KHURSHID AHMAD BHAT Vs. STATE OF J&K

JUDGEMENT

(1.) CAUSE urged owes its origin to the denial of benefit of proviso to sub rule 6 of rule 3 of the Jammu and Kashmir Administrative Service Rules 1979 read with explanation thereto which may be extracted: "Notwithstanding anything containing in these rules an officer, who on the commencement of these rules is either a member of the Jammu & Kashmir Administrative Service constituted under the Jammu and Kashmir Administrative Service Rules, 1965 in the senior scale or selection grade of that service, or is holding any post in its sanctioned scale of pay included in the schedule appended to these rules and has passed the Departmental Examination, if any, prescribed, shall be deemed to have been appointed to the corresponding scale of the service under these rules and their seniority shall be determined under the rules which were applicable to them immediately before commencement of these rules. An order listing the names of these Officers shall be issued by the Government. Provided that all officers of different services, who are holding or but for their postings on foreign services would have held the posts now borne on the Cadre of the Service, shall be deemed to be the members of the Service and shall be placed interse in order of their appointment/promotion to the grade of Rs.1300 -2030 (Rs.750 -1350 Old Scale). An order listing the names of these Officers shall be notified by the Government. Explanation: - For the purposes of this Proviso the expression "all Officers of different Departments/Services" means the Officers belonging to any of the services specified in Rule 5 of the Jammu and Kashmir Administrative Service Rules 1979, who were holding or but for their foreign posting would have held the posts on or after 07.12.1983 but not later than 18.10.1988."

(2.) AIMING at the effective application of the proviso aforementioned, the State constituted a Committee of the Officers vide order No. 544 -GR of 1986 dated 11.06.1986 for having the issues examined relating to the induction of the Officers into the Kashmir Administrative Service (for short KAS). The Committee so constituted, after examining the matter, made recommendations which received approval of the Government and were accordingly notified vide Notification No. GD (Ser) KAS/90 dated 16.01.1990. The recommendations relevant to the case on hand may be extracted: "GOVERNMENT OF JAMMU AND KASHMIR GENERAL ADMINISTRATION DEPARTMENT NOTIFICATION .....Whereas the Government considered the recommendations of the Committee referred to above and have approved that: - (1) The date of reference for determining the eligibility of officers for inclusion in KAS be shifted to 18.10.1988. (2) The officers holding the cadre posts in their own pay and grade be given the benefit of the pay scale from the date they were appointed to these posts or from the dates from which the same has been released or is to be released in favour of the officers senior to them in their respective departmental services whichever be later. ....."

(3.) IN opposition to the claim laid in the writ petition it is averred by the respondents that the petitioners posting on a cadre post was for a brief spell, therefore, disentitled to the pay scale and induction into KAS. Dealing with the objection, reference is made by learned counsel for the petitioner to the internal page 2 of the Government Order No. GD (Ser) KAS/90 dated 16.01.1990 (annexure P6 to the writ petition) relating to three officers of the Employment Department, namely Shri A. S. Gupta, Shri A. R. Sheikh and Shri P. L. Sharma, besides Government Order No. 678 -GAD of 1993 dated 13.08.1993 favouring Shri M. I. Sadiq and Shri Khalid Hussain (see annexure S2 to the supplementary affidavit) to canvass that even one days appointment by transfer on the post has begotten benefit of proviso to sub rule 6 of rule 3 to the aforementioned officers both in respect of pay scale and induction, conversely, the petitioner has been denied the benefit mainly on the ground of his removal from the cadre post. Attention of the Court is drawn to earlier phase of litigation, the petitioner had resorted to by medium of writ petition (SWP 260/1990) questioning his dislodgement from the post of Assistant Commissioner Development Srinagar which came to be disposed of by the writ Court, operative part thereof stands extracted in their reply affidavit at page 6 and observation relevant to the case on hand may be reproduced: "...The grievance projected by the petitioner regarding his induction into KAS cadre and also for consideration of the service rendered by him on a higher post and status, however, cannot be ignored..." (Underlining supplied) The dictum extracted above on the one hand casts an obligation upon the respondents to take note of the grievances of the petitioner relating to his claim of induction into KAS and on the other it restrains the respondents from refusal to consider the services rendered by the petitioner on a higher post and status. The decision having gone unchallenged, the petitioners services as Assistant Commissioner Development have to be reckoned to his credit and fact of the matter is that his services have received recognition as is evidenced by Government Order No. 1110 -GAD of 1992 dated 25.11.1992 (See S.No.58) which has the effect of appointing him by transfer against the post of an Area Development Officer, Mahore, a cadre post.