B L CHOUDHARY Vs. STATE OF J&K
LAWS(J&K)-1986-1-4
HIGH COURT OF JAMMU AND KASHMIR
Decided on January 30,1986

B L Choudhary Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) SHRI B.L. Choudhary, was appointed as compiler in the Gazetteer Unit of the State in the pay -scale of Rs. 300 -700 after being selected by Public Service Commission, by virtue of Govt. Order No : 1087 -GD of 1971 dated 29 -4 -1971. The posts of compilers, against one of which the petitioner was appointed, were created vide Govt. Order No: 541 -GD of 1969 dated 8 -3 -1969 read with Govt. Order Nos : 1574 -GDof 1971 dated 26 -6 -1971 and 2779 -GD of 1971 dated 29 -10 -1971. It is contended by the petitioner in his petition that it is evident from the above Govt. Orders that the posts were permanent in character and were created under the normal non -planned budget and according to rule 20 read with rule 22(c) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, - hereinafter referred to as the 1956 Rules -which are applicable to him, he is to be considered as confirmed against the post held by him as compiler on 10 -5 -1973 on the completion of two years probation. It is further averred by the petitioner that even if it is assumed that it was temporary appointment, then by virtue of rule 3 (I) and 3 (A) of the J&K Civil Services (Temporary service) Rules, 1961, he has become quasi permanent in the year 1974 after completion of three years continuous service without any break or termination and confirmed after completion of five years continuous gazetted service in 1976. In the year 1971, the Government, through its General Department vide letter No : GD (Adm) 11/71.(Capp), -IV dated 23 -11 -1971, assured him that, he could be considered for inclusion in the Kashmir Administrative Service cadre after completion of minimum of five years service.
(2.) THE petitioner has further stated in his petition that vide Govt. Order No : 74 -GR of 1976 dated 24 -12 -1976, based en Cabinet decision No : 666 dated 24 -12 -1976, he was transferred and posted as Under Secretary, Legislative Council, which post has same status, class, category and grade as would be evident from the fact that S/Shri D.N. Gupta, Under Secretary, Ladakh Affairs and A.A. Khan, Under Secretary, Planning Deptt. and Legislative Council were transferred and posted as compilers. Again under Govt. Order No: 2243GD of 1977 dated 16 -12 -1977, sanction was accorded to his transfer along with other officers to the J&K Secretarial (Gazetted) Service, for a period of six months pending confirmation of the Public Service Commission and he was further directed to remain on deputation to the J&K Legislative Council Sectt The other officers who were also holding posts of compilers, namely, S/Shri M.A. Afzal and B.A. Dar, were also transferred with him. He was again transferred vide Govt. Order No : 998 -GD of 1979 dated 17 -5 -1979 as Under Secretary, Industries & Commerce Deptt. On 15 -6 -1979, he was intimated to appear in the examination to which he replied that since he was appointed as compiler, in the gazetted cadre and also selected by the Public Service Commission, the rules referred to did not apply to him, but the government declined to accept his request. He made another representation reiterating that his seniority be considered in terms of rule 24 of the 1956 Rules and his seniority be counted from the date he joined the service i.e. 10 -5 -1971. The Government vide letter No: GD (Services) 81/77 (Gaz.) dated 5 -10 -1979, informed him that the posts of compilers have been refused and as such his appointment to the new service has to be governed under the new rules. Afterwards, the government vide order No : 1642 -GD of 1979 dated 11 -8 -1979, made promotions where under 13 Under Secretaries were promoted as Deputy Secretaries. As respondents 2 to 5 who were promoted as Deputy Secretaries, were junior to him, he made a review petition but the same was rejected. Respondents 2 to 5 were appointed in the gazetted cadre on 6 -12 -1972 whereas he was appointed as a gazetted officer in April 1971 and he joined the service on 10 -5 -1971.
(3.) THE petitioner has challenged Govt. Order No: 1642 -GD of 1979 dated 11 -8 -1979, pertaining to the promotions of respondent 2 to 5 as Deputy Secretaries and further to appoint him as Deputy Secretary with effect from the same date. He has also sought relief by way of a writ of certiorari for cancellation of letter No: GD (Ser) 81/77 (Gaz) dated 15 -6 -1979 requiring him to appear in the examination. Reply affidavit has been filed on behalf of respondent No: 1 only in which it is stated that six posts of compilers in the pay -scale of Rs. 300 -700 were created and these posts were allowed to continue up to March, 1974. vide Govt. Order No: 2779 -GD of 1971 dated 29 -10 -1971. These posts were temporary in character. The petitioner was appointed as officiating compiler and this appointment was not made on probation. The petitioner along with Shri M. A. Afzal, submitted a representation, praying therein that in view of the temporary nature of the posts being held by them, they apprehend of being ousted and as such they be considered to be absorbed in KAS junior scale A person can only be absorbed in KAS junior scale provided he fulfilled the requisite conditions over and above minimum service of 5 years. The petitioner having not qualified himself to be a member of KAS junior -scale, could not have been included in the said service. Moreover, KAS junior -scale was no longer in existence as it was abolished in November, 1975, much before the completion of five years service put in by the petitioner. The posting of the petitioner as Under Secretary, Legislative Council was made in the interest of administration and it did not confer any right over and above the rights which were being already held by the petitioner.;


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