GH AHMAD BHAT Vs. STATE

JUDGEMENT

(1.) PETITIONERS and respondents 3 to 16 who have been proceeded against ex -parte vide interim order dated 07.05.1999 all originally belonged to class IV respondent -board service and competed in the type test to earn promotion to the Junior Assistant cadre required to be made from amongst qualified class IV officials with 5 years service in the board who could register a type speed of 25 WPM purporting to have been conducted on 16th May, 1994. After said test the promotion order of qualified candidates was issued under No.280 -B of 1984 dt. 18.05.84 with petitioners figuring at serial No. 2 and 3 thereof and one Gh. Nabi Beigh not a party to this litigation at serial No. 1. As per contents of the promotion order which was made without prejudice to the seniority of those officials (orderlies) who were otherwise seniors in class IV and slated to be promoted separately. On the same day under another order being No.282 -B of 1994 dated 18.5.1994 another seven candidates directly recruited as junior assistants without prejudice to the seniority of internal candidates whose promotion orders "with retrospective effect" were, to be issued later on, with an explanation that appointees would be on probation for a period of 2 years. On 28.07.94 thereafter vide order 395 -B of 1994 private respondents, the other class IV officials with five years term of satisfactory service who had failed to qualify the type test were adjusted as junior assistants against available posts who in terms of the order were doing some "table work" and could not get time to learn type writing and were therefore, to be put to some test other than type writing "as would be prescribed by board -authorities like written test in English" etc. This was followed by order No.l39 -B 95 dt. 25th March 1995 whereunder private respondents were granted exemption from qualifying the type or any other test as "the Chairman had been pleased to grant sanction to waiving of this as one time exception regarding type writing test in their favour". In addition under the same order they were deemed to have been promoted w.e.f 14th July 1994, perhaps the date from which the posts became available; and their seniority in class IV even above petitioners was maintained albeit in terms of the exception mentioned in above quoted orders No.280 -B 1994 and 395 -B of 1994.

(2.) FEELING aggrieved thereby the petitioners herein appear to have represented before Secretary of respondent -board for maintenance of their seniority over private respondents who had been inducted into the cadre of junior assistants after them, which does not appears to have been considered at that time. However vide order No.629 -B of 1998 dt. 16.09.1998 the promotion accorded to private respondents under order no. 139 -B of 1995 was treated to have been given effect from 18.05.1994 on notional basis instead of 14.07.1994 from which tot take effect according to earlier orders, with the result that they ranked senior to the petitioners and the 3rd candidate promoted as junior assistant, after the departmental type test on basis of merit and suitability. This was again protested against by petitioners through another representation purporting to have been filed by them which does not appear to have been considered/disposed of at all. Consequently the petitioners seek quashment of the fixation of seniority of private respondents above them along with a directions to respondent -board for their placement ahead of them, on the ground that in view of service rules the respondent -board could not have placed private respondents over them in order of seniority as they had failed to qualify the prescribed test whereas petitioners had qualified the same and had been promoted to the cadre of junior assistants on basis of their merit and suitability which was practically undone by respondent -board by acting in the impugning manner. In reply the respondent -board has pleaded that private respondents could not qualify the type test which was later waived in their favour as they had been entrusted with some table work and could not find time to gain proficiency in typing and given seniority as it existed while petitioners were placed in the cadre of junior assistants. It has also been pleaded that this position was so saved under the promotion order of petitioners also which they accepted and would thus be deemed to have foregone their seniority. During course of submissions the counsel for rival sides have reiterated the contents of their pleadings condensed as above.

(3.) I have heard learned counsel and considered the matter. Admittedly petitioners and private respondents participated in the type test that was meant to assess their merit and suitability for promotion to the post of junior assistants which was qualified by petitioners only along with one Gh. Nabi Biegh while private respondents could not come up to the mark. In consequences therefore the petitioners were promoted as junior assistants and rightly so in a particular grade albeit with an observation that their promotion as such would be subject to seniority viz a viz those among class IV who "may be promoted some time later." After appointment of another batch comprising of direct recruits to the cadre of junior assistants, private respondents also were promoted thereto without having qualified the type or any other test, on the pretext that in their case some other method of evaluation would be prescribed as they had been working on desk jobs and did not find time to learn typing. Thereafter the alternate test was also done away with as "one time exception" and they confirmed as junior assistants and later placed above petitioners in the order of seniority.