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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAJNESH OSWAL, J.
Ramohan Lal - Appellant
Versus
UT of J.&K. and Anr. - Respondents
WP(C) No. 2595 Of 2021 c/w WP(C) No. 4329 Of 2019, CCP(S) No. 174 Of 2020, WP(C) No. 1145 Of 2020
Decided On : 27-07-2023
Promotion - Absorption - Development Act 1970 - [PROMOTION] - [PUBLIC WORKS DEPARTMENT EMPLOYMENT] - [Development Act 1970, Section 5] - The court considered the petitioner's claim for promotion as Assistant Executive Engineer (Civil) and the rejection of the claim based on the initial absorption not being in accordance with Section 5 of the Development Act 1970. The court held that the lack of approval of the Board of Directors of the Jammu Development Authority at the time of absorption was an irregularity that got cured by subsequent promotions. The court also emphasized the iniquity and injustice of denying promotion after 20 years of service. The court quashed the rejection and directed reconsideration of the petitioner's promotion, imposing costs on the respondents for unnecessary litigation.
Fact of the Case:
The petitioner sought promotion as Assistant Executive Engineer (Civil) in the Jammu Development Authority, challenging rejections based on the initial absorption not complying with the Development Act 1970. The court considered the petitioner's 20 years of service and subsequent promotions, emphasizing the injustice of denying promotion based on the initial irregularity.
Finding of the Court:
The court found that the initial irregularity in the petitioner's absorption was cured by subsequent promotions, and it would be unjust to deny promotion after 20 years of service. The court also noted the lack of approved draft recruitment rules and the arbitrariness of the respondents' actions.
Issues: The issues involved the rejection of the petitioner's promotion based on the initial irregularity in absorption and the lack of approved draft recruitment rules, leading to arbitrariness in the respondents' actions.
Ratio Decidendi: The court held that the initial irregularity in absorption was cured by subsequent promotions, emphasizing the injustice of denying promotion after 20 years of service. The court also emphasized the lack of approved draft recruitment rules and the arbitrariness of the respondents' actions.
Final Decision: The court quashed the rejection of the petitioner's promotion, directed reconsideration, and imposed costs on the respondents for unnecessary litigation. The contempt proceedings were also closed.
JUDGMENT :
1. The petitioner was initially appointed as Draftsman (Civil) in the Public Works Department (P.W.D) of the Government of J &K, in the year 1986. Thereafter the petitioner was transferred and posted in J.D.A Division No.-I vide order bearing No. DA/Estt/PF/1515-17 dated 25.03.1986. Pursuant to the representation made by the petitioner to the respondent No.3, the petitioner was absorbed as the Draftsman in the J.D.A vide order No. 491-96 dated 02.01.2003 by the respondent No.3. The petitioner was promoted as Head Draftsman against the available vacancy vide order No. JDA/Estt/Promotion/5061-63 dated 14.07.2004. Thereafter, he was promoted as Junior Engineer Grade II vide order No. 143-JDA of 2011 dated 01.10.2011, notionally with effect from 28.06.2008 and monetarily, prospectively. The petitioner was thereafter again promoted as Assistant Engineer (Civil) notionally with effect from 01.07.2011 to 17.12.2018 and monetarily with effect from 18.12.2018.
2. The petitioner thereafter filed the writ petition bearing WP(C) No. 4329 of 2019 for directing the respondents to promote him as Assistant Executive Engineer (Civil) in the Jammu Development Authority retrospectively with effect from July 2013 and for directing the respondents to place the petitioner as Assistant Executive Engineer (Civil) in the Jammu Development Authority till such time his case is considered for promotion to the post of Assistant Executive Engineer (civil) in the Jammu Development Authority on the substantive basis, with further prayer for directing the respondents to consider the petitioner for further promotion to the post of Executive Engineer with effect from the date he acquired eligibility i.e. July 2013. This court vide interim order dated 11.12.2019 directed the respondents to consider the case of the petitioner for placement as Assistant Executive Engineer (Civil) against the available vacancy in Jammu Development Authority, under rules.
3. The official respondents during the pendency of the abovementioned writ petition, appointed the respondent No. 5 as Assistant Executive Engineer (Civil) in Division-II Sub-Division-IV by deputation, vide order No. 118- PW (R&B) of 2020 dated 13.03.2020. The petitioner filed another writ petition bearing WP(C) No. 1145 of 2020 thereby challenging the order dated 13.03.2020 and also prayed for directing the respondents 1-3 therein to promote the petitioner against the post of Assistant Executive Engineer (Civil) in the Jammu Development Authority Division No. II Sub-Division No. IV. This Court vide interim order dated 13.07.2020 directed that the vacant post of Assistant Executive Engineer shall be filled up by considering the petitioner and by not sending any engineer on deputation.
4. While these two writ petitions were pending before this Court, the respondents in compliance to the interim order dated 13.07.2020 passed in WP(C) No. 1145 of 2020, considered the claim of the petitioner for promoting him as Assistant Executive Engineer and vide order bearing No. JDA/Estt/1372-73 dated 18.08.2020 rejected the claim of the petitioner on the ground that while absorbing the petitioner in Jammu Development Authority, section-5 of the Development Act has not been taken care of i.e. for absorbing the petitioner, the approval of Board of Directors of JDA , as per section-5 of the Act was required which was not taken in the instant case.
5. The petitioner being aggrieved of the order bearing No. JDA/Estt/1372-73 dated 18.08.2020, filed another writ petition bearing WP(C)No. 2595 of 2021 and prayed for quashing the orders bearing No. JDA/Estt/1372-73 dated 18.08.2020 and No. 351-PW(R&B) of 2021 dated 12.11.2021 to the extent that the respondent No.5 has been posted as Assistant Executive Engineer (Civil) in the Jammu Development Authority on deputation, the same being violation of SRO- 882 dated 26.10.2019 and the quota prescribed for deputation against the posts of Assistant Executive Engineer (Civil) in the Jam
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