Decided on June 04,1999

Accounts Employees Association, JAndK Appellant
STATE OF JANDK Respondents


- (1.) THIS writ petition has been filed by seven persons on their behalf and on behalf of the association called Jammu and Kashmir Accounts Employees Association. Ordinarily those who are alleged to be affected by an official act have to bring legal proceedings in their individual capacity unless they form a legal personality as a collective body. There is no averment even worth the name which would indicate that the association on whose behalf writ is filed is a juristic personality, so much so the association has not sought recognition even from the Government. It is also not a case where Public interests are affected by any state action and fact remains that there is no action which is impugned. It being so the relief cannot be sough, in the name of so called association but the court cannot afford to lose sight of the fact that the petitioners are claiming enforcement of personal and individual rights as well, therefore, the writ petition is treated as joint petition on behalf of the petitioners herein.
(2.) THE petitioners are holding the posts of Assistant Accounts Officers on the establishment of respondent No. 1. It appears that their aspiration to enjoy the perks and status of a gazetted post has tempted them to seek the indulgence of the court for such declaration with a further prayer to place a restraint on the respondents from making the direct recruitment in gazetted service of the department.
(3.) THEY are governed by the service Rules and the mode and method of promotion is prescribed under the Rules which do provide chances of promotion. The plea taken in the writ petition indicates an endeavour on their part to prompt the court to pass direction requiring the Respondent -State to amend the service rules which are applicable to the petitioners. In essence petitioners seek a writ of mandamus to require the respondent -State for making amendment to Jammu and Kashmir Accounts Service Rules, Gazetted as also non gazetted, which suits the petitioner. Surprisingly in support of the relief prayed for no violation of any legal or constitutional right has been reflected in the writ petition, so much so stagnation is also not the ground. Apart from such short comings a moot question which calls for consideration is as to whether the State can be directed to make a particular amendment to the Rules Law and the answer to this question is available from judicial pronouncement handed down by the apex court in case State of J&K vrs. A.R. Zaki and others reported in AIR 1992 SC page 1546, para -10 which reads: "10. In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of sub -ordinate legislation. Section 110 of the J&K constitution, which is on the same line as article 234 of the constitution of India, vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Services of the State of J&K and for framing of such rules, the Governor is required to consult the commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court".;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.