MAHENDRA KUMAR CHAUDHARY Vs. STATE OF J&K

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir, the petitioner has prayed for an appropriate writ or direction for the fixation of his seniority, his promotion and also for quashing the order of promotion of respondent No. 3 by a writ of Certiorari. The petitioner contends that he holds a post -graduate degree in M,Sc. (Dairy), which he obtained in the year 1968. In addition to this qualification, he is a law graduate and also holds a Post -Graduate Diploma in Business Administration. He was appointed in the teaching staff of Agriculture College, Sopore in August, 1968 in the grade of 250 -500, then transferred as Laboratory Officer in the grade of 250 -5OOwhich was later revised to Rs. 475 -850. The petitioner was promoted in the grade of Rs. 540 -950 in January, 1973 and further as Assistant Dairy Development Officer, Jammu and transferred as Assistant Manager. Milk Supply Scheme, Srinagar in June, 1980. Pursuant to the death of the then Manager, Milk Supply Scheme, Srinagar, the petitioner held the charge of the said post with effect from February, 1981. Prior to 1975 the past of Laboratory officer was non -gazetted, vide Order No. 129 -FST of 1975 dated 3. 3. 1975, all the posts held by the petitioner were declared gazetted for the period held by him from time to time.

(2.) THE Government of Jammu and Kashmir vide its SRO Notification issued on 14th March, 1978, in exercise of the powers conferred by the proviso to Section 124 of the Constitution of Jammu and Kashmir published the rules relating to the service in the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules, 1978 for short hereinafter called the rules), which contain Schedule -A specifying the experience and qualification provided for the channel of promotion in the department of Animal Husbandry. In this department the services are classified in two classes, namely, veterinary side and the Dairy side. The petitioner belongs to the Class of Dairy side; whereas respondent No.

(3.) COMES from Veterinary side. It is further submitted that in violation of the rules, the respondents 1 and 2 appointed respondent No. 3 vide Government Order No ASH -106 of 1981 dated 25th April, 1981 (Annexure -P) with the petition as Manager, Milk Supply Scheme, Srinagar against the available post ignoring the claim or the petitioner and thereby violating the provisions of Articles 14 and 16 of the Constitution of India. At the time of the arguments, learned counsel for the petitioner fairly submits that since respondent No. 3 now stands transferred from the said post, as such he do not press the prayer in so far as quashing of the said order of the posting of respondent No, 3 is concerned, at present he confines his arguments to two aspects : - 1) that the respondents 1 and 2 be directed to consider petitioner for promotion to which he is fully qualified on the post of Manager, Milk Supply Scheme in Dairy side and for his promotion on the said post. 2) Issuing a Mandamus to the respondents 1 and 2 to perform their constitutional obligation by preparing a seniority list of the Officers of the Dairy Branch in Animal Sheep Husbandry Department and after inclusion of the name of the petitioner in the said list appropriate place be given to him accordingly. 3. The respondents 1 and 2 in reply contested the petition in accordance with the counter filed by respondents 1 and 2, the main pivot round which their claims rest is only about the non -fulfillment of the requisite qualification on the ground that the petitioner failed to produce the requisite degree or certificate of passing M. Sc - (Agri.) in Animal Husbandry and Dairy. They further pointed out that the petitioner was asked to submit the same vice letter No: ASH/204/AH -60/69 dated 3. 4. 1982, as a result of which according to the respondents 1 and 2, the petitioner was not considered for promotion on the post of Manager, Milk Supply Scheme. According to the respondents 1 and 2 Rural Dairy Extension Officer is also eligible for the post of Manager, Milk Supply Scheme, the respondent No. 3 was transferred and posted as Manager, Milk Supply Scheme - Srinagar after the Government considered the over all suitability and seniority of the eligible Officers. They further submit that there is no qualification of officers as Veterinary Wing and Dairy Wing and the Seniority of both these wings is combined. The seniority list of the Officers of the Dairy Wing or assigning the placement in the common seniority for all the wings is under the consideration of the Government. There are other number of officers, who are senior, suitable and eligible for the post of Manager, Milk Supply Scheme then the petitioner, whose seniority is still to be determined with particular reference to Order No: 534 of 1979 dated 21. 6. 1979.