SWP/617/2018 of HUILAL AHMAD DEEWANI Vs HOUSING AND URBAN DEVELOPMENT(State Government) on 31 December 2020

Conclusion

JUDGMENT

01. Both theses petitions involving similarly facts as well as law, are taken up for disposal by way of common judgment.

02. In the writ petition bearing SWP No. 617/2018, the petitioner has prayed for the following reliefs;

i.A writ of the nature of certiorari for quashment of Departmental Promotion Committee Decision issued vide No. HUD/LSG/SMC-JMC/46-2017 Part-II dated 13/10/2017 to the extent of deferment of placement of the petitioner as Joint Commissioner (Adm), which has an effect of denial of promotion to the petitioner for the post of Joint Commissioner (Adm); and

ii.Issuance of Writ of Mandamus commanding the respondents not to fill the post of Joint Commissioner (Adm) in the Respondent Corporation by deputation from other organization/Services;

iii.With a further command to promote the petitioner to the post of Joint Commissioner (Adm) on the basis of the seniority in absence of the rules and by terminating stagnation of the petitioner alongwith other Corporation borne officers and on the same lines the promotion of Corporation Engineers has been accorded by the Respondents through impugned DPC dated 13/10/2017.Commissioner (Adm) on the basis of the seniority in absence of the rules and by terminating stagnation of the petitioner alongwith other Corporation borne officers and on the same lines the promotion of Corporation Engineers has been accorded by the Respondents through impugned DPC dated 13/10/2017.

03. In the writ petition bearing SWP No. 960/2018, the petitioner has prayed for the following reliefs;

i.Issuance of Writ of Mandamus commanding the respondents not to accord consideration viz-z-viz the petitioner for the post of Joint Commissioner (Adm) in the Respondent Corporation as directed by this Hon’ble Court and till such consideration by the Respondent Government, the petitioner shall be given similar treatment as accorded to his counterpart in Planning Wing of the Corporation;accord consideration viz-z-viz the petitioner for the post of Joint Commissioner (Adm) in the Respondent Corporation as directed by this Hon’ble Court and till such consideration by the Respondent Government, the petitioner shall be given similar treatment as accorded to his counterpart in Planning Wing of the Corporation;

ii.With a further command to the respondents to restrain the Respondent Government from adjusting any other official out side the organization on deputation or otherwise till claim of the petitioner is not considered as directed by the Hon’ble Court and also till the time the DPC is convinced by the Respondent Government.Government from adjusting any other official out side the organization on deputation or otherwise till claim of the petitioner is not considered as directed by the Hon’ble Court and also till the time the DPC is convinced by the Respondent Government.

iii.promote the petitioner to the post of Joint Commissioner (Adm) on the basis of the seniority in absence of the rules and by terminating stagnation of the petitioner alongwith other Corporation borne officers and on the same lines the promotion of Corporation Engineers has been accorded by the Respondents through impugned DPC dated 13/10/2017.basis of the seniority in absence of the rules and by terminating stagnation of the petitioner alongwith other Corporation borne officers and on the same lines the promotion of Corporation Engineers has been accorded by the Respondents through impugned DPC dated 13/10/2017.

04. Briefly stated the case of the petitioner is that, the petitioner has been serving the respondent department in the different capacities and by dint of his merit and honesty coupled with the seniority, has earned the position of Secretary since 1[st] of April, 2011 till date. It is submitted that the Corporation despite having the power to make the rules to regulate the services of the employees but till date no service rules have been framed by the Corporation. it is further submitted that the petitioner being the senior most in the Administrative wing of the Corporation is fully eligible and competent to hold the post Joint Commissioner, Administration which fact of being senior most is demonstrated in the final seniority list issued vide order No. 1717 of 2016 dated 22[nd] of November, 2016. It is further averred that the petitioner the only eligible candidate available to man the post of Joint Commissioner, Administration, was also recommended by the Respondent No. 3, for his placement as Joint Commissioner vide recommendation bearing No. SMC/PS/COM/811-12 dated 14[th] of March, 2015 and the Respondent Government agreed for placement of the petitioner as Joint Commissioner, Administration by directing the Respondent No. 3 to include the aforesaid proposal in the agenda of the departmental promotion committee. It is also submitted that the post of Joint Commissioner, Administration held by one Bashir Ahmad Khan after his retirement got vacant and the charge of Joint Commissioner, Administration (SMC) was assigned to the petitioner. The further plea of the learned counsel for the petitioner is that the Departmental Promotion Committee vide its No. HUD/LSG/SMC/JMC/46-2017 Part-II dated 13[th] of October, 2017, which order came to be challenged by the petitioner by medium of writ petition bearing SWP No. 617/2018 and this Court on consideration of the matter, in terms of order passed on 6[th] of April, 2018, while issuing notice to the other side, directed the respondents to consider the claim of the petitioner on the strength of his eligibility and also with reference to the judgements mentioned in the said order for his elevation as Joint Commissioner (Adm), Srinagar Municipal Corporation.

05. Learned appearing counsel for the petitioner further submits that the denial of regularization by the respondents on the count that the rules have not been framed by the corporation and can be considered only after revision of Jammu/ Srinagar Subordinate Services Rules of 1990 and accordingly deferred the regularization/promotion of the petitioner including other subordinate officers of the petitioner without any valid reason or just cause formed a ground for the petitioner to file yet another writ petition bearing SWP No. 960/2018 on the grounds detailed out in the petition.

06. On consideration of the matter, this Court passed order dated 10[th] of May, 2018 in writ petition bearing SWP No. 960/2018. The order being relevant is taken note of; “Prior to filing of the instant petition, the petitioner had filed a writ petition bearing SWP No. 617/2018, MP No. 01/2018, and this Court in terms of order passed on 06.04.2018, had directed the Respondent No. 1 and 2, to consider the claim of the petitioner on the strength of his eligibility and also with reference to the judgments reported in AIR 1989 SC 1972 and 2004(9) SCC 65, for his adjustment as Joint Commissioner (Adm), Srinagar.

Learned appearing counsel for the petitioner submits that the Government is in the process of making arrangement as the incumbent Joint Commissioner, (Administration), has been transferred in terms of Government order No. 686-GAD of 2018, dated 24.04.2018 and posted as Managing Director, J&K, Horticulture Produce, Marketing and Processing Corporation, therefore, the instant petition.

Notice in the main petition, returnable within a period of four weeks.

Notice in MP No. 01/2018 also, returnable within the same period.

In the meanwhile, subject to objections from the other side and till next date of hearing before the Bench, the respondents shall consider the claim of the petitioner as directed in terms of order passed on 06.04.2018, in supra referred writ petition, against the post of Joint Commissioner (Administration).”

07. The respondents have filed their reply, resisting the claim of the petitioner. In terms of order dated 10[th] of May, 2018, the respondents have considered the claim of the petitioner, which consideration has resulted in issuance of order bearing No. 1786-HUD of 2018 dated 29[th] of August, 2018, in terms whereof, the claim of the petitioner for his promotion as Joint Commissioner (Adm), Srinagar Municipal Corporation, stands rejected. The petitioner has not challenged the said order and unless the said order is challenged by the petitioner on the available grounds, no relief can be granted for directing the respondents to consider the petitioner for regularization/ promotion against the post of Joint Commissioner (Adm), Srinagar Municipal Corporation.

08. In view of above, both the writ petitions shall stand disposed of with liberty to the petitioner to challenge the order supra is he so chooses. Meanwhile, the respondents shall also settle the claim of the petitioner on the touchstone of law and the rules governing the subject.

10. Both the writ petitions alongwith connected IA(s)CM disposed of as above.

11. Registry to place copy of this order on each file.

Srinagar: 31.12.2020.“Hamid”

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(Ali Mohammad Magrey) Judge

i.Whether order is speaking ? Yes/No. ii.Whether order is reportable ? Yes/No.