Govt. Generating Lot Of Litigation Due To Ad-hocism In Recruitments, Promotions: Jammu And Kashmir HC [Read Judgement]
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Noting that because of adhocism in recruitment and promotions, a lot of litigation is being generated by the government, the J & K HC has sought comments from the UT as to how this system can be put to an end and all recruitments and promotions are made strictly in terms of the Rules governing the post and not in-charge basis."The system is being followed despite strict observations made...
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Noting that because of adhocism in recruitment and promotions, a lot of litigation is being generated by the government, the J & K HC has sought comments from the UT as to how this system can be put to an end and all recruitments and promotions are made strictly in terms of the Rules governing the post and not in-charge basis.
"The system is being followed despite strict observations made by Hon'ble the Supreme Court way back in the year 2000 in the case of Suraj Parkash Gupta's case", Justices Rajesh Bindal and Rajnesh Oswal said.
In the said case, the practice of giving promotion on incharge basis without regular promotion was deprecated by Supreme Court.
The division bench observed that what is seen in the then State of J&K and now the Union Territory of J&K is that the aforesaid judgment of the Supreme Court is being "complied with less and violated more", as practically in all the departments, promotions are being made on incharge basis and the reasons therefor are not unknown.
"How can an employee, who is substantively working on the lowest post, be given the charge of a highest post in the department without there being regular promotions", wondered the bench.
The court continued to comment that "no one knows their seniority position" and "it is the local adjustment made claiming that he is senior most available and there being a vacancy, he should be given charge of that".
The court remarked that these employees continue working on that post for years together and whenever any transfer is sought to be made, they approach the court and persuade the court to grant interim relief and as a result of that, continue in the same position for years together. "This course adopted by the different departments is generating avoidable litigation as many of the employees approach the court raising the plea that they are senior to the person who has been given charge of some higher post", said the court.
Proceeding further, the bench expressed that not only this, such a course also "demoralizes other employees in the department". Stating that this is resulting in adhocism in the working of different departments of the government, the court noted that the duties, which are required to be discharged by senior and experienced persons, are being handed over to the juniors.
"Another facet of this system is that the employees already in service don't let the posts of direct recruitment filled up and usurp the same by adopting this system", further pointed out the bench.
The bench was of the view that with this practice being followed, the very object of having fresh talent at different levels in the department is defeated. "This also results in delayed recruitments and as a result many of the eligible candidates may be over-age by the time vacancies are advertised", it said, adding that there are many more issues which arise out of this illegal practice being followed.
The petitioner before the bench claimed that he was given the charge of the post of Executive Engineer, hence, could not have been reverted to the post of Assistant Executive Engineer by the CAT, without affording him an opportunity of hearing. "The fact remains that in support of his plea that he was ever given charge of the post of Executive Engineer, there is no document produced on record by him except order dated 28.05.2019, vide which he was given the powers of Drawing and Disbursing Officer in respect of Engineering Division of Urban Local Bodies, Kashmir on account of retirement of the Executive Engineer working there", noted the High Court, opining that the same cannot be termed to be an order giving charge of the post of Executive Engineer to him to claim that before asking him to discharge the duties of I/c AEE, he should have been afforded an opportunity of hearing. "Substantively the petitioner is Assistant Engineer", ruled the bench, dismissing his plea against the CAT's judgment.
In Suraj Prakash Gupta's case, noting that the State of J&K has been flouting basic rules of recruitment by granting relaxation of the rules of direct recruitment as also the rules requiring consultation with Public Service Commission/Departmental Promotion Committee for promotions/recruitment by transfer, the Supreme Court had, inter alia, directed that the State of J&K shall appoint a High Level Committee to go into the question as to whether in any department in government service, direct recruitment of existing vacancies has not been made and if there was unreasonable delay. Further, the top court had required the State to consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors, at the same time, ensuring that no promotees are put in the direct recruitment quota, temporarily or on stopgap and ad hoc basis unless simultaneously proceedings are initiated for direct recruitment through the Service Commission. The Committee was asked by the apex court to recommend in what manner the direct recruitment could keep pace with promotions as contemplated by rules.
"A High Level Committee was directed to be appointed to examine the entire issue. The report of the committee so appointed be also placed before the Court", ordered the High Court last week.
Requiring the Chief Secretary to file his response, the division bench of Justices Bindal and Oswal also sought the following information from all departments:
- Total sanctioned cadre strength in each of the cadres.
- The notified service Rules governing the post.
- Number of posts to be filled up from different sources,such as direct, promotional (giving source of feeder cadre wise, wherever relevant), deputation etc.
- Number of actual employees working in each of the cadres.
- Whether the incumbents holding the posts are regularly recruited or promoted as per Rules or given charge of the post concerned.
- If any of the employee has been given charge of a higher post, the date from which he is continuing on that post and the substantive post held by him.
- Seniority list of each cadre, as on which date and when the same was circulated before finalization. If any of the seniority lists are still under finalization, reasons for delay.
- [Read Judgment]