RAJ KUMAR GUPTA Vs. STATE OF J&K
LAWS(J&K)-1986-7-16
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 18,1986

RAJ KUMAR GUPTA Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) S /Sh. Raj Kumar Gupta and M. S. Tandon, petitioner have filed a petition for issuance of a writ of certiorari, quashing Government order No. 2059 -GD of 1983 dated [9 -12 -1983, only to the extent whereby respondents 2 to 6, namely s/Sh. Ghanysham Sharma, R. L. Dhar. Syed Ghulam Hassan, G. M. Thakur and Kulbushan Sharma have been promoted to the K. A S supertime Scale of Rs 2600 -100 -3100 and further for issuance of a writ of mandamus commanding the State of Jammu& Kashmir, respondent No 1, to promote them to the abovesaid scale of pay. They have also prayed for restraining respondent State from giving further promotion to respondents 2 to 6 to any higher post in the cadre of K. A. S. or otherwise.
(2.) THE abovesaid petitioners are members of the Jammu and Kashmir Administrative Service, initially constituted under the Jammu and Kashmir Administrative Service Rules, 1965 which were afterwards substituted by Jammu & Kashmir Administrative Service Rules of 1979. The case of these petitioners is that consequent upon creation of Kashmir Administrative Service, (in short K. A. S.). they were taken in the said service on the initial constitution of K. A. S. in 1965 Afterwards they were promoted to the selection grade of K. A. S. Vide Govt. Order No. 1089 -GD of 1979 dated 28 -5 -1979 and were shown in order of merit at S. Nos. 12 & 18 respectively. Respondent No. 2 was promoted under the abovesaid Govt. order and was placed at S. No. 17 whereas the other respondents 3 to 6 were promoted vide Government order No 315 -GD of 1981 dated 9 -2 -1981 and were placed at S. Nos 1,10,5 and 11 respectively. Thus respondents 3 to 6 were selected after a lapse of two years to the selection grade and only respondent No. 2 was promoted in the year 1979, alongwith them.
(3.) PETITIONERS further contention is that under Govt. Order No. 2055 -GD of 1978 dated 19 -9 -1978 guidelines and criteria have been prescribed to be followed by the Selection Committee for making selection to the selection grade/posts borne on the cadres of various services under the Government. It is provided that the Selection Committee should classify the officers eligible for promotion to selection posts/grade as "Outstanding" "Very good" "good  or "Unfit" as the case may be on an over all relative assessment of their service records. The list is required to be prepared by including the required number of names, first from amongst officers finally classified as "Outstanding", then from amongst these .1 similarly classified as "Very good" and thereafter those similarly classified as "good" and the order of names inter se within each category shall be in order of their seniority for the service cadre. Selections thereafter made following the criteria and the guidelines laid down by the abovesaid Government Order and the merit and ability were judged from the experience, performance and service record of the officers. Vide SRO No. 570 dated 7 -12 -1983 Rules of 1979 were further amended and the following grades were provided : - 1. Supertime scale ... Rs. 2600 -100 -3100 2. Selection Grade ... Rs. 1850 -50 -2300 3. Time scale pay ... Rs. 1300 -2000 Thus super time scale was added for the first time by the abovesaid SRO - It was further provided under subrule (3) of Rule 3 that the number of posts in the selection grade of the cadre to be equal to 20% of the total number of posts in the time scale pay reduced by number of posts carrying supertime scale subject lo the minimum of 15% posts in the time scale pay. Promotion to the supertime scale and to the selection grade has to be made by selection on the basis of merit and suitability from amongst the members of the service who were the selection grade and time scale pay respectively. The respondent No I vide circular No. GD/SER/1/ G -List/8 dated 8 -12 -1983, issued a list of persons in the selection grade of K.A.S. pursuance of Govt. Order No 2055 -GD of 19 -8 -1978 dated !978 read with Govt. Order No. 315 -GD of 1981 dated 9 -2 -1981. The (petitioners) were shown in the said selection list at S Nos 8 & 13 respectively, whereas respondents 2 to 6 were shown at S. Nos. 12,14.15,18 & 20 respectively, petitioners have averred in their petition that respondent No. 1 ever since issuance of Government Order No. 2055 -GD of 1978 dated 10 -9 -1979 has been effecting promotions by following strictly the criteria and guidelines laid down in it and it still holdes good till today and there are no other rules and guidelines by which promotion in pursuance of new SRO 570 dated 7 -12 -1983 could be made. According to para 3 sub -para (5) of the aforesaid SRO it is laid down that promotion to supertime scale and to the selection grade shall be made on the basis of merit and suitability from amongst the members of the service who are in the selection grade and time scale pay respectively. Respondent No. 1, however, vide the impugned Govt. order dated 19 -12 -1983 promoted respondents 2 to 6 to super time scale of Rs 2600 -100 -3100 in total violation of the provisions of the abovesaid Govt. Order No.2055 -GD of 1978 and the provisions of the constitution and Service Rules and ignored their established merit and ability as they were entitled to be promoted to the said superime scale. Respondents 2 to 6 had all along been inferior in merit and ability to them in the merit list prepared by the Government on the basis of the rules and in fact respondents 2 to 6 are inferior in merit to them The service record of respondents S/Sh. R. L. Dhar, Ghanysham Sharma and Kulbushan Sharma shows as to how unfit they and been held as Sh. R L. Dhar was promoted to the supertime scale during his posting as Director Food and posted to a lower rank of Asstt. Commissioner (G) Ananatnag District and then posted as Executive Officer, Srinagar Municipality recently, Sh. Ghanysham Sharma remained throughout his service record in tie Secretariat as a Staff officer and Deputy Secretary and never discharged any important field assignment. Sh. Kulbhushan Sharma, a junior officer, throughout worked as Asst. Commissioner and Deputy Director Food & Supplies and then Additional Secretary cooperative presently, having no field experience and has also never held any superior post at any time. They have been posted to various responsible posted as Labour Commissioner of the whole State and thereafter as Revenue Secretary and petitioner No. 2 as deputy Commissioner in Kupwara and Dy. Commissioner at Poonch, the most disturbed places which always presented and involved law and order problems .The promotion of respondents 2 to 6 is not only unconstitutional, illegal and arbitrary but against the service rules. The impugned Govt. order in this behalf cannot sustain as the conclusions drawn by the Selection Committee are not plausible and no sufficient materials have -cropped and come in between J8 -12 -1983 and the final preparation of rank and selection list dated 19 -12 -1983 and when there is no material to warrant the impugned choice, The impugned order was made in hot haste of the day which further shows that respondent No. 1 did not apply its mind but completely ignored the inferior service record of respondents 2 to 6. After having prepared the rank list on 8 -12 -1983 respondent No. I arbitrarily, without any justification after following the policy of pick and choose with respondent No. 1 was estopped from ignoring the said list. Shri Mohammad Amin Sofi, Under Secretary to Govt. General Department, has filed counter affidavit on behalf of the State -respondent in which it is averred that the Administrative Rules were for the first time framed in the State vide SRO 188 dated 3 -6 -1965 called Jammu and Kashmir Administrative Service Rules, 1965. The service contained the following grades: 1. Selection grade: 2. Senior scale: 3. Junior scale: The appointment in the service, apart from its initial constitution, was to be made in accordance with the procedure prescribe by the said Rules to the Junior scale. The rules did not provided the mode and method of promotion from Junior scale to the senior scale. However, vide Rule 32 of the aforesaid Rules, in the absence, of regulations, orders, special orders, the service was governed by the rules, regulations and orders applicable to the State Civil Service in general. The Government, vide Govt. Order No. 165 -GD of 1971 -dated 1 -7 -1971, ordered that promotion to the selection grade post shall be made on merit, seniority being considered in such cases where same is equal. For assessing suitability of officers for promotion to the selection grade post/posts of Head of the Department of K. A. S. cadre Government also ordered constitution of a Committee comprised of. Chief Secretary, Financial Commissioner, Commissioner for Planning & Secretary to Government General Department. The Chief Secretary ; was to act as Chairman of the Committee and Secretary to Government General Department as the Secretary of the said committee. After, the issuance of the aforesaid Govt. order, Rules of 1965 were implemented vide SRO 848 dated 19 -12 -1972. Under said SRO Rule 26 -A was added to the Rules which provided as under : - "Senior scale K. A. S. posts shall be selection posts and promotion thereto shall be made on the basis of merit and suitability from amongst confirmed junior scale K. A. S. officers having a service not less than three years in the crade." Thus for senior scale posts, promotions had to be made vide SRO 848 and for selection grade posts promotions had to be made in accordance with Government Order of 1971. In continuation of Govt. Order No. 1605 -GD of 1971 dated 1 -7 -1971 Govt. Order No. ; 2055 -GD of 1S78, dated 19 -9 -1978 came to be issued. Under the said Government order procedure for making selection to selection grade/ posts borne on the cadre of various services came to be prescribed. Rules of 1965 were repealed vide SRO 569 dated 10 -10 -1979. Vide the said SRO Rules of 1965 came to be substituted by fresh set of rules called the Jammu & Kashmir Administrative Service Rules, 1979. The rules were made applicable from 26th of October, 1976. It comprised two kinds of grades : 1st -Time scale of Rs. 750 -1350. 2nd -20% of the total posts in the cadre of the service in the grade of 1100 -1600, called the selection grade. Rule 15 provided that appointment to selection grade of the service shall be made on the basis of merit and ability from amongst confirmed officers of the service having at least five years service in the scale of Rs. 750 -1350 of the service under Rule 18 service in respect of residuary matters Was governed by the rules, regulations and orders applicable to the State Civil Service in general. Rules of 197/ were implemented vide SRO 570 dated 7 -12.1983. After the amendment, the composition of the service came to be provided as under: - 1. Supertime grade posts ... 10 2. Selection grade posts ... 20% of the total number of posts. 3. Time scale pay ... - - - - - - - - -;


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