Syed Murtaza vs Ladakh Autonomous Hill Development ...
2025 Latest Caselaw 724 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Syed Murtaza vs Ladakh Autonomous Hill Development ... on 13 February, 2025

Bench: Sanjeev Kumar, Puneet Gupta

     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR
                                               Reserved on:     06.02.2025
                                              Pronounced on:    13.02.2025

                          WP(C) No.252/2023
                               c/w
                          WP(C) No.3075/2022

WP(C) No.252/2023:
1.     Syed Murtaza, aged: 48 years
       S/o Syed Hadi R/o Changichik UT of Ladakh.

2.     Mohd. Hassan, aged: 52 years
       S/o Abass R/o Pushkium UT of Ladakh.

3.     Ghulam Rasool, aged: 48 years
       S/o Gh. Mohammad R/o Drass, Kargil, UT of
       Ladakh.

4.     Mohd. Hussain, aged: 52 years
       S/o Mohd. Ali R/o Hardass, UT of Ladakh.

5.     Sajad Hussain, aged: 42 years
       S/o Gh. Raza R/o Goshan Ladakh, UT of Ladakh.

6.     Mohd. Hasnain, aged: 38 years
       S/o Haji Gh. Hussain R/o Minji, Kargil, UT of
       Ladakh.
                                                    ...PETITIONER(S)
       Through: -   Mr. Shuja-ul-Haq, Advocate.

Vs.
1.     Ladakh Autonomous Hill Development Council
       through its Chief Executive Officer, Deputy
       Commissioner, Kargil UT of Ladakh.

2.     Deputy Director, Employment and Counselling
       Centre, Kargil/Ladakh, UT of Ladakh.

3.     District Sub-Ordinate Service Recruitment
       Selection Board, Kargil through its Secretary.

4.     Chief Education Officer, Kargil/Ladakh, UT of
       Ladakh.
                                    ...OFFICIAL RESPONDENT(S)


WP(C) No.252/2023 c/w
WP(C) No.3075/2022                                      Page 1 of 18
 5.    Gh. Mustafa S/o Fida Hussain (age 31 years) R/o
      Minjee, Kargil.

6.    Stazin Rabzes D/o Tashi Tsering (age 29 years)
      R/o Kukshow, Kargil.

7.    Zakir Hussain S/o Mohd. Hussain (age 33 years)
      R/o Kaksar, Kargil.

8.    Raziya Banoo D/o Mohammad Rahim (age 29
      years) R/o Jusgond, Kargil.

9.    Yawar Abbas S/o Mohammad Hadi (age 27
      years) R/o Purtichey Teh Suru, Kargil.

10.   Shabir Hussain S/o Mohammad Ali (age 29
      years) R/o Stapka, Kargil.

11.   Ansar Hussain S/o Ahmed Ali (age 31 years) R/o
      Goma, Kargil.

12.   Altaf Hussain S/o Mohammad Isaq (age 25
      years) R/o Shargole, Kargil.

13.   Mubara Ali S/o Mohd. Abass (age 27 years) R/o
      Hangis, Kargil.

14.   Talib Hussain S/o Mohd Musa (age 31 years) R/o
      Chlikhamboo, Kargil.

15.   Bilal Hussain S/o Zakir Hussain (age 27 years) R/o
      Lan Khore, Kargil.

16.   Jaffar Ali S/o Abdul Gaffar (age 31 years) R/o
      Lamsoo, Kargil.

17.   Zakir Hussain S/o Mohd. Hussain (age 28 years)
      R/o G. M. Pore, Kargil.

18.   Sahira Bano D/o Mohd. Ibrahim (age 29 years)
      R/o Bemathang, Baroo, Kargil.

19.   Richot Domla D/o Mohd. Ibrahim (age: 29 years)
      R/o Icher, Zanskar, Kargil.

20.   Najab Hussain R/o Jaffer Ali (age: 31 years) R/o
      Chiktan, Kargil.

21.   Mohd. Ibrahim S/o Gh. Mehdi (age: 36 years)
      R/o Sanjak, Kargil.


WP(C) No.252/2023 c/w
WP(C) No.3075/2022                                         Page 2 of 18
 22.   Mohd. Ishaq S/o Mursa, Khan (age: 26 years) S/o
      Shakar, Chaktan, Kargil.

23.   Mohd. Ali Khan S/o Nissar Ali (age: 35 years) R/o
      Chanchik, Kargil.
                                     ...PRIVATE RESPONDENT(S)
      Through:-     Mr. T. M. Shamsi, DSGI

WP(C) No.3075/2022:
1.    Fatima Akhtar, aged: 40 years
      W/o Ratsun Khan R/o Zakashan Kargil.

2.    Akbar Ali, aged: 40 years)
      S/o Sheikh Ghulam Mohammad R/o Trespone,
      Kargil.

3.    Leela Banoo, aged: 37 years)
      D/o Asgar Ali R/o Kargil, Main Bazar.

4.    Nargis Banoo, aged: 37 years
      D/o Sheikh Ghulam Mohammad R/o Yonabetah
      Kargil.

5.    Shakeela Shaheen, aged: 30 years
      W/o Mohammad Yaseen R/o Drass, Kargil.

6.    Zaina Banoo, aged: 30 years
      D/o Mohammad Baqir R/o Shahar, Chiktan,
      Kargil.

                                                    ...PETITIONER(S)
      Through: -    Mr. Shuja-ul-Haq, Advocate.

Vs.
1.    Ladakh Autonomous Hill Development Council
      through its Chief Executive Officer, Deputy
      Commissioner, Kargil.

2.    Deputy Director, Employment and Counselling
      Centre, Kargil, Ladak.

3.    District Sub-Ordinate Service Recruitment
      Selection Board, Kargil through its Secretary.

4.    Chief Education Officer, Kargil, Ladakh.



WP(C) No.252/2023 c/w
WP(C) No.3075/2022                                        Page 3 of 18
                                      ...OFFICIAL RESPONDENT(S)
5.    Gh. Mustafa S/o Fida Hussain (age 31 years) R/o
      Minjee, Kargil.

6.    Stazin Rabzes D/o Tashi Tsering (age 29 years)
      R/o Kukshow, Kargil.

7.    Zakir Hussain S/o Mohd. Hussain (age 33 years)
      R/o Kaksar, Kargil.

8.    Raziya BanooD/o Mohammad Rahim (age 29
      years) R/o Jusgond, Kargil.

9.    Yawar Abbas S/o Mohammad Hadi (age 27
      years) R/o Purtichey Teh Suru, Kargil.

10.   Shabir Hussain S/o Mohammad Ali (age 29
      years) R/o Stapka, Kargil.

11.   Ansar Hussain S/o Ahmed Ali (age 31 years) R/o
      Goma, Kargil.

12.   Altaf Hussain S/o Mohammad Isaq (age 25
      years) R/o Shargole, Kargil.

13.   Mubara Ali S/o Mohd. Abass (age 27 years) R/o
      Hangis, Kargil.

14.   Talib Hussain S/o Mohd Musa (age 31 years) R/o
      Chlikhamboo, Kargil.

15.   Bilal Hussain S/o Zakir Hussain (age 27 years) R/o
      Lan Khore, Kargil.

16.   Jaffar Ali S/o Abdul Gaffar (age 31 years) R/o
      Lamsoo, Kargil.

17.   Zakir Hussain S/o Mohd. Hussain (age 28 years)
      R/o G. M. Pore, Kargil.

18.   Sahira Bano D/o Mohd. Ibrahim (age 29 years)
      R/o Bemathang, Baroo, Kargil.

19.   Richot Domla D/o Mohd. Ibrahim (age: 29 years)
      R/o Icher, Zanskar, Kargil.

20.   Najab Hussain R/o Jaffer Ali (age: 31 years) R/o
      Chiktan, Kargil.




WP(C) No.252/2023 c/w
WP(C) No.3075/2022                                         Page 4 of 18
 21.   Mohd. Ibrahim S/o Gh. Mehdi (age: 36 years)
      R/o Sanjak, Kargil.

22.   Mohd. Ishaq S/o Mursa, Khan (age: 26 years) S/o
      Shakar, Chaktan, Kargil.

23.   Mohd. Ali Khan S/o Nissar Ali (age: 35 years) R/o
      Chanchik, Kargil.
                                                   ...RESPONDENT(S)
      Through:-    Mr. T. M. Shamsi, DSGI.

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

                             JUDGMENT

Sanjeev Kumar 'J'

1) These two petitions filed by two set of the petitioners

under Article 226 of the Constitution of India arise out of

judgment dated 14th of December, 2022, passed by the

Central Administrative Tribunal, Srinagar Bench ["the

Tribunal"] in TA No.231 of 2021 titled "Ghulam Mustafa &

Ors. vs. Ladakh Autonomous Hill Development Council &

Ors." whereby the Tribunal has allowed the petition of

respondents 5 to 23 (the private respondents herein) and

directed the respondents 1 to 4 (the official respondents

herein) to revert the private respondents being promoted

beyond their quota. The Tribunal has further directed the

official respondents to take the process of selection for the

posts of Junior Assistants to its logical conclusion by

WP(C) No.252/2023 c/w

issuing appointment orders in favour of the private

respondents as per their merit with effect from the date the

other similarly selected candidates have been appointed in

pursuance of Advertisement Notice No.01 of 2016 dated

16th of January, 2016.

2) Before we advert to the grounds of challenged urged

by Mr. Shuja-ul-Haq, learned counsel representing the

petitioners in both the petitions, we deem it appropriate to

allude to the factual antecedents leading to the filing of

these petitions.

3) The Department of School Education vide its letter

No.SSRB/2-13-2546 dated 24th of September, 2013,

referred 42 posts of Junior Assistants in District Cadre

Kargil to the District Subordinate Recruitment Board,

Kargil, ["the Board"] for making selection. The Board vide

Advertisement Notice No.01 of 2016 dated 16th of January,

2016, invited applications to fill up in as many as 96 posts

of Junior Assistants available in district cadre of various

departments. The notified 96 posts included 42 posts of

Junior Assistants referred by the Education Department.

WP(C) No.252/2023 c/w

4) The private respondents responded to the aforesaid

Advertisement Notice and sought their consideration

against all the 96 posts of Junior Assistants notified by the

Board. They participated in the written test and the viva-

voce and were declared successful, as is evident from the

award list prepared by the Board. While the private

respondents were awaiting their appointment, they came to

know that the Chief Education Officer, Kargil, had, vide its

communication dated 8th of January, 2019, withdrawn

some posts of Junior Assistants. The withdrawal of the

posts by the Chief Education Officer, Kargil, directly

impacted the chances of the private respondents being

offered appointment in the Education Department. The

move of the Chief Education Officer, Kargil, was resented

by respondent No.2 and 3. Vide communication dated 8th of

January, 2019, the Deputy Director, DEDCC, Kargil, wrote

back to the Chief Education Officer, Kargil, and intimated

to him that withdrawal of posts, that too for unjustifiable

reasons, was without any authority.

5) When the Chief Education Officer, Kargil, did not

budge, the private respondents herein were constrained to

file WP(C) No.1882/2019 titled "Ghulam Mustafa & Ors vs.

WP(C) No.252/2023 c/w

Ladakh Autonomous Hill Development Council & Ors". The

learned Single Judge of this Court passed a detailed

interlocutory order on 13th of September, 2019, directing

the Deputy Commissioner/CEO, Ladakh Autonomous Hill

Development Council, to take a decision on the

recommendations of the Committee which had enquired

into the issue of withdrawal of posts on the directions of the

Deputy Commissioner and to ensure that the process of

selection initiated in terms of Advertisement Notice No.01

of 2016 against the posts of Junior Assistants is taken to

its logical conclusion. The learned Single Judge further

directed the Deputy Commissioner to ensure that the posts

utilized for promotees beyond their quota be diverted to the

direct quota and an action in accordance with law is

initiated against the erring officials who had violated the

rules.

6) The petitioners in WP(C) No.3075/2022, namely,

Fatima Akhter & Ors, who were promotee Junior Assistants

in departments other than the Education Department, felt

aggrieved by the interim directions passed by the learned

Single Judge and, accordingly, filed LPA No.242 of 2019. A

Division Bench of this Court vide order dated 14th of

WP(C) No.252/2023 c/w

October, 2019, allowed the Letters Patent Appeal and set

aside the interim order dated 13th of September, 2019

passed in WP(C) No.1882/2019. The petitioners in WP(C)

No.3075/2022 were directed to be impleaded as

party/respondents in the petition and the writ petition was

directed to be listed for consideration before the learned

Single Bench on 15th of October, 2019. This is how the

matter came up before the learned Single Judge for

consideration. However, before the matter could be heard,

with the promulgation of J&K Reorganization Act, 2019,

and constitution of the Tribunal, the writ petition was

transferred to the Tribunal and registered as TA No.231 of

2021. It is this writ petition, which, on transfer to the

Tribunal and registered as TA, has been disposed of by the

Tribunal vide the judgment impugned in both these

petitions.

7) The writ petitioners of WP(C) No.252/2023 have

challenged the impugned judgment, inter-alia, on the

following grounds:

(I) That the Tribunal has ignored to take note of the fact that

the petitioners were not party before the Tribunal and

thus condemned the petitioners unheard;

WP(C) No.252/2023 c/w

(II) That the impugned judgment has travelled beyond the

scope of writ petition filed and the prayers made therein

by the private respondents. The Tribunal did not

appreciate the fact that no relief was sought by the

private respondents against the substantive promotion

of the petitioners made against the posts of Junior

Assistants on the basis of recommendation made by

the Departmental Promotion Committee;

(III) That the Tribunal did not appreciate the fact that the

petitioners were holding the posts substantively and

could not have been directed to be reverted back

without following due process of law;

8) So far as the petitioners of WP(C) No.3075/2022 are

concerned, they have challenged the impugned judgment

on the additional ground that they have been promoted as

Junior Assistants on substantive basis in the departments

other than the Education Department and the grievance of

the private respondents was only against the withdrawal of

posts in the Department of Education. The Tribunal failed

to appreciate that in the absence of any case set up by the

private respondents against the petitioners, it could not

WP(C) No.252/2023 c/w

have issued sweeping directions reverting even the Junior

Assistants promoted in the departments other than the

Education Department.

9) Per contra, Mr. T. M. Shamsi, learned counsel

appearing for the official respondents supported by Mr.

Parvaiz Lone, appearing for private respondents, would

submit that the petitioners in both the petitions, in

particular the petitioners in WP(C) No.252/2023, had been

promoted as Junior Assistants in excess of their quota

illegally by the then Chief Education Officer, Kargil. The

communication, which was impugned before the Tribunal,

was issued by the Chief Education Officer only to save the

promotions of the petitioners of WP(C) No.252/2023. The

withdrawal of the posts directly impacted the private

respondents who, in the absence of withdrawal of 29 posts

by the Chief Education Officer, would have made it to the

select list and appointed as Junior Assistants in the

Education Department against the direct recruitment

quota. It is, thus, submitted that the Chief Education

Officer, by withdrawing 29 posts of Junior Assistants of

Education Department without any lawful authority and

justification, put the private respondents in dock. The

WP(C) No.252/2023 c/w

private respondents have been denied their right to be

appointed despite being in the select list because of the

illegality committed by the Chief Education Officer, Kargil,

to save the illegal promotions of the writ petitioners in

WP(C) No.252/2023 and few others.

10) Having heard learned counsel for the parties and

perused the material on record, it is seen that process of

selection for filling up the posts of Junior Assistants in

District Kargil was initiated by the Board vide

Advertisement Notice No.01 of 2016 dated 16th of January,

2016, and 96 posts notified for selection included 42 posts

of Junior Assistants referred by the Chief Education Officer,

Kargil. As per the information supplied by the official

respondents on affidavit in terms of order dated 14th

November, 2024, the total sanctioned strength of Junior

Assistants in District Cadre Kargil is 67 and the same, as

per rules, are required to be filled up 75% by direct

recruitment and 25% by promotion. That being the

position, 16.7 (17 posts) would fall to the share of

promotees whereas 51 posts would fall to the share of direct

recruits. Presently in District Kargil, only 17 persons are

working as Junior Assistants against the direct recruitment

WP(C) No.252/2023 c/w

quota whereas 23 promotees are in position. 27 posts of

Junior Assistants have been stated to be lying vacant.

11) It is not much disputed before us that when the writ

petitioners of WP(C) No.252/2023 and few others were

promoted as Junior Assistants, there were no posts

available in the promotion quota and the quota meant for

direct recruitment was utilized. It is with a view to justify

such reversion of quota of direct recruitment to promotees,

the Chief Education Officer, Kargil, issued the

communication for withdrawal of 29 posts out of 42, which,

of course, was not permissible in law and this withdrawal

of posts un-necessarily affected the private respondents

who were in merit and would have been selected and

appointed had all the 42 referred posts been filled up by

the official respondents. These illegal promotions of the

Class IV employees utilizing 20 posts of Junior Assistants

falling in the direct recruitment quota were made in the year

2015. Ordinarily, the Chief Education Officer ought to have

filled up the vacant posts of direct recruitment quota by

making only ad hoc and incharge arrangements with the

stipulation that the incharge/officiating promotees shall be

liable to be reverted on the direct recruits becoming

WP(C) No.252/2023 c/w

available by way of selection by the Board. Since the then

Chief Education Officer, Kargil, for reasons best known to

him, did not follow the law and usurped the quota of direct

recruits to the extent of 27 posts of Junior Assistants by

making substantive promotions of the Class IV employees

including the writ petitioners of WP(C) No.252/2023, as

such, he indulged in further illegality and issued

communication to the Board withdrawing in as many as 29

posts out of 42 earlier referred posts to save the illegal

promotions made by him. The communication issued by the

Chief Education Officer withdrawing the posts was rightly

challenged by the private respondents in TA No.231 of

2021, in which the private respondents, inter-alia, made

following prayers:

(I) Writ of Mandamus directing the respondents, particularly respondent No.4, to refer back the posts of Junior Assistants withdrawn by him during the course of process of direct recruitment in pursuance of Advertisement Notice No.01 of 2016 dated 16th January, 2016;

(II) Writ of Prohibition restraining the respondents, particularly respondent No.4, from utilizing the posts of Junior Assistants withdrawn by him during the process of direct recruitment being made in terms of

WP(C) No.252/2023 c/w

Advertisement Notice No.01 of 2016 dated 16th January, 2016; and

(III) Writ of Mandamus directing the respondents to show the petitioners having been selected on the basis of their merit and issue the orders of appointment as Junior Assistants;

12) As is apparent from the aforesaid prayers, the writ

petition was entirely directed against the withdrawal of 29

posts by the Chief Education Officer, Kargil vide

communications dated 9th of June, 2015 and 25th of June,

2016 and no relief has been claimed against the promotions

to the posts of Junior Assistants, if any, made in other

departments. It is also not in dispute that the writ

petitioners, who were the beneficiaries of illegal promotions

made by the then Chief Education Officer, Kargil, usurping

the quota meant for direct recruitment, were not party

before the Tribunal.

13) While we fully concur with the view of the Tribunal

that the promotion of Class IV employees including writ

petitioners of WP(C) No.252/2023 made against the quota

meant for direct recruitment, was illegal and impermissible

in law and also that there was no justification for

withdrawing in as many as 29 posts out of referred 42 posts

WP(C) No.252/2023 c/w

by the then Chief Education Officer, Kargil, yet no order

adverse to the interests of the promotees including the writ

petitioners of WP(C) No.252/2023 could have been passed

without providing them an opportunity of being heard. We

also do not appreciate the passing of sweeping directions in

the TA directing reversion of the writ petitioners of WP(C)

No.3075/2022 who were promoted in the departments

other than the Education Department for their promotion

was not subject matter of challenge before the Tribunal.

14) In view of the aforesaid and having regard to the

peculiar facts and circumstances of this case, we are

inclined to dispose of these petitions by providing as under:

(I) 29 posts of Junior Assistants in the Education Department, which were withdrawn by the then Chief Education Officer, Kargil, vide its communications dated 09.06.2015 and 25.06.2016, shall be deemed to have been restored to the Board for making selection.

(II) The Board shall proceed to conclude the selection and fill up those 29 posts of Junior Assistants in the Education Department by recommending the candidates on the basis of their merit.

WP(C) No.252/2023 c/w

(III) If, with a view to appoint the candidates selected in terms of direction No.(II), a promotee or promotees is/are required to be demoted, the process of law shall be followed and such promotee/promotees shall be afforded an opportunity of being heard.

(IV) The appointment of the candidates consequent upon compliance with the aforementioned directions shall be retrospective from the date other candidates in the selection process initiated pursuant to Advertisement Notice No.01 of 2016 dated 16th January, 2016, were appointed. However, such appointment shall be notional and without any monetary benefits and the regular appointment shall be only with effect from the date the selected candidates are actually appointed.

(V) The entire process of selection culminating in the appointment of the candidates in the manner aforesaid shall be completed within a period of three months from the date a copy of this judgment is served upon the official respondents.

(VI) The writ petitioners of WP(C) No.3075/2022 shall remain un-affected by the judgment of the Tribunal and they shall not be reverted otherwise than in accordance with law.

15) Before we close, we need to mention that as on date,

27 posts of Junior Assistants are lying vacant and,

WP(C) No.252/2023 c/w

therefore, 27 new candidates can be accommodated against

the available vacant posts and it is only for accommodating

two more candidates, the promotees need to make place.

We, however, leave it to the official respondents to act in

their wisdom and ensure that the quota meant for aforesaid

two sources is maintained and such litigation in future is

avoided.

16) The judgment of the Tribunal is modified to the

aforesaid extent and consequently both the petitions are

disposed of in the manner as aforesaid.

                   (PUNEET GUPTA)            (SANJEEV KUMAR)
                       JUDGE                     JUDGE
Srinagar,
13.02.2025
"Mohammad Altaf"

Whether the order is reportable: Yes/No

WP(C) No.252/2023 c/w