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JKLR-Part(IV) SWP 451/2000 Back To Index |
(2001)
1 J & K LAW REPORTER
477
SWP No. 451 / 2000, decided on 9.8.2000.
Constitution of India, Art. 16 - Stop-gap arrangement - Petitioners adjusted as
Lecturer DIET in their own pay and grade - Continued for ten years - Posts not referred to
the Departmental Promotional Committee / Public Service Commission - Whether entitled to
regularisation - Held : Petitioners not entitled to the relief - Direction to the
respondent to fill up the posts within four months, considering all eligible candidates
including petitioners.
In the present case, if the prayer of the petitioners is allowed, the senior
persons waiting to seek consideration for promotion to the next higher post, are likely to
be effected. The petitioners merely because of their adjustment against the posts of
senior Lectures in stop-gap arrangement for aperiod of six months or till the posts are filled up by Public Service
Commission / Departmental promotion committee, cannot build any right to seek
regularisation..
[Para
6] Advocates who appeared in this case : JUDGMENT AND ORDER
Petitioners seek issuance of writ of Mandamus directing the respondents to
regularise the services of the petitioners against the post of Sr. Lectures, DIET (HOD)
w.e.f. 04-10-94 and 30-03-95 respectively, the date when the Petitioners were directed to
work against the posts.
The Petitioners while working as Sr. Lecturers in the Department of Education,
petitioner No.1 vide Govt. order No. 430-Edu of 1994 dated 4.10.1994 and Petitioner No. 2
vide Govt. order No. 638-Edu of 95 dated 30.03.95, were adjusted as Senior Lecturers DIET,
on the terms and conditions stipulated in the order extracted portion whereof reads as
under : “Sanction is accorded to the
adjustment of following Lecturers / Sr. Lecturer DIET in the various District Institutes
of Education and Trainings for a period of six months or till the posts are filled up by
the DPC /PSC whichever is earlier. The adjustment of these Sr. Lecturers shall be purely
on stop gap arrangement and it shall not confer any preferential claim or right to the
incumbent at the time of selection by the DPC / PSC. They will be entitled to the charge
allowance as admissible under rules.”
The Petitioners seek regularisation on the ground that they have been continuing
against the posts of Sr. Lecturers DIET since their adjustment in the year 1994 and 1995
respectively, and not for the reason that they being the senior most Lecturers are
required to be considered for promotion against the higher post of Senior Lecturers DIET. It has been admitted by the learned
counsel for the petitioners that the post of Senior Lecturer in Adult Education Wing and
the School Education Wing form the same
cadre. The petitioners seek their regularisation against the posts only on the ground that
they have been working against the posts since 1994 and 1995, relying upon the judgement delivered in case Vijay Kumar v. State and Others, SLJ 1994, 165.
Perusal of the Judgement reveals that the posts of Research Officers in the Department of
Education were created and the said petitioners being already in Government Education Gazetted services, were
directed to hold the posts of the higher pay scale in their own pay and grade. They
continued for more than ten years, but were not considered to hold the posts
substantively. No senior to those petitioners
was to be effected and admittedly, those petitioners were promoted in their own pay and
grade, in accordance with rules. The respondents’ objection to the appointment of
those petitioners to the post of Research Officers in the higher pay scale, was that the posts have never been
referred to the Public Service Commission or Departmental promotion Committee for
selection of the petitioners. Under such circumstances, the court granted the relief to those
petitioners observing that the formality of seeking approval of Public Service Commission /
Departmental Promotion committee can be
dispensed especially when the petitioners are working as Research Officers for a period
over ten years.
Mr. Qayoom has also relied upon the judgement
delivered in case “Secretary-cum-Chief
Engineer, Chandigarh v. Hari Om Sharma and Others” reported in AIR 1998 SC 2909,
wherein the stop-gap arrangement was continued against the
post of Junior Engineer-I and the court held the petitioner entitled to promotion. The facts of the case are
that the promotee-respondent was the senior most person in the cadre of non-diploma
holders and had also put in ten years of service which is the requirement of the rules.
The Supreme Court while upholding the judgement of the Tribunal observed in para 6 of the
judgment that : “Having regard to these facts, we
are of the view that the Tribunal was fully justified in ordering that the respondent
should be promoted on the basis of “quota” fixed for non-diploma holders with 10
years of service and not on the basis of
intergrated seniority. The Tribunal was also justified in ordering payment of salary to
the respondent for the post of Junior
Engineer-I with effect from 1990 when he was made to work on that post. It is true that the respondent, was promoted in stop-gap
arrangement as Junior Engineer-I but that by itself would make no difference to his claim of salary for that post. If a person is put
to officiate on a higher post with greater responsibilities, he is normally entitled to
salary of that post. The Tribunal has noticed
that the respondent has been working on the post of Junior Engineer-I since 1990 and
promotion for such a long period of time cannot be treated to be a stop gap
arrangement.”
The promotion, considering the long stop gap arrangement, was within the respective
quota of non-diploma holders and no senior to the promotee was effected or superceded. The
apex court has not held that the public servant put in higher pay scale in stop-gap arrangement is entitled to seek
promotion / regularisation superceeding his seniors. Both these judgements relied upon by
the learned counsel for the petitioners are distinguishable on facts for the reason that
no senior member of the service belonging to the said cadre was to be effected on account
of the seniority.
In the present case, if the prayer of the petitioners is allowed, the senior
persons waiting to seek consideration for promotion to the next higher post, are likely to
be effected. The petitioners merely because of their adjustment against the posts of
Senior Lectures in stop-gap arrangement for a period of six months or till the posts are filled up by Public Service
Commission / Departmental Promotion Committee, cannot build any right to seek
regularisation in view of the law laid down by the Supreme Court in AIR 1991 SC 1145,
holding that : “.......asking an officer who
substantively holds a lower post merely to discharge the duties
of a higher post cannot be treated as a promotion. In such a case he does not get the
salary of the higher post; but gets only that
in service parlance is called a ‘charge allowance’. Such situations are
contemplated where exigencies of public service necessiate such arrangements and even consideration
of seniority do not enter into
it. The person continues to hold his
substantive lower post and only discharges the duties of the higher post essentially as a
stop gap arrangement.” It is further held : “......This contention ignores the
fact that an ‘in charge’ arrangement is not a recognition of or is necessarily
based on seniority and that, therefore, no
rights, equities or expectations could be built upon it”
For the aforesaid reason, petitioners are not found entitled to the relief, prayed for. However, the petition is disposed of
directing the respondents to consider all the eligible candidates, including the petitioners, to
fill up the post in question within a period of four months. ......... |