AB GHANI Vs. J&K INDUSTRIES LTD

JUDGEMENT

(1.) PETITIONER seeks writ of mandamus commanding respondents 1, and 2 to give effect to the petitioners promotion dated 22 -7 -1981 with effect from 26 -8 -1977. He states that he joined the J&K Industries Ltd , as Recorded in the year 1967. Thereafter, he was promoted as junior stenographer. In the seniority list petitioner was shown at Sr. No. 6 as Junior Stenographer in the grade of 280 -58O. Respondent No. 3 P.A. to Managing Director, J&K Industries, was shown at Sr, No. 7 in the seniority list. It is further submitted that the petitioner was entitled to be promoted as senior stenographer in the year 1977 in view of his merit and seniority. Respondent No. 3 is said to be junior to the petitioner and he was promoted as senior stenographer in supersession of the petitioners claim. The petitioner is said to have filed a civil suit against the respondents 1 & 2 against his supersession and during the pendency of the suit, the petitioner is said to have been promoted as senior stenographer in the pay scale of 470 -930 (revised) and was posted as P. A. to General Manager, Bemina Woolen Mills. Respondent No. 3s promotion is said to be in violation of the rules of the J&K Industries Ltd and it is urged that the petitioner was entitled to be promoted prior to the promotion in favour of respondent No. 3 was issued. Petitioner claims that his promotion to higher grade has taken effect from 22 -7 -1981 whereas respondent No. 3s promotion has taken effect from the year 1977. This is said to be violative of the petitioners rights because his seniority is effected.

(2.) ONE Mr. Gh. Qadir Lone, Managing Director of J&K Industries has filed reply affidavit. In his reply it is stated by him that promotion to the next higher grade is made on the basis of merit and qualification as per rules and seniority is considered when the merit and qualification is equal. Seniority would entitled the employees to be brought on select list and when actually promotions are made, it is the merit and qualification which has precedence over the seniority. Petitioner is said to have been found not fit and qualified for the post of PA to the Managing Director, which is said to be a selection post, therefore he was not promoted. As compared to petitioner, respondent No. 3 is said to be of superior merit and qualification, therefore he was promoted to the higher grade over the head of the petitioner, The civil suit filed by the petitioners promotion is made subject to his being on probation for a period of one year and if during this period his performance is not satisfactory, he is liable to be reverted. In 1977 the petitioner is said to be considered, but not found fit. It is also submitted that the petitioners promotion made on 22 -7 -1981 could not be given retrospective effect from an earlier date: Petition is said to suffer from laches.

(3.) IN his rejoinder affidavit the petitioner has stated that the civil suit was withdrawn by the petitioner in view of promotion orders. There are no laches. Petitioner has denied about his having received consideration. It is also submitted that the post of Senior stenographer is not a selection post, but is a post filled on the basis of the seniority. This is said to be the respondent No. 1 and 2s reply to one Mr.Hari Krishan who had made a representation to the respondents 1 and 2. However, this is a fact about which respondents 1 and 2 have not been given an opportunity to file their reply. Neither the representation of Mr. Hari Krishan -Kaul, nor the reply given by respondents 1 and 2 is summoned by the petitioner and there is nothing on the record to support this plea.