State of J&K th. Commissioner/Secretary to Government, Health and Medical Education Department v. Virender Koul

impugned in the writ petition quashed. The writ Court has also directed 2 the appellants herein to promote the respondent to the post of Electronic Technician w.e.f 23.12.2000 along with all consequential benefits including seniority etc. 2 Before we advert to the grounds of challenge urged by learned counsel for the appellants, we deem it appropriate to set out material facts. 3 The respondent (writ petitioner) was appointed as Laboratory Attendant in the year 1986. Vide order dated 23.12.2000, the respondent was promoted as Electrician (Rs.4000-6000)) on officiating basis against any available vacancy in SPM Department of GMC, Srinagar. This order was passed by the Principal, GMC, Srinagar and was subject to confirmation by the Departmental Promotional Committee [‘DPC’]. As is seen from order dated 23.12.2000, the respondent was promoted from the post of Laboratory Attendant to the post of Electrician on officiating basis purportedly in compliance with the directions issued by a Single Bench of this Court in its judgment dated 04.06.1999 passed in SWP No. 1802/1997 titled ‘Verinder Koul State of Jammu and Kashmir and others. The meeting of the DPC convened for considering the case of the respondent for confirmation of his promotion was held on 10.04.2006 and on the basis of recommendations made by the DPC, the Administrative Officer (Member Secretary of DPC) vide order No.51/2006 dated 18.07.2006 confirmed the services of the respondent as Electrician in the pay scale of Rs.3050-4960 against the post of Jr. Electrician w.e.f 23.12.2000 and regularized his services as Electrician in the pay scale of Rs.4000-6000 w.e.f 01.01.2005. 3 4 The respondent was aggrieved and challenged order dated 18th July 2006 (supra) in SWP No. 1115/2006. In his petition, the respondent also prayed for a writ of certiorari to quash the promotion of one Imtiaz Ahmed Sheikh to the post of Electronic Technician with a further direction to the appellants herein to accord promotion to him to the post of Electronic Technician (Rs.5000-8000)- w.e.f 23.12.2000. Said Imtiaz Ahmed Sheikh was arrayed as party respondent No.4 in the writ petition aforesaid, but, later on, due to failure of the respondent herein (writ petitioner) to take steps for his service, name of respondent No.4 was deleted from the array of the respondents by this Court vide order dated 20.11.2009.The prayer of the respondent challenging promotion of respondent No.4 to the post of Electronic Technician and consequently, a writ of mandamus sought by the respondent for his promotion against the said post became impossible of being granted. 5 Be that as it may, the writ petition proceeded and on being put on notice, the official respondents put up their stand in the reply affidavit filed by the then Principal, GMC Srinagar. It was submitted that the respondent, who was holding the post of Laboratory Attendant could not have been promoted against the post of Electronic Technician which was two steps higher and, therefore, the DPC rightly recommended his promotion initially to the post of Jr. Electrician and thereafter to the post of Electrician. It was also pleaded by the appellants before the Writ Court that despite the fact that the respondent had been promoted to the next two higher posts, yet he failed to physically join at his place of posting i.e the Department of SPM, GMC Srinagar. It was only after a gap of two years, the respondent appeared in the Department to take up the assignment. 4 6 The matter was considered by the Writ Court in the light of rival contentions and the material on record and the writ Court came to the conclusion that the deleted respondent, namely Imtiaz Ahmed Sheikh was not possessing the relevant qualification to hold the post of Electronic Technician and, therefore, he was not eligible to be promoted to the said post, nor was he having superior claim over and above the respondent. It was, thus, held that the respondent, in terms of his merit, suitability and seniority, was the only candidate entitled to be promoted to the post of Electronic Technician having the qualification of ITI in the trade of Radio and TV. Having said that, the Writ Court did not quash the promotion of Imtiaz Ahmed Sheikh to the post of Electronic Technician and rightly so as Mr. Imtiaz Ahmed Sheikh stood deleted from the array of respondents and, therefore, his promotion could not have been quashed without affording him an opportunity of being heard. The Writ Court, however, quashed order No. 51 of 2006 dated 18.07.2006 whereby the respondent had been confirmed as Jr. Electrician w.e.f 23.12.2000 and Electrician w.e.f 01.01.2005 and a direction was issued to the appellants herein to promote respondent to the post of Electronic Technician w.e.f 23.12.2000 with all consequential benefits including seniority etc. The appellants were directed to complete the entire exercise within a period of two months vide order and judgment dated 26.10.2018. It is this judgment of the Writ Court which is called in question before us on multiple grounds. 7 Having heard learned counsel for the parties and perused the material on record, we find the judgment impugned wholly unsustainable in law. 5 8 Indisputably, the entry of respondent Government service as Laboratory Attendant was a backdoor entry. He came to be appointed as Laboratory Attendant in the Government Medical College. Srinagar in the year 1986 on ad hoc basis without having faced any process of selection conducted by the appellants in conformity with Articles 14 and 16 of the Constitution of India. Be that as it is, the fact remains that the respondent continued in the service of the appellants as Lab Attendant. In the year 1997, the respondent approached this Court by way of SWP No. 1802 of 1997 claiming therein that the vacancy of Electronic Technician in Government Medical College, Srinagar had arisen due to retirement of one S. Surinder Singh and, therefore, he be considered in view of his qualification. The learned Single Judge of this Court disposed of the writ petition without determining the merit of the claim of the respondent. The operative portion of the judgment reads thus: “The respondents would look into the claim of the petitioner. They would consider his case and pass consideration orders as the vacancy exists. Let needful be done within a period of two months” 9 From a bare reading of operative portion of the judgment passed in SWP No. 1802/1997, it clearly transpires that the learned Single Judge did not go into the merits of the claim of respondent and instead left it to the appellants herein to consider his claim against the vacancy that was stated to be existing at the relevant point of time. Viewed thus, it can be safely said that the learned Single Judge while disposing of the aforesaid writ petition did not issue any mandamus to the appellants to promote the respondent against the post of Electronic Technician, that too, de hors the rules governing the recruitment to the 6 said post. 10 It seems that with a view to conferring wrongful benefit upon the respondent and without determining his eligibility to hold the post, the then Principal GMC Srinagar vide order dated 23.12.2000 (supra) straightway promoted the respondent to the post of Electrician in the pay scale of Rs.4000-6000 which was two steps higher than the post held by the respondent. The Principal, GMC Srinagar did not even realize that the respondent possessing the qualification of ITI in the trade of T.V. and Radio was not even eligible to be appointed as Electrician. He even forgot that between the post of Lab Attendant and the post of Electrician, there was intermediate grade post of Jr. Electrician. This order was not objected to by the respondent by making any grievance before this Court. That apart, order dated

23.12.2000 issued by the Principal, GMC Srinagar was subject to confirmation by the DPC. The matter was, thus, placed before the DPC in its meeting held on 10.04.2006. Upon deliberation, the DPC found that the respondent, though promoted in compliance with the directions passed by learned Single Judge of this Court,yet could not have been promoted directly to the post of Electrician which was two steps higher than the post of Lab Attendant. 11 With a view to do justice with the respondent and come out of the anomalous situation created by the Principal, GMC Srinagar, the DPC recommended promotion of the respondent as Jr. Electrician w.e.f 23.12.2000 and Electrician in the pay scale of Rs.4000-6000 w.e.f

01.01.2005 vide order dated 18th July 2006 which was impugned in the 7 writ petition. 12 We have gone through the Government order dated

19.01.2006 laying down the method of recruitments/promotions to various category of posts in GMC Jammu/Srinagar and we find that the posts of Jr. Electrician and Electrician etc. are indicated at S.No.29 (Electric Unit). The post of Jr. Electrician is provided to be filled up 75% by direct recruitment and 25% by promotion from the Linemen possessing the qualification of Diploma from ITI in the Electric trade. The post of Electrician in the pay scale of Rs.4000-6000 is a promotional post and can be filled up only by promotion from Jr. Electricians having five years service as such. 13 As noted above, the respondent could not have either been promoted as Jr. Electrician or Electrician as he was not possessing the minimum qualification of Diploma from ITI in the Electric trade. As we have observed above, the then Principal GMC Srinagar in a bid to accommodate the respondent, kept aside his eligibility to hold the post and straightway directed his promotion to the post of Electrician in the pay scale of Rs.4000-6000 which, as already explained, was a post required to be filled up 100% by promotion from Jr. Electricians having qualification of Diploma from ITI in Electric trade. The order was, of course, subject to confirmation by the DPC. In these circumstances when there was violation of recruitment rules with impunity, the DPC could have very well declined confirmation of the respondent, either as Jr. Electrician and Electrician. The respondent was a Laboratory Assistant borne on the cadre of different unit having different line of 8 promotion. However, having regard to the fact that the appointments and promotions in the GMC Jammu/Srinagar were being made arbitrarily taking the benefit of absence of statutory recruitment rules, the DPC took a broader view in the matter and opined that instead of promoting the respondent directly from Laboratory Attendant to the post of Electrician, it would be in the fitness of things to promote him firstly as Jr. Electrician and then promote him to the post of Electrician in the pay scale of Rs.4000-6000 after completing five years’ service on the post of Jr. Electrician. Pursuant to this opinion, order dated 18th July 2006 (supra), impugned in the writ petition was issued. 14 We do not find any illegality or infirmity in the impugned order, nor do we find any reasons in the judgment of the Writ Court which justify the entitlement of the respondent for promotion to the post of Electronic Technician. We have already noticed that the claim of the respondent for promotion to the post of Electronic Technician was primarily and squarely based on his allegation that Imtiaz Ahmad Sheikh, a person junior to him had been wrongfully promoted against the said post ignoring his better claim. Name of Mr. Imtiaz Ahmad Sheikh, whose promotion as Electronic Technician was assailed by the respondent was later on deleted from the array of the respondents. In absence of Imtiaz Ahmad Sheikh being a party in the writ petition, no relief could have been granted against him. That being so, the Writ Court was not justified in directing the promotion of the respondent to the post of Electronic Technician, that too, w.e.f 23.12.2000. The respondent, who was appointed as Lab. Attendant, was not entitled to be appointed as Electronic Technician, either by way of direct recruitment or by way of promotion even if one were to consider that 9 the respondent was possessing the qualification prescribed for the post of Electronic Technician. Electronic Technician, as is the admitted case of both the sides, carries a pay scale which is three steps higher than the pay scale of Lab. Attendant. The direction of the writ Court, if complied with, would result in giving three steps promotion to the respondent in one go. We fail to appreciate as to why the respondent deserves to be given such benefit, more particularly, when his first entry to the service itself is through backdoor. 15 Viewed from any angle, we don’t find the order and judgment impugned sustainable in law. The appeal is, accordingly, allowed and the impugned order and judgment passed by the writ Court is set aside. Srinagar 22 .07.2024 Sanjeev (M.A.CHOWDHARY) (SANJEEV KUMAR) JUDGE JUDGE Whether the order is speaking: Yes Whether the order is reportable:Yes MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document

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