Decided on August 04,2006

Mohd Abbas Lone Appellant
STATE OF JANDK Respondents


- (1.) AD interim direction passed on the motion laid by the petitioner may be noticed: "Issue notice. Issue notice in the CMP also. Till objections are filed the impugned Government Order No.205 -PW (R&B) of 06 dated 19.05.2006 shall remain in abeyance so far it affects the interests of the petitioner." Contention of the learned counsel for the respondents is that the petitioner is a Manager whereas posting of the respondent 5 is made against the post of a Deputy General Manager, therefore, interests of the petitioner are not affected, accordingly seeks clarification of the ad interim direction to that effect. Regard being had to the nature of the controversy I deem it appropriate to dispose of the writ petition itself. Heard. Admit. Notice afresh. M/S Dar and Bhat accept notice. Reply filed in opposition to the maintainability of the writ petition is adopted as counter by learned counsel for the respondents. Heard learned counsel for the parties finally.
(2.) WRIT petitioner, Mr. Muhammad Abass Lone being aggrieved of deputation of Shri S. K. Sethi, Executive Engineer, R&B to JK PCC Leh as Deputy General Manager (respondent 5 herein) vide Government Order No. 205 -PW (R&B) of 2006 dated 19.05.2006, therefore, this writ petition, filed on 01.06.2006, apparently subsequent to its implementation as is evident by the fact that charge of the post of the Deputy General manager (for short DGM) stands already handed over by the then DGM, J&K PCC Ltd. to Shri Sethi respondent 5 on 22nd of May 2006. To appreciate the challenge thrown to the impugned order, Schedule -I appended to the draft service rules assumes significance which may be noticed: "SCHEDULE - I ENGINEERING SERVICE: (State Cadre). Category Designation of post Graded Scale Min. qualification Overall Min. Experience overall Method of recruitment and ratio between corporation Cadre and deputation. - - - - - - - - - - - - Graded Deputy General Manager 3000 -4650 Graduate Eng. 15 years. i. 75% by deputation from the State Government of the Cadre rank of Executive Engineer. ii. 25% by promotion from the post of Corporation cadre Sr. Managers with minimum experience of 10 years as Sr. Manager. For Diploma holders minimum experience as Sr. Manager shall be 14 years and ratio between graduate Engineers and Diplomas shall be 4:1
(3.) ELABORATING the challenge it is contended by the learned counsel for the petitioner that it is the schedule aforementioned which has to govern the promotion to the post of the General Manager. Although official respondents have taken a stand that the schedule finds place on the draft service rules, yet they have not disputed application of the same. In that view of the matter, I am proceeding on the assumption that the schedule is attracted for the purposes of appointment to the post of the DGM. How far schedule helps the petitioner, it is apposite to notice that 75% quota is earmarked for the Executive Engineers of the State Government. The respondent 5 has attained the said position by order of his posting to Leh and does hold the charge of the rank of Executive Engineer with an overall experience of more than 15 years, therefore, eligible for deputation, conversely, the petitioner is disentitled to consideration for the post of the DGM against 75% deputation quota, for the simple reason, that he is borne on the establishment of the Corporation. As per schedule 25% quota of promotion is identified for the Senior Manager of the Corporation against the post of DGM having a minimum experience of ten years. As regards eligibility of the petitioner under 25% quota, same when tested on the basis of order No.8582 dated 31.10.1997 (Annexure 'D to the writ petition) fails the petitioner, because even inclusion of his stop gap service as Manager does not make him through. It is manifest that by dint of service rendered on stop gap arrangement, he will be completing ten years in October, 2007, thus ineligible for consideration. Yet another legal impediment for the petitioner traceable to the schedule which restricts zone of consideration to the extent of Senior Manager and admittedly the petitioner is not the one, so also ineligible for consideration. It goes without saying that writ can be sought for enforcement of a constitutional or a legal right but no such right is available to the petitioner because he does not qualify for consideration for the post of DGM and absence of an enforceable right is bound to render the writ petition liable to dismissal. In taking this view I am fortified by judicial pronouncements handed down by the apex Court in Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College (AIR 1962 SC 1210) and Dr. Umakant Saran v. State of Bihar (AIR 1973 SC 964). Apart from ineligibility of the petitioner for the post of the DGM it needs to be understood as to whether deputation of Mr. Sethi does violate any of the rights of the petitioner. To have the answer it is apt to reproduce the orders favoring the petitioner issued by Government, the Managing Director and the General Manager of the Corporation -Respondent. "Government of Jammu and Kashmir Civil Secretariat: Public Works (R&B) Department. The Managing Director, J&K Project Construction Limited. No: PW(R&B) G/94/2004 Dated: - - 22.02.2006 Subject: Posting of officers in Leh/Kargil. Reference: MD, JKPCCs No: 2293 dated: 07.01.2006 Sir, I am directed to convey the approval of Honble Minister of State for R&B (Chairman, JK PCC Limited) to the posting of S/Shri Mohammad Abbas Lone and Suresh Kumar Rekhi (Corporation borne Managers) as Managers, Sub -Unit, Leh and Kargil respectively, without any elevation. This shall be subject to the outcome of the writ petition pending in any Court of Law. You are accordingly requested kindly to take further necessary action in the matter accordingly. Yours faithfully, Sd/ - (Kuldip Sharma) Under Secretary to Government Public Works(R&B)Department." " ORDER. Sub: - - Posting of officers in Leh/Kargil. Consequent upon the instructions of the Administrative Department/conveyed vide letter No: PW (R&B) G/94/2006 dated: 22. -2.2006, on the subject issued by the Under Secretary to Govt. PW (R&B) Deptt. Shri Mohammad Abass Lone Manager J&KPCC Unit 3rd Srinagar and Shri Suresh Rekhi Manager J&KPCC Unit Vth Kathua Jammu are hereby posted to Leh and Kargil respectively. This order shall have immediate effect. Sd/ - Managing Director, J&K PCC Ltd. Jammu. NO: PS/MD -JKPCC/718 -28 Dated: 23.2.2006" "J&K Projects Construction Corporation Ltd. Sub: Posting of Officers in Leh and Kargil. Ref: Managing Directors Order No. 718 -28 Dt: 23 -02 -2006 based on the letter No: PW(R&B)G/94/2004Dt: 22.02.2006 from Administrative Department. Sh. Mohd Abbas Lone and Sh. Suresh Rekhi have been placed as Managers respectively for Sub Units at Leh and Kargil vide above mentioned references and both the officers have submitted their joining reports to this office on 25.02.2006. In order to make the Sub Units as defined above, workable the designated functions need to be defined and instructions in this behalf may please be issued. Sd/ - General Manager, J&K Projects Const. Corp. Ltd., Jammu. Managing Director, JKPCC Ltd., Jammu. Copy to: (1) Sh. Mohd Abbas Lone and Sh. Suresh Rekhi for information. They should immediately take stock of the works in the respective districts and establish Sub Unit offices so that execution of works starts right in the earnest." ;

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