ATTIQNE ULLAH Vs. EXCISE & TAXATION COMMISSIONER, JAMMU

JUDGEMENT

(1.) THIS is a petition for the issue of a writ or other appropriate order or direction to respondent 1 to the effect that the seniority of the petitioner must be duly recognized and he must be promoted as Inspector of Excise and Taxation and to the second respondent that he must decide the appeal preferred by the petitioner according to the rules of seniority.

(2.) RESPONDENTS 3 and 4 are persons who have been promoted as Inspectors of Excise and Taxation overlooking the seniority of the petitioner. The petitioner alleges that seniority ought to have been the main criterion for making the promotions and that the petitioner ought to have been promoted if that test were applied. It is also argued that respondents 3 and 4 who are juniors to the petitioner are not qualified for promotion. The petitioner had preferred an appeal to the Minister -in -charge, Excise and Taxation against the promotion of respondents 3 and 4. That appeal is still pending although two years have elapsed. He, therefore, deems the appeal to have been rejected and has come up with a writ petition to this court on that footing.

(3.) THE respondents have raised several objections against the maintainability, validity and merits of this writ petition. They say that the petition is mis -conceived in law and is clearly incompetent. The orders promoting respondents 3 and 4 were made before the Constitution of the State came into force and therefore they cannot be canvassed in writ proceedings. They also point out that the petition itself is delayed and must on that ground alone be dismissed. On merits it is pointed out that promotion to the posts of Inspectors of Excise and Taxation is made on the basis of merits and ability and not on the ground of mere seniority. The petitioners record of service is very blemished; he is alleged to have been suspended and fined more than once. On the other hand, the record of service of respondents 3 and 4 has been . beyond reproach and free from blemish. These respondents were therefore rightly promoted in preference to the petitioner who in comparison with them falls far short of the necessary standard of merit and ability. It is added that the promotions have been made upon the" subjective satisfaction of the authority concerned and that they are not therefore amenable to writ jurisdiction.