GH NABI SOFI Vs. STATE OF J&K
LAWS(J&K)-1999-6-12
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 04,1999

Gh Nabi Sofi Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) THE objections filed against the admissibility of the writ petition have been adopted as counter by the Learned Counsel for the respondents. The petitioner has not chosen to file the rejoinder. The pleadings are complete and the parties have been heard.
(2.) THE admitted position is that the petitioner holds the post of "Library Bearer" substantively and was asked to discharge the duties of a teacher by respondent no. 4 vide order no. 153/ 93 dated 1 -8 -93. He is holding the charge of the post since 1993 and has continued as Incharge teacher for last several years on the basis of aforementioned order. Through the medium of this writ petition, he has sought the indulgence of this court for regularisation of his services.
(3.) IT is appropriate to notice that the appointment to any service or class can be made by an authority who is empowered to make the appointments and in so far as assignment of the charge of a higher post is concerned reference to Articles 85 and 86 of the Jammu and Kashmir Civil Service Regulations becomes imperative. The Article 85 envisages that a Government servant may be assigned the charge but the authority who can exercise the power, is specified in Article 86 which depicts that it is the Competent Authority which can exercise the power and the Competent Authority has been defined to be the one which is the appointing authority. In the case in hand, the order has been passed by the Principal of the School who has sought approval of the Chief Education Officer but approval has not been accorded and it is advantageous to refer to a case, Dharender Singh vs. State of Haryana reported in AIR 1997 SC 3654. In this case promotion was made by the Superintendent of Police on adhoc basis without approval of the Deputy Inspector General. The promotee was reverted, writ petition was filed before the High Court, petition was dismissed. The judgments was assailed before the Supreme Court and the Court held as under: "In the counter affidavit filed by the respondents it is stated that the Superintendent of Police had promoted the appellant in the sports quota in view of the outstanding performance in sports, namely wrestling on January 16, 1990 on adhoc basis against an upgraded vacancy. It is also stated that it was clearly mentioned in the order of appointment that the appellant could be reverted at any time without any notice and that he would have no right to seniority in the post. Learned counsel for the appellant has relied upon the judgments of this court in Rishal Singh Vs. State of Haryana (1994) 2 JT (SC) 157. Therein promotion was given by the DIG to the appellant due to his outstanding merit in sports relying upon Rule 13 8(2) of Punjab Police Rules, 1934. This court had held that since the DIG was Competent Authority to make appointments by promotion and having considered the appellant therein as an outstanding sports person had promoted him; it was done in terms of Rule 13 8(2) of the Rules giving power to grant any temporary promotion the promotion therefore though termed to be a temporary promotion was in effect a regular promotion. Under those circumstances, it was held that his reversion as Constable was bad in law. Admittedly, in this case, the Superintendent of Police has promoted him and no approval of DIG was obtained. Under those circumstances, the ratio therein has no application to the facts. We do not find any ground warranting interference with the order passed by the High Court". ;


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