MUSHTAQ AHMAD HAMDANI Vs. STATE
LAWS(J&K)-2006-2-12
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 08,2006

Mushtaq Ahmad Hamdani Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THE petitioner impugns order no. 434/05 dated 17th March 2005 purporting to have been passed by respondent no.3 directing respondent no.5 to remain "under study" for the post of Section Officer likely to become vacant on 31st of Oct. 2005 after superannuation of incumbent namely Chooni Lal Sharma. Ground pleaded is that the order has been passed to pave way for undue promotion of respondent no.5 against prospective vacancy of Section Officer even though he is far junior to him and besides having earned some adverse remarks at different times has inferior academic qualification also. Materials appended with the writ petition include the impugned order and other orders/communication regarding petitioners service profile.
(2.) IN their objections official respondents while admitting petitioners seniority over respondent no.5 have pleaded that charge of Section Officer was given to said respondents for remaining "under study" for promotion thereto because he has qualified the "Secretariat Training Course" in 1996, while petitioner has not qualified the same. Rest of the contents of reply pertain to other pleas taken by petitioner regarding 5th respondents service profile and do not appear to be very relevant in view of the main plank of petitioners case based on his seniority and better eligibility for promotion to the post of Section Officer. During course of submissions learned counsel have mainly reiterated the contents of pleadings with reference to their respective annexures. Since respondent no.5 has not appeared despite service he is proceeded against in ex -parte.
(3.) I have heard learned counsel, gone through the records and considered the matter. In view of conflicting pleas advanced by rival sides the moot -question that emerges for determination is, as to whether or not in circumstances of the case, the impugned order of placing 5th respondent virtually on the launching pad for promotion to post of Section Officer that was yet to become available, was proper in view of petitioners admitted seniority; and what, if any, edge would the said respondents have over petitioner for having qualified the Secretariat Training Course. That petitioner is senior to said respondent is admitted and that being so, the onus of showing that, despite admitted seniority, he did not have a better claim of promotion against said respondent would automatically be on the official respondents who passed the impugned order. Reliance for showing fifth respondents superior claim to promotion has been placed on said respondents qualification of Secretariat Training Course, which as per submissions made by their counsel was essential for consideration of promotion to the post of Section Officer. This necessitates reference to the relevant rules. Promotion in the service from cadre of Head Assistants to which the petitioner and respondent no. 5 belong, to the next higher cadre of Section Officer is admittedly governed by SRO 164 of 1st Sept. 1993 whereunder rules governing the services of J&K Handloom Department have been framed. As per schedule 2 attached to the rules read with Class II thereof, the post of Section officer is required to be filled up by promotion from the cadre of Head Assistant with not less than 5 years service in that category. The said schedule does not mention anything to suggest that Secretariat Training Course is a part of eligibility criterion for promotion to the post of Section Officer from the cadre of Head Assistant, while as the same is a requirement for promotion from the cadre of Senior Assistant to that of Head Assistant along with five years stay in that cadre. In nutshell therefore, while the Secretariat Training Course is a part of eligibility criterion for promotion from the cadre of Senior Assistant to that of Head Assistant, it is not required for promotion from the cadre of Head Assistant to that of Section Officers, presumptively because a person promoted from the cadre of Head Assistant to that of Section Officer would naturally have had the said training course to his credit, at the time of his promotion to the cadre of Head Assistant. Thus a question would arise as to whether the petitioner who like respondent no.5 is already functioning as Head Assistant has had the requisite secretariat training course to his credit at the time of his promotion from the cadre of Senior Assistant to that of Head Assistant. Admittedly it is not so, but then the petitioner appears to have been promoted to the cadre of Head Assistant after clarification by State Level DPC, way back in 1983 under order No.DHD/58 of 1983 dated 29 -07 -1983, while as the rules aforementioned which prescribe the requirement of secretariat training for promotion from the cadre of Senior Assistant to that of Head Assistant have come into force in 1993. So, at the time petitioner was promoted to the post of Head Assistant the requirement of secretariat training was not there at all and having served as such for a decade, he could not be left out of consideration for promotion to the next higher cadre only because he did not have the qualification which was not required in his case at the relevant time. That is particularly so because SRO 164 aforementioned does not contain anything to suggest that any person who has been promoted to the cadre of Head Assistant prior to promulgation of the said SRO would suffer for want of requisite secretariat training course for his consideration for promotion to the post of Section Officer. Plainly, therefore, the requirement does not appear to apply to the petitioner who had already put in 10 years as Head Assistant in 1993 when the SRO was promulgated and thereby around 22 years by now. In that view, the requirement of secretariat training course for his consideration for promotion against the post of Section Officer that would become available after superannuation of the incumbent, is not attracted in petitioners case and accordingly, the placement of 5th respondent, admittedly junior to him, on the launching pad for promotion to the Section Officer post was not proper. On the contrary it appears to have been quite an unusual, exercise only aimed at pre -empting the petitioner from claiming promotion to the post of Section Officer at the relevant time. In that much it appears to be quite deplorable.;


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