AB GANI BHAT Vs. STATE

JUDGEMENT

(1.) THE petitioner Abdul Gani Bhat, was employed as an analyst in the Irrigation Department of the Jammu and Kashmir State. By virtue of Order No. 520 -33 dated 13 -8 -1963, the petitioner was promoted as Technical Assistant (subsequently called Scientific Assistant) by the Superintendent Engineer Kashmir Irrigation Circle Srinagar. It is stated by the petitioner that the order of promotion became final and conclusive since Respondent No. 3, Ali Mohd Langeoo, did not file any appeal or revision within the prescribed period as required by Jammu and Kashmir Classification Control and Appeal Rules of 1956 (hereinafter called the classification Rules, 1956) which admittedly govern the service conditions of the parties. It is alleged by the petitioner that Respondent No. 3, submitted a representation against the order of promotion of the petitioner, and one Ghulam Mohd on 28 -10 -1972, through the Deputy Research Officer, Srinagar. The said representation was got processed by Respondent No. 2 through a committee, which recommended that Respondent No. 3 be given promotion with retrospective effect from 1963 on the basis of his seniority. It is further averred by the petitioner that Respondent No. 3 had been called for interview in order to assess his merits and suitability by the board set up for promotion, but respondent No. 3 did not appear for the interview, and as such his merits and suitability could not be considered at the time when the petitioner, and Ghulam Mohd above referred were promoted. According to the petitioner, the Chief Engineer Design Directorate Srinagar, Respondent No. 2, after considering the recommendation of the committee ordered the promotion of Respondent No. 3 Scientific Assistant with retrospective effect from 13 -8 -1963. It is this order which is attached as an annexure B to the petition and which has been challenged by the petitioner by means of this writ petition under section 103 of the Constitution of Jammu and Kashmir. The petitioner has also submitted in his petition that he was ordered to take over from Shri A. K. Zaki Research Assistant on 3 -4 -1973, since he was the senior most Scientific Assistant, but subsequently this order dated 3 -4 -1973 Annexure C was reversed as in the meantime respondent No. 3, who had been given retrospective promotion was adjudged to be the senior most candidate to take over as Research Assistant, This order Annexure C is dated 12 -6 -1973. The petitioner contends that the impugned order is void and without jurisdiction and inoperative on various grounds to which I would refer later. Written statement by way of reply affidavit was filed on behalf of respondent No. 1 and 2 by Qazi Ghulam Rasool, Chief Engineer Design Directorate, Jammu and Kashmir, Srinagar. In the reply affidavit it has been stated that the petitioner was initially appointed as Laboratory Assistant on Work -charge establishment vide order dated 28 -4 -1961. He was then adjusted in a regular establishment as Laboratory -Assistant vide order dated 12 -7 -1961. It was, thereafter, that the petitioner was promoted as analyst in the Work charge establishment vide order dated 8 -1 -1962, and was adjusted in that capacity in the regular temporary establishment vide order dated 31 -3 -1962. It was on 13 -8 -1963 that the petitioner was promoted as a Technical Assistant. It is maintained in the reply affidavit that respondent No. 3 was first appointed as Laboratory Assistant on regular temporary basis vide order dated 8 -4 -1958, and was promoted as an analyst vide order dated 15 -1 -1962, and adjusted in the regular temporary establishment with effect from 1 -4 -1962 vide order dated 9 -7 -1962. Respondent No. 3, it is averred in the reply affidavit, was promoted as Scientific Assistant on 5 -3 -1970. It is further stated that the post of Technical Assistant which was carrying the same grade and pay as that of the Scientific Assistant also came to be reduced vide Government order dated 23 -10 -1968, and the post of Scientific Assistants were created by the same order. All Technical Assistants then working in the department were adjusted against the posts of Scientific Assistants. The post of an analyst also came to be reduced by virtue of the aforesaid order and the incumbents thereof were adjusted, and promoted against the posts of Scientific Assistants. While controverting that respondent No. 3 made a representation only on 28 -10 -1972 it has been stated in the reply affidavit that respondent No. 3, made a representation on 20 -8 -1963, which was followed, by a number of representations on his behalf challenging the petitioners promotion as Technical Assistant. It is admitted that the representation, dated 28th October 1972 was received but it is asserted that the perusal of that representation itself would show that it referred to various other representations made by the respondent No. 3 prior to that time. It is also averred that respondent No. 3 had first applied for the post of Technical Assistant by his application dated 10 -9 -1962, and vide another application dated 29 -9 -1962 he indicated his preference for the post of Research Assistant which carried higher pay and grade, than that of the Technical Assistant. While explaining why respondent No. 3 did not came for the interview it has been averred in the reply affidavit that he was not called for interview for the post of Technical Assistant, since he had made his preference for the higher post of Research Assistant and had not opted for the post of Technical Assistant. Respondent No. 2 has further said in his reply affidavit that since a number of representations beginning with the representation dated 20 -8 -1963 were received challenging the promotion of the petitioner and one Ghulam Mohd as Technical Assistant he constituted a committee of officers comprising of the Joint Director, Design Directorate, Executive Engineer and office Superintendent to go into these representations and make their recommendations. The aforesaid committee considered the matter and made its recommendations which were taken into consideration, and respondent No. 2 passed the order dated 26 -4 -1973, whereby it was directed that the promotion of respondent No. 3 as Scientific Assistant be given retrospective effect with effect from 13 -8 -1962, and his seniority fixed accordingly without giving him any benefit of arrears. Respondent No. 2 has further stated that the petitioner should have preferred an appeal against the order giving retrospective promotion to respondent No. 3 on 12 -6 -1973, and since he has not availed of that remedy he should not be allowed to invoke the extraordinary jurisdiction of this court. Finally it has been stated that the writ petition is baseless, and the petitioner is not entitled to any relief whatsoever. Respondent No. 3, has not filed and reply affidavit, and it has been stated in the application dated 20 -5 -1974 on his behalf that respondent No .3 adopts the reply affidavit filed by the respondent No. 2. No re -joinder has been filed to the reply affidavit by the petitioner.

(2.) I have heard Mr. S.T. Hussain, the learned counsel for the petitioner. Mr. A.K. Malik, the learned Additional Advocate General appearing for the state and Mr. J.N. Bhan, the learned counsel for respondent No. 3, and have also perused the departmental. Record which was produced before me by the learned Additional Advocate General. Mr. S.T. Hussain the learned counsel for the petitioner has in support of the petition submitted:

(3.) DEALING with the first submission of the learned counsel for the parties I find that there is no merit in the same. Respondent No. 3 was given promotion vide the impugned order with effect from 1963 and admittedly he fulfilled the qualifications which had been in existence in 1963. Respondent No. 3 could not be governed by service condition of 1968, since the promotion to him with effect from 1963 was prior in time and the service conditions which were prevalent in 1963 (on the date of promotion) definitely showed that respondent No. 3 was eligible for appointment. I am, as such, in agreement with the learned Additional Advocate General that respondent No. 3 possessed the requisite qualification for appointment, which were in force in force in 1963. Faced with this situation Mr. S.T. Hussain the learned counsel for the petitioner, also submitted in support of his first argument that the petitioner though called for inter. view did not appear for the interview, and therefore, he had lost his claim to the promotion. In reply Mr. A.K. Malik, the learned Additional Advocate General, reiterated the ground taken in para No. 3 of the reply affidavit, and submitted that since the petitioner had opted for the higher post of Research Assistant, he was not called for interview for the post of Technical Assistant. From a perusal of the record I find that the post of Research Assistant was not filled up although there were two posts of Research Assistants at the time of interview of the petitioner. After giving my careful consideration I find that there is no force in this submission either. Respondent No. 2 has in his reply affidavit categorically stated that respondent No. 3 was not called for interview for the post of Technical Assistant and, therefore, it cannot be said that respondent No. 3 had withheld him from being interviewed. There is no rejoinder to this averment, made by respondent No. 2 and I have no hesitation in holding that the assertion of the petitioner that respondent No. 3 though called for interview did not appear is not acceptable. This argument of the learned counsel for the petitioner also in my opinion is deviod of force. From the perusal of departmental file No. 7PF/SA I find that respondent No. 3 had made a number of representations and in fact had been representing all the time against the promotion of the petitioner. It is not quite correct to say that representation was made in 1972 for the first time. It is indeed sad that the State Government should not have disposed of he representation as and when the same was received but be that as it may I do not think that the petitioner can make capital by this lapse on the part of the Government to decide the representation of respondent No. 3 expeditiously.