Fida Hussain Wani vs Union Territory Of J&K & Others
2023 Latest Caselaw 942 j&K/2

                                                              Serial No. 10
                                                              Regular List

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                              LPA No. 167/2019

Fida Hussain Wani.
                                                  ..... Appellant/Petitioner(s)

Through:      Mr. Jehangir Iqbal Ganai, Sr. Advocate with
              Ms. Mehnaz Rather, Advocate.
                                       V/s
Union Territory of J&K & Others.
                                                            .....Respondent(s)
Through:      Mr. Mohsin Qadiri, Sr. AAG with
              Ms. Maha Majeed, Advocate.

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

14.08.2023

Sanjeev Kumar, J:Oral

1. This intra-court appeal is directed against the Judgment dated

24.05.2019 passed by learned Single Judge of this court ["the Writ

Court"] in SWP No. 1723/2018 titled „Fida Hussain Wani Vs.

State of J&K & Others' whereby the Writ Court has not accepted

the challenge of the appellant thrown to Forest Order No. 217 of

2018 dated 17.04.2018 passed by the Department of Forest and

consequently dismissed the writ petition.

2. Before we proceed to deal with the grounds of challenge urged by

learned counsel for the appellant, we deem it appropriate to give

brief flashback of the factual antecedents.

3. The appellant was appointed as Watcher in the Forest Protection

Force in the year 1997, vide Forest Order no. 455 of 1997 dated

06.08.1997. It seems that in the year 2001 the Chief Conservator of

Forests, Kashmir, (CCFK) issued a notice calling upon all in-

service Class-IV officials of the Department, who had put in

minimum of three years‟ service, to participate in type test for their

promotion to the post of Junior Assistant. The appellant being

Watcher,was also the Class-IV official and therefore, participated

in the test. The appellant even qualified the said test. On the basis

of their performance in the type test, apart from other Class-IV

officials the appellant was also adjusted as Junior Assistant by the

CCF(K) vide Order no. 181 of 2002 dated 19.06.2002. From the

order impugned in the writ petition, it further transpires that the

order dated 19.06.2002 was later kept in abeyance in the year

2002. However, the appellant was „formally‟ adjusted as Junior

Assistant vide Forest Order no. 23 of 2003 dated 20.01.2003.

4. Almost fourteen years after his adjustment as Junior Assistant, the

appellant approached this Court by way of SWP No. 1841/2016,

with the claim that he having been appointed on the post of

Watcher borne on executive cadre was entitled to be promoted to

the post of Forest Guard. The writ petition filed by the appellant

was disposed of at the motion hearing stage vide order dated

23.11.2016 with a direction to the respondent-Department to

consider the claim of the appellant for promotion against the post

of Forest Guard in terms of the statutory rules along with other

eligible candidates. This is how the matter came to be considered

by the respondents for promotion of the appellant to the post of

Forest Guard. Vide Forest order no. 217 of 2018 dated 17.04.2018,

which was passed in compliance with the Judgment of this Court

dated 23.11.2016, the appellant was declared deemed to have been

appointed as Forest Guard with effect from 31.12.2009, i.e. from

the date on which one Mr. Tahir Nisar, immediate junior to the

appellant had been so promoted after clearance by DPC held on

01.11.2009. Consequently, the name of the appellant was deleted

from the final seniority list of Junior Assistants and included in the

Tentative Seniority List of Graduate Forest Guards issued on

31.03.2018.

5. Ordinarily the petitioner should have been more than happy with

the impugned order yet he brought his grievance once again to this

Court and challenged Forest Order No. 217 of 2018 dated

17.04.2018 in SWP No. 1723/2018 which has been dismissed by

writ court vide Judgment impugned in this appeal. The writ court

considered the entire grievance projected by the appellant in

particular, his claim to be treated as Forest Guard with effect from

20.01.2003 i.e. the date he had been occupying the post of Junior

Assistant.

6. Before the writ court, a contention was raised by the learned

counsel for the appellant that since the promotion of the appellant

as Junior Assistant was on the basis of his exceptional merit and

better suitability and as such, the claim of the appellant for his

appointment as Forest Guard ought to have been considered

retrospectively from the date he was made a Junior Assistant after

qualifying the type test.

7. It was argued by the appellant before the writ court that the

consideration to be accorded to the appellant for his retrospective

promotion as Forest Guard should not have been vis-à-vis other

eligible candidates. The writ court did not find any merit in the

contentions and therefore, dismissed the writ petition.

8. Mr. Jehangir Iqbal Ganie, learned Sr. counsel has reiterated the

same arguments which he had canvassed before the writ court.

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

material on record, we find that the Judgment passed by the writ

court is perfectly legal and unexceptionable.

10.Indisputably, the appellant was appointed as Watcher in the year

1997 and was entitled to his promotion to the post of Forest Guard

strictly in terms of "The Jammu & Kashmir Forest(Subordinate)

Service Recruitment Rules, 1991" ["the Rules"]. The post of

Watcher figures at category XII(A) of Schedule-II of the Rules and

the post of Forest Guard figuring at Category-X is required to be

filled up inter alia by 20 percent from Class XII Category(A) with

five years of service in that category. The right to be considered for

promotion to the post of Forest Guard is available to all eligible

employees working in Category XII (A). The appellant cannot, by

any stretch of reasoning, claim exclusive consideration for

promotion to the post of Forest Guard. It is true that though he was

not eligible in terms of the Rules to be promoted as Junior

Assistant yet due to exigencies of service, all Class-IV employees

including the appellant, who qualified the type-test, were adjusted

as Junior Assistants. The appellant accepted his promotion as

Junior Assistant and availed its benefits for almost fourteen years

before agitating the matter in this Court in SWP No. 1841/2016. It

also needs to be noticed that a Single Bench of this court while

disposing of the aforesaid writ petition vide its order dated

23.11.2016, directed the respondent-Department to consider the

case of the appellant against the post of Forest Guard strictly in

terms of the Rules along with the other eligible candidates. The

plea of the learned counsel for the appellant that he was not

required to be considered with other eligible candidates rather

should have been considered for out of turn promotion in view of

his exceptional merit, is not acceptable for two reasons: i) that as

per the directions of the learned Single Judge his claim was to be

considered along with other eligible candidates and ii) There is

nothing on record which would demonstrate that the appellant was

having exceptional merit vis-à-vis the other eligible candidates

working in his category.

11.The Department of Forest very rightly considered the claim of the

appellant and found that after the appellant attained eligibility for

promotion to the post of Forest Guard, the first Departmental

Promotional Committee (DPC) was convened and held on

25.11.2019 and the immediate junior to the appellant Mr. Tahir

Nisar, as also immediate Senior of the appellant Mrs. Zareefa

Yasin, were promoted as Forest Guard on 31.12.2009, there was

thus no warrant to promote the appellant as Forest Guard with

effect from the year 2003, thereby rendering him senior even to

those who were his seniors in the category of Watchers/Category

XII-A.

12.On being pointedly asked, Mr. Jehangir Iqbal Ganie, learned Sr.

Counsel appearing for the appellant could not indicate even a

single instance where a Junior to the appellant in the cadre of

Watcher or in the category of XII(A) had been promoted by the

respondents as „Forest Guard‟ prior to 31.12.2009.

13.Viewed from any angle, we find no merit in this appeal. This

appeal is accordingly dismissed.

                     (Rajesh Sekhri)                 (Sanjeev Kumar)
                         Judge                             Judge

SRINAGAR:
14.08.2023
"Shaista"




                   Whether the order is speaking?    Yes/No
                  Whether the Order is reportable?   Yes/No