HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 273 OF 200.AND SWP No. 1856 OF 201.1)Anil Razdan and anr 2)Sanjeet Kumar Sharma and ors. Petitioners High Court of J&K and ors Respondent !Ms. Monika Kohli, Advocate Mr. Rahul Pant, Advocate ^Mr. Amrish Kapoor, Advocate. Mr. P.N.Raina, Sr. Advocate with Mr. J.A.Hamal, Advocate. M/S Virender Bhat & Pranav Kohli, Advocates Honble Mr. Justice J.P.Singh, Judge Date:
17. 11.2012 :
: JUDGMENT
1) The petitioners-Anil Razdan and Neelam Kumari, and the respondents-Nisha Saraf, Sanjay Kumar Bhat and Sanjay Kumar Verma, in Writ Petition SWP No.273/2009, were appointed as Data Entry Operator/ Junior Assistant in the pay scale of Rs. 950-1500 in the High Court Staff Service, governed by the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968, vide High Court of Jammu and Kashmir, Srinagars Order No.347 of 1995 dated 26.08.1995. Pursuant to the directions issued on the Writ Petitions filed by various Data Entry Operators including the 2 petitioners and the respondents, requiring the State Government to grant and pay them salary in the pay scale of Rs.1400-2300 (pre-revised) w.e.f. 01.03.1998 ensuring that 25% of the sanctioned posts were put in the higher grade of Rs. 2000-3200 (pre-revised), on selection from amongst the Data Entry Operators, who had completed five years satisfactory service, petitioner No.2 and respondent Nos.3 to 5 were placed in the Selection Pay Scale of Rs.6500-10500 w.e.f. 13.12.2006. It was in the year 2008 that on the basis of the Report submitted by the Committee of Honble Judges that the Chief Justice, in exercise of the powers vested under Rule 6 of the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968, prescribed Qualifications and Mode for recruitment and promotion to various posts in the Cadre of the Service. The first order issued in this behalf was Order No.312 dated 28.07.2008, which was later substituted by Order Nos.508 dated 15.10.2008 and 579 dated 24.10.2008. It is Order No.579 dated 24.10.2008, which is presently in force. The Mode of recruitment to the post of Data Entry Operator and promotion therefrom to higher posts i.e. Selection Grade Data Entry Operator, Section Officer (Computer), Assistant Registrar (Computer) and Deputy Registrar (Computer), too was prescribed afresh in the orders referred to herein above. In terms of the latest Order dated 24.10.2008, Graduation from any recognized 3 University with Diploma in Computer Application or BCA recognized by the State Government is the prescribed essential qualification for above mentioned posts. Number of adjustments/promotions to the Cadre of the Service were made vide Order No.667 dated 24.11.2008. The promotions/adjustments made vide order referred to hereinabove included the promotion and adjustment of the petitioners and respondent Nos.3 to 5, who were promoted/adjusted in the following manner:- i) Nisha Saraf- respondent No.3, Selection Grade Data Entry Operator, was temporarily promoted as Section Officer (Computer) in the grade of Rs.7450-11500. She was temporarily ordered to work against the post of Deputy Registrar (Computer) in her own pay and grade. ii) Sanjay Kumar Bhat-respondent No.4, Selection Grade Data Entry Operator, was temporarily adjusted as Assistant Registrar (Computer) in his own pay and grade. iii) Sanjay Kumar Verma-respondent No.5, Selection Grade Data Entry Operator, was temporarily adjusted as Section Officer (Computer) in his own pay and grade. iv) Petitioner No.1-Anil Razdan, Data Entry Operator, was temporarily promoted as Selection Grade Data 4 Entry Operator. v) Petitioner No.2-Neelam Kumari, Selection Grade Data Entry Operator, was temporarily adjusted as Assistant Registrar (Computer) in her own pay and grade. These promotions/adjustments were ordered to remain in force till further orders.
2) Aggrieved by the promotion of respondent No.3, the petitioners represented thereagainst questioning it on the ground that being not possessed of the essential qualification of Diploma in Computer Application, respondent No.3s promotion was illegal and unwarranted. Reminder to their Representation too having not been responded to, they have approached this Court seeking, quashing of respondent No.3s promotion as Section Officer (Computer), her adjustment as Deputy Registrar (Computer), adjustment of respondent No.4 as Assistant Registrar (Computer) and respondent No.5 as Section Officer (Computer) besides directions for promotion of petitioner No.1 as Assistant Registrar (Computer) and petitioner No.2 as Deputy Registrar (Computer).
3) The petitioners Writ Petition was still pending consideration when respondent Nos.3 to 5 joined Sanjeet Kumar Sharma and other Data Entry Operators in filing Writ Petition SWP No.1856/2011 seeking quashing of Order No.579 dated 24.10.2008, besides a command to the High Court to adhere to the earlier qualifications prescribed 5 for the post of Data Entry Operator i.e. Graduation with minimum typing speed of 40 words per minute and knowledge/experience of computer. Pending Motion Hearing, interim directions were issued by the Court to the Registrar General, High Court of Jammu and Kashmir that in case of promotions, candidates possessing graduation from any recognized University with Diploma in Computer Application be considered. It was clarified that recognition of Diploma in Computer Application from the State Government shall not come in the way of the High Court in considering the candidates for promotion. The promotions, if made, were to remain subject to the out come of the Writ Petition.
4) The parties to SWP No.273/2009 have filed their pleadings, additional pleadings and documents in support of their respective stand. Written Submissions too have been filed.
5) Looking to the nature of respondent Nos.3 to 5s defense to Writ Petition SWP No.273/2009 and similar pleas projected in Writ Petition SWP No.1856/2011, both the Writ Petitions were heard together, SWP No.273/2009 for final disposal and SWP No.1856/2011 for further orders.
6) During the pendency of SWP No.273/2009, it was brought to the notice of the Court that the High Court may not be averse to consider the petitioners grievance for taking appropriate decision on challenge to respondent No.3s promotion as Section Officer (Computer), in view of the Communication received by it from Director, Technical 6 Education, Jammu and Kashmir, Jammu under his not DTE/POLY-3/234/725 dated 20.12.2010 indicating that Shri Sharda Education Foundation Avinash Memorial Computer Centre, Opposite Post Office, Talab Tillo, Jammu from where respondent No.3 was stated to have obtained qualification of Computer Application was neither affiliated with nor recognized by the Jammu and Kashmir State Board of Technical Education. The case was accordingly adjourned, requiring the petitioners to approach the High Court Administration which was left free to take appropriate decision on the petitioners Representation, notwithstanding pendency of the Writ Petition.
7) The High Court administration, however, did not take any decision in the matter within the stipulated and the extended time granted to it to do the needful. The matter was, therefore, listed for final hearing.
8) Before the case could be reserved for judgment, learned counsel for the High Court informed that some action was contemplated by Lord Chief Justice on challenge to respondent No.3s promotion in view of the Report of Registrar Vigilance of the High Court, who had been directed to enquire into the issue as to whether respondent No.3 possessed State Government recognized Diploma in Computer Application. The counsel later placed on records copy of Order No.453 dated 05.09.2012 whereby respondent No.3 was ordered to be relegated to the post of 7 Section Officer (Computer), with immediate effect and a regular enquiry too was ordered to be initiated against her. Perusal of Order No.453 dated 05.09.2012 reveals that the issue as to the sustainability or otherwise of respondent No.3s promotion as Section Officer (Computer) has not been dealt with and all that the order directs is to relegate respondent No.3 to the post of Section Officer (Computer) relieving her of the assignment of the duties of Deputy Registrar (Computer) against which post she was ordered to work in terms of Order No.667 dated 24.11.2008. The controversy regarding validity or otherwise of respondent No.3s promotion as Section Officer (Computer), therefore, remains as it is. The grievance of the petitioners having not been dealt with by the High Court Administration, therefore, needs consideration and determination by the Court.
9) The resolution of the controversy on respondent No.3s promotion and respondent Nos. 4 and 5s adjustment against higher posts in the Computer Section, inter alia, rests on answers to the issues, which were deliberated upon by the learned counsel for the parties at the Bar.
10) It would, therefore, be appropriate to answer these issues before determining the central issue as to whether or not respondent No.3s promotion and adjustment of respondent Nos. 4 and 5 was in accordance with the rules and otherwise justified. 8 THE FIRST ISSUE: Whether the promotion of respondent No.3 and adjustment of respondent Nos. 4 and 5 was governed by Order No.579 dated 24.10.2008 which prescribed Minimum qualification and experience for promotional and other posts in the cadre of the High Court Staff Service? Rule 6 of the High Court Staff (Conditions of Service) Rules, 1968, empowers the Chief Justice to lay down, from time to time, the qualifications of the members of the Service and determine the mode of recruitment thereto. The language of the Rule, in the absence of any other provision in the Rules prescribing mode and manner of recruitment and promotion to the posts on the cadre of the Service, unmistakably demonstrates vesting of absolute power in the Chief Justice to lay down qualifications and determine the mode of recruitment/promotion of the members of the Service. The plea of respondent Nos. 3 to 5 that Order No.579 would not apply to the vacancies that existed before coming into force of the order, cannot, therefore, be accepted. Even otherwise their plea is found illogical, in that, in terms of the High Court Staff (Conditions of Service) Rules, 1968, the vacancies, be those past, or future, are to be filled up, as mandated by the Rules of 1968, in terms of the qualifications and Mode of Recruitment thereto, as prescribed by the Chief Justice from time to time. In this 9 view of the matter, the vacancies were required to be filled up only in accordance with the Orders issued by Lord Chief Justice under Rule 6 of the High Court Staff (Conditions of Service) Rules, 1968. The expression from time to time appearing in Rule 6 demonstrates the employers intention to vest absolute authority in the Chief Justice of the High Court to devise such mode and manner for recruitment and promotion to the members of the High Court Staff Service, as he may deem fit so to do, either by introducing amendment to the existing mode governing recruitment and promotion, or by repealing the existing mode and manner and introducing new rules prescribing fresh mode and manner for filling up the existing vacancies. This is additionally so because of the constitutional mandate of Article 229 of the Constitution of India and Section 108 of the Constitution of Jammu and Kashmir that creates supremacy in the Chief Justice in the appointment of Officers and servants of the High Court. The decision taken by Lord Chief Justice to prescribe minimum qualifications and experience required for the posts on the cadre of the High Court Staff Service, would, therefore, apply to the existing vacancies. This apart, the Order issued by the Chief Justice, does not take away, in any manner whatever, any vested right of the respondents for consideration to promotion. The conscious decision taken by the respective Chief Justices, 10 from time to time, to prescribe the manner and mode of recruitment and promotion, inter alia, insisting on possession of Diploma in Computer Application, is intended to promote merit to achieve efficiency in service in the specialized fields. The Order cannot, therefore, be said inapplicable to the promotion of respondent No.3 and adjustments of other respondents against higher posts. Even otherwise, there does not appear any merit in the respondents contention, for, the right to consideration for promotion and adjustment would arise only when the employer intends to go in for promotions/adjustments. I am supported in taking the above view by what was held by their lordships of Honble Supreme Court of India in State of Punjab and others v. Arun Kumar Aggarwal and others, reported as 2007AIR SCW 3262.Another factor that nullifies the respondents contention that Order No.579 would not determine their eligibility to promotion against the posts of Section Officer (Computer) and above, is Government Order No.795- LD(A) of 2008 dated 19.02.2008, in terms whereof, the posts against which the respondents have been promoted and adjusted, were mandated, by the employer, to be filled up, only after, the rules prescribing therein the eligibility and experience for the posts were made. The posts on the cadre of the service, in terms of the above order, were, therefore, required to be filled up only after the rules were framed therefor. The 11 respondents contention that their promotion/adjustment was not governed by Order No.579 dated 24.10.2008 is, therefore, found misconceived. The Government Order referred to herein above is reproduced hereunder for facility of reference:- Government of Jammu and Kashmir Civil Secretariat Law Department Subject:- LPA(SW) 30/2006 titled State of Jammu and Kashmir Versus Jammu and Kashmir High Court Staff Welfare Association-Re-organization Scheme. Reference: Cabinet Decision No.14/3 dated 16.02.2008. Government Order No:-795-LD(A) of 2008. D a t e d :- 19 - 02 - 2008. Sanction is accorded to the creation of the following posts for the High Court; namely:- S.No. Name of the Posts No. of Posts Pay Scale 01 Joint Registra”
12000. 16500 02 Deputy Registra”
10000. 15200 03 Court Secretar”
10000. 15200 04 Bench Secretar”
10000. 15200 05 Assistant Registra”
7500. 12000 06 Assistant Registrar (Computers”
7500. 12000 07 Section Office”
6500. 10500 08 Court Office”
6500. 10500 09 PA-cum-Sr. Scale Stenographe”
6500. 10500 10 Junior Scale Stenographe”
5000. 8000 11 Superviso”
6500. 10500 12 Head Assistan”
5000. 8000 13 Assistant Court Office”
5000. 8000 14 Data Entry Operato”
4500. 7000 15 Driver”
3050. 3950 16 Orderlie”
2550. 3200 However, creation of the said posts is subject to the following conditions:- (a) 14 posts of Court Secretaries and 14 posts of Bench Secretaries are created by corresponding deletion of the provisions of selection grades equal to 25% of the levels of Private Secretaries and Readers; and (b) The posts shall be filled up by the high Court only after making the rules for such posts, prescribed therein the eligibility and experience for the posts. 12 This issues with the concurrence of the Finance Department conveyed vide O.M. not A/58(02)-II-996 dated 14.11.2007. By order of the government of Jammu and Kashmir. Sd/- (A.H.Kochak) Commr./Secretary to Government, Law Department The first contention raised by the respondents that Order No.579 would not apply to their promotion and adjustments, accordingly, fails and is, therefore, rejected.
11) Order No.579, having been held applicable to the existing vacancies, the discussion now shifts to the SECOND ISSUE viz. Whether the qualifications prescribed for recruitment as Data Entry Operator and promotion to the posts of Selection Grade Data Entry Operator, Section Officer (Computer), Assistant Registrar (Computer) and Deputy Registrar (Computer), prescribe State Governments recognition, only for Degree in Computer Application and not for Diploma in Computer Application? To appreciate the submission and find answer thereto, the prescribed qualification needs notice. It reads thus:- Graduation from any recognized University with Diploma in Computer Application or BCA recognized by the State Govt. The respondents learned counsels submission that the expression recognized by the State Government appearing after the expression BCA in the Order 13 prescribing mode and manner of recruitment and promotion, suggests insistence for recognition by the State Government only for Degree in Computer Application, and not for Diploma in Computer Application, is nothing but a figment of misconceived imagination based on misreading of the prescribed qualification. The construction of the sentence and its grammatical connotation leaves no manner of doubt that the employer had intended recognition by the State Government both for Diploma as also Degree in Computer Application from the candidates/officials desirous of seeking consideration for recruitment/ promotion to the Computer Section of the Service. This apart, it appears irrational that the employer would insist on State Government recognition of Degree in Computer Application (BCA) only and not for Diploma in Computer Application, the latter being admittedly a qualification inferior to that of BCA. If recognition of the State Government was intended for Degree in Computer Application, it cannot be countenanced that the employer would not intend recognition of Diploma in Computer Application by the State Government as well, because acceptance of unrecognized Diplomas would result in chaos affecting seriously the interests of administration. This so because even those who would not possess Diploma from any State Government recognized Institution and had obtained Diploma from such Institution, who may not have otherwise competence to issue Diploma or may not be 14 under anyones control or supervision, would demand consideration for engagement and promotion along with those possessing Degree in Computer Application recognized as such by the State Government. It cannot, therefore, be comprehended that the employer would intend recognition of Degree in Computer Application only and not for Diploma in Computer Application. There is, therefore, no merit in the submission made by the respondents learned counsel. The second issue is, accordingly, answered holding that the qualification prescribed for various posts in the Computer Section of the Service needs recognition of the State Government both for Diploma and Degree in Computer Application.
12) This takes us to THE THIRD ISSUE viz. Whether members of the service, who are otherwise ineligible for promotion against higher posts, can be adjusted thereagainst on stop-gap arrangement? Before considering the issue, reference becomes necessary to the provisions of Regulation 85 of the Jammu and Kashmir Civil Service Regulations, 1956, which apply to the Service in question, besides Government Instructions issued in regard thereto, which read thus:- 85. (1) A Government servant may be- (a) assigned the charge of another post in addition to his own duties; or (b) appointed to be in charge; of a higher post independent of his own duties. (2) The case falling under (1) (a) above may be of one of the 15 following nature: (i) where an employee is assigned the charge of an additional post either identical or higher, in the same office or a different office simply to discharge its current routine duties; or (ii) where the additional charge is assigned to another identical or equivalent post not in the same office and additional charge so assigned involves full duties and responsibilities of the post; or (iii) where the additional charge of an identical or equivalent post involves full responsibilities of the post in the same office and there being no possibility of the work of the other post being distributed amongst others; or (iv) where the additional charge is allowed of a higher post in the same or different office and the Government servant holds the plenary responsibility for the duties of additional post; or (v) where the additional charge is allowed of a lower office/post in the same or different office. (3) The cases falling under (1)(b) above may be of one of the following nature:- (i) where for administrative reasons or noncompletion of formalities for appointment to the higher post, a person cannot be appointed to that post formally and is appointed in his own pay and grade to be in charge of the higher post and required to discharge full duties and responsibilities of the Post either in the same office or in a different office, in the same cadre/line of promotion or in a different cadre/line of promotion. (ii) Where a Government servant is appointed to a higher post simply to be Incharge of its current/routine duties and is not required to hold plenary responsibilities of the duties of the post e.g. a Superintending Engineer is appointed in charge of the current duties of the post of a Chief Engineer independent of his own. Government Instructions.(a) It is wrong in principle to appoint a Government servant to a higher post in his own cadre/line of promotion without observing the required formalities of clearance from Departmental Promotion Committee etc. where, however, for reasons to be recorded, the Administrative authorities cannot without detriment to public interests wait for formal appointments temporary stop-gap arrangements may be made by them against such posts. [xxxx]. In making such arrangements the competent authorities will ensure that only such officers are appointed who satisfy all the requirements for higher appointments and can stand the scrutiny of the Departmental Promotion Committee etc. Persons so appointed shall be appointed in their own pay and grade as in-charge of the higher posts, and will be required to 16 discharge the full duties and responsibilities of these posts. As soon as such officers are declared by the Departmental Promotion Committee etc. fit for appointment to higher posts without any break in the stop-gap arrangements, they will be allowed full pay of those posts allowance etc. if any, drawn to be adjusted in full against the retrospective increases in pay. (b) In cases where appointments to higher posts are to be made on short term basis for a limited period of a time and not on a regular basis and if admissible to be made on ad hoc basis or without reference to Departmental Promotion Committee etc. the person so appointed should not be put in charge of the post but appointed to that post formally and given the full pay of the post. Perusal of the Government instructions on the subject reveals that before directing adjustment of officers/officials working in the lower grade against higher posts, the employer is required to ensure that only such officers/officials were adjusted thereagainst who satisfy all the requirements for higher posts and can stand the scrutiny of the Departmental Promotion Committee empowered to make promotion against the higher posts, which in other words would mean that the persons working in the lower pay scale may be considered for adjustment(s) against higher post(s) only if they were otherwise eligible to occupy the higher position(s). The issue in question is, accordingly, answered holding that the employer is required to see that the person sought to be adjusted against higher position(s) was otherwise eligible therefor. True it is that temporary adjustment(s) of eligible persons against higher position(s) may not, as such, affect any enforceable right of the employees working in the 17 lower grade, and adjustment against higher post(s) be made regardless of the seniority, provided it was so required in the exigencies of service; but such arrangement(s), if continued for a long period, would certainly affect the rights of the employees working in the lower grade affecting their right to consideration for elevation of their status, when they become entitled thereto. Every life infused existence, with consciousness of any level, carries with it natural instinct to grow to achieve optimum level for completion of its purpose. Even the nature, bound by the eternal law provides manifold opportunities for growth of consciousness. The whole existence has the basic tendency to complete every thing because it does not like incomplete things. Incomplete things, therefore, hang and wait until completion. Equally true it is that you would flower only when you are allowed opportunity so to do, for, the existence is not going to shower flowers on you unless you, on your own, decide so to do. You will do so only if you are allowed so to do. Existence simply responds and does nothing on its own. Whatever you are, existence gives you more of that. If you have many flowers within your being flowering, a million times more flowers will shower on you. If you have a deep depression, the existence helps that too- a millions time more depression will come to you. Whatsoever you are, will knock at your door. Whatsoever you are will be given to you more and more. 18 Therefore, to achieve optimum level of results from the available human resource in an organization, natural right of an employee to compete for promotion for his/her progress and elevation, which in turn brings efficiency and excellence in the organization to which he/she belongs as well, the employee needs to be allowed opportunity to grow in exercise of his natural right to growth and development. This he would be able to do only if provided opportunity therefor. Unjustified delay in providing him such opportunity would, therefore, adversely affect his right to grow. Urge for promotion is a factor which an organization must keep in mind to allow its human resource to be on the path of progress to achieve excellence. This is so because non-providing of opportunities to the employees to show their mettle in the process of climbing the promotional stairs to achieve excellence, may result in depression, slackness, inefficiency and despondency in the human resource thereby affecting the administration as also the public interest. Avoidance of available promotional avenues by perpetuating the process of temporary adjustments against available higher positions, may not, therefore, serve the ends of administration. Be that as it may, the issue may not need further deliberation in view of the law laid down by this Court in Bhawani Prasad and others v. Rajesh Kumar and others 19 reported as 2011(4)JKJ 202[HC], where while dealing with similar issue as to whether or not such adjustments amount to promotions thereby affecting the rights of those, who were eligible and waiting in queue for consideration to promotion, the Division Bench held as follows:- 14. The impugned order read with Note 1 and Note 2 does not make it mere temporary adjustment for smooth functioning of the Registry, as it is claimed to be in the memoranda of appeals. The adjustment on the higher post entitles the beneficiaries to charge allowance and even makes room for their regularization/appointment on the higher post, if they attain qualification/experience prescribed for the post. The impugned order thus in effect promotes the appellants to the next higher post and is required to satisfy the requirements of High Court order No.579 dated 24.10.2008. The appellants in LPA no.45/2010 and 84/2010 can not lebel the order as mere adjustment without any consequential benefits to the appellants. The condition that the adjustment shall not confer any right on the concerned officers/officials to hold the post on permanent regular basis is meaningless and does not change the consequences that to flow out of the order.
15. In view of the stipulation that the appellants shall be entitled to charge allowance as may be admissible to them under rules and they can be considered for their regularization/appointment on higher post only, if they attain qualification and experience prescribed for the post leave no scope for disagreement with Writ Court that the order impugned in the petition in effect promoted the appellants to the higher post dehors the criteria lay down under High Court order No.579 dated 24.10.2008.
13) Having answered the issues, as projected by learned counsel for the parties, the Central issue as to whether or not respondent No.3 possesses Diploma in Computer Application recognized by the State Government needs consideration. It is not the case of respondent No.3 that she possesses Diploma in Computer Application recognized by the State Government, and rightly so because the documents on 20 which she relies to support her promotion as Section Officer (Computer), do not indicate her to possess any such Diploma in Computer Application which was recognized by the State Government. The documents relied upon to support her plea that she was eligible for promotion, are these:- Certificate No.1:- COMPUMATES Pvt. Ltd. COMPUTER SYSTEMS 7 APPLIED TECHNOLOGIES 7 SOFTWARE 7 EDUCATION 7 SERVICES NO.OM/Adm/166 Dated. 11 Dec. 90 TO WHOM IT MAY CONCERN It is to certified that Miss Nisha Saraf D/O Dr. P.N.Saraf, R/O Talab Tillo, Jammu has undergone 6-months (Diploma Course w.e.f. 8.7.1990 to 11.12.1990. Her conduct during the said course remained good. Sd/- (Ex.Maj. Munshi Ram) Manager/Principal COMPUMATES Pvt. Ltd. 759, DENIS GATE JAMMU(180001) Certificate No.2 not WP-43/15 RCC Serial NO 1.REGIONAL COMPUTER CENTRE CHANDIGARH (ESTABLISHED BY THE DEPARTMENT OF ELECTRONICS, GOVERNMENT OF INDIA) This is to certify that NISHA SARAF Daughter of Shri Pran Nath Saraf has successfully completed a course in WORD PROCESSING Conducted by the Regional Computer Centre, Chandigarh from 10.04.1991 to 09.05.1991 by securing 70 marks out of a maximum of 100 marks and has been awarded grade B. Date 30.05.1991 Sr. Training Officer Director Particulars of the course are as follows: TIME SPENT IN CLASS ROOM:
08. HRS. TIME SPENT ON PRACTICALS:
20. HRS. COMPUTER USED; IBM COMPARIBLE PERSONAL COMPUTER COURSE CONTENTS; WORD PROCESSING EVALUATION CRITERIA WEIGHTAGE GRADING SCHEME Tests by a team of examiners 40.00% Grade percentage Mks 21 Performance in class room 10.00% A 8.and above Performance in practicals 50.00% B 6.to 79 C 4.to 59 Certificate No.3. SHRI SHARDA EDUCATION FOUNDATION. AVINASH RAINA MEMORIAL COMPUTER CENTRE OPP. POST OFFICE, TALAB TILLO, JAMMU-180002 CERTIFICATE Certified that NISHA SARAF Daughter of Sh. Pran Nath Saraf has successfully completed the Basic +ONE YEAR course in COMPUTER APPLICATIONS Session: SUMMAR Year 2008-09. Sd/- Shri Shardha Education Foundation Poonch House Opp. Post Office Talab Tillo, Sd/- Jammu-180002 SECRETARY CHAIRMAN Registration not SSEF/967 S.No.47 Date/10/11/09 Perusal of the documents listed above as Certificate Nos. 1 and 2 reveals that these Certificates do not indicate her to have completed one years Diploma course and that too recognized by the State Government. It was probably for this reason that after her temporary promotion as Section Officer (Computer), she sought permission of the High Court to pursue advance course in Computer Application from Aashirwad Computer Centre, Poonch House Talab Tillo, Jammu. She, as admitted by her, however, did not pursue one years course at Aashirwad Computer Centre leaving it halfway to join another Institution, i.e., Shri Sharda Education Foundation, Avinash Raina Memorial Computer Centre and that too without permission of the High Court. The third certificate relied upon by her to justify her 22 claim to promotion too does not indicate her to have successfully completed one years course at Shri Sharda Education Foundation, Avinash Raina Memorial Computer Centre. Respondent No.3s statement as to how she completed one years Diploma course from the above Institute, may need notice. In paragraph No.5 of her Reply Affidavit to the petitioners Supplementary Affidavit, she says as follows:- 5. That here the respondent would like to clear a point as to how a one year diploma course has been completed in a period of five to six months. The answering respondent had devoted 3 to 4 hours a day for six months to the course, where only one hour was the schedule duration. Also added to the fact was that the respondent had already covered a considerable portion of the course syllabus in the previously taken up combination course from Aashirwad and Sharda Computers which has been mentioned above. Perusal of the above statement of respondent No.3 indicates as to how had she completed one years course in 5 to 6 months. It is, therefore, astonishing to note that a person having not successfully completed one years training course even from an un-recognized Institution, has been permitted to continue so long, not only on the promotional post of Section Officer (Computer) but also permitted to work against the post of Deputy Registrar (Computer), a position two steps higher to the post to which the respondent was promoted. It would be advantageous at this stage to refer to the 23 findings returned by the Registrar Vigilance, who was appointed by the High Court Administration to enquire as to whether or not respondent No.3 possessed Diploma from any State recognized Institution. The findings are as follows:- ..7. The Certificate which is alleged to be relied upon by Ms. Nisha Saraf in support of her qualification is on the file and it has been issued by Compumates Pvt. Ltd. and the address of the institute given in the certificate is Jammu-759 Dennis Gate, Residency Road Model Academy Building, Jammu. In order to prove whether the said certificate relied upon by Ms. Nisha Saraf has been issued by a duly recognized institute and it is equivalent to Diploma, the Commission summoned Manager/Principal of the said institute. In response to the said notice, Mr. Adit Gupta appeared and his statement has been recorded. He has deposed that he is Manager of the institute Compumates Pvt. Ltd. 759-Dennis gate Residency Road (Model Academy Building) Jammu. He has proved the fact that photocopy of the certificate which is on the file Mark A, has been issued by his institute. However, he is categorical in stating that the said institute is a private institute and is not recognized by the government. According to him, any candidate who gets training from his institute for any course, a diploma or certificate is issued to him and it is not necessary that he has to undergo three years or two years course to get diploma in a particular branch and diploma is issued even if a candidate undergoes six months diploma course. However, this witness has not explained as to what is difference between a diploma and a certificate.
8. The next witness examined by the commission is Mukhtar Ahmad Dar who is Computer Operator State Board of Technical Education. According to him, he deals with three years diploma courses in all streams approved by All India Council for Technical Education including three years diploma courses in Computer Engineering and Information Technology. However, from Industrial Training Institutes Sector, Director of Technical Education conducts six months; one year and two years certificate courses approved by the National Council of Vocational Training (NCVT)/State Council of Vocational Training (SCVT) in State sector ITIs. These certificates of six month, one year and two years cannot be at par with the three years Diploma issued by the State Technical Board of Education. He has placed on the record the certificate issued by the State Board of Technical Education which has been marked as A. He has further deposed that for passing a diploma course, marks card is issued and even in certificate course, marks card is issued. When a person gets a certificate of six months, one year and two years duration, such certificate must be accompanied by the marks sheet. Firstly a mark list is issued and thereafter certificate is issued. Even a 24 certificate not accompanied with the marks sheet is also valid certificate if it is issued by a recognized institute only. According to him, the certificate mark A is not recognized by the State Board of Education and it has been issued by a private institute.
9. The statement of this witness has clinched the issue in controversy by proving that the certificate relied upon by Ms. Nisha Saraf in support of her qualification is neither a certificate nor a diploma. Had it been issued by a recognized institute, it would have been a valid certificate but it has been issued by an unrecognized institute having no value at all. The said certificate is also not accompanied by any marks list which is generally issued as deposed by the employee of State Board of Tehnical Education. This Certificate has been procured by Ms. Nisha Saraf from a shop imparting general training to the candidates in computer application which is of no use so far as government job is concerned. Ms. Nisha Saraf was afforded opportunity to prove that the certificate relied upon by her in support of her qualification is valid but she has failed to do so as she did not bother to file even her reply to the allegations leveled against her by her colleagues in their representation filed by them on the administrative side and in the writ petition.
10. The government in its wisdom has prescribed qualification for entry into job in various departments. I could lay my hands on Advertisement Notice no.09 of 2010 dated 30.12.2010 whereby certain posts were advertised by the Service Selection Board for various departments wherein in addition to other qualification, a six months certificate course in Computer Application from the recognized institute has been shown as prescribed qualification. Similarly in Advertisement Notice No.01 of 2011 dated 31.01.2011, the prescribed qualification has been shown as Diploma in computer Application or equivalent from any recognized institute. The certificate relied upon by Ms. Nisha Saraf is neither a diploma nor its equivalent nor a certificate issued by the recognized institute.
11. In view of what has been discussed above, it is established that the certificate relied upon by Ms. Nisha Saraf in order to prove her qualification is neither a certificate nor a diploma as it has been issued by an unrecognized institute and is without marks sheet. Hence the report is submitted for perusal. The High Courts Response to the Writ Petition does not support respondent No.3s possessing requisite Diploma in Computer Application, recognized by the State Government. In view of the material available on records which includes the Report of Registrar Vigilance, there is, 25 therefore, no escape from the conclusion that respondent No.3 does not possess requisite qualification for becoming eligible to promotion to the post of Section officer (Computer) because neither would she possess State Government recognized Diploma in Computer Application nor had she otherwise completed two years service as Selection Grade Data Entry Operator, as required under rules, when she was accorded temporary promotion. In view of the above discussion, it is, therefore, clear that respondent No.3 was ineligible for promotion to the post of Section Officer (Computer), when she was ordered to be promoted vide Order No.667 dated 24.11.2008. The petitioners challenge to respondent No.3s promotion as Section Officer (Computer) on the ground that she was ineligible therefor being not possessed of State Government recognized Diploma in Computer Application, therefore, succeeds.
14. The next issue that needs consideration is as to whether respondent No.4 was eligible for adjustment as Assistant Registrar (Computer) and respondent No.5 as Section Officer (Computer). In terms of Order No.579 dated 24.10.2008, a candidate desirous of seeking consideration for promotion as Section Officer (Computer) or Assistant Registrar (Computer) must possess same necessary qualification as indicated for recruitment as Data Entry Operator i.e. Graduation from any recognized University with Diploma 26 in Computer Application or BCA recognized by the State Govt., besides two years experience on the lower post. Respondent No.4 relies on Diploma issued to him by Indian Technology of Computer Sciences, Purkhoo Domana-Jammu, which is indicated to have been issued to him after completion of the course in the year 2002-2003. This Diploma is stated recognized by the State Government. The High Court Administration, however, offers no comments as to whether or not the respondents Diploma was recognized by the State Government. To support his eligibility, respondent No.5 relies on the Diploma issued to him by the VIT Computer Education, which is indicated registered with the Government of Jammu and Kashmir under Registration No.7429 of 2001 dated 26.06.2001. Regarding this Diploma too, the High Court has no comments to offer on its recognition by the State Government. In the absence of any acceptable material on records and the High Courts omission in not taking any definite stand as to whether or not Diplomas possessed by respondent Nos. 4 and 5 were recognized by the State Government, it may not be possible for the Court to determine it unless the issue was got examined on similar lines as it was so done in case of respondent No.3. It is, however, not forthcoming as to how the High 27 Court adjusted respondent No.4 against the post of Assistant Registrar (Computer), when neither was he ever promoted as Section Officer (Computer) nor would he possess requisite two years experience as such, which was the requirement of the rules governing promotion to the post of Assistant Registrar (Computer). His adjustment against the post of Assistant Registrar (Computer), without having been considered for promotion as Section Officer (Computer), may not, therefore, be justified. On the same analogy, adjustment of petitioner No.2 as Assistant Registrar (Computer) may also be not justified because she too was adjusted as Assistant Registrar (Computer) without having been promoted as Section Officer (Computer) and having requisite experience needed for the post in terms of the order prescribing mode and manner for recruitment and promotion to the members of the service, under Rule 6 of the Rules.
15. It needs to be mentioned here that even doubts were expressed about the authenticity of the Diplomas/ Certificates possessed by the petitioners as well.
16. To justify the arrangement devised by the High Court in directing adjustments of the members of the Computer Section of the Service, learned counsel for the High Court submitted that the adjustments were made in the exigencies of service and the adjustments may not, therefore, warrant interference. There is no merit in the learned counsels submission, 28 for, the records of the High Court do not offer any justification for having resort to the process of adjustments and that too against rules.
17. The Registrar Generals Note on the subject on which the Judges Committee had recommended promotions and adjustments, does not make any recommendation either for adjustment or for promotion because what was recommended and suggested by the Registrar General was the recasting of existing rules and not making of promotions/adjustments. The Recommendations do not appear to have been considered by the Judges Committee on the issues projected by the Registrar General in his Note. The Judges Committee, on the other hand, on its own, appears to have recommended promotions and adjustments in Computer Section of the Service. This probably appears to be the reason that the promotions and adjustments came to be made pursuant to the orders of the Acting Chief Justice; but without getting the matter examined by the Registry on the eligibility or otherwise of the persons recommended by the Judges Committee for promotions/adjustments. The Judges Committee too had not examined the issue of eligibility of persons recommended by it for promotions and adjustments. Not only this, all eligible persons, who were otherwise entitled to consideration for promotion, were not so considered and promotions/adjustments appear to have been made only on the basis of seniority without examining eligibility and 29 other factors like merit, which was the requirement of the rules in force.
18. Be that as it may, the category of posts in Computer Section of the service could well be managed by having resort to regular process for promotion rather than going in for adjustments against promotional posts and that too encouraging adjustment of ineligible candidates therefor. These adjustments have now continued for about four years. Further continuation of the adjustments may not, therefore, be in the interests of administration, for, such a course was likely to adversely affect not only the administration but also the right to consideration of those who were eligible for regular promotion on the basis of merit-cum-seniority. Promotions to the posts of Section Officer (Computer), Assistant Registrar (Computer) and Deputy Registrar (Computer), are required to be made on the basis of merit-cum-seniority and in this view of the matter, the High Court is required to initiate regular process for promotion against available higher positions from amongst the eligible candidates giving due weightage to their merit, and if the candidates were not available, by adopting other mode prescribed for such contingencies in the Rules and Order issued by the Acting Chief Justice.
19. In terms of the notified Mode of recruitment and promotion, even in the event of non-availability of candidates in the relevant feeding cadre, selection/appointment is permissible from amongst the candidates from other equivalent posts on 30 the cadre of the service. This rule too does not appear to have been kept in view while directing promotions/adjustments in the Computer Section of the Service. Looking to the manner in which the adjustments have been made in the Computer Section of the Service, the Rules governing promotions of the members of the Service do not appear to have been adhered to.
20. To strengthen the human resource in the High Court Staff Service allowing them opportunity to evolve, excel and develop, on the basis of their merit, the administration is required to examine the adjustment of the petitioners and respondent Nos. 4 and 5 afresh to take immediate remedial measures wherever necessary so as to comply with the rules. It is further required to see that regular promotions were made against available vacancies considering only those, who possessed State Government recognized Diploma in Computer Application or Degree in Computer Application and were otherwise eligible thereto in terms of Order No.579 dated 24.10.2008.
21. For all what has been said above, SWP No.273/2009, therefore, needs to be allowed, with requisite directions.
22. The issues projected in Writ Petition No.1856/2011 having been answered while dealing with SWP No.273/2009, this Petition may not, therefore, need consideration. Therefore, while dismissing SWP No.1856/2011 on Motion Hearing and lifting interim order dated 14.09.2011, SWP 3.No.273/2009 is allowed with following directions:- i) Promotion of Nisha Saraf-respondent No.3 as Section officer (Computer) and her adjustment as Deputy Registrar (Computer) ordered vide Order No.667 dated 24.11.2008 is hereby quashed by writ of certiorari. ii) Respondent Nos. 1 and 2 are directed to initiate process for filling up the available promotional posts in the Computer Section of the Service from amongst the candidates eligible therefor in terms of the rules following the mode and manner of promotion as indicated in Order No.579 dated 24.10.2008, for its completion before March 01, 2013. iii) Respondent Nos. 1 and 2 are further directed to examine within the time stipulated herein above, the authenticity and validity of the Diplomas possessed by the petitioners and respondent Nos. 4 and 5 to find as to whether or not they possess State Government recognized Diploma in Computer Application or any other recognized qualification in terms of Order No.579 dated 24.10.2008 and whether they are eligible for promotion. iv) Respondent Nos. 1 and 2 shall take such remedial and requisite measures as required in terms of the Rules, pursuant to the examination of the Diplomas of petitioners and respondent Nos. 4 and 5 before March 01, 2013. Promotion of petitioner No.1 and 32 adjustment of petitioner No.2 and respondent Nos. 4 and 5, as ordered vide order No. 667 dated 24.11.2008, is, however, permitted to continue until remedial measures were taken and regular promotions made, so that interests of administration may not suffer because of immediate exit of those, who may not be entitled to hold the existing position(s). The arrangement indicated above for continuance of the petitioners and respondent Nos. 4 and 5 shall not, however, continue beyond the outer limit of March 01, 2013. v) There shall be no order as to costs. (J.P. SINGH) JUDGE JAMMU 17 11.2012 Vinod.