Jammu & Kashmir High Court - Srinagar Bench
Fayaz Ahmad Lone And Anr vs Ut Of J&K And Ors on 21 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 12
Regular Cause list
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 3391/2023
Fayaz Ahmad Lone and Anr.
..... Appellant/petitioner(s)
Through: -
Mr. S. A. Naik, Advocate
V/s
UT of J&K and Ors.
..... Respondent(s)
Through: -
Mr. Jahangir Ahmad Dar, GA
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE
(ORDER)
21.05.2025
01. The petitioners, two in number invoke the extraordinary writ jurisdiction
vested in this Court under Article 226 of the Constitution of India to throw
challenge to an order and Judgment dated 09.12.2023, passed by the Central
Administrative Tribunal, Srinagar Bench ["the Tribunal"] in OA No.
1159/2022 titled Reyaz Ahmad Dar and Ors. Vs. UT of J&K and Ors.,
whereby, the Tribunal has dismissed the OA filed by the petitioners.
02. Briefly put the relevant facts necessary for disposal of this petition are that
the petitioners were initially appointed as Helpers on 30th October, 2012 and
were holding the qualification of Matriculation at the time of their initial
appointment. In the year 2007, the Superintending Engineer/Executive
Engineer concerned changed their nomenclature from Helpers to Orderlies. In
the final seniority list, issued by the respondents vide Circular No.
PHE/Estt/14667-700 dated 21.08.2017, the petitioners herein were shown at
serial Nos., 14 and 15 respectively and their designation was shown as
Orderlies. Vide communication No. JSD/Estt/11827-62 dated 29.09.2020,
updated final seniority list of qualified Orderlies was issued by the respondents,
in which names of the petitioners' figure at serial Nos., 5 and 6 respectively.
This was again updated by the respondents vide Circular No. JSD/Estt/22045-
80 dated 13.09.2022, wherein also the petitioners came to be shown at serial
Nos., 5 and 6 respectively.
03. In the year 2018, the respondents issued notice to all the eligible
matriculate orderlies for appearing in the Type test, so as to consider them for
promotion to the post of Junior Assistant against 25% quota, earmarked for
them under rules. The petitioners appeared in the examination, but could not
qualify the Type test.
04. Feeling aggrieved by the promotion orders issued by the respondents in
respect of juniors of the petitioners, who had qualified the Type test, the
petitioners filed SWP No. 54/2018. The said writ petition was later transferred
to the Tribunal and re-numbered as TA No. 4677/2020. During the pendency of
the aforesaid writ petition/OA, the petitioners made a representation before the
respondents for grant of promotion to the post of Junior Assistants and
consequently withdrew their writ petition/TA. The representation made by the
petitioners was placed by the respondents before a committee, which vide its
order dated 17.12.2021, recommended that the petitioners and few others be
reverted to the original cadre with all consequential benefits.
05. Feeling aggrieved by inaction of the respondents to implement the
recommendations of the Committee, the petitioners filed OA No. 1159/2022,
which OA has been dismissed by the Tribunal in terms of Judgment impugned
in this petition. Before we proceed to analyse the submissions made by learned
counsel on both sides and evaluate the material on record, we deem it necessary
to take note of the fact that in compliance with an interim order dated
08.12.2022, passed in OA, the case of the petitioners was considered by the
Chief Engineer, Jal Shakti and consequently, a consideration order bearing No.
11605-10 dated 04.07.2023, was passed.
06. From perusal of the consideration order, it clearly transpires that the
petitioners were initially engaged as daily-rated workers and thereafter
regularized as Helpers/ALM. In the year 2007 and 2012, they were shifted to
the ministerial cadre as Orderlies. It is noted in the consideration order that this
change of cadre from Helper to Orderly was not permissible under rules. It is
stated that the petitioners, who were without any avenues of promotion, were
granted time bound non-functional promotions as per SRO 14 of 1996.
07. Having heard learned counsel for the parties and perused the material on
record, we are of the considered opinion that the petitioners, upon their
regularization, were appointed as Helpers, which is a post clubbed with the post
of Orderly as well as Chowkidar and figures as class VI in Schedule-II 'B'
(Ministerial) of the Engineering Subordinate Service Recruitment Rules, 1997
["the Rules of 1997"], issued in terms of SRO 180 of 1997. It is thus not in
dispute that the posts of Orderly and Helper are class VI posts borne on
Schedule-II 'B' (Ministerial) of the Rules of 1997. That being the position,
changing of the nomenclature of the petitioners from 'Helpers' to 'Orderlies'
and vice-versa, does not involve the change of cadre or even class. It needs to
be clarified that the Rules of 1997 are applicable to all Wings of Public Works
Department, viz Hydraulic, Road and Building, Mechanical, including Design
Directorate and Store Procurement Department, having common designation. It
is, however, correct that the post of Helper borne on the cadre of the J&K
Public Health Engineering Department (Subordinate) Service Recruitment
Rules, 1989 ["the Rules of 1989"], figures in Schedule-C (Civil Wing
Operation and Maintenance J&K P.H.E Department) and the minimum
qualification prescribed for the post is middle pass with ITI certificates in Civil
Trades. The petitioners are only matriculate without any qualification of ITI in
any Civil Trades. Upon their regularization, they could not have been appointed
as Helpers, the post indicated as category-C of class VI of Schedule-C of the
Rules of 1989.
08. Viewed thus, we have no manner of doubt that the petitioners upon their
regularization were appointed as Helpers/Orderlies in the respondent
department under the Rules of 1997 and, therefore, were entitled to their
promotion to the post of Assistant Storekeeper as well as Junior Assistant/
Typist. For facility of reference, the relevant extract of Schedule-II 'B'
(Ministerial) is set out below:-
Class Category Designation of Grade Minimum qualification Method of
the post for direct recruitment recruitment
IV A Junior [3050-4910] [(i) Graduation from any (i) 75% by direct
Assistant/Typist recognized University recruitment.
with knowledge of type
(ii) 25% by
writing having not less
promotion from Class
than 35 words speed per
V and VI having type
minute
writing speed at least
(ii) Six months 30 words per minute.
certificate course in If sufficient number
Computer applications of candidates not
from a recognized available in
institute.] promotion quota in
particular calendar
year, vacancies shall
be filled up by direct
recruitment.
B Assistant 950-1500 Matriculation (i) 50% by direct
Storekeeper Examination or its recruitment.
equivalent or above
(ii) 50% by
from any recognized
promotion from Class
Institute/University.
V and VI Orderlies/
Chowkidars/Helpers
Office having
minimum academic
qualification as
Matriculation on the
basis of seniority-
cum-merit.
09. From reading of the extract reproduced above, it is crystal clear that a
person working as Helper, Chowkidar or Orderly is entitled to be considered
for promotion to the post of Assistant Storekeeper on the basis of seniority-
cum-merit, provided he or she possesses minimum academic qualification of
matriculation. Similarly, an Orderly, Chowkidar/Helper is also entitled to be
promoted to the post of Junior Assistant, provided he or she has type writing
speed of at least 30 words per minute, for which the department conducts
Typing tests as and when the post of Junior Assistant in the quota of
promotion becomes available.
10. In view of the clear position emerging from the reading of the relevant
rules, the order of consideration dated 30.11.2022, which was subject matter
of challenge before the Tribunal is bad in the eye of law and, therefore,
cannot sustain. The Tribunal has not appreciated the controversy in right
perspective and has erroneously dismissed the OA. Although the petitioners
have not specifically prayed for a relief of seeking a direction to the
respondents to consider them as Orderlies/Helpers in the ministerial cadre of
the Rules of 1997, yet having regard to the facts and circumstances of the
case and to address the grievance of the petitioners once for all, we deem it
appropriate to dispose of this petition by providing as under:-
I. That the impugned order and Judgment of the Tribunal is set
aside.
II. The respondents are directed to treat the petitioners having been
appointed as Orderlies/Helpers in class VI of Schedule-II 'B'
(Ministerial) of the Rules of 1997.
III. That the petitioners shall be considered for promotion to the
posts of Assistant Storekeeper/Junior Assistant, strictly as per
Rules of 1997. The consideration of the petitioners for
promotion to the post of Assistant Storekeepers in the quota of
promotion shall be on the basis of merit-cum-seniority, whereas
the promotion to the post of Junior Assistant shall be on the
basis of qualifying the Typing test and achieving the speed of at
least 30 words per minute. The seniority of eligible candidates
shall of course be relevant in making such promotions.
IV. The respondent department shall undertake an exercise to find
out as to whether there is any post of Assistant Storekeeper in
the promotion quota, lying vacant and, accordingly, initiate the
process to fill up the same by way of promotion by according
consideration to the petitioners in the manner aforesaid. The
respondents shall also find out the number of posts of Junior
Assistants, lying vacant in the promotion quota and,
accordingly, take appropriate steps to fill up the said posts by
promotion by according due consideration to the petitioners in
the manner aforementioned.
11. Disposed of along with all connected CM(s).
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR
21.05.2025
"Mohammad Yasin Dar"
Whether the ORDER is reportable: Yes/No
