KHURSHID AHMAD BHAT Vs. STATE OF J&K
LAWS(J&K)-2006-6-17
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 02,2006

Khurshid Ahmad Bhat Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) CAUSE urged owes its origin to the denial of benefit of proviso to sub rule 6 of rule 3 of the Jammu and Kashmir Administrative Service Rules 1979 read with explanation thereto which may be extracted: "Notwithstanding anything containing in these rules an officer, who on the commencement of these rules is either a member of the Jammu & Kashmir Administrative Service constituted under the Jammu and Kashmir Administrative Service Rules, 1965 in the senior scale or selection grade of that service, or is holding any post in its sanctioned scale of pay included in the schedule appended to these rules and has passed the Departmental Examination, if any, prescribed, shall be deemed to have been appointed to the corresponding scale of the service under these rules and their seniority shall be determined under the rules which were applicable to them immediately before commencement of these rules. An order listing the names of these Officers shall be issued by the Government. Provided that all officers of different services, who are holding or but for their postings on foreign services would have held the posts now borne on the Cadre of the Service, shall be deemed to be the members of the Service and shall be placed interse in order of their appointment/promotion to the grade of Rs.1300 -2030 (Rs.750 -1350 Old Scale). An order listing the names of these Officers shall be notified by the Government. Explanation: - For the purposes of this Proviso the expression "all Officers of different Departments/Services" means the Officers belonging to any of the services specified in Rule 5 of the Jammu and Kashmir Administrative Service Rules 1979, who were holding or but for their foreign posting would have held the posts on or after 07.12.1983 but not later than 18.10.1988."
(2.) AIMING at the effective application of the proviso aforementioned, the State constituted a Committee of the Officers vide order No. 544 -GR of 1986 dated 11.06.1986 for having the issues examined relating to the induction of the Officers into the Kashmir Administrative Service (for short KAS). The Committee so constituted, after examining the matter, made recommendations which received approval of the Government and were accordingly notified vide Notification No. GD (Ser) KAS/90 dated 16.01.1990. The recommendations relevant to the case on hand may be extracted: "GOVERNMENT OF JAMMU AND KASHMIR GENERAL ADMINISTRATION DEPARTMENT NOTIFICATION .....Whereas the Government considered the recommendations of the Committee referred to above and have approved that: - (1) The date of reference for determining the eligibility of officers for inclusion in KAS be shifted to 18.10.1988. (2) The officers holding the cadre posts in their own pay and grade be given the benefit of the pay scale from the date they were appointed to these posts or from the dates from which the same has been released or is to be released in favour of the officers senior to them in their respective departmental services whichever be later. ....."
(3.) IN opposition to the claim laid in the writ petition it is averred by the respondents that the petitioners posting on a cadre post was for a brief spell, therefore, disentitled to the pay scale and induction into KAS. Dealing with the objection, reference is made by learned counsel for the petitioner to the internal page 2 of the Government Order No. GD (Ser) KAS/90 dated 16.01.1990 (annexure P6 to the writ petition) relating to three officers of the Employment Department, namely Shri A. S. Gupta, Shri A. R. Sheikh and Shri P. L. Sharma, besides Government Order No. 678 -GAD of 1993 dated 13.08.1993 favouring Shri M. I. Sadiq and Shri Khalid Hussain (see annexure S2 to the supplementary affidavit) to canvass that even one days appointment by transfer on the post has begotten benefit of proviso to sub rule 6 of rule 3 to the aforementioned officers both in respect of pay scale and induction, conversely, the petitioner has been denied the benefit mainly on the ground of his removal from the cadre post. Attention of the Court is drawn to earlier phase of litigation, the petitioner had resorted to by medium of writ petition (SWP 260/1990) questioning his dislodgement from the post of Assistant Commissioner Development Srinagar which came to be disposed of by the writ Court, operative part thereof stands extracted in their reply affidavit at page 6 and observation relevant to the case on hand may be reproduced: "...The grievance projected by the petitioner regarding his induction into KAS cadre and also for consideration of the service rendered by him on a higher post and status, however, cannot be ignored..." (Underlining supplied) The dictum extracted above on the one hand casts an obligation upon the respondents to take note of the grievances of the petitioner relating to his claim of induction into KAS and on the other it restrains the respondents from refusal to consider the services rendered by the petitioner on a higher post and status. The decision having gone unchallenged, the petitioners services as Assistant Commissioner Development have to be reckoned to his credit and fact of the matter is that his services have received recognition as is evidenced by Government Order No. 1110 -GAD of 1992 dated 25.11.1992 (See S.No.58) which has the effect of appointing him by transfer against the post of an Area Development Officer, Mahore, a cadre post. Reverting to the objection of brief spell, the stance of the State unveils a stand that service for a specific period on a cadre post is a condition precedent to maintain the claim for grade/induction but the period is not named, obviously, the respondents owe an explanation to the Court as to what is the period for which an officer is required to have held the post continuously so as to attain the eligibility for benefit of the proviso aforementioned but the counter fails them because it does not advance any. During the course of arguments also no statute/rule/administrative instruction was cited which would lend support to the objection and same being bereft of substance, objection fails. Nonetheless the petitioner has to establish his eligibility on the touchstone of the proviso and the recommendation of the Committee, therefore, a need to narrate the admitted facts having direct bearing on the controversy. The petitioner was initially borne on the cadre of the Jammu & Kashmir Labour (Gazetted) Service, a service specified in rule 5 of the Jammu & Kashmir Administrative Service Rules at S.No. 8. He has held the post of Assistant Commissioner Development, Srinagar within the cut off date vide Government order No. 1074 -GD of 1986 dated 24.12.1986. The said post of Assistant Commissioner Development falls within the cadre strength of KAS at S. No.84. He was reappointed on a cadre post viz Area Development Officer, Mahore, again by transfer subsequent to the judgement of the writ Court. More so, despite his unceremonious removal from the cadre post he has worked for weeks together at a stretch within the period spelt out by proviso so relied upon. Yet another facet of the case traceable to the Government order No. 1532 -GAD of 1997 dated 23.09.1997 which has narrowed down the controversy, for, the petitioner stands inducted into Kashmir Administrative Service and the issue that remains is in respect of the date from which the petitioners induction should take effect. To have the answer reference to the proviso once again becomes imperative which envisages that the officers of different departments/services holding the cadre posts within the cut off date are deemed to be the members of KAS. The requisite condition is to have held the post on or before 07.12.1983 but not later than 18.10.1988. The requirement so stipulated by the rule is answered by the petitioner very satisfactorily on the strength of order No.1074 -GD of 1986 dated 24.12.1986 which shows that the post was held by him within the stipulated period and admittedly before the last date i.e. 18.10.1988. More so, the respondents have acted upon the proviso and explanation thereto besides recommendations in respect of the officers named hereinabove and have granted them the benefit, conversely, the petitioner has been treated differently amounting to introduction of an invidious classification among similarly circumstanced persons. It is true that the petitioner has held the cadre post intermittently but continuity is not the requirement. In addition to that the instances aforementioned make it very clear that length of service on cadre post does not fall within the standards set out by the Government, therefore, it chose not to impose such a condition in case of any other officer excepting that of the petitioner leading to an inference that the petitioner has been subjected to hostile discrimination and benefit has been denied to him without any cause much less justifiable one and apparently arbitrarily.;


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