GOPI NATH KAUL Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a writ petition under article 32 2 -A of the Constitution of India read with the Constitution Application to Jammu and Kashmir Order, 1954 for the issue of a writ of mandamus or any other appropriate writ. The petitioner is a teacher in the State Education Department drawing Rs.176/ - in the grade of 80 -8 -200. He complains that, though his position in the general seniority list of teachers is at No. 7, as many as twenty juniors to the petitioner were appointed to the next higher cadre in the Gazetted Service of Head Masters in the scale of 200 -15 -350 and at least ten of these persons had not crossed the efficiency bar at Rs.120/ - in the scale of 80 -8 -200. He submits that the Education department made these promotions on communal and provincial grounds and that he had been discriminated against and denied equality before the law and the equal protection of the laws and equal opportunity in the matter of promotion. He, therefore, prays that the respondents should be directed that the petitioner should be given the appropriate place he deserves according to his position in the seniority list as it existed on 14th May, 1954 in the Gazetted cadre in the scale of 200 -15 -350. In the objection filed on behalf of the respondents, namely, the State of Jammu and Kashmir and the Director of Education, it is denied that the petitioner was discriminated against on communal or provincial grounds. It is, however, admitted that during the last few years the petitioner was passed over and his juniors selected for promotion but it was added that it was not on account of any invidious distinction but on account of the fact that he was not found suitable for promotion on grounds of merit and ability including administrative capacity.

(2.) WE have heard lengthy arguments in this case. The decision of this case, however, was deferred as it was considered proper that two similar cases in which similar points were involved and which had been referred to the Full Bench, namely Mohd. Aslam Bach v. V. L Vishin S AIR 1957 J and K 8 A and Dr. Shanker Nath Ganju v. State of Jammu and Kashmir, S AIR 1957 J and K 29 FB B should be heard and decided first. These cases have now been disposed of.

(3.) THE first question that falls for determination in this, case is whether any statutory rules have been violated by the respondents. The relevant rules in this connection are as follows: Rule 25 a 1 of the Kashmir Civil Service Rules General. It reads: "25. Promotions, a All promotions shall be made by the appointing authority. 1 Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal." Assistant Inspectors of Schools including Head Masters are grouped together as category 3 of Class III of Kashmir Educational Service vide page 4 of Rules relating to Recruitment to the Gazetted Services Order No. 1328 -C of 1939. Appointments to this category of Class III of Kashmir Educational Service can be either direct or by transfer. In the case of direct appointment the minimum qualification, is "Degree of M. A. with successful course of training in the theory and practice of Education of any recognized University  and in the case of transfer the minimum requisite qualification is "University Degree with a Training Degree or Diploma and 3 years experience in teaching work" vide page 2 of the Rules referred to above. In the same Rules another rule to which reference may be invited is rule b at page 11 which provides "Recruitment by transfer shall be made on the basis of merit, ability and the previous record pf the Candidate, seniority being considered only in case of equality of merit, ability and excellence of record." The petitioner has not challenged any specific order of the Government. But it may be assumed that in all orders issued by the Government by which his juniors were promoted to category 3 of Class III of the Kashmir Educational Service and which thus affected him adversely no reason was assigned by the Government why the petitioner was passed over. As observed in the Full Bench case, Mohds Aslam Bach v. V. L. Vishin A, it would have been, highly desirable that the appointing authority had given in these orders reasons why the petitioner was passed over but the mere absence of these reasons in the orders does not invalidate them. After all as decided in the Full Bench cases, Moh Aslam Bach v. V. L. Vishin A and Dr. Shanker Nath Ganju v. State of Jammu and Kashmir B, it is the appointing authority which is the judge of merit and ability and this court cannot substitute its judgment for that of the appointing authority. On behalf of the respondents three affidavits have been put in. In the first affidavit dated 7th June 1955 it was stated that the former as well as the present Director of Education were not satisfied with the merit and ability of the petitioner for promotion to the Gazetted cadre and that the principles of merit and ability including administrative capacity were always adhered to in the matter of selection for and appointment to the Gazetted cadre. It was further added that during the last few years the petitioner was passed over and his juniors selected for promotion not on account of any invidious distinction but on account of the fact that he was not found suitable for promotion inspite of the fact that his case was subjected to the same tests as those of others. In the second affidavit dated 23rd August, 1955 it was reiterated that the petitioner was not discriminated against and that in the opinion of the appointing authority he was not found suitable for the post of the Head Master of a High School. In the third affidavit dated 28th March, 1956 it was stated that in the month of October, 1955 the petitioner along with 34 others, appeared in the test examination and in the interview held at Srinagar and secured 23rd position in order of merit and that the members of the Board of this Test Examination consisted of the Director of Education, Deputy Director of Education, Inspectors of Schools of Jammu and Kashmir provinces and the principals of Teachers Training College, S. P. College and A. S. College, Srinagar. Under these circumstances it is not possible to hold that any statutory rule was violated by the respondents in the case of the petitioner. We, however, consider it necessary to emphasize that it would have been proper if the appointing authority had assigned these, reasons in the different orders by which the petitioner was superseded. If these reasons had then been vouchsafed it would have not been necessary for the respondents to explain these supersessions by filing affidavits.