Cm (2271/2021) vs Through: Mr. Satinder Singh Kala
2022 Latest Caselaw 564 j&K/2

                                                                    NISSAR A BHAT
                                                                    2022.05.12 17:26
                                                              Regular Cause list
                                                                Serial No. 5


 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                AT SRINAGAR

                                                           WP (C) 768/2021
                                                           CM (2271/2021)
                                                           CM (5803/2021)
Bashir Ahmad Khuroo and others
                                                    ... Petitioner/Appellant(s)
Through: Mr. Syed Faisal Qadiri, Sr. Advocate with Mr. Huzaif, Adv.

                         V/s
Sheri Kashmir Institute of Medical Sciences Soura

Through: Mr. Satinder Singh Kala, AAG vice Mr. M. A. Chashoo, AAG

                                                            ... Respondent(s)


CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                ORDER

11-05-2022

1. The petitioners as is claimed by them are working in the Sher-i-

Kashmir Institute of Medical Sciences, Soura, Srinagar ["the

institute"] as Head Assistants having confirmed on the post with

effect from 2.2.2019 except petitioner no. 3 who has been

promoted as Head Assistant with effect from 1.2.2019.

2. The case set up by the petitioners, as raised in this petition, is that

they came to be promoted as Senior Assistants with effect from

7.1.2010, 28.1.2006, 19.7.2008, 7.1.2010 and 28.1.2006. In

terms of the recruitment rules governing their service, the

petitioners were entitled to be promoted as Head Assistants

subject to their eligibility and seniority.

3. The government vide SRO 272 dated 19.9.2008 amended the

schedule-II appended to different Departmental Subordinate

Service Recruitment Rules pertaining to the method of

recruitment against the posts of Head Assistant and Junior

Assistant. For the post of Head Assistants, the method of

recruitment provided was that 25% of the posts in a calendar year

would be filled up by promotion of those Senior Assistants who

had not qualified Secretariat Assistance Examination but had

crossed the age of 50 years as on 1st January of the year in which

such promotions were being considered.

4. It is submitted that in strict compliance of SRO 272 of 2008, the

petitioners were eligible for promotion to the post of Head

Assistant under the 25% quota meant for unqualified (who have

not qualified Secretariat Assistants Examination but have crossed

the age of 50 years), and, therefore, pending consideration of

their case by the departmental promotion committee, they were

given the charge of post of Head Assistant on officiating basis in

their own pay and grade with charge allowance as admissible

under rules against the available clear vacancies. This was done

by the institute for a period of six months or till such posts were

filled up by proper procedure whichever was earlier. Office order

no. SKIMS/162(P) of 2017 dated 13.7.2017 stands testimony of

this assertion of the petitioners.

5. The petitioners continued as officiating Head Assistants but the

order of their regular promotion was not issued by the respondent

institute. The petitioners filed SWP 2420/2018 in this court

seeking inter alia a direction to the respondents to grant them

regular promotion as Head Assistant from the date they were

holding such post on officiating basis. The writ petition was

disposed of by order/judgment dated 30.1.2019 directing the

respondents to consider the cases of the petitioners for their

regularization in tune with mandate of rules and by exploring the

possibility of according relaxation on the ground of having

rendered services as Head Assistants.

6. The promotion case of the petitioners was considered by the

respondent institute in compliance of the aforesaid direction of

this court and vide office order no. SKIMS 19 (P) of 2021 dated

17.2.2021 the petitioners along with five others were accorded

substantive promotion as Head Assistant with effect from the

dates i.e. 2.2.2019, except petitioner no. 3 who was given the

benefit of promotion with effect from 1.2.2019. It is this order,

the petitioners are aggrieved of to the extent it denies promotion

to the petitioners as Head Assistant with effect from 13.7.2017

i.e. the date when the petitioners were promoted as Head

Assistants on officiating basis.

7. On being put on notice, respondents have filed their objections.

Reliance is placed by the respondents on the provisions of SRO

272 of 2008. It is the stand of the respondents that since the

petitioners had not passed the Secretariat Assistants Examination

but they had crossed the age of 50 years, they were considered for

promotion for the post of Head Assistant against the 25% quota

of the posts earmarked for their category. It is submitted that

although no post in the 25% quota earmarked for candidates like

the petitioners was available, yet having regard to the fact that

petitioners were nearing their superannuation, a compassionate

view was taken by the respondent institute and the petitioners

were allowed to hold the charge of post of Head Assistant on

officiating basis against the clear vacancies belonging to 75%

quota earmarked and meant for qualified Senior Assistants.

8. The respondents in their objections have clearly shown the

availability of vacancies and have submitted that the petitioners

were promoted on substantive basis from the dates the posts in

their quota became available.

9. Having heard learned counsel for the petitioners and perused the

material on record, I am of the view that the grievance projected

by the petitioners against the denial of promotion to them as Head

Assistant on substantive basis with effect from 13.7.2017 is

without substance. Indisputably and admittedly the promotion of

the petitioners to the post of Head Assistant is governed by SRO

272 of 2008 which provides the filling up of the post of Head

Assistant in the following manner:

"100% promotion from Senior Assistants having at least three years service in that category and having passed Secretariat Assistant Examination provided that 25% of the posts to be filled up in a calendar year shall be earmarked for promotion of those Senior Assistants who have not qualified the Secretariat Assistants Examination but have crossed the age of 50 years as on 1st January of the year in which such promotions are being considered."

10.It is not in dispute that the petitioners have not qualified the

Secretariat Assistant Examination but have crossed the age of 50

years. This was the position in the year 2017 when they were

allowed to hold the charge of post of Head Assistant for a period

of six months on officiating basis in terms of the institute order

dated 13.7.2017. This adjustment of the petitioners as Head

Assistants on officiating basis was against the available vacancies

of 75% quota meant for qualified Senior Assistants. As is borne

out from the reply filed by the respondents, the total sanctioned

strength of the Head Assistants is 22, out of which 17 posts are

meant to be filled up under 75% quota and only 5 posts are to be

filled up under 25% quota. This was position in 2017. In the year

2018, seven Head Assistants were promoted as Section Officers,

thus resulting into rendering seven posts of Head Assistants

vacant. Out of these seven posts of Head Assistants, two fell to

the share of 25% quota. The respondents have further clarified

that the unqualified Senior Assistants, which include the

petitioners also, who were holding the post of Head Assistants on

officiating basis were accordingly adjusted against their own

quota with effect from the dates the posts in their quota fell

vacant. The seniors were adjusted first and the petitioners, being

far junior, were considered and promoted with effect from

2.12.2019/1.2.2019 as is apparent from the impugned order. In

view of the clear stand of the respondents, the petitioners cannot

claim their promotion as Head Assistant on substantive basis

from the date anterior to the date the posts in their cadre became

available. Merely because the petitioners were adjusted as Head

Assistant on officiating basis against 75% quota to which the

petitioners admittedly do not belong, does not confer any right on

the petitioners to claim promotion from the date of such

adjustment. They will be entitled to the regular promotion only

from the date the vacancy/post in their quota became available.

This too was required to be done strictly as per the inter se

seniority of the petitioners and similarly situated unqualified

Senior Assistants. The legal position in this regard is well settled

by the Hon'ble Supreme Court in the case of Suraj Prakash and

others versus State of J&K and others, AIR 2000 SC 2386.

11.For the foregoing reasons, I find no legal infirmity or illegality in

the order. The writ petition is, therefore, found to be without any

merit and same is accordingly dismissed.

(SANJEEV KUMAR) JUDGE Srinagar 11.5.2022 N Ahmad