RIYAZ AHMAD Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner held the post of Grading/ Marketing Inspector on substantive basis which was the position on 29/5/1990 and was assigned the charge of Assistant Grading & Marketing Officer on the said date in his own pay and grade, subsequently charge allowance was released in his favour in the year 1991. In terms of order bearing No.247 -Agri/1998 dated 29/5/1998 the petitioner has been adjusted on the post of Assistant Grading Officer and through the medium of this writ petition he seeks indulgence of the court for making his adjustment effective from the date he was seized of the charge of the post. The petition is contested by the respondent state on the ground that the petitioner has no right to seek such relief. It is stated in the reply that the petitioner figures at serial No. 14 of seniority list of Grading/Marketing Inspector and if the relief is granted to him by the court it will be detrimental to those who rank senior to the petitioner in the class and category of Grading and Marketing Inspectors. It is also contended by the respondent state that charge of the post of Assistant Grading Officer was assigned to the petitioner by an incompetent authority and had no right to continue on such order but because of an interim direction passed by the court he could not be divested of the charge. Mr. Attar, AAG has also contended that the petitionerâ„¢s adjustment against the post was neither an adhoc nor a stop gap arrangement for, the petitioner has been simply assigned the charge of the post in terms of regulation 85 (b) of the J&K Civil Service regulations and the assignment having been made by an incompetent authority no benefit can flow to the petitioner from such order.

(2.) REGARDING challenge in respect of competence of the officer assigning the charge, it requires to be noticed that vide Govt. order No.427 of 1991 dated: 26/6/1991 charge allowance has been released in favour of the petitioner by the Government and the basis of assignment stands merged in the Government order as is reflected from the contents of the said order, thus I am of the opinion that the challenge on the ground of incompetence fails. Contention of Mr. Attar that the adjustment of the petitioner is not an adhoc appointment is justified but his contention that assignment of charge is not a stop gap arrangement does not appear tenable because assignment of the charge is essentially against a post which awaits formal appointment to be made by a mode prescribed under rules and such assignment falls within the ambit of stop arrangement.

(3.) NOW coming to the relief seeking regularisation retrospectively from the date the petitioner is assigned the charge of the post and it is relevant to notice that it is the case of the petitioner that he was asked to work against a higher post. It is also admitted position that the petitioner held a lower post i.e. Grading/Marketing Inspector and by asking an officer to work against a higher post cannot be termed to be a promotion. It also requires a mention that the petitioner has annexed the order of Government which indicates that charge allowance was sanctioned in his favour and grant of charge allowance substantiates case of the respondents that the petitioner was not allowed pay scale attached to the post and the petitioner continued to hold the post of Grading/Marketing Inspector substantively. No doubt there may be cases where the stop gap arrangement may confer right of regularisation if the facts and circumstances of the case warrant so because each case has to be decided on its facts and circumstances but where the retrospective regularisation sought is likely to effect adversely those who rank senior to an officer/official, retrospective regularisation is out of question. In the case in hand it is the positive case of the respondents that the petitioner figures at serial No. 14 and in case the relief prayed for is granted in his favour, it will be to the detriment of all those senior whose merit and suitability is not in dispute. Moreso those who rank senior to the petitioner were not considered for assignment of charge for no fault of theirâ„¢s and when the respondents aimed at undoing the wrong done, the petitioner chose to seek indulgence of the court and obtained an interim direction which place a restraint on the respondents from disturbing the assignment and crux of the matter is that the petitioner managed his continuation on stop gap arrangement and now seeks recognition to the said service so as to have reckoned towards his seniority which is neither fair nor reasonable and fact of the matter is that it will be grossly unjust if officiating appointment of the petitioner is not ignored because it will otherwise unable the petitioner to steal a march on those who rank senior to him.