TSERING DORJAY Vs. STATE OF J&K

JUDGEMENT

(1.) LONG after a person was promoted to a certain post, rules were framed fixing the eligibility criteria for that post. But the rules would naturally be prospective and the promotion was allowed long ago. Hence, the promotee, though he did not possess the qualification laid down under the rules, was left undisturbed. The trouble, however, arose when the occasion came for promotion to the next higher post.

(2.) THE rules require the higher post to be filled up by promotion, with no additional qualifications needed, from amongst those holding the post in question for a period of not less than five years. Now this person is told that he would not be considered for the promotion because he does not possess the qualification for the post that he is holding. I should have said, without giving much thought that such a stand would be highly unreasonable and unjust to the person holding the post for long and from a point of time much before the eligibility criteria came to be prescribed under the rules. But the issue needs a careful consideration because two learned Single Judges of the Court seem to have taken opposite view in the matter.

(3.) THE material facts are very brief and without controversy. The appellant and respondent No. 1 (writ petitioner) are both members of the J&K Engineering Subordinate Service. Respondent no. 1 was promoted as Head Assistant by order No.PW -130 of 1981 dated July 21, 1981. He had not passed the Secretariat Assistant Training Course but at that time the passing of the course was not an essential condition for promotion as Head Assistant. Here it needs to be made clear that promotion allowed to him was perfectly in order and admittedly it did not suffer from any flaw or lacuna. About sixteen years later, the State Government framed the J&K Engineering (Subordinate Services) Recruitment Rules under SRO 180 that was notified on May 26, 1997. Rule 5 laid down the qualifications and method of recruitment and provided that no person would be eligible for appointment or promotion to any post in any class, category or grade in the service unless he possessed the qualifications as laid down in Schedule II -A and II -B annexed to the rules and fulfilled other requirements of recruitment as provided in the rules and orders for the time being in force. Schedule II -B, dealing with the ministerial staff, in so far as relevant, is reproduced below: Class Category Designation of the post Grade Minimum qualification for direct recruitment Method of recruitment I A Section Officer 1760 -3200 - 100% by promotion from Class II Category 'A having not less than five years experience as such. II A Head Assistant 1400 -2600 - 100% by promotion from class III category 'A&B from amongst the persons who have passed Secretariat Assistant Training and having 4 years experience in the respective categories"