FAROOQ AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) The challenge in this petition is to Order No. 535/DSMG of 2009 dated 29.12.2009 issued by the Director, State Motor Garages, respondent No. 2 herein, in so far as it promotes respondent No. 3 as Inspector in the State Motor Garages. The petitioners are also seeking a writ of mandamus declaring the qualification of matriculation for promotion to the post of Inspector in terms of Schedule II of J & K State Motor Garages (Subordinate) Service Recruitment Rules, 2004 as ultra -vires to the Constitution of India. They are also seeking a direction to the respondents to promote them against the post of Inspector. The facts as projected in the writ petition are that initially the petitioners came to be appointed as Cleaners in the State Motor Garages on 21.11.1972 and 01.03.1977 respectively. With the passage of time they earned promotions. Both of them came to be promoted as Electrician on 17.04.1980 and 22.04.1983 respectively, whereas respondent No. 3 came to be appointed as Electrician on 15.11.1991. It is averred that in the meanwhile recruitment rules known as the Jammu & Kashmir State Motor Garages (Subordinate) Service Recruitment Rules, 2004 (for short, Recruitment Rules of 2004) came into force on 03.09.2004. And, in terms of Schedule II Class I of said Rules, the incumbents must have the qualification of matriculation at their credit for seeking promotion to the post of Inspector, besides five years service in the feeding cadre. It is averred that after coming into force these rules, respondent No. 2 issued the final seniority list of Electrician on 17.05.2005, wherein petitioner No. 1 stood at Sr. No. 1, petitioner No. 2 at Sr. No. 5, whereas respondent No. 3 was at S. No. 6 in the said list. It is averred that the final seniority list clearly revealed that the petitioners were senior to respondent No. 3, but despite that respondent No. 3 came to be promoted as Inspector vide Order No. 535/DSMG of 2009 dated 29.12.2009 issued by respondent No. 2, impugned herein, thereby ignoring the claim of petitioners on the ground that they lacked the qualification of matriculation, necessary for according promotion to the post of Inspector in terms of Recruitment Rules of 2004. Being aggrieved of the same, the petitioners have filed the present writ petition.

(2.) It would be relevant to mention here that earlier also petitioner No. 1 had filed SWP Nos. 996/1995, 2301/1999 and 2220/2002 in this Court. In SWP No. 996/1995 this Court, while observing that petitioner No. 1 had a case for consideration, directed the official respondents to consider the case of petitioner for promotion to the post of Foreman within a period of two months vide judgment and order dated 27.06.1996.

(3.) The contention of learned counsel for petitioners is that at the time of joining their service, the petitioners were not governed by the Recruitment Rules of 2004; rather their promotions were governed on the basis of seniority in the particular cadre. The order impugned, therefore, in so far as it promotes respondent No. 3 to the post of Inspector thereby ignoring the genuine claim of petitioners being senior to him is nothing but violation of Articles 14 & 16 of the Constitution of India. He further contended that making mandatory the qualification of matriculation for promotion to the post of Inspector in the Recruitment Rules of 2004 has converted the service conditions of petitioners to their -detriment. Learned counsel, therefore, prays that this part of the Recruitment Rules of 2004 be declared as ultra vires to the Constitution of India.