12.1990. The Court further passed an agreed order on 24.09.1992 in CMP(SWP)No. 1043/1992 with the direction to the respondents to give due place to the petitioner in the seniority list while making promotion in pursuance of the judgment dated 13.12.1990. Subsequently, in contempt petition filed by respondent No. 3, the Court directed the respondents to dispose of the question relating to seniority of respondent No. 3 (petitioner in contempt proceedings) expeditiously. Respondent No. 3, however, vide order No. PW -Estt:30/98 -Coord. dated 03.03.1999, was given appointment as Assistant Engineer (Civil) from the interior date i.e. 26.12.1983 against unfilled vacancies of two candidates, who after their appointments, did not join. It is this order, appointing respondent No. 3 as Assistant Engineer retrospectively alongwith seniority list of Assistant Engineers (Civil) Hydraulic Wing issued by the government vide order No. 371 -Works of 2002 dated 23.07.2002, petitioners seek quashment by issuance of a writ in the nature of certiorari. The petitioners further prayed for a declaration that they be shown seniors to respondent No. 3 as Assistant Engineers and accord them appropriate place in the final seniority list of Assistant Engineers over and above respondent No. 3 by issuance of a writ in the nature of mandamus and further restraining the respondents from giving any promotion based on such final seniority list of Assistant Engineers to respondent No. 3.

(2.) THE case of the petitioners as projected in the writ petition is that they were neither party to the writ petition (service) No. 559/1987 on the basis of which respondent No. 3 has been given benefit of retrospective appointment on 03.03.1999 nor they had any notice of such writ petition or its judgment. The petitioners further stated to have acquired the knowledge for the first time of the issuance of appointment of respondent No. 3 as Assistant Engineer with interior date when notice was issued to them by the government inviting objections to the fixation of the seniority of respondent No. 3 on 30.06.2002. That the final seniority list of Assistant Engineers (Civil) Hydraulic Wing was issued vide government order No. 371 -Works of 2002 dated 23.07.2002, in which respondent No. 3 figured at serial No. 223 and the petitioners depicted much below the former. Further case of the petitioners is that the order impugned is detrimental to and adversely affected the inalienable right of the petitioners guaranteed under Article 16 of the Constitution of India. It is also alleged that respondent No. 3, who also came to be promoted and regularized as Assistant Engineer w.e.f. 01.12.1987 alongwith petitioners, could not steal a march ahead of the petitioners who are admittedly senior to him on the post of Junior Engineer. That this order of promotion w.e.f. 01.12.1987 never came to be challenged by respondent No. 3 nor it was modified or superceded. Therefore, according to the petitioners for all practical purposes respondent No. 3 was a promotee of 1987 and, thus, could not be put in higher position than the petitioners in the seniority list of Assistant Engineers.

(3.) ORDER of retrospective appointment as well as the placement of respondent No. 3 in the seniority list higher than the petitioners is neither in accord with the judgment dated 13.12.1990 passed by this Court nor is warranted under any provision of law and is, thus, arbitrary, capricious, discriminatory, unconstitutional and legally unsustainable.