ANUPAM DUTTA Vs. STATE OF J&K

JUDGEMENT

(1.) The petitioners possess the Bachelor Degree in Electrical Engineering. Pursuant to the selection made by the J&K Service Selection Board, the petitioners came to be appointed as Junior Engineers (Electric) Grade-II on 30.12.1988. In the final seniority list of Junior Engineers (Electrical) Degree/Diploma Holders promulgated vide Govt. Order No. 314-PDD of 2008 dated 23.10.2007, the petitioners figured at S.Nos. 84, 87, 93, 94, 95 and 96 respectively. At the time of appointment of the petitioners as Junior Engineer (Electric) Grade-II, there were no statutory recruitment rules framed by the respondents to regulate the service conditions of the Junior Engineers of the Power Development Department. The statutory recruitment rules came to be framed in the year 1997 vide SRO No. 180 dated 26.05.1997 called as the Jammu and Kashmir Engineering Subordinate Service Recruitment Rules, 1997 (hereinafter called as 'the Rules of 1997). As per schedule-II 'A' appended to the Rules of 1997, the Junior Engineer- Grade II is entitled to be promoted to the post of Junior Engineer (Electric) Grade-I provided he has at least five years continuous service as Junior Engineer (Electric) Grade-II viz Rs. 1760-3200 (pre-revised) in the case of Degree Holders and Ten years continuous service in case of diploma holders. The note appended provides that the posts earmarked for Junior Engineer Grade-I shall be 1/3rd of the total strength of the Junior Engineers Grade Rs. 1760-3200 and Rs. 1400-2300 put together. The petitioners claim that under the Rules of 1997, all the petitioners became eligible for being promoted to the posts of Junior Engineers (Electric) Grade-I on rendering 05 years continuous service as Junior Engineers (Electric) Grade-II. The petitioners, therefore, claim that they were entitled to be promoted to the posts of Junior Engineers Grade-I w.e.f. 31.12.1993. The petitioners, however, were not granted the promotion to the posts of Junior Engineers Grade-I, but, instead they were promoted to the post of Assistant Engineer (Electric) in incharge capacity under the J&K Engineering (Gazetted) Service Recruitment Rules, 1978 (hereinafter referred to as the Rules of 1978). It is submitted that for promotion to the post of Assistant Engineer (Electrical), the petitioners were only required to possess three years' service as Junior Engineer Grade-I. The Rules of 1978, it is submitted, were deviated from and the petitioners were not only promoted as Incharge Assistant Engineer, but, were later on placed as Incharge Assistant Executive Engineer as well. The petitioners further contend that while they were working as Incharge Assistant Engineers and were also eligible for substantive promotion to the posts of Junior Engineers (Electric) Grade-I, they were not so promoted and as against this 111 persons, all juniors to the petitioners in the final seniority list issued on 23.10.2007 figuring from S.No.98 upto S.No.211, were promoted as Junior Engineers (Electric) Grade-I (degree holders). The petitioners were left out on the plea that they were already holding the higher posts of Assistant Engineers though in incharge capacity and in their own pay and grade. The petitioners, who were seniors to 111 persons promoted as Junior Engineer (Electric) Grade-1, vide Govt. Order No.330-PDD of 2005 dated 18.11.2005, represented before respondents. They were all along assured that their services as Assistant Engineers would be regularised from the date they have been put as such, and therefore, no prejudice would be caused to them by promotion of their juniors from Junior Engineer(Electric) Grade-II to Junior Engineer (Electric) Grade-I. The matter, however, was brought to the notice of the Chief Secretary of the State, who convened a meeting in his office Chamber on 23.10.2009. The grievance raised by the petitioners, who were 85 in number was thoroughly discussed and it was decided that as an interim measure the department can, apart from using available 70 vacancies, also utilize 04 vacancies of Assistant Engineers and 11 vacancies of Assistant Executive Engineers so as to accommodate all the 85 Junior Engineer (Electric) Grade-II, who had been left out while making promotions in the year 2005. The department was, accordingly, advised to send the case to the Finance Department for their concurrence before proceeding further. Pursuant to the decision taken on 23.10.2009 in the office chamber of the Chief Secretary of the State, the respondent No.1 vide Govt. Order No. 199- PDD of 2010 dated 29.07.2010 placed 70 Junior Engineers Grade-II (degree holders) as Junior Engineer (Electric) Grade-I till the time they were placed/promoted as incharge/regular Assistant Executive Engineers. In this way, the grievance of 70 Junior Engineers Grade-II out of 85 left out was redressed. 15 Junior Engineers Grade-II, who were junior to 70 Junior Engineers (Electric) Degree Holders Grade-II, promoted vide Govt. Order No.199-PDD of 2010 dated 29.07.2010 and seniors to 111, who were so promoted vide Govt. Order No.330-PDD of 2005 were again left out. The grievance of the petitioner in short is that how can the respondents ignore the petitioners for promotion to the post of Junior Engineer Grade-I when 111 Junior Engineer Grade-II, juniors to the petitioners, have been promoted in the year 2005. It is further urged that in a meeting held in the office chamber of the Chief Secretary of the State on 23.10.2009, it was in principle decided to mitigate the hardship of all the 85 left out Junior Engineer Grade-II, which included the petitioners and the department was asked to utilize even the vacancies of the Assistant Engineers and Assistant Executive Engineers as one time exception, but, the respondent No.1 issued Govt. Order No.199- PDD of 2010 dated 29.07.2010 giving promotion only to 70 Junior Engineers (Electric) Grade-II to Junior Engineers (Electric) Grade-I and, thus, again left out the petitioners.

(2.) It is in the backdrop of this grievance, the petitioners are before this Court praying for a direction to the respondents to place the petitioners also as Junior Engineers (Electric) Grade-I w.e.f. 30.12.1993 or at least from the date their colleagues 70 in number were so placed vide Govt. Order No. 199-PDD of 2010 dated 29.07.2010.

(3.) The respondents have filed their objections and have not contradicted the averments averred in the petition on facts. It is virtually conceded that the petitioners at the relevant point of time were not placed/promoted to the posts of Junior Engineers Grade-I for the reason that they were already holding the higher post of Assistant Engineers (Electrical) though in incharge capacity and were entitled to be regularized from the date of their placement as Incharge Assistant Engineers. It is, thus, submitted that because of above, the petitioners were ignored when 111 juniors to the petitioners were placed as Junior Engineer (Electric) Grade-1 in the year 2005. It is sought to be explained that though in the meeting chaired by the Chief Secretary of the State, a decision was taken to accommodate all the 85 left out, but, there were only 70 vacancies of Junior Engineers (Electric) Grade-I available, as such, only 70 out of the 85 left out Junior Engineers (Electric) Grade-II were accommodated vide Govt. Order No.199-PDD of 2010 dated 29.07.2010. The senior most 70 Junior Engineers (Electric) Grade-II were accommodated leaving behind 15 including the petitioners, who could not be accommodated for want of vacancies. It is further pleaded by the respondents that Establishment-cum-Selection Committee in its meeting held on 16.02.2010 discussed the issue of distortion in the pyramid structure of Engineering Departments, post reorganization, wherein the posts of Assistant Engineers were converted into Assistant Executive Engineers. It was observed that there were severe bottlenecks at the level of Assistant Engineer, which is the primary reason for stagnation of the officers in the Engineering Department. Accordingly, it was recommended to convert the posts of Junior Engineers Grade-I into Assistant Engineers in all the Engineering Departments to the extent that total number of Assistant Engineers becomes at least 15% more than the strength of the Assistant Executive Engineers in each department. The respondents have further explained the impact of reorganization and the decision taken by the Establishment-cum-Selection Committee to remove the stagnation of the officers in the Engineering Departments. In nutshell, the respondents do not dispute the better right of the petitioners for being promoted to the posts of Junior Engineer Grade-I vis  -vis those 111, who were promoted in the year 2005.