BILAL AMIN BHAT Vs. STATE OF J&K
HIGH COURT OF JAMMU AND KASHMIR
Bilal Amin Bhat
STATE OF JANDK
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(1.) THE writ petitioner has called in question the appointment of a deputationist Respondant 4 herein by his borrowing department from the
post of an Assistant Legal Remembrance Law Department to the post of the
Director Defence Labour Procurement and seeks the following reliefs:
(i) a writ in the nature of certiorari be issued in favour of petitioner against respondents for quashing Government Order No. 1203 -GAD of 2006 dated 28.09.2006 to the extent of serial No. 17 (respondent No.4) (ii) a writ in the nature of quo -warrant to be issued in favour of petitioner and against respondent No. 4 prohibiting from him discharging functions or duties of the post of Director Defence Labour. (iii) a writ in the nature of mandamus be issued in favour of petitioner against respondent No. 1 to 3 to accord consideration to petitioner in accordance with SRO 148 of 1977 (J&K Defence Labour Subordinate) Services Recruitment Rules 1977 for the post of Director Defence Labour and promote him accordingly.
(2.) GOING by usual manner the reliefs prayed for in the writ petition need to be appreciated in seriatim but such course is
unworkable, for, reliance by the petitioner on the Jammu and Kashmir
Defence our Procurement (Subordinate) Service Recruitment Rules. 1977
(hereinafter called Subordinate Service Rules 1977), is absolutely
misplaced because the Director is a gazetted and his appointment is
governed by the Jammu and Kashmir Defence Labour Procurement (Gazetted)
Service Recruitment Rules 1979 (for short Gazetted Recruitment Rules
1979).In that view of the matter relief sought in clause (iii) of the writ petition extracted above is declined.
(3.) IN respect of prayer (i) extracted above, it is contended by learned counsel for the petitioner that the appointment by deputation is
violative of the rules. To dwell upon the contention rule 4 and schedule
appended thereto of Gazetted Recruitment rule 1979 assumes significance
which is extracted:
Qualification and method of recruitment. - - (1) No person shall be eligible for appointment to any post in any class, category or grade in the service unless he possesses the qualifications as laid down in the schedules and fulfills the other recruitment as provided in the rules and orders for the time being in force. (2) Appointment to the service shall be made in the manner as indicated in the schedule. Class Category Designation Grade No. of posts Qualification. For Direct Recruitment Method of Recruitment. 1 2 3 4 5 6 7 I Director Defence procurement 750 -1350 i) By promotion from class II From amongst the persons having at least 15 years service in the class. OR ii) By deputation from outside the cadre. II Labour Procurement 750 -1350 .... By promotion from Assistant Labour Procurement Officer/Superintendent of defence Labour having at least 5 years service in that class and are Matriculates at least.
Intent apparent on the face of the schedule appended to rule 4 reveals that the method of appointment to the post of the Director is by
promotion/selection or deputation. Thus appointment to the post of the
Director postulates a decision by the competent authority; to opt for one
of the modes prescribed by the schedule and the competent authority in
this case is the government which has opted for the mode of deputation.
Such option is not a departure from 'the rules because appointment by
deputation is one of the modes envisaged by the rules. Thus prayer (i)
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