JAHANGIR AHMAD MALIK Vs. STATE
LAWS(J&K)-2006-12-17
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 18,2006

Jahangir Ahmad Malik Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) TWO writ petitions stand clubbed and are taken up together for final disposal. SWP 1218/2004 captioned Jahangir Ahmad Malik vs. State of J&K was listed before me on 20.09.2004 wherein a direction was sought by the petitioner for his continuation as a Junior Assistant on the strength of Order No. Estt/7149 -5 1 dated 21 .02.2004 which reads: "Pending clearance by the departmental Promotion Committee and in the interest of smooth running of government work, Sh. Jahangir Ahmad Malik senior most matriculate orderly of this office, is temporarily promoted to the post of Junior Assistant (District Cadre) as a stop gap arrangement in his own pay and grade with charge allowance as permissible under rules. In case the arrangement made vide this office No.: Estt/3 142 -45 dated 22.10.2003, is reversed, Sh. Jahangir Ahmad Malik shall get automatically reverted to the post of orderly. This order will have immediate effect, Sd/ - Chief Horticulture Officer, Kupwara (Handwara)" The writ petition received consideration and the following order was passed: "Notice to the respondents returnable within ten days. Notice in the CMP also returnable 'within the same period. It is a case 'where the Chief Horticulture Officer Kupwara shall have to explain -whether he has authority under rules to make the promotion to the Post of Junior Assistants. He shall point out in his affidavit to be filed by him by next date as to -whether it is permissible for him to make the promotion at the District level The direction has become imperative to ensure the disposal of the matter at the admission stage itself as otherwise pendency of the writ petition is bound to provide an excuse to the respondents to make the arrangement to continue. In the meantime, subject to objections of other side and till next date before the bench, let there be status quo in respect of the position of the petitioner. Needless to say that in case respondent No. 3 comes to the conclusion that he has breached the rule pendency of the petition and the ad interim direction will not work as an impediment for him in taking corrective measures.
(2.) AS a matter of coincidence same day another petition SWP 1189/2004 entitled Muhammad Akber Mir Versus State came up before me seeking the following relief: "i. issue writ, direction or for the nature of prohibition restraining the respondents from discontinuing the temporary promotion of the petitioner as Senior Assistant in District Kupwara made in terms of Order No, Estt/3135 -38 dated 22.10.2003 (Annexure P2) till the case of the petitioner is considered by the Departmental Promotion Committee as per terms and conditions of The said order. ii. Petitioner further prays for issuance of writ, direction or order in the nature of mandamus commanding the respondents to convene the Departmental promotion Committee in this behalf and place the service record of the petitioner before the said Committee for confirmation of his services as Sr. Assistant in accordance with recruitment rules; and ii. by issuance of writ of mandamus, the respondents be further directed to pay all the service benefits to the petitioner of the post of Sr. Assistant including pay, salary, seniority, retrospectively from the date of temporary promotion i.e. 22.10.2003."
(3.) THE relief was sought on the strength of Order No.3135 -38 dated 22.10.2003 which is extracted hereunder; "Pending confirmation by the Departmental promotion Committee, sanction is hereby accorded in the interest of administration and smooth running of the office work, to the temporary promotion of Shri Mohd. Akber Khan, Jr. Assistant (Pay Scale 3050 -4590) to the available post ofSr. Assistant (Dist. Cadre Pay Scale 4000 -6000) in his own pay and grade with charge allowance as admissible under rules. Sd/ - Chief Horticulture Officer, Kupwara (Handwara) Upon consideration of the matter following direction was passed: "Notice - Notice in the CMP also, I have tome across writ petition No. SWP 1218/2004 incidentally on the said date when this writ petition was listed and have found that the Chief Agriculture Officer herein has passed the order of promotion in the above said petition also, therefore, it will be appropriate to club both the petitions. The Chief Agriculture Officer owes an explanation to the Court whether he has the competence. Till then there shall be status quo with respect to the position of the petitioner. List along with writ petition SWP No.1218/2004 week following next." Subsequently writ petition was sought to be amended. Permission was accorded and amendment was introduced challenging the order of reversion impliedly contending in one of the paras of the amended writ petition that knowledge of the order sought to be impugned had accrued to the petitioner from reply filed by the respondents. How far attempt helps him needs to be appreciated in the light of the fact that in the unamended writ petition while pleading ignorance of the order of reversion the petitioner admits that an adverse order has been passed against him on 16.08.2004. While appreciating the averment it has to be borne in mind that the petitioner as a Junior Assistant continued in the same office where here that an Orderly namely Jahangir Ahmad Malik, writ petitioner in SWP 1218/2004 clubbed one, was promoted to the post of Junior Assistant held by the petitioner prior to his promotion. His promotion order contained a condition that cancellation of order of promotion favouring writ petitioner Muhammad Akber will revert him (Jahangir) to his substantive position, a post of an orderly. Assuming that both the beneficiaries were not associated with the drafting and issuance of the impugned reversion order and someone other than them prepared it but fact remains that it was prepared by a typist and a junior Assistant who worked under the control pf the Senior Assistant, petitioner herein. Control apart they are colleagues of the two petitioners. Can a story work that they didnt know the contents of the order. Going by the averments made in the writ petition, it emerges that the petitioner knew that an adverse order was passed against him, that is how he has named the date of the impugned order. Even believing that contents of the order were kept a guarded secret and his colleagues did hot serve it on him but what prevented him to approach the officer who was otherwise kind to him and had set at naught the order subsequent to the direction of the Court reproduced hereinabove. Pleadings are wanting. Another instance is evident from the CMP No.2787/2004 filed by the petitioner on 03.01.2004 seeking amendment of the writ petition but did not make a feeble mention even about lack of knowledge of the order.;


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