DB seeks Govts comment for ending I/C Basis

09/08/2020

JAMMU, AUGUST 8: A Division Bench of J&K High Court Comprising Justice Rajesh Bindal and Justice Rajnesh Oswal while hearing a petition observed that because of adhocism lot of litigation is being generated by the government, this court would like to seek comments from the government 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 I/c basis. The system is being followed despite strict observations made by the Supreme Court way back in the year 2000 in the case of Suraj Parkash Gupta's case. A High Level Committee was directed to be appointed to examine the entire issue.DB further directed that the report of the committee so appointed be also placed before the Court. For the present information would be required from all the departments giving the following details, 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 and 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. DB observed that a reference to the principles laid down by Hon'ble the Supreme Court in Suraj Prakash Gupta's case (supra) is also relevant in the case in hand. Relevant paragraph there from is extracted that Apart from the above specific directions, we think this is an occasion to issue certain general directions to the State of J&K. As pointed out earlier, 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 PSC/DPC for promotions/recruitment by transfer. In order to ensure that this is not done in future, directed that the State of J&K shall appoint a High Level Committee within a month from today 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. The State will consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. But it will ensure that no promotees are put in the direct recruitment quota, temporarily or on stopgap and adhoc basis unless simultaneously proceedings are initiated for direct recruitment through the Service Commission. The Committee will recommend in what manner the direct recruitment could keep pace with promotions as contemplated by rules. Similarly, the Committee will find out in which department the ad hoc/stopgap promotees are languishing without their cases being referred to the Service Commission/DPC for regularization within their quota. The State of J&K will ensure that no relaxation of the basic recruitment rules is made for direct recruitment through PSC, or for purposes of regular promotions/recruitment by transfer. The recommendations of the Committee referred to above may be considered by the Government and implemented in accordance with the rules and in accordance with law without unreasonable delay." DB further 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. This practice is prevalent more in Engineering Department. The reasons therefor are not unknown. How an employee, who is substantively working on the lowest post, can be given the charge of a highest post in the department without there being regular promotions. No one knows their seniority position. 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. 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 to grant interim relief and as a result of that, continue on 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. Not only this such a course also demoralizes other employees in the department. This is resulting in adhocism in the working of different departments of the government. The duties, which are required to be discharged by senior and experienced persons is 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. 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. There are many more issues which arises out of this illegal practice being followed.
DB observed that the controversy in the case inhand, the petitioner is aggrieved of the order passed by the Tribunal refusing to grant interim relief to him. He 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, 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. 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.
DB further observed that in the absence of any supportive documents to show that the petitioner was ever given the charge of post of Executive Engineer no prima facie, case is made out in his favour to grant him an interim relief. There is no error in the order passed by the Tribunal. The writ petition is, accordingly, dismissed. However, it is made clear that nothing said above shall be considered as an expression of opinion on merits. This Court had to notice few facts and record some findings for the reason that the matter was argued in detail, least the parties would have been aggrieved of the fact that their arguments have not been noticed.
Otherwise, the matter is listed before the Tribunal on 05.08.2020 for consideration on merits after the objections are filed by the respondents therein. JNF

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