No Acts & Articles mentioned in this case
Page 1
LPA no.130/2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
……
LPA no.130/2022
Managing Director, J&K Road State Transport Corporation and others
……. Appellants(s)
Through: Mr Altaf Haqani, Senior Advocate
with Mr Shakir Haqani, Advocate
Versus
Syed Arshad Tramboo and others
………Respondent(s)
Through: Mr M. M. Dar, Advocate for
respondent no.1
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR JUSTICE WASIM SADIQ NARGAL, JUDGE
O R D E R
04.08.2022
CM no.4101/2022
1. Caveat application no.701/2022 shall stand discharged.
2. On no objection from the other-side, the condonation delay application
(CM no.4101/2022) is allowed and delay of 19 days in filing the appeal
is condoned.
3. Appeal is taken up for consideration.
LPA no.130/2022
Per Wasim Nargal J:
4. By virtue of judgement and order dated 28
th
April 2022, passed in a writ
petition, bearing SWP no.2611/2015, titled
Syed Arshid Tramboo v.
State of J&K and others
, the learned Single Judge has been pleased to
allow the said writ petition in the following manner:
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LPA no.130/2022
“11. For the foregoing reasons, this petition is allowed and the
petitioner is held entitled to the promotion as Deputy General
Manager (Maint.) in the respondent-Corporation w.e.f. 11.02.2013
and as General Manager w.e.f. 11.02.2018 with all consequential
service benefits. Let the respondents consider the case of petitioner
in the light of observations made herein above and pass
appropriate orders of substantive promotion of the petitioner as
Deputy General Manager (Maint) and General Manager
respectively w.e.f. the dates indicated above and release all
consequential benefits, if any, in his favour within a period of two
months from the date copy of this judgment along with paper book
is served upon the Managing Director of the respondent-
Corporation. This is, however, subject to the petitioner’s fulfilling
other requirements of promotion as per Rules.”
5. Before proceeding further, it would be apt to give concise factual
background of the case with a view to clinch/decide the controversy in
question.
FACTS:
6. Respondent no.1 herein (petitioner before the Writ Court) was
appointed as Assistant Works Manager in J&K State Road Transport
Corporation (hereinafter referred to as “appellant-Corporation”) vide
appointment order no.SRTC/EC-II/1287 dated 20
th
June 1988. After ten
years, pursuant to the recommendation made by Departmental
Promotion Committee and approval granted by the Chairman,
JKSRTC, petitioner was promoted as Works Manager vide Order
no.JKSRTC/DPC/EC-T dated 2
nd
November 1999. Petitioner, vide
Order no.06/JKSRTC/ MD/PS/Sgr dated 28
th
July 2007, was posted as
Incharge Deputy General Manager (for short “
DGM”) in his own pay
and grade. He consistently represented before appellant-Corporation
for his confirmation but his request was not acceded to.
7. It was a specific case of petitioner before the Writ Court that while he
was representing for his confirmation in the post of DGM and
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LPA no.130/2022
consequent promotion to the post of General Manager (for short
“
GM”), which as per petitioner was lying vacant, the Corporation vide
communication dated 26
th
November 2015, requested the
Administrative Department for appointment of Shri Abdul Hamid
Wani, Drilling Engineer, Geology and Mining Department as GM on
deputation. The petitioner feeling aggrieved of the same, challenged the
aforesaid communication before the Writ Court as appellant-
Corporation instead of confirming him against the post in question
imported employees from other departments on deputation at the cost
of petitioner when according to petitioner the post in question was
required to be filled up 100% by promotion as per Recruitment Rules.
It was a specific case of the petitioner before the Writ Court that in
terms of the Recruitment Regulations of the Jammu and Kashmir State
Road Transport Corporation, 2013 (hereinafter referred to as for the
sake of brevity as the “
Rules of 2013”) the posts of GM as well as DGM
were required to be filled up 100% by promotion by making selection
amongst the categories shown in the Schedule and petitioner,
albeit
being eligible in all respects, was still being ignored by appellant-
Corporation leaving petitioner with no option except throwing
challenge to the impugned communication on the ground that on one
hand the Corporation was forwarding his case for confirmation and on
the other hand, allowing deputation to carry and as a corollary thereof,
infringing the right of petitioner for promotion.
8. In writ petition, the petitioner, apart from throwing challenge to
impugned communication, also prayed for a direction to appellant-
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LPA no.130/2022
Corporation to confirm his promotion as DGM from 28
th
July 2007, i.e.,
the date when he was eligible and was assigned the charge of the post
with all consequential benefits. Petitioner also sought relief for further
promotion to the post of GM with effect from 28
th
July 2012, in
conformity with the Regulations of 2013.
9. Appellant-Corporation filed its Reply Affidavit before the Writ Court,
contesting the claim of petitioner, contending,
inter alia, that the
promotion to the post of DGM and GM in the Corporation was being
regulated in terms of Regulations of 2013 which came into force with
effect from 11
th
February 2013. The specific stand had been taken by
appellant-Corporation before the Writ Court that appellant-Corporation
in terms of the Regulations of 2013, the post of DGM was required to
be filled up from eligible categories, including Works Manager with
seven years’ experience. It was also the case of appellant-Corporation
that in the year 2007, when post of DGM fell vacant due to elevation of
one Shri Suhail Ahmad Khan to the post of General Manager on
incharge basis, the Regulations of 2013 were not in place and, therefore,
petitioner was placed as incharge DGM vide order dated 28
th
July 2007,
followed by release of charge allowance in his favour with effect from
1
st
September 2010. Appellant-Corporation had further pleaded that in
the order dated 28
th
July 2007, it was specifically mentioned that
petitioner’s placement to the post of DGM was in his own pay and grade
without conferring any right to claim promotion on substantive basis
and the said order was unconditionally accepted by petitioner and after
promulgation of the Regulations of 2013, petitioner along with other
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LPA no.130/2022
officers were considered by the Board of Directors in its meeting held
on 11
th
August 2016 and consequently petitioner was recommended for
promotion to the post of DGM. Under this background facts, the case
of petitioner was sent for vigilance clearance. It had been categoric
stand of respondents that the formal order of promotion of petitioner
would be passed after vigilance clearance is received.
The record further speaks that petitioner, who was working as
DGM, was also ordered to look-after the post of GM (Mech/P&S) vide
Order no.361 of 2015 dated 8
th
December 2015.
SUBMISSION OF PARTIES:
10. From perusal of writ petition, filed by petitioner, the factual foundation
laid by petitioner therein to the relief claimed is impugned
communication, by virtue of which the persons belonging to different
departments were deputed to appellant-Corporation, which was
detrimental to the fundamental rights of petitioner for seeking
consideration for promotion.
11. Mr Altaf Haqani, learned senior counsel, representing appellant-
Corporation, has vehemently argued that there is no finding with regard
to impugned communication and learned Single Judge instead of
quashing impugned communication has allowed the petition, by
holding the petitioner entitled to the promotion as DGM with effect
from 11
th
February 2013 and GM from 11
th
February 2018 with all
consequential service benefits, with a further direction to consider the
case of petitioner in light of observations made in the impugned
judgement and pass appropriate orders of substantive promotion of
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LPA no.130/2022
petitioner as DGM and GM with effect from the dates indicated in
operative portion of the judgement, by releasing all consequential
benefits, if any, in his favour within a period of two months. According
to Mr Haqani, the aforesaid direction has been passed by learned Single
Judge on the basis of presumption of promotion of respondent no.1 to
the post of DGM as on 11
th
February 2013 and completion of five years’
experience in the said post as a matter of requirement of promotion to
the post of GM. The finding has been recorded by learned Single Judge
without taking into consideration the availability of post of GM, which
post otherwise in terms of the rules was required to be filled up by
selection amongst other eligible candidates and, thus, the direction by
learned Single Judge, which is based on presumptions and assumptions,
cannot sustain the test of law and is liable to be set-aside.
Besides that, Mr Haqani has also argued that in terms of the
Regulations of 2013, the appellant-Corporation placed respondent no.1/
petitioner as incharge of the post of DGM on 28
th
July 2007 as he was
not eligible for promotion in absence of vacant post. It is also admitted
case of parties that the Regulations of 2013 were not retrospective in
operation and, accordingly, it was not permissible for learned Single
Judge to hold respondent no.1/petitioner entitled to promotion as DGM
with effect from 11
th
February 2013, particularly when he did not place
on record any document showing availability of post as on 11
th
February 2013. The appellant-Corporation has specifically pleaded
before the Writ Court that the post of DGM had not fallen vacant
substantively on 28
th
July 2007, when petitioner was incharge of the
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LPA no.130/2022
said post because the incumbent of the post of DGM, namely, Shri
Suhail Ahmad Khan, had as well been placed in the post of GM on
incharge basis. Mr Haqani has also argued that impugned judgement
passed by the learned Single Judge is liable to be set-aside as
admittedly, petitioner had not held the post of GM and, consequently,
no direction could be passed for holding him entitled to promotion as
GM along with consequential benefits inasmuch as he has not
discharged any duties entitling him to such benefits.
12.
Per contra, Mr M. M. Dar, learned counsel appearing on behalf of
respondent no.1/caveator, has argued that on 28
th
July 2007, petitioner
(respondent no.1 herein) was senior most Works Manager and, as such,
was entitled for further promotion as DGM. Mr Dar has admitted that
in the year 2007, when petitioner was placed as incharge DGM, the
Recruitment Rules of 1986 were in vogue and as per the said Rules, the
Works Manager was placed in Category B Class V in the Schedule and,
as such, was entitled to be promoted as DGM (O), DGM(E) Secretary
Corporation, DGM(M). He concedes that petitioner was not entitled to
be promoted as DGM (Maintenance) as per aforesaid Rules, and
justifies that due to non-availability of the post in the line of his
promotion, petitioner was directed to held the post of DGM
(Maintenance).
Mr Dar has vehemently argued that petitioner continued to work
as DGM in incharge capacity and while he was so continuing, the
Regulation of 2013 were promulgated vide Notification dated 11
th
February 2013. As per Schedule-II appended to the Regulations of
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LPA no.130/2022
2013, the post of Works Manager is put in Category A Class VI and the
post of DGM is indicated in Category A Clause V and is provided to be
filled up by selection from Class VI Category A&B with minimum
seven years’ experience as Traffic Manager/Works Manager/ Manager
(Finance).
Mr M. M. Dar, appearing for petitioner/respondent no.1, has
argued that petitioner on the date of promulgation of the Regulations of
2013, was having more than seven years’ experience as Works Manager
and, thus, entitled to be promoted as DGM, which post he was holding
in incharge capacity since 28
th
July 2007.
On the basis of the aforesaid arguments, the learned Single Judge
presumed that petitioner, though entitled to promotion as DGM in terms
of Rules of 1986, could not have been promoted as DGM due to non-
availability of relevant post and as per finding recorded by learned
Single Judge that in terms of Regulations of 2013, petitioner, who was
possessing more than seven years’ experience as Works Manager,
became entitled to promotion as DGM immediately on its promulgation
in light of the fact that petitioner was already holding the post of DGM,
for which post he became eligible and entitled to only under the
Regulations of 2013. As per the observations of the learned Single
Judge this was the basis that the learned Single Judge held petitioner
entitled to substantive promotion as DGM with effect from 11
th
February 2013 with all consequential benefits.
ANALYSIS
13. The Courts time and again have laid emphasis on right to be considered
for promotion to be a fundamental right, as was held by the Hon’ble
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LPA no.130/2022
Supreme Court in the case of Director, Lift Corporation Ltd v. Pravat
Kiran Mohanty (1991) 2 SCC 295, in paragraph 4, which is reproduced
below:
“4... There is no fundamental right to promotion, but an employee
has only right to be considered for promotion, when it arises, in
accordance with relevant rules. From this perspective in our view
the conclusion of the High Court that the gradation list prepared
by the corporation is in violation of the right of respondent/writ
petitioner to equality enshrined under Article 14 read with Article
16 of the Constitution, and the respondent/writ petitioner was
unjustly denied of the same is obviously unjustified.”
14. A Constitution Bench of the Hon’ble Supreme Court in the case of Ajit
Singh vs. State of Punjab, (1999) 7 SCC 209, laying emphasis on
Article 14 and Article 16(1) of the Constitution of India, held that if a
person who satisfies the eligibility and the criteria for promotion but
still is not considered for promotion, then there will be clear violation
of his/her’s fundamental right. Paragraphs 21, 22 and 27 would be
advantageous to be reproduced hereunder:
“21: Articles 14 and 16(1): is right to be considered for promotion
a fundamental right 22: Article 14 and Article 16(1) are closely
connected. They deal with individual rights of the person. Article
14 demands that the "State shall not deny to any person equality
before the law or the equal protection of the laws". Article 16(1)
issues a positive command that "there shall be equality of
opportunity for all citizens in matters relating to employment or
appointment to any office under the State". It has been held
repeatedly by this Court that clause (1) of Article 16 is a facet of
Article 14 and that it takes its roots from Article 14. The said
clause particularises the generality in Article 14 and identifies, in
a constitutional sense "equality of opportunity in matters of
employment and appointment to any office under the State.
The word "employment" being wider, there is no dispute that it
takes within its fold, the aspect of promotions to posts above the
stage of initial level of recruitment. Article 16(1) provides to every
employee otherwise eligible for promotion or who comes within
the zone of consideration, a fundamental right to be "considered"
for promotion. Equal opportunity here means the right to be
"considered" for promotion. If a person satisfies the eligibility and
zone criteria but is not considered for promotion, then there will
be a clear infraction of his fundamental right to be "considered"
for promotion, which is his personal right. “Promotion based on
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LPA no.130/2022
equal opportunity and seniority attached to such promotion are
facets of fundamental right under Article 16(1)
xxxx xxxx xxxx xxxx xxxx
27. In our opinion, the above view expressed in Ashok Kumar
Gupta and followed in Jagdish Lal and other cases, if it is intended
to lay down that the right guarantee to employees for being
"considered" for promotion according to relevant rules of
recruitment by promotion (i.e. whether on the basis of seniority or
merit) is only a statutory right and not a fundamental right, we
cannot accept the proposition. We have already stated earlier that
the right to equal opportunity in the matter of promotion in the
sense of a right to be "considered" for promotion is indeed a
fundamental right guaranteed under Article 16(1) and this has
never been doubted in any other case before Ashok Kumar Gupta
right from 1950.”
15. The Hon’ble Supreme Court again in Major General H.M. Singh, VSM
vs. UOI and another, (2014) 3 SCC 670, again reiterated the legal
position, i.e., right to be considered for promotion as a fundamental
right enshrined under Article 14 and Article 16 of the Constitution of
India. The relevant extract from paragraph 28 is reproduced below:
“28. The question that arises for consideration is, whether the non-
consideration of the claim of the appellant would violate the
fundamental rights vested in him under Articles 14 and 16 of the
Constitution of India. The answer to the aforesaid query would be
in the affirmative, subject to the condition that the respondents
were desirous of filling the vacancy of Lieutenant-General, when
it became available on 1-1-2007. The factual position depicted in
the counter-affidavit reveals that the respondents indeed were
desirous of filling up the said vacancy. In the above view of the
matter, if the appellant was the senior most serving Major-General
eligible for consideration (which he undoubtedly was), he most
definitely had the fundamental right of being considered against
the above vacancy, and also the fundamental right of being
promoted if he was adjudged suitable. Failing which, he would be
deprived of his fundamental right of equality before the law, and
equal protection of the laws, extended by Article 14 of the
Constitution of India. We are of the view that it was in order to
extend the benefit of the fundamental right enshrined under Article
14 of the Constitution of India, that he was allowed extension in
service on two occasions, firstly by the Presidential Order dated
29.2.2008, and thereafter, by a further Presidential Order dated
30.5.2008. The above orders clearly depict that the aforesaid
extension in service was granted to the appellant for a period of
three months (and for a further period of one month), or till the
approval of the ACC, whichever is earlier. By the aforesaid orders,
the respondents desired to treat the appellant justly, so as to enable
him to acquire the honour of promotion to the rank of Lieutenant-
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LPA no.130/2022
General (in case the recommendation made in his favour by the
Selection Board was approved by the Appointments Committee of
the Cabinet, stands affirmed). The action of the authorities in
depriving the appellant due consideration for promotion to the
rank of the Lieutenant-General would have resulted in violation of
his fundamental right under Article 14 of the Constitution of India.
Such an action at the hands of the respondents would
unquestionably have been arbitrary.”
16. Promotion is a condition of service and consideration thereof is a
fundamental right. For facility of reference, it would be apt to reproduce
relevant extract of Schedule attached to Rules of 1986 below:
Class Category Grade Designation of the
post
Qualification
for Direct
Rectt.
Qualification
for Rectt. By
promotion
Method of
recruitment
Ratio
IV A
B
1350-2150
1350-2150
Dy. Gen. Manager
(O)
Dy. Gen.
Manager(E)
Secy. Corporation
Dy. Gen.
Manager(M)
By selection
from Class(V)
Category “B”
By selection
from class (V)
category “A”
with 5 years’
experience in
Class V
V A
B
835-1510 Traffic Manager
Manager Pass,
Services MTS
Manager Estates
Manager, Admn
P.F.O.
Labour Officer
Manager(P&S)
Manager BBS
Purchase Officer
Works Manager
Graduate with
diploma in
management
from
recognized
institute with 3
years’
experience
Degree/
Diploma in
Auto Engg.
From an
institute
recognized by
GOI with 3
yrs’ experience
5 years’
experience
AMTS,
AMBS, D.M.
& T.C.O
5 years’
experience as
AWM, Ind.
Enggr.
Foreman/Stor
es Officer
Direct/
Promotion
-do -
25:75
25:75
17. Appellant-Corporation approved and promulgated the Regulations of
2013 vide Notification dated 11
th
February 2013. The relevant portion
of the Schedule appended to the Regulations of 2013 is also reproduced
hereunder:
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LPA no.130/2022
Class Category Designation Pay Band with
Grade Pay
Minimum
qualification
for Direct
Recruitment
Qualification
for
Recruitment
By promotion
Method of
recruitme
nt
Ratio of
recruitment
Direct
Promo
tion
Xxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxx xxx
IV General Manager
G.M.(Admn)
G.M.(Ops) Kmr
G.M.(Cargo Ser.)
G.M. (Mech/P&S)
15600-39100 By selection
from Class V
Category A
with
minimum five
years’
experience
By
promotion
100%
IV A
B
Dy. Gen. Manager
-DSU(Kmr)
-TSD(Jammu)
_Cargo(Jammu
Maint/P&S (Kmr)
Maint/P&S(Jmu)
-Adm/PRO-cum-
Protocol Officer
(Kmr)
By selection
from Class VI
Category
A&B with
minimum 7
years’
experience as
Traffic
Manager/
Works
Manager/
Manager
(Finance)
By
promotion
100%
18. From perusal of the Rules of 1986, it is apparent that post of DGM
(Maintenance) was to be filled by way of selection from Class V
Category A with five years’ experience in Class V; and from perusal of
the Regulations of 2013, it is apparent that the post of DGM is to be
filled up by way of selection from Class VI Category A&B with
minimum seven years’ experience as Traffic Manager/Works Manager/
Manager (Finance). Admittedly the posts of DGM and GM are to be
filled up by way of selection, which means that question of seniority
will act as a second fiddle while making selection, thus, it is for
appellant-Corporation to place such an officer as it considers most
suitable, eligible, qualified, meritorious. Therefore, all these factors
have to be gone into by the competent authority and the decision
entirely rests with the Corporation. In other words, appellant-
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LPA no.130/2022
Corporation is the sole judge to decide as to who is most suitable
candidate for being appointed on the post. Thus, learned Single Judge
was not justified in holding petitioner entitled as DGM with effect from
11
th
February 2013 and subsequently as General Manager with effect
from 11
th
February 2018, with all consequential benefits when both the
posts can be filled 100% by promotion by way of selection from the
feeding channel.
19. The Corporation is empowered to lay down criteria for promotion and
all the promotions shall be made on the ground of merit, ability,
performance, besides good report and the seniority is to be considered
only when the merit and ability is approximately equal. The
qualification for the promotion is for both the posts by way of selection
which clearly enjoin on the appointing authority to have a fair and
objective application of its mind at the time of making selection for
promotion strictly in conformity with the rules. Mere existence of
vacancy is not a sole criterion to hold somebody entitled for promotion
when merit, eligibility, suitability, APRs and vigilance clearance are
also relevant factors to accord promotion as per rules. Thus, the merit,
eligibility, suitability in all respects including vigilance clearance
should be governing the consideration for according promotion as per
rules and the seniority plays only consequential role. It is only when
merit and suitability are equal, then the seniority will be the determining
factor and all these factors can be gone into by Establishment
Committee constituted by the Government in this regard, which goes
into all these factors and consequently, the matter is placed before the
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LPA no.130/2022
Board of Directors, which takes a conscious decision after subjective
satisfaction and subsequently the decision is taken by the Corporation.
The Court has no yardstick or mechanism to go into all these questions
and, thus, the finding of the learned Single Judge holding the petitioner
entitled for retrospective promotion as DGM and GM in absence of the
matter being examined by the Selection Committee cannot sustain the
test of law.
As the issue in question with regard to confirmation of petitioner
was pending adjudication before the competent authority, learned
Single Judge, swayed away by existence of vacancy, held petitioner
entitled to the post of DGM and GM. The selection based on merit
tested impartially and objectively is essential foundation of any public
service. When the rules specifically provide that the promotion has to
be made on the basis of selection where merit is a guiding factor,
seniority takes back seat and merit has to be given preference. Since
both the posts in question can be filled 100% by promotion by way of
selection by resorting to merit-cum-seniority and as per law laid down
by the Hon’ble Supreme Court in catena of judgments that there is no
fundamental right to promotion but an employee can only have a right
to be considered for promotion, which right is yet to be gone into by the
competent authority and the learned Single Judge without waiting for
outcome of the same, has held the petitioner entitled for retrospective
promotion as DGM and GM, which is against the mandate and spirit of
rules in vogue mentioned supra.
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LPA no.130/2022
20. In addition to this, Regulation 12 of the Regulations of 2013 in
categoric terms provides that all the posts are to be filled up by
promotion in accordance with the regulations on the basis of
recommendations of the designated promotion committee of the
Corporation based on merit, suitability and seniority. Thus, merit,
suitability and seniority is yet to be assessed by the aforesaid committee
and without having the opinion of the said committee, the judgement
impugned to the extent of holding petitioner entitled to promotion as
DGM and GM retrospectively is in contravention to the aforesaid
provisions of law. For facility of reference, Regulation 12 is
reproduced hereunder:
“12. Promotions: -
All the posts to be filled up by promotion shall be filled in
accordance with these regulations on the basis of
recommendations of the designated promotion committee of the
Corporation based on merit, suitability and seniority.”
21. Besides that, the learned Single Judge did not record any finding with
regard to impugned communication dated 26
th
November 2015, which
was called in question by petitioner before the Writ Court and the basis
for filing the said writ petition was issuance of aforesaid
communication, whereby employees of different departments were
being deputed, which according to petitioner was against his
fundamental right. The learned Single Judge without recording any
finding with regard to impugned communication whereby posts of
Corporation were being usurped by outsiders, held petitioner entitled as
DGM and GM.
22. The whole writ petition filed by petitioner revolves around issuance of
impugned communication and the primary relief which was sought by
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LPA no.130/2022
petitioners was quashment of the said communication and other reliefs
were ancillary to the main relief. The learned Single Judge without
recording any finding with regard to impugned communication granted
the ancillary relief when the issue in question with regard to merit,
eligibility, suitability was pending adjudication before the competent
authority.
23. How and under what circumstances, learned Single Judge arrived at
subjective satisfaction that petitioner is entitled for retrospective
promotion as DGM and GM, when all the guiding factors with regard
to merit, eligibility, suitability and vigilance clearance have yet to be
gone into by appropriate authority, i.e., Establishment-cum-Selection
Committee constituted in this regard in conformity with rules in vogue.
The Committee constituted in this regard has to assess merit, eligibility,
suitability of each and every candidate and the said Committee after
verifying the facts on record, arrived at subjective satisfaction and the
decision of the Establishment-cum-Selection Committee is placed
before the Board of Directors, which subsequently, takes a final
decision in this regard on the recommendations of the Establishment
Committee and pursuant thereto, a final decision is taken by the
competent authority on the basis of the said recommendation, whether,
the person is entitled for promotion or not. It appears that the learned
Single Judge while byepassing the aforesaid procedure has in haste
manner held the petitioner entitled for retrospective effect as DGM and
GM, when the post in question can be filled up 100% by promotion by
way of selection from the feeding category.
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LPA no.130/2022
24. The Court has no mechanism to assess the suitability, eligibility, merit,
integrity, vigilance clearance of the candidates as it is the domain of
competent authority to go into all these questions as the only right vests
in the petitioner is right to consideration for promotion and not right of
being promoted and the said consideration has to be accorded by
competent authority in conformity with the rules and not otherwise.
25. A bare perusal of the Recruitment Rules, which are in vogue, would
reveal that the post of DGM and GM can be filled up 100% by
promotion by way of selection from the feeding category with requisite
experience and the rules nowhere provide that the outsiders can be
brought in by way of “deputation” infringing fundamental right of
persons, who are born on the establishment of the Corporation, who
have preferential right of being considered for promotion. Whether to
bring officers from outside or not by way of deputation has to be strictly
followed in conformity with the rules in vogue and not otherwise. To
bring the officers from outside by way of deputation to the Corporation
can be only in the eventuality if no suitable person is found eligible in
the Corporation after assessing their merit, eligibility and suitability.
What was the basis of impugned communication dated 26
th
November
2015 is not forth coming from the record, when suitable candidates
from the Corporation are available. On one hand, appellant-Corporation
has taken steps to accord confirmation to the petitioner for post of DGM
and in this regard, vigilance clearance was also sought and without
taking case of petitioner to its logical conclusion, the appellant-
Corporation issued impugned communication dated 26
th
November
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LPA no.130/2022
2015, by virtue of which one Abdul Hamid Wani from Geology and
Mining Department was being deputed to the Corporation against the
post of GM, which was lying vacant in the Corporation. Thus, cause of
action has accrued to the petitioner at a stage, when appellant-
Corporation instead of regularizing the services of petitioner,
proceeded to depute an outsider to the Corporation against the post of
General Manager which was violative of fundamental right of
petitioner of seeking consideration for promotion.
26. As per the record, the appellant-Corporation instead of regularizing the
services of petitioner (respondent no.1 herein) for the post of DGM
initiated the process of considering deputation of private respondent to
function as GM, which was lying vacant. The specific case of petitioner
before the Writ Court was that since appellant-Corporation is trying to
import employees from other departments on deputation at the cost of
petitioner when the post in question is required to be filled up 100% by
promotion as per recruitment rules, then there is no scope for the
Corporation to depute the outsiders against the said post and by doing
so the posts, which were to be utilized by employees of the Corporation,
were being usurped by the deputationists which infringes the
fundamental right of petitioner and such like Corporation employees.
Besides that, it was a specific case of petitioner before the Writ Court
that as per Regulations of 2013, the posts of GM as well as DGM were
required to be filled 100% by promotion by way of selection amongst
the categories shown in the Schedule, on the basis of which the
petitioner was eligible in all respects which has been admitted by
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LPA no.130/2022
appellant-Corporation while addressing various
inter se
communications for according confirmation.
27. Since there is no scope in the recruitment rules for the deputationist to
fill the posts in question, which are to be filled up 100% by promotion
through selection, then, in that eventuality, policy of Corporation to
bring outside employees to the Corporation is bad in the eyes of law
and the same is in conflict with the rules in vogue and thus cannot be
sustain the test of law, more particularly, when Regulation 18 of the
Regulations of 2013 in clear cut terms provide for relaxation of any
provisions of the Regulations of 2013 so as to benefit the member of
the Corporation insofar as the recruitment, promotions, period of
probation, retention in service or otherwise, qualification, age,
experience, passing of examination or test and training/refresher
courses etc. For facility of reference, Regulation 18 is reproduced
hereunder:
“
18) Power to relax: -
The Corporation, with the prior approval of the Board of Directors
and in extreme circumstances may at any time, for the reasons to be
recorded in writing relax in favour of member of the service, the
operation of any of the provisions of these regulations in so far as they
concern the matters like, recruitment, promotions, period of
probation, retention in service or otherwise, qualification, age,
experience, passing of examination or test and training/refresher
courses etc.”
Thus, the said policy of the Government to bring outsiders to the
Corporation by way of deputation is in contravention of the rules, being
illegal, irrational and without any logical basis. However, we leave it
open for the respondents to examine the said policy to bring outsiders
to the Corporation by way of deputation, on the touchstone of
rationality, reasonableness and legality as the same is violative of the
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LPA no.130/2022
fundamental rights of employees borne on the establishment of the
Corporation having preferential claim and right of consideration for
promotion.
28. The fact whether the petitioner is entitled or not as DGM/GM can be
gone into by competent authority, i.e., Board of Directors, who are yet
to take a decision pursuant to the clearance of petitioner by Vigilance
Organization in conformity with the recruitment rules. Instead of
according confirmation to the case of petitioner, issuance of impugned
communication is in contravention and mandate of the recruitment
rules being violative of fundamental right of petitioner and such like
employees of the Corporation.
29. It is well settled that the Courts in exercise of power of their judicial
review do not ordinarily interfere with the policy decisions of the
executive, unless the policy can be faulted on the grounds of
mala fide,
unreasonableness, arbitrariness or unfairness etc. Indeed arbitrariness,
irrationality, perversity and
mala fide will render the policy
unconstitutional. The decision/policy of the Corporation to bring
employees from other departments to the Corporation by way of
deputation contrary to rules without according consideration to the case
of employees, who are born on the establishment of the Corporation,
cannot sustain the test of law as it violates the fundamental right of
employees of the Corporation. However, in the interests of
administration, the Corporation can import the officers by way of
deputation from outside only, if no suitable and eligible candidate is
available in the Corporation to man such a post and to run the affairs of
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LPA no.130/2022
the Corporation. No such situation has arisen as the Corporation is yet
to arrive at a subjective satisfaction with regard to eligibility, suitability
of petitioner, and in absence of such subjective satisfaction, it cannot
be presumed that petitioner was not eligible and there was need for
importing officers from outside. Then by no stretch of imagination, the
communication dated 26
th
November 2015 or the policy can sustain the
test of law, reasonableness, fairness and rationality.
30. Since, the direction passed by the learned Single Judge with regard to
entitlement of petitioner for promotion to the post of DGM
(Maintenance) in appellant-Corporation from 11
th
February 2013 and
General Manager from 11
th
February 2018 with all consequential
benefits, is premature as the issue in question was pending adjudication
before the competent authority, i.e., Committee/Board of Directors,
which has yet to arrive at subjective satisfaction with regard to merit,
eligibility and suitability of petitioner after his vigilance clearance and
in conformity with the rules in vogue. We, accordingly, set-aside the
direction passed by the learned Single Judge to the extent of holding
petitioner entitled for promotion to the post of DGM in the Corporation
with effect from 11
th
February 2013 and General Manager with effect
from 11
th
February 2018 with all consequential benefits, and in turn
direct the appellant-Corporation to finalize the case of petitioner for his
promotion as DGM strictly in conformity with the rules and
subsequently if petitioner becomes entitled for being promoted as GM,
the same be given from the date the petitioner becomes eligible with all
consequential benefits.
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LPA no.130/2022
31. We further direct the appellant Corporation to place the petitioner at an
appropriate place in the seniority list once the decision is taken by
competent authority with regard to his eligibility, merit coupled with
seniority for the post of DGM and subsequently for the post of GM (if
he is entitled).
32. We leave it open to the appellant-Corporation to accord consideration
to the case of petitioner/respondent no.1, within a period of one month
from the date copy of this judgement along with copy of the LPA is
served upon appellant-Corporation.
33. The present appeal is disposed of and the impugned judgement and
order stand modified to the above extent.
(Wasim Sadiq Nargal) (Pankaj Mithal)
Judge Chief Justice
Srinagar
04.08.2022
“Manzoor”
Whether approved for reporting? Yes/No
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