BASHAMBER DASS GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) SHRI Bashambardass Gupta, petitioner has filed this petition for issuing a writ quashing Government order No. 256 -Edu. of 1985 dated 1 -7 -1985 promoting Sh. Kulbushan Sethi respondent No. 2 as Principal Government College of Education, Jammu. His case is that he was initially appointed as officiating Lecturer in English with effect from 8 -1 -1962 against a clear vacancy and posted in Govt. Science Collage, Jammu vide Government order No. 19 of 1962. His first substantive appointment is thus 8 -1 -1962 and as against this the date of substantive appointment of respondent No. 2 in officiating capacity as Lecturer in Mathematics is 1 -5 -1963 who served as temporary/officiating Lecturer prior to that date in deputation arrangement. His qualification is M. A. English, M. A. Philosophy, M. A. Sociology and M. Ed. while qualification of respondent No. 2 is M. A. Mathematics and M. Ed. and in this manner he is far more qualified as compared to respondent No. 2. He is also senior to respondent No. 2 as Professor as clear from the tentative seniority list published under notification dated 20 -1 -1981 wherein he has been placed at S. No 62 whereas respondent No; 2 figures at S. No: 104.

(2.) PETITIONERS further case is that up to end of August, 1984 Sh. O.P. Baru, respondent No. 3, was working as Principal Government College of Education Jammu, when he was appointed as Director School Education Jammu. Under Government Order dated 30 -8 -1984 it was directed that respondent No. 3 would handover the charge of principal to next senior officer of the College till permanent appointment was made Respondent No.

(3.) IGNORING his merit and seniority handed over the charge of office to respondent No. 2 in order to give un -due benefit to that respondent. As handing over the charge was only a stop -gap arrangement and further it did not confer any permanent benefit upon respondent No. 2, he did not file any petition but only made a representation to the Minister for Education and brought to his notice the fact about his being senior to respondent No. 2. While he was expecting justice from the Minister he was surprised to find that Government issued another order No. 256 -Edu. of 1985 dated 1 -7 -1985 promoting respondent No; 2 as Principal Government College of Education Jammu and this promotion was effected from 1 -9 -1984 which is illegal and unconstitutional as he was far senior to respondent No. 2 and he was not considered for that post being eligible, thus violating Art. 14 & 16 of the Constitution of India. 3. Shri Brij Mohan, Addl. Secretary to Government Education Department has filed reply affidavit on behalf 0f respondent No; 1 Mentioning therein that although the petitioner was appointed as officiating lecturer in English vide Government order dated 5 -1 -1962 he joined service on 24 -1 -1962 and thus date of his appointment is 24 -1 -1962. Vide Government order dated 27 -3 -1962 it was ordered that those who have been appointed vide Government order dated 8 -1 -1962 would be treated as having continued from the date they had been working as such. Respondent No. 2 was appointed as Lecturer in Mathematics in Government College Udhampur against a clear vacancy vide order of the Education Adviser No: 179 - 18/EA dated 9 -9 -1961, subject to confirmation by the Government and pending selection by Public Service Commission and respondent No; 2 joined duties in Government College Udhampur on 13 -9 -1961. Indue course of time respondent No; 2 was selected by Public Service Commission for the post of Lecturer in Mathematics and it was directed by Government order dated 8 -l -l962 that the persons whose names appearing in annexure B to the said Government order be appointed against any vacancy which might occur during 1962. Accordingly respondent No; 2 was appointed in Government College Udhampur where he was already working, thus maintaining continuity in his service. The appointment of this respondent as lecturer in mathematics was confirmed vide Government order No; 496 of 1962 dated 10 -4 -1962 retrospectively from the date he had taken over. The period of service of respondent No. 2, w.e.f 13 -9 -1961 when he was for the first time appointed, subject to confirmation, to the date of issuing Government order dated 8 -1 -1962 and the order of respondent No. 2s posting dated 23 -1 -1962 was regularized vide Government order No: 393 -C of 1962 dated 17 -3 -1962. Said order further specifies that restriction under Note of 56 of J&K C.S.R. is waived in favour of the appointees and in this manner the date of first appointment of respondent No. 2 as lecturer in mathematics is 13 -9 -1961. Thus viewed from any angle respondent No. 2 is senior to the petitioner. Respondent No; 2 also earned his first annual increment on 13 -9 -1962 in the grade of 250 -300 after putting in one years uninterrupted service vide pay slip issued by the Accountant General and the petitioner earned his first annual increment on 24 -1 -1963 as his date of joining Government service was 24 -1 -1962. It has further been pointed out in the objections by the State -respondent No; 2 and the petitioner were promoted as lecturers grade I in their respective subjects w. e. f 1 -4 -1964 vide Government order No. 64 2 -C of 1966 dated 30 -3 -1966. As respondent No. 2 was senior to the petitioner as officiating lecturer he maintained his seniority to the petitioner even after being promoted as lecturer grade I Respondent No. 2 and the petitioner were both confirmed as lecturer in the respective subjects w. e. f. 1.4.1966. Vide circular dated 4 -2 -1976. Of Director School Education seniority list of colleges of Education Jammu/Srinagar was circulated wherein petitioner was shown at S. No. 10 & respondent No. 2 at S. No. 7. Petitioner never filed representation objection regarding his position in the said seniority list The tentative general seniority list issued on 20 -1 -1981 was not drawn up in accordance with the relevant rules and objections were filed by lecturers effected by it. Upon consideration of objections secretary to Government Higher Education Department vide No Edu -Comm. Sent/PF/85 dated 3 -6 -1985 issued another seniority list in super session of the previous seniority list. Fresh seniority list was prepared subject -wise and the name of the petitioner appeared in list of lecturers in English whereas name of respondent No; 2 appeared in the list of lecturers in mathematics. The date of appointment of both of them has been shown as 8 -1 -l962. Respondent No; 2 in view of his seniority and superior merit over the petitioner was appointed as Field officer in his own pay & grade in the State Institute of Education vide Government order No; 261 dated 3 -2 -1976. This post of Field Officer was meant for improvement of elementary education. In 1978 State Institute of Education was re -organized and different field officers were appointed for different subject. Respondent No. 2 was adjusted as Field Officer in mathematics vide Education Commissioners Order dated 25 -10 -1978. Petitioner, however, did not object to this appointment of respondent No. 2 The representation made by the petitioner to the Minister of Education being misconceived was rejected Government order promoting respondent No. 2 as Principal Government College of Education Jammu was passed after considering all the facts and circumstances of the case. This respondent has been functioning as principal w, e. f 1 -9 -1984 continuously and performing his duties efficiently and to the satisfaction of the Government Vide SRO 700 dated 1 -4 -1978 the method of recruitment to the post of principal Government College of Education is to promote from class iv cat. (a) and (b) and class v cat. (b) as mentioned therein and respondent No; 2 was working as field officer falling in class (iv) cat. (b), as such he was naturally to -be preferred to a lecturer/professor of college of Education under class (v) cat (b) The post of field officer on which respondent No; 2 had been working since 11 -2 -1976 carries pay scale of Rs. 750 -1350 (old) and the post of lecturer/professor where the petitioner is working carries pay scale of 475 -1250 (old). Respondent No; 2 was carrying special pay and later on charge allowance for working as field officer is of a Directors level post and has higher status and responsibilities than the post of lecturer/professor. While making appointments to the post of principal, besides seniority, annual performance reports of the officers are taken into account and in the present case same were duly considered and the performance of respondent No; 2 was found superior. A. P. R. of respondent No; 2 are far superior as compared to those of the petitioner.