MOHD ABBAS LONE Vs. STATE OF J&K

JUDGEMENT

(1.) AD interim direction passed on the motion laid by the petitioner may be noticed:

(2.) WRIT petitioner, Mr. Muhammad Abass Lone being aggrieved of deputation of Shri S. K. Sethi, Executive Engineer, R&B to JK PCC Leh as Deputy General Manager (respondent 5 herein) vide Government Order No. 205 -PW (R&B) of 2006 dated 19.05.2006, therefore, this writ petition, filed on 01.06.2006, apparently subsequent to its implementation as is evident by the fact that charge of the post of the Deputy General manager (for short DGM) stands already handed over by the then DGM, J&K PCC Ltd. to Shri Sethi respondent 5 on 22nd of May 2006. To appreciate the challenge thrown to the impugned order, Schedule -I appended to the draft service rules assumes significance which may be noticed:

(3.) ELABORATING the challenge it is contended by the learned counsel for the petitioner that it is the schedule aforementioned which has to govern the promotion to the post of the General Manager. Although official respondents have taken a stand that the schedule finds place on the draft service rules, yet they have not disputed application of the same. In that view of the matter, I am proceeding on the assumption that the schedule is attracted for the purposes of appointment to the post of the DGM. How far schedule helps the petitioner, it is apposite to notice that 75% quota is earmarked for the Executive Engineers of the State Government. The respondent 5 has attained the said position by order of his posting to Leh and does hold the charge of the rank of Executive Engineer with an overall experience of more than 15 years, therefore, eligible for deputation, conversely, the petitioner is disentitled to consideration for the post of the DGM against 75% deputation quota, for the simple reason, that he is borne on the establishment of the Corporation. As per schedule 25% quota of promotion is identified for the Senior Manager of the Corporation against the post of DGM having a minimum experience of ten years. As regards eligibility of the petitioner under 25% quota, same when tested on the basis of order No.8582 dated 31.10.1997 (Annexure 'D to the writ petition) fails the petitioner, because even inclusion of his stop gap service as Manager does not make him through. It is manifest that by dint of service rendered on stop gap arrangement, he will be completing ten years in October, 2007, thus ineligible for consideration. Yet another legal impediment for the petitioner traceable to the schedule which restricts zone of consideration to the extent of Senior Manager and admittedly the petitioner is not the one, so also ineligible for consideration. It goes without saying that writ can be sought for enforcement of a constitutional or a legal right but no such right is available to the petitioner because he does not qualify for consideration for the post of DGM and absence of an enforceable right is bound to render the writ petition liable to dismissal. In taking this view I am fortified by judicial pronouncements handed down by the apex Court in Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College (AIR 1962 SC 1210) and Dr. Umakant Saran v. State of Bihar (AIR 1973 SC 964).