Decided on November 03,2006

Ashfaq Ahmad Quarashi Appellant
STATE Respondents


BASHIR A.KIRMANI, J. - (1.) CLAIMING to have been engaged as Junior Assistant in SKIMS, Soura, Srinagar in 1982 and thereafter appointed as Junior Stenographer under order No. SIMS -1874 of 1985 dated: 11. 12. 1985, the petitioner maintains that he continued to be in service as such till 31.3.1990 when he was charge sheeted for unauthorized absence from duty. The departmental enquiry was however settled by allowing him to resume his duties with effect from 18.2.1993 as junior stenographer and he was confirmed as such vide order No. 378 of 1993 dated: 4. 5.1993. Vide another order No. SIMS -55(P) of 1993 dated: 1.4.1993 the tenure of private respondents was extended on temporary basis who were later confirmed as junior stenographers vide order No. 368 of 1994 dated: 2.5.1993. Under order No. 394 (P) of 1994 dated: 6.12.1994 higher scale of Rs. 1760 -2600 was released in favour of petitioner with effect from 18.2.1993 whereas respondents 4 to 9 were promoted as senior scale stenographers vide order No. 431(P) of 1995 dated: 18.1.1995 Under another order No. SIMS 192 (P) of 1997 dated: 27.11.1997 respondent/Institute ordered that said respondents would be deemed to have been promoted as Senior Stenographers in the grade of Rs. 2000 -3200 with effect from the date of order alongwith petitioner who figured at S. No. 10 therein. Under circular No. SIMS/Per/689/2000 -281429 dated: 2. 5. 2000 the tentative seniority list of stenographers was circulated where under petitioner figured at S.No. 10 whereas private respondents 4 to 9 were shown down below him at S. No. 11 to 16 who accordingly filed their objections thereto in July, 2005 resultant whereupon the final seniority list was issued on 1.8.2005 and said respondents figured at S. No. 8 to 13 and petitioner at No. 14. Aggrieved thereby he challenges said seniority list on the grounds that same is illegal and as unfounded in fact and law and pushes the petitioner down below his juniors in the order of senior it which being violative of his rights could not have been done particularly after the benefit of promotion was given to him with effect from 18.2.1993.
(2.) IN their reply official respondents besides inter alia pleading that petitioner has no cause to maintain the petition for the reason of being based on questions of fact, deny his claim of seniority over private respondents particularly on the basis of his undertaking purported to have been filed on 29.3.1993 on basis whereof he was allowed to resume his duties, the seniority position as obtaining thereafter was issued in due acknowledgement of that fact because petitioners undertaking as such was a part of the settlement of his case of unauthorized absence from duty etc. In their separate memo of objections, private respondents, while adopting the replies given by official respondents, have in addition also pleaded that the matter of seniority inter se between them and petitioner was ultimately settled by respondent/Institute according to recommendations of duly constituted Committee as confirmed by Law Department and the final seniority list was issued under No. SIMS/PER/ 689/2005 -3865 -84 dated: 1. 8. 2005. During course of their submissions counsel appearing for parties have reiterated their pleadings with reference to annexures. I have heard learned Counsel and considered the matter. In view of attending circumstances and annexures on record, petitioners status and seniority has admittedly been in tact till 31st of March, 1990, when he unauthorisedly absented from service and was subjected to a departmental enquiry with issuance of a charges sheet on 7.5.1992 followed by the final notice dated: 3.10.1992 to show cause against his proposed removal from service, in response whereto he appears to have represented for taking a lenient view on basis whereof the order No. 378 of 1993 dated: 4.5.1993 was issued allowing him to resume duties w.e.f 8.2.1993, on the condition that he would not claim emoluments for period of his unauthorized absence from duty i.e. 31.3.1990 to 17.2.1993, and the said period would not count for his seniority, pension and other benefits, and that he will be the junior most stenographer, but benefits of his service prior to date of unauthorized absence would remain intact and under that order only he came back on the cadre. Meanwhile on 1.4.1993, vide order No. SIMS/302 -0490 -732 -76, the private respondents till then working on tenure appointments, were regularized as junior stenographers in the grade of 1400 -1600 subject to confirmation by junior selection committee, and confirmed as such under order No. 363 of 1994 dated: 12. 5. 1994. This shows that on 4.5.1993 when petitioner was allowed to resume duty under order No. 378 of 1993, aforementioned, as junior most stenographer duly accepted by him, the respondents stood already regularized as junior stenographers on 1.4.1993 under above said order No. SKIMS/302 -09 -0490 -732 -76; and were thus ahead of him in the row. That perhaps was the starting point of petitioners present grievance which he did not challenge at all, and which got cemented with their confirmation on 12.5.1994 under order No. 368.
(3.) THIS was followed by another development. On 6.12.1994 under order No. SKIMS - 394 of 1994 issued by the Joint Director sanction was accorded to senior stenographers scale i.e. 1760 -260 in petitioners favour w.e.f 18.2.1993 i.e. the date of his rejoining in the Institute as junior stenographer, without prejudice to the conditions laid down in order No. 378 of 1993 (order of petitioners rejoining) and his undertaking, which plainly conveys that the benefit of seniority might not be claimable. However this was followed by order No. SKIMS 431 (P) of 1995 dated: 18.1.1995 passed by the Director, where under on basis of having qualified the trade test in stenography and typing, the respondents were promoted as senior stenographers in the grade of 2000 -3200, in anticipation of clearance by junior selection committee. It may be recalled that under above said order of 6.12.1994, the higher grade released in petitioners favour was 1760 -2600 only. Thus again respondents stole the grade/status much over petitioner which was again nowhere challenged by him.;

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