NAZIR AHMAD GANAI Vs. STATE
LAWS(J&K)-2006-5-25
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 26,2006

Nazir Ahmad Ganai Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) WHILE seeking consideration for appointment to the post of Assistant House Keeper in Directorate of Hospitality and Protocol the petitioner herein instituted writ petition No. 1041 of 1997 which was disposed of on 3.2.1999 in the following terms: "i. Respondents shall consider the case of the petitioner alongwith other eligible candidates against the post of Assistant House Keeper, as and when available in the Hospitality and Protocol Directorate in the State. ii. The appointment to the post of Assistant House Keeper shall be made under the J&K Civil Recruitment Rules, 1992, unless the application of this recruitment rule is excluded in case of Assistant House Keeper posts under the enabling provisions of Rule 2 of the said rules and in any case the posts shall be filled up in terms of the applicable statutory rules and orders after the post is advertised for being foiled up."
(2.) THEREAFTER vide Government order No. 1399 -GAD of 1999 dated: 13. 12. 1999, the private respondent was appointed as Assistant House Keeper in the Hospitality and Protocol Department (hereinafter to be referred to as H&PD) in the pay scale of Rs. 2000 -3400 in relaxation of rules and apparently without reference of the post for regular selection. Aggrieved thereby petitioner challenged it on the ground that the post against which private respondent was appointed was a selection post never referred for requisite selection process by appointing authority and as such private respondents appointment thereupon was quite arbitrary, particularly because the said respondent did not even possess the requisite technical qualification and was not at all eligible, and accordingly sought quashment of the order.
(3.) IN their reply filed on 24. 7. 2000 respondents pleaded that the post against which private respondent No.3 was appointed was existing in Chief Ministers Secretariat and did not belong to H&PD which was revealed only after issuance of said appointment order, and that being so at the time the direction dated: 3.2.1999 was passed in writ petition No. 1040/1997 no post to be filled up in accordance therewith was available in H&PD. They also maintained that issuance of impugned Government order was necessary because Chief Ministers Secretariat was in need of a House Keeper and the HPD was not in a position to spare any person from existing strength of the service so 3rd respondent was appointed in relaxation of rules by Government. Before however considering the rival pleas, it would be apt to notice another limb of the matter culminating in a Division Bench order passed in LPA No. 149 of 2000 filed by petitioner against Single Benchs order dated: 25. 8. 2000, whereby interim direction dated: 31.12.1999 directing respondents to stay impugned order and put it back on hold, was modified to the extent of allowing private respondent to hold the post. The LPA Bench also noticed a subsequent administrative order purporting to have been passed on 13.11.2000 and on request allowed her to amend his petition for incorporating his objection to said subsequent order. Subsequently the petitioner instituted amended writ petition on 9.9.2001, wherein, while reiterating the grounds already taken, he also set up a challenge against the order of 13.11.2000 purporting to have been issued by Government under No. GAD (MTG) R&B -IV/99/114 whereunder the words "Hospitality and Protocol Department" as existing in the original appointment order of private respondent bearing No. 1399 -GAD of 1999 were deleted and substituted by the words "Chief Ministers Secretariat". The effect was that the post against which private respondent had been appointed was deemed and declared to have been existing in Chief Ministers Secretariat and not in H&PD.;


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