BASHIR AHMAD MALIK Vs. STATE
LAWS(J&K)-2006-11-20
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 03,2006

Bashir Ahmad Malik Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) CLAIMING to be a resident of the back -ward area of Kulgam Tehsil, petitioner pleads that he was working as Senior Manager in the J&K Industries Ltd. and after promotion to the post of Dy. General Manager/Secretary in 1997, retired as such on 31st May 2000. In 1995 while he was working as senior Manager the process of inducting members of Autonomous Bodies/Government owned Public Sector undertakings into KAS was initiated by Government by providing technical quota for members of these undertakings. The concerned authorities were asked to forward lists of employees working in the scale of 3000 -4500 on the relevant date, pursuant whereto the JK Industries where petitioner was employed furnished a list including petitioner also. After receipt of list the General Administration Department asked all undertakings to short list the names submitted by them deleting all such employees therefrom against whom departmental enquires or cases in Vigilance Organization were pending and restrict the recommended list to those only having excellent performance, whereupon JK Industries short listed its recommended candidates to six only, with petitioner one among them. Subsequently, he received a letter no. GAD (SER)/KAS/30/93 -II dated 3.7.1999 from General Administration Department asking him to appear before the concerned selection committee for interview on 10th July 1999 along with his bio -data etc. In response he submitted his bio -data ahead of the date of interview as desired vide no. Adm/PF -07/515 dated 08.07.1999, and later appeared at the interview, whereafter the Committee formulated a selection list of officers eligible for induction into KAS in its meeting on 05.10.99, and forwarded the same to Government. The list comprised of 102 candidates including petitioner. Government however sat over the matter for as long as 11 months and only thereafter appointed 50 candidates out of the aforesaid list to KAS vide order no. 1014 -GAD of 2000 dated 31.08.2000 by which time the petitioner had already retired from service and could no more claim the benefit of his having been recommended for induction into KAS by the concerned Committee as aforesaid.
(2.) AGGRIEVED thereby, he filed a representation before concerned authorities that even while figuring at serial no. 29 of the list of recommendees, he did not get any benefit though the recommendation was made on 5th Oct. 1999 while petitioner was in service, because government considered the list only after lapse of around one year by which time the petitioner had retired. The delay in issuing the orders pursuant to the recommendation had only been caused due to disputed eligibility of three candidates namely Fayaz Ahmed Sheikh, Dr. Abdul Rashid and Jahangir Mir so proprietary would demand that orders regarding candidates with disputed eligibility only should have been deferred and those clearly eligible including the petitioner inducted immediately after recommendation was made; but strangely the concerned authorities deferred action regarding eligibles apparently with a view to benefit some of their favourites, thereby causing irreparable loss to petitioner and others like him which smacked of malafides on part of respondents due to which petitioner was deprived of the chance of induction into KAS even though he had rendered unblemished service in JK Industries and had opted for induction into KAS despite the possibility of suffering reduction in his grade i.e, 10000 -25500. The representation was endorsed to General Administration Department (GAD) who informed petitioner vide letter no. GAD (Ser) KAS -30/93 dated 29.09.2000, that the same had been examined and found merit -less.
(3.) FAILURE of respondents thus to induct petitioner into KAS as aforesaid, the petitioner seeks issuance of mandamus upon them to induct him into KAS w.e.f 05.10.99 with consequential benefits etc, on the grounds that in terms of the Rules of 1979 which were in tact at the relevant time selection of candidates from technical quota for induction into KAS was made by selection committee and government had no role to play except issuance of consequential administrative orders under said rules, with due dispatch. The delay caused by government in issuing orders was against the spirit of rules, particularly while it resulted in unjustifiable loss to petitioner, and induction of certain candidates declared ineligible by selection committee in view whereof he was entitled to induction into KAS even after his retirement with retrospective effect on the analogy of certain officers of Co -operative, Taxation, Accounts, Social Welfare, Private Secretaries, and Administrative Officers of Gazetted Services etc who were so inducted under government orders no.1632 -GAD of 1997 dated 23 -9 -1997 and 1995 -GAD of 1997 dated 23.12.1997, into KAS. In their reply, respondents 1 and 2 have among other things pleaded that petitioner having retired at the time of induction of officers from "technical quota" into KAS he could not be considered as there was no provision for retrospective induction of retired officers. While admitting all factual pleas raised by petitioner in his writ petition, the respondents have however, attempted to explain induction of retired officers in 1997, on the ground that in circumstances attending the matter at that time they could not be excluded from the selection list but were later deleted under respective government orders passed in that behalf. The case set up by respondents in their counter affidavit has however been contested by petitioner in his rejoinder by stating that respondents omission to order his induction into KAS in accordance with the select list has deprived him of pensionery benefits that he would get after induction into KAS cadre and as such he has suffered both in substance and status due to respondents inaction and as such they cannot claim that petitioner has no right to maintain the writ petition. Regarding deletion of retired officials/officers who were inducted into KAS in 1997 as aforesaid the petitioner has maintained that it was only after admission of this writ petition, that respondents passed some deletion orders but the benefits given to concerned officers have not been withdrawn at all. During course of their submissions learned counsel have reiterated the contents of their pleadings with reference to annexures on record.;


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