SUBHASH CHANDER GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) VIDE Government order No. 1309 -LD(A) of 1987 dated November 17, 1987, sanction was accorded to the creation of the post of Administrative Officer in the grade of Rs. 1900 -3200 and Section Officer in the grade of Rs. 1550 -2550 in the office of Advocate General of the State. Consequently respondent No. 5 was temporarily promoted as Section Officer in the office of Advocate General vide his order No. AG/258 4ated November 21, 1987 which is impugned in this Writ Petition. The petitioner has prayed for quashing of the aforesaid order and for directions to the respondent No. 3 to consider his case for promotion as Section Officer and to frame rules for recruitment to non -gazetted employees in the office of the Advocate General besides framing seniority list.

(2.) THE facts giving rise to the filing of the present Writ Petition as alleged in the petition are that the petitioner entered in the Government service as Junior Assistant vide Government order No. GD (8) -G -372 dated May 30, 1960 and joined on June 1, 1960 in the General Department (Forest). The petitioner became Senior Assistant on January 16, 1966 in the office of Advocate General and was promoted as Head Assistant on October 7, 1966. Petitioner claims of having to his credit laudable and excellent ACRs. Respondent No. 5 is alleged to have been sent by the General Department by virtue of order No 575 -GD/1 -986 dated October 16, 1986 alongwith the post of Head -Assistant to the Advocate Generalâ„¢s office. It is alleged that respondent No. 5 neither belonged to the Law Department nor Advocate Generalâ„¢s establishment and had became Head Assistant on February 23, 1985. It is further submitted that respondent No. 5 has not yet been confirmed as Head Assistant and retained his lien and conditions of service m his parent Department, not being the Law Department or the Advocate Generalâ„¢s establishment. It is further submitted that even if he is assumed to be belonging to Law Department or Advocate Generalâ„¢s establishment he was junior than the petitioner. Respondent No.5 has wrongly been promoted to the post of Section Officer completely ignoring the merit and suitability of the petitioner. The petitioner has alleged that he has been making representations praying for grant of higher scale but without any result and instead respondent No.5 promoted ignoring his claim. He further submitted that respondent No.4 had no jurisdiction or power to grant promotion to the respondent No.5. Petitioner has referred two Annexures ËœDâ„¢ and ËœEâ„¢ to submit that despite requests made by Under Secretary to Government, General Department and Secretary to Government General Department, the respondent No. 4 has not reverted respondent No.5 to his original post Respondent -State is claimed to have passed order No. 610 -GD of 1988 dated April 19, 1988 Annexure ËœFâ„¢ transferring respondent No. 5 from the office of Advocate General. Respondent No. 5 is also stated to have filed Writ Petition No. 563 of 1988 in which notice of show cause was issued and implementation of order dated April 19, 1988 stayed meanwhile. The order impugned is alleged to be unwarranted, illegal, unjustified, arbitrary unconstitutional and without jurisdiction. The order is also held to be in contravention of the provisions of Rule 25 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956. The order impugned in the writ petition is stated to be a non -speaking order liable to be set -aside.

(3.) IN reply affidavit, filed en behalf on respondents 1, 2 and 3 the averments of facts regarding the service career of the petitioner have not been denied. It is admitted that the petitioner is borne en the establishment of Advocate General and respondent No. 5 belongs to the establishment of Resident Commissioner, New Delhi. It is however further submitted that on the report of Resident Commissioner, New Delhi, respondent No. 5 was attached amongst other staff in the General Department alongwith the post. Subsequently respondent No. 5 was adjusted in, the office of Advocate General vide the petitioner. It is admitted that the petitioner and respondent No.5 held their respective lines and their promotion prospects in their respective cadres/Departments. Respondent No. 5 is stated to have been promoted by Resident Commissioner, New Delhi as Head Assistant and had completed his period of probation. The receipt of the representations filed by the petitioner has not been denied and it is submitted that the same were considered with reference to the record and rules on the subject on the basis of which both the Advocate General and respondent No. 3 were requested to rectify the wrong done to the petitioner by reverting respondent No. 5 to the original post of Head Assistant and to promote the petitioner as he had retained his lien for ail practical purposes in the office of respondent No. 4.