High Court Deprecates Practice Of Deputing "Outsiders" In J&K State Road Transport Corporation Instead Of Promoting Existing Eligible Employees

The Jammu and Kashmir and Ladakh High Court has sternly deprecated the practice of importing officers from Govt departments to Corporations for such being in contravention of the Rules and hence illegal in nature.

The bench comprising Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal was hearing an appeal filed by J&K State Road Transport Corporation (JKSRTC) challenging a Single bench order whereby Respondents (employees) were held to be entitled to promotion as Deputy General Manager in the Corporation with effect from February 11, 2013 and as General Manager with effect from February 11, 2018 with all consequential service benefits.

Further, the Single Judge had also directed the Corporation to consider the case of Respondent-petitioner in the light of the observations made in the judgment and pass appropriate orders of substantive promotion of the petitioner.

Background :

The case of the petitioner before the Writ Court was that while he was representing for his confirmation in the post of DGM and consequent promotion to the post of General Manager, the Corporation vide communication dated November 26, 2015 had requested the Administrative Department for appointment of Abdul Hamid Wani, Drilling Engineer in the Geology and Mining Department as General Manager on deputation.

The Respondent-petitioner had accordingly challenged the said communication and sought directions upon the corporation for confirming his promotion as DGM from the date when he was eligible and was assigned the charge of the post with all consequential benefits. Petitioner also sought relief for further promotion to the post of GM with effect from 28th July 2012, in conformity with the Regulations of 2013.

The writ court after hearing both the sides had held the Respondent-petitioner entitled for promotion as Deputy General Manager w.e.f. 11.02.2013 and as General Manager w.e.f. 11.02.2018 with all consequential service benefits. Writ court further directed the Appellants-respondents to consider the case of petitioner in the light of observations made and pass appropriate orders of substantive promotion of the petitioner as Deputy General Manager (Main) and General Manager respectively w.e.f. the dates indicated above and release all consequential benefits, if any, in his favour within a period of two months from the date copy of this judgment.

Arguments:

The appellants in their plea argued that the directions had been passed by the Single Judge on the basis of presumption of promotion of respondent no.1 to the post of DGM as on 11th February 2013 and completion of five years' experience in the said post as a matter of requirement of promotion to the post of GM. The appellant further submitted that the finding has been recorded by Single Judge without taking into consideration the availability of post of GM was required to be filled up by selection amongst other eligible candidates and, thus, the direction by Single Judge, which is based on presumptions and assumptions could not sustain the test of law and was liable to be set-aside.

The respondents Contesting the plea argued that the respondent on the date of promulgation of the Regulations of 2013, was having more than seven years' experience as Works Manager and was thus entitled to be promoted as DGM, which post he was holding in incharge capacity since 28th July 2007 and therefore the Single bench had rightly ruled in his favour and as such need not attract any interference by the Division bench.

Observations:

The Division Bench while adjudicating upon the matter observed that the Corporation is empowered to lay down criteria for promotion and all the promotions shall be made on the ground of merit, ability, performance, besides good report and the seniority is to be considered only when the merit and ability is approximately equal.

"Regulation 12 of the Regulations of 2013 in categoric terms provides that all the posts are to be filled up by promotion on the basis of recommendations of the designated promotion committee of the Corporation based on merit, suitability and seniority. Thus, merit, suitability and seniority is yet to be assessed by the committee and without having the opinion of the committee, the judgment impugned to the extent of holding petitioner entitled to promotion as DGM and GM retrospectively is in contravention to the provisions of law", Justice Nargal for the bench further observed.

Pointing towards the recruitment rules in vogue, which reveal that the post of DGM and GM can be filled up 100% by promotion by way of selection from the feeding category with requisite experience, the bench observed that Rules nowhere provide that the outsiders can be brought in by way of "deputation" infringing fundamental right of persons, who are born on the establishment of the Corporation and have preferential right of being considered for promotion.

"To bring the officers from outside by way of deputation to the Corporation can be only in the eventuality if no suitable person is found eligible in the Corporation after assessing their merit, eligibility and suitability", Justice Nargal observed.

Evaluating the single bench judgement on the touchstone of established legal principles the bench observed that since the direction passed by the Single Judge with regard to entitlement of petitioner for promotion to the post of DGM (Maintenance) in Corporation is premature as the issue in question was pending adjudication before the competent authority and hence merits being set-aside, the extent of holding petitioner entitled for promotion.

"We direct the Corporation to place the petitioner at an appropriate place in the seniority list once the decision is taken by competent authority with regard to his eligibility, merit coupled with seniority for the post of DGM and subsequently for the post of GM (if he is entitled)", concluded the bench.

Case Title : Managing Director J&K SRTC Vs Syed Arshad Tramboo & Ors

Citation : 2022 LiveLaw (JKL) 117

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