NAZIR AHMAD Vs. DIRECTOR OF INDUSTRIES AND COMMERCE
LAWS(J&K)-1986-12-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 26,1986

NAZIR AHMAD Appellant
VERSUS
DIRECTOR OF INDUSTRIES AND COMMERCE Respondents

JUDGEMENT

- (1.) BY this petition under Section 103 of the State Constitution -the petitioners, who were Industrial Promotion Officers respectively in Districts Baramulla and Kupwara at the time of filing the writ petition on June 27 1985 have cballerged order No.169 -E of 1983 dated May 9, 1983 and orders No.121 -E of 1985 dated March 8,1985 No.140 -E of 1985 dated April 1,1985 and No. 128 -E of 1985 dated March 11, 1985 passed respectively by respondents 1,2 and 6 in favour of respondents 3,4 and 5, who were at the relevant time, when tfre petition was filed, were promoted and working in their own pay and grade as Manager Credit in different districts mentioned in the petition. Order dated May 9,1983 gives the approval of adhoc promotion of respondents 3,4 and 5 with effect from May 1,1973 retrospectively.
(2.) BRIEFLY stated the case of the petitioners is based on their seniority recognised by the department on their appointment as Assistant Extension Officer Petitioner No.1 was appointed as Assistant Extension officer (for short hereinafter referred to as A.E.O) on 19 -1 -1973 and petitioner No.2 as A.E.O on 5.5.1973. Similarly respondents 3,4 and 5 in that very serial order below the petitioners were appointed A.E.O. on 5 -5 -1973. It is alleged that respondent No.1 promoted respondents 3 to 5 by order dated December 23,1976 as Economic Investigators withaut prejudice to the seniority as stop -gap arrangement in the higher grade of Rs.475 -850. A tentative seniority list was issued on April 22, 1974, and another tentative seniority list was issued on February 9,1980, wherein the petitioners were shown on the posts of A.E.O. senior to respondents 3 to 5. Against this tentative seniority list objections were invited, which made subject to the objections and another tentative seniority list was issued on May 1,1982 inviting objections till May 22,1982. In that list the seniority list of the petitioners and respondents 3 to 5 was fixed in the following serial order: - (i)Shri Nazir Ahmad petitioner No.1 (ii)Shri M.M. Hakim RespondmentNo.3 (iii)Shri A.C. Mir petitioner No.2 (iv)Shri G.R. Paul Respondent No.4 (v)Shri N.A. Shora Respondent No.5 Against the above said seniority position, no representation was made by the respondents 3 to 5. Respondent No.2 vide his order No 121 -E of 1982 dated June 14,1982 considering all the representations made the said list absolute giving thereby interse seniority list of A E.O appointed in the year 1973. Thus the seniority position of the petitioners vis -a -vis respondents 3 to 5 remained as was shown in the tentative seniority list issued on May 1,1982 showing the petitioners senior to respondents 3 to 5. There was no cause for the petitioners to make any grievance against the adhoc promotion of respondents as they were given impression by letter No.1819/ESTT/176 dated 1 -6 -1982 that their case for promotion will be considered by the Departmental Promotion Committee as and when it meets It is only on the issuance of order No.169 -E of 1983 issued on May 1983 vide Director of Industries and Commerce -Respondent No.1 in favour of respondents 3 to 5 giving them benefit of promotions on the post of Industrial Promotion Officer with effect from May 1,1978 by making the promotion absolute on the approval of Departmental Promotion Committee that for the first time adversely affected the right of the petitioners, which was not rectified despite their representations and appeal to Minister concerned. Further more when respondents 1 and 2 promoted respondents 3 to 5 in their own pay and grade as Manager Credit, District Industries Centre respectively by the orders passed on 6 -3 -1985 to 1 -4 -1985 and 14 -3 -1985 without disposing of the appeal or representation of the petitioners gave rise to the present petition As the action of respondents 1,2 and 6 violated the legal and fundamental right of the petitioners guaranteed to them under Articles 14 and 16 of the Constitution of India.
(3.) THE petition is contested by the respondents on several grounds. Respondent No.1 in his counter affidavit projected certain preliminary objections on the maintain ability of the writ petition on the ground of pendency of the appeal as well as on the ground of laches and on the merits. The only contention raised appears to be that when the Departmental Promotion Committee was convened in 1982, it was found that the petitioners had not undergone training, hence they could not be promoted. Justifying the retrospective promotion, it is submitted that in fact they were promoted on 1 -5 -1978 hence their promotion much prior in time before the petitioners, none of their rights under Articles Hand 16 of the Constitution of India have been violated. Respondents 3,4 and 5 have also filed their counter denying all the allegations made with a further allegation that in order to get the promotion on the post of A.E.O. the petitioners were required to complete at least two years probation period in the grade of Senior Assistant, where as petitioner No.1 has put in only six months service and on the promoted post of A E.O he was required to be cleared by the Departmental Promotion Committee, which was never done. The selection committee alongwith the answering respondents interviewed 90 candidates after proper scrutiny in the written and viva voce test The answering respondents 3 to 5 were duly selected as A.E.O. coupled with fact that they had completed successfully reorientation training for Extension Officers on merit and suitability and technical training. They were duly promoted and cleared by the Departmental Promotion Committee, hence mere inter -seseniority will not give right to the petitioners to get the promotion, the petition is, therefore, liable to be dismissed on all the grounds. Heard the rival arguments at length. The preliminary objection regarding laches, in my opinion on the basis of explanation given by the petitioners, which has been reiterated above fully and satisfactorily explains the delay in filing the petition in so far as their rights are adversely effected only passing the order giving retrospective effect to the promotion of respondents 3 to 5 with effect from 1 -5 -1978 by order dated 9 -5 -1983. Against this order when after making the representations to the department though they were not statutory representations, but the fact remains that while making the above order the case of the petitioners were not considered, hence they were justified in making the representation to point out the mistake committed by the department despite the assurance given to them to consider their cases by order dated 1 -6 -1982. Similarly they also preferred an appeal, which even according to the contentions put forward by respondents 1 to 2, they should have filed under Rule 38 of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, the appellant authority Minister concerned was convinced that some injustice has been done to the petitipners by order dated January 29,1985, following order was passed by the Minister: - "It appears prima facie that some injustice has been done. May examine and report back within a fortnight. Meanwhile me promotion be stayed." It clearly indicates that the petitioners immediately after their grievances started proceeding for the redressal of their grievances, but to no result on the contrary respondents 1, 2 and 6 promoted respondents 3 to 5 turning a deaf ear to the determination of the rights of the petitioners passed the orders further promoting them to the post of Manager Credit, District Industnes Centre under the impugned orders. The petitioners in their rejoinder affidavit haver controverted the facts put forward by the respondents in their counter. Though the postings are in their own pay and grade, but looking to their prevous conduct of putting, he respondents 3 to 5 earlier on adhoc basls promotlng them as Industrial Promotion Officers and by subsequent order dated 9 -5 -1983 giving them absolute right on the said post restrospectively with effect from 1 -5 -1978, the petitioners are justified in coming to the court wuhout awaiting for the result of the appea, and without spending any further time as the clouds are cast over their rights. Under the circumstances I do no find any justification in denying the relief to the petitioners of either laches or on the ground that the petition is premature as contended by respondent. Their Lordships in A.I.R. 1974 S.C. 259 (Ramchandra Shankar Deodhar and others, Petitioners Vs. The State of Maharashtra and others Respondents), while dealing with the question of laches have clearly laid down:= "Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art.16 itself a fundamental right guaranteed under Article 32 and tins Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the ground of laches, delay or the like." In the instant case the principle laid down on the allegations of the petitioners that their fundamental rights under Articles 14 and 16 of the constitution of India having been violated, they cannot be refused relief in writ petition. The argument of laches, therefore, fails.;


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