B B SHARMA Vs. STATE

JUDGEMENT

(1.) PETITIONERS and respondent No.2 to 5 are Members of the J&K Engineering ( Gazetted) Service. Petitioners were appointed as Assistant Engineers by direct recruitment on being selected by the Public Service Commission. Similarly respondents No.2 & 3 also came to be selected, consequent upon their selection by the Public Service Commission. All of them were appointed vide the same Govt order No. PW -86 of 1979 dated 15 -2 -1979. As far as respondents No. 4 and 5 are concerned, they came to be appointed as Assistant Engineers in the years 1985 and 1987 respectively by promotion. Both the parties i.e. the petitioners and respondents No. 2 to 5 were allotted Hydraulic Wing of the Engineering Service. Petitioners having better merit than respondents no. 1 to 3 at the time of their selection/appointment they were placed higher in the merit list and the merit being the determinative factor in the seniority they were admittedly senior to respondents No. 2 & 3. Respondents No.4 & 5 having been appointed much later than to the petitioners in the Engineering (Gazetted) Service they also rank junior to the petitioners as Assistant Engineers. A seniority list of the Assistant Engineers, Hydraulic Wing was circulated vide Govt order No. 371 -Works of 2002 dated 23 -7 -2002 wherein petitioner figured at S.No. 107, 109 and 111 respectively. As far as respondents No.2,3,4 & 5 are concerned, respondents No.2 & 3 belong to the Scheduled Caste category and respondents No. 4 & 5 to the Scheduled Tribe category. These respondents figure at S.No. 114, 122, 240 and 294 respectively in the seniority list. In the year 1987 re -organization was carried out in the Engineering Service and all the existing posts of Assistant Engineers were up -graded to the newly created cadre of Assistant Engineers vide Govt order No. PWD 1012 of 1987 dated 13 -11 -1987. Consequently petitioners and private respondents came to be up -graded as Assistant Executive Engineers. The up -gradation to the post of Assistant Executive Engineers was subject to clearance by the DPC. The DPC/PSC considered the cases of all promotees who are placed in the cadre of Assistant Executive Engineers in the Hydraulic Wing and on the basis of recommendations the sanction was accorded to the regularization of the Assistant Engineers to the posts of Assistant Executive Engineers (Civil) Hydraulic Wing vide Govt order No. 153 -PWD (Hyd) of 2005 dated 26 -4 -2005 and issued the regularization/promotion/up -gradation of Assistant Executive Engineers vide Govt order dated 13 -11 -1987. It is relevant to note that the petitioners figured at S.Nos 231, 233 and 235 of this Govt order and respondents No.2 & 3 at S.No. 238 and 246, whereas respondents No.4 & 55 figured at S.No. 363 and 417 of the afore -said Govt order. Regularization in the cadre of Assistant Executive Engineers from the dates indicated in the afore -said Govt order is also determinative of their inter -se seniority as Assistant Executive Engineers.

(2.) BEFORE the regularization of these Engineers vide Govt order No. 153 -PWD (Hyd) of 2005 dated 26 -4 -2005, respondent No.1 had issued various orders placing Assistant Executive Engineers as Incharge Executive Engineers to work in various Divisions to over come the immediate functional requirement of those Divisions. Respondents No.2 to 5 were made Incharge Executive Engineers of Divisions vide Govt order No. 264 -Works of 2001 dated 14 -6 -2001. Similarly, petitioner and respondents No. 1 & 2 also posted as Incharge Executive Engineers, incharge of the Divisions vide Govt order No. 410 -Works of 2001 dated 11 -9 -2001, whereas petitioner No.3 was made incharge of the Division vide Govt order No.478 -Works dated 9 -11 -2001. All these Govt orders contained a stipulation that these Incharge arrangements are in their own pay and grade. They were asked to discharge routine work of the Divisions till the regular appointments are made in accordance with the rules. While these engineers were working as Incharge Divisions, holding their substantive rank of Assistant Executive Engineers, respondent No.1 issued a communication No. PW/Hyd -G/170/2004 dated 25 -8 -2005 asking the Chief Engineers, PHE, I&FC, RTIC, UEED, and Managing Director, PDC to furnish the service particulars of 10 years posting of Incharge Executive Engineers. Names of as many as 10 Engineers were listed in this communication which included the names of petitioner No.1 and respondents No.2 to 5. As far as petitioners No.2 & 3 are concerned their names do not figure in this communication. This information was sought allegedly for the purposes of further promotion to the post of Superintending Engineers in the Incharge Capacity. It is this communication which appears to have prompted the petitioners to file the present writ petition.

(3.) THOUGH the communication do not indicate the purpose and purport for which the information is sought, however, it is specifically alleged in para 9 of the writ petition that the information is intended to be used for the purposes of considering them for promotion to the post of Superintending Engineers. Petitioners claimed to have filed a representation resenting the promotion of respondents no.2 to 5 to the post of Superintending Engineers giving them the benefit of reservation as Scheduled Caste and Scheduled Tribe candidates.