An individual eligible for promotion holds a fundamental right to consideration, and promotion cannot be subsumed by in-charge postings; the court recognized the need for regularization based on eligibility.

ORDER

(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)

1. Brief facts of the case, as stated in the O.A.s are that applicant vide G.O. 17-FST of 2010 dated 15.01.2010, was placed as in- charge Assistant Aquaculture Engineer (AE). Thereafter, vide G.O. No. 284-FST of 2011 dated 12.07.2011, on the recommendations of DPC/PSC, the applicant's in-charge promotion as Assistant Aquaculture Engineer (AE) was regularised w.e.f., 15.01.2010. Subsequently, vide G.O. No. 227-FST of 2013 dated 22.05.2013, applicant was promoted as in-charge Aquaculture Engineer (AEE) against a clear vacancy. On 28.05.2018 in terms of G.O. 89-ASH of 2018, applicant was given additional charge of the work of Senior Aquaculture Engineer (Xen) and is working on the said post till now. One, Mr. Mohammed Shaban Allaie, who was working as Senior Aquaculture Engineer (Xen), had been given promotion on in- charge basis as Chief Aquaculture Engineer (SE), as a consequence of the same, the applicant being the senior most and being eligible under rules, was given the charge of Senior Aquaculture Engineer in addition to his own duties. Vide order dated 30.12.2021, while the applicant was waiting for regularisation of his service as Aquaculture Engineer (AEE) and further as Senior Aquaculture Engineer (Xen), Respondent No. 2 issued, G.O. 386 PW (R&B) of 2021 dated 30.12.2021 whereby, the services of one Shahijahan Peer as in charge Executive Engineer (Civil), PMGSY, Budgam was placed at the disposal of Animal/Sheep Husbandry Department for further posting in Fisheries Department. Aggrieved the applicant filed O.A. No. 9 of 2022 seeking the following reliefs: -

“A. Direct, respondent No. 1 to regularise the promotion of the applicant for the post of Aquacultue Engineer (AEE) and Senior Aquaculture Engineer (Xen), with all consequential benefits, from the date, he was so given charge of the above said posts, respectively;

B. Quash, G.O. 386 – PW (R&B) of 2021 dated 30.12.2021, so far as it pertains & relates to private respondent No. 3 & where under his services have been placed at disposal of Animal/Sheep Husbandry Department for further posting in Fisheries Department, as being arbitrary, illegal & against the service interest of the applicant.”

2. Vide order 04.01.2022, this Tribunal granted interim relief in O.A. No. 9 of 2022, to the applicant directing the respondents to maintain status quo as on that day with regard to the posting of the private respondent till the next date. In compliance to order of his transfer dated 01.07.2022, Peer Shahijahan Mohammad - Respondent No. 3 in OA No. 9 of 2022 submitted his departure. Thereafter on 21.07.2022, the applicant submitted representation before official respondents bringing into their notice the interim order issued by the Tribunal in OA No. 09 of 2022 and further requesting not to appoint anyone on deputation to the post of Senior Aquaculture Engineer (Xen) in the department as the applicant being the only eligible person for the same in the department itself. However, vide order dated 25.08.2022, the respondents issued G.O. No. 290-PW (R&B) of 2022, whereby one Asgar Ali Wattali, In charge Executive Engineer, Horticulture P&M has been given the additional charge of post of Senior Aquaculture Engineer (Xen) in the Fisheries Department ignoring the claim of the applicant. Aggrieved of aforesaid order dated 25.08.2022, the applicant filed another O.A. bearing No. 1216 of 2022 before this Tribunal seeking quashment of Government No. 290-PW (R&B) of 2022 dated 25.08.2022.

3. It is averred in t