Shafqat Rasool Bhat vs State Of J&K & Others
2024 Latest Caselaw 1318 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Shafqat Rasool Bhat vs State Of J&K & Others on 30 August, 2024

Author: Sanjay Dhar

Bench: Sanjay Dhar

      IN THE HIGH COURT OF JAMMU &KASHMIR AND
                 LADAKH AT SRINAGAR

                                          Reserved on:   13.08.2024
                                          Pronounced on: 30.08.2024

                        SWP No.696/2017

SHAFQAT RASOOL BHAT                            ...PETITIONER(S)
            Through: - Mr. Shakir Haqani, Advocate.

Vs.

STATE OF J&K & OTHERS                     ...RESPONDENT(S)
            Through: - Mr. Satinder Singh Kala, AAG.

CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                              JUDGMENT

1) As per case of the petitioner, he was initially appointed as a

Junior Assistant in the pay scale of Rs.2610-3540 (pre-revised) on

21.06.2002. Vide order No.DLB/Estt/2563/7232-36 dated

19.10.2002, the petitioner was substantively adjusted against the

post of Computer Operator in the pay scale of Rs.5000-8000 on

probation for a period of three months. The petitioner held the

said post of Computer Operator until the year 2010 when in terms

of order No.DULB/Estt/793 of 2010 dated 30.10.2010, he was

ordered to function as I/C Secretary, Municipal Committee,

Chadoora.

2) It seems that final seniority of the petitioner was settled at

serial No.2 amongst the Computer Operators and a seniority list Page |2

in this regard was issued by respondent No.2 vide Order

No.DULB/Estt/148 of 2007 dated 07.04.2007.

3) A writ petition bearing SWP No.2697/2012 came to be filed

by Tariq Ahmad Ganai and another in which they alleged that they

were appointees of the year 1995-96 whereas the petitioner herein

is an appointee of the year 2002 but he has been initially promoted

as Computer Operator and thereafter as I/C Secretary whereas the

petitioners therein are still working as Junior Assistants. The said

writ petition came to be disposed of by this Court in terms of order

dated 22.12.2014 with a direction to the official respondents to

accord consideration to the claim of the petitioners therein.

4) Pursuant to the aforesaid direction of this Court, an order

bearing No.DULB/CC/622/16/PS/601-30/2016 dated

30.08.2016, came to be issued by respondent No.2, whereby

orders dated 19.10.2002(supra) and 30.10.2010 (supra) made in

favour of the petitioner were rescinded.

5) The aforesaid order came to be challenged by the petitioner

herein by way of a writ petition bearing SWP No.1170/2016, which

was disposed of by this Court in terms of order dated 03.06.2016,

whereby order dated 13th May, 2016 was set aside and the

petitioner was permitted to continue against the post which he

was holding and the respondents were directed to afford

opportunity to the petitioner and pass appropriate orders.

Page |3

6) Pursuant to the aforesaid direction of this Court, it seems

that the petitioner made a written representation before the

respondents, whereafter the impugned order No.DULB/CC/677/

2016/PS/511 of 2017 dated 10.04.2017 came to be issued by

respondent No.2 whereby orders dated 19.10.2002 and

30.10.2010 (supra) were rescinded.

7) The petitioner has challenged the impugned order on the

ground that he was appointed as Computer Operator on the basis

of his higher technical qualification and not on the basis of pick

and choose. It has been further contended that the petitioner was

allowed to function as I/C Secretary Municipal Committee,

Chadoora, as the post of Head Assistant is equivalent to the post

of Computer Operator, which, in terms of the Rules, is the feeding

cadre for promotion to the post of Secretary Municipal

Committee. It has also been contended that another

contemporary of the petitioner, Shri Nayeem Razvi was also

adjusted against the post of Computer Operator and his

appointment was justified by the official respondents while filing

reply to his writ petition bearing SWP No.2697/2012 and, as such,

they cannot take a different stand in the case of the petitioner.

8) The respondents have filed their reply, wherein they have

not disputed the factual aspects of the case. However, they have

contended that the petitioner's experience and qualification does

not entitle him to adjustment/appointment against the post of Page |4

Computer Operator on pick and choose basis in violation of the

provisions of Article 14 and 16 of the Constitution without

considering other eligible candidates. It has been further

contended that in terms of the Jammu and Kashmir Urban Local

Body Service (Management) Recruitment Rules, 2008, there is no

post of Computer Operator. It has been submitted that in the said

Rules, only the post of Computer Assistant is existing which is

required to be filled up 100% by direct recruitment. It has been

also contended that the feeder cadre for the post of

Secretary/Section Officer of the Municipal Committee is Head

Assistant in terms of the Rules of 2008 and, as such, the petitioner

could not have been allowed to function as I/C Secretary

Municipal Committee, Chadoora, dehors the said Rules. In short,

the respondents have contended that adjustment of the petitioner

as Computer Operator as well as his placement as I/C Secretary

Municipal Committee, Chadoora, is illegal and the same deserves

to the rescinded.

9) I have heard learned counsel for parties and perused record

of the case.

10) As already stated, the factual aspects of the matter are not in

dispute. It is not in dispute that for the first time, the Jammu and

Kashmir Urban Local Body Service (Management) Rules, 2008,

were notified vide SRO 417 dated 18.12.2008. Prior to it, there

were no Recruitment Rules in place so far as appointment to J&K Page |5

Urban Local Body Services is concerned. The placement of the

petitioner as I/C Secretary Municipal Committee, Chadoora, has

taken place in the year 2010, meaning thereby that at the relevant

time, the Rules of 2008 were in operation. As per the said Rules,

the feeder cadre for promotion to the post of Secretary, Municipal

Committee, is Head Assistant. The post of Computer Operator

having the pay scale of Rs.5000-8000, which is equivalent to the

pay scale of the post of Head Assistant, is not shown in the

Schedule to the Rules of 2008, meaning thereby that the post of

Computer Operator is not the feeding cadre to the post of

Secretary. Obviously, placement of the petitioner as I/C Secretary

Municipal Committee, Chadoora, in terms of order dated

30.10.2010 is dehors the Rules of 2008. The same, as such, cannot

11) That takes us to the question whether or not the adjustment

of the petitioner against the post of Computer Operator vide order

dated 19.10.2002 is in accordance with law. As already stated,

there were no Recruitment Rules in place at the relevant time. The

petitioner at the relevant time was already functioning as Junior

Assistant in NAC, Cherar-i-Sharief. It is not in dispute that he was

having the experience of operating the computers and he was also

technically qualified. It seems that the respondents have

appointed the petitioner as Computer Operator in higher grade of

Rs.5000-8000 on account of the fact that he was holding technical

qualification in operating computers. He has been allowed to Page |6

function as such for a considerable period of time and it is only

when he was asked to function as I/C Secretary Municipal

Committee, Chadoora, in the year 2010 dehors the Rules, that his

initial appointment as Computer Operator came under a scanner.

12) The petitioner, having been allowed to function as

Computer Operator on substantive basis after his probation was

confirmed by the respondents for eight longs years, cannot be

thrown out just because his contemporaries have woken up from

deep slumber after such a long period, particularly when the

seniority list of Computer Operators was notified by respondent

No.2 by issuing order dated07.04.2007. The equity, therefore, tilts

heavily in favour of the petitioner to the aforesaid extent. Even

otherwise by the time the contemporaries of the petitioner

thought of challenging his Incharge promotion to the post of

Secretary Municipal Committee, Chadoora, in the year 2010, they

might have also reached the pay scale of Computer Operator by

earning annual increments/promotions. It is to be noted here that

because the post of Computer Operator does not figure in the

Rules of 2008, therefore, there is hardly any chance for the

petitioner to make any further progress in his service carrier

unless the respondents choose to amend the Rules and include the

post of Computer Operator in the Schedule appended to the Rules

of 2008. In these circumstances if the adjustment of the petitioner

as Computer Operator is quashed after more than 22 years, it will Page |7

cause great hardship to him without working to the benefit of the

contemporaries of the petitioner.

13) Keeping the aforesaid discussion in view, the writ petition is

partly allowed and the impugned order dated 10.04.2017, to the

extent it rescinds order dated 19.10.2002, whereby petitioner has

been adjusted against the post of Computer Operator, is set aside.

However, the impugned order to the extent it rescinds promotion

of the petitioner as I/C Secretary Municipal Committee,

Chadoora, made in terms of order dated 30.10.2010, is upheld.

                                14)     No order as to costs.


                                                                                   (Sanjay Dhar)
                                                                                      Judge
                                SRINAGAR
                                30.08.2024
                                "Bhat Altaf-Secy"
                                                Whether the order is reportable:   Yes/No