Jammu, March 23:CAT orders J&K Govt not to grant any promotion/placement/posting to any IPO, possessing technical qualification, in excess of number of available vacancies of Project Managers.
In Original Application No.61/895/2024 titled Neeraj Sharma vs V/S Union Territory of Jammu and Kashmir through Commissioner-cum-Secretary to Government Industries & Commerce Department & ors after hearing CAT Bench comprising of HON’BLE MR. RAJINDER SINGH DOGRA, MEMBER (J) HON’BLE MR. RAM MOHAN JOHRI, MEMBER (A) ordered as under:-
O.A. No. 61/895/2024 ORDER (Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)
1. By way of the instant O.A., the applicants are seeking the following reliefs: - i) Allow the instant original application of the applicants alongwith costs; ii) Quash the Government Order No. 38-JK(IND) of 2024 dated 26.02.2024 whereby temporary postings have been given to Industrial Promotion Officer having completed 5 years of service, against the available vacant posts of Functional Manager/Project Manager, by way of an in-charge arrangement in their own pay and grade for a period of six months in the first instance or till regular promotions are made, irrespective of the qualification possessed by them viz. technical qualification or non-technical qualification and by forming a common pool of the posts of vacant posts of Functional Manager and Project Manager, which has resulted in utilization of quota of available vacancies of Functional Managers placement of Industrial Promotion Officers possessing technical qualification; iii) Direct the respondents to strictly adhere to the qualification and channel of promotions statutorily prescribed while filling up the posts of Functional Managers and Project Managers, whether substantively or on in-charge basis, by restricting the zone of consideration for promotion for Industrial Promotion Officers possessing non- technical qualification qua the posts of Functional Manager and, likewise, by restricting such zone for Industrial Promotion Officers possessing technical qualification qua the posts of Project Manager. iv) Restrain the respondents from continuing the arrangement made vide Government Order No. 38- JK(IND) of 2024 dated 26.02.2024 beyond the period of six months i.e. the period for which the same has been issued; Or in the alternative Direct the respondents that in the event the temporary postings/incharge arrangements against the higher posts of Functional Managers and Project Managers are found imperative, even beyond the validity period of impugned Government Order No. 38-JK(IND) of 2024 dated 26.02.2024, let no Industrial Promotion Officer possessing technical qualification be granted such temporary posting/incharge placement in excess of number of available vacancies of Project Managers. v) Direct the respondents to refer vacant posts of Functional Manager and Project Manager to the DPC/PSC for being filled up by regular/substantive promotions in accordance with the rules and norms governing the field, in accordance with the provisions of SRO 166 of 2005 dated 14.06.2005; vi) Any other relief which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted in favour of the applicant and against the respondents.
2. Ld. Senior Counsel for the applicants has submitted that the temporary postings of Industrial Promotion Officer against the available vacant posts of Functional Manager/Project Manager, by way of an in-charge arrangement, have been made irrespective of and completely overlooking the qualification viz. technical/non-technical qualification and also by forming a common pool of the posts of both Functional Managers and Project Managers.
The respondents, while ordering the impugned temporary postings/in-charge arrangements, have in effect, diverted the quota of Functional Managers and have utilized the vacant posts of Functional Managers for grant of in-charge promotions even to Industrial Promotions Officers possessing technical qualification, in violation of the prescribed eligibility qualification and channel of promotion which envisages exclusivity of consideration for Industrial Promotion Officers possessing Non-Technical qualification against the posts of Functional Managers and for Industrial Promotion Officers possessing Technical qualification against the posts of Project Manager, for making promotions against the posts of Functional Managers and Project Managers, whether on substantive basis or on in-charge basis.
It has been submitted that the temporary postings so made are absolutely impermissible under law in as much as the same have been made in blatant violation and contravention of the following: i. The statutory recruitment rules governing the Gazetted service of the Industries and Commerce Department promulgated vide SRO 410 of 1980 dated 04.08.1980 and supplemented by the provisions of Government Order No. 344-IND of 1984 dated 29.09.1984; ii. Judgment rendered by the Hon’ble Apex Court in Suraj Parkash Gupta’s case and the consequent Government Order No. 107-GAD of 2002 dated 16.01.2002, both of which deprecate hold diversion of quota and hold the same to be impermissible; iii. Past practice being followed in the department for the last over four decades; iv. Opinion given by the General Administration Department on a similar proposal in the year 2014-15; v. Decision taken by the Standing Committee on a similar proposal in the year 2019; and vi. Government Instruction appended to Article 85 of the J&K Civil Service Regulations, 1956.
3. It has been submitted that the applicants are substantively holding the posts of Industrial Promotion Officers in the Department of Industries and Commerce and are working under the Directorate of Industries and Commerce, Jammu. The applicants belong to the Non-Technical field and their appointment against the posts of Industrial Promotion Officer has been made on the basis of the prescribed non- technical qualifications, respectively possessed by them at the time of their selection and appointment. The applicants have all been promoted to the posts of Industrial Promotion Officer from the posts of Block Investigators, to which post they were recruited direct.
4. It is submitted that at the level of Industrial Promotion Officers, the rules envisage entry of candidates from two different fields of study i.e. technical and non-technical fields, both in case of direct recruitment as well as in case of promotion. The non-gazetted service of the Industries & Commerce Department is being governed and regulated under the Draft Recruitment Rules and no statutory rules have been framed till date for governing the said service. Under the Draft Recruitment Rules, two sets of eligibility qualifications have been prescribed for direct recruitment against the posts of Industrial Promotion Officer viz. a technical qualification and a non-technical qualification and candidates possessing either of the two can be appointed against the said posts by direct recruitment. The following qualification and method of recruitment has been prescribed for the posts of Industrial Promotion Officers under the Draft Rules: Post Minimum Qualification for Direct Recruitment Method of Recruitment Industrial Promotion Officer Graduate with Economics/Statistics/Business Administration/Chemistry/Bio- Technology/Micro Biology/ Pharma/Electronics/Computer Science as one of the subject (preference shall be given to post graduate in these disciplines) OR Engineering graduate in Mechanical/Electrical/Chemical/M etallurgy/Textiles/Electronics/Agri culture/Food Environment/Industrial OR Degree/Post Graduate Diploma in Wood/Leather/Food/Polymer Technology from a recognized university/institute/M.Tech. in Information Technology. 50% by direct recruitment. 50% by promotion from Block Investigators/ Manager Central Market/Loan Supervisor having three years service in that category.
After hearing both sides in CAT Concluded as under:-
This Tribunal, however, feels that although the private respondents may have been proper, if not, necessary parties to the frame of O.A., yet they cannot be said to have been prejudices in any manner for two reasons; one, that the private respondents have already been impleaded as party respondents on a motion laid by them and have been heard in the matter and, two, that they have also completed and enjoyed the entire six-month period on higher posts under the impugned government order, which was the maximum period fixed for its validity.
38. The sixth and the last contention of the Ld. Counsel for private respondents that applicants are much below in seniority as compared to private respondents and, as such, cannot have a better right than them for promotion/placement against the higher posts of Functional Manager and Project Manager is also of no help to the private respondents in view of the fact that mere higher seniority position in the seniority list of Industrial Promotion Officers is of no consequence and pales into insignificance in view of the fact that for the purpose of making promotions from the level of IPOs to the level of Functional Manager and Project Manager, the principle of ‘senior amongst eligibles’ is applicable and separate eligibility lists of IPOs possessing non technical qualification and IPOs possessing technical qualification are prepared respectively for each, as already discussed hereinabove.
39. In light of the discussions made hereinabove and the stand taken by the official respondents as regards the interpretation put by the Government on its own Rules and the past practice followed in the department in accordance therewith, it is held that promotions/placements made vide the Government Order No. 38-JK(IND) of 2024 dated 26.02.2024 against the posts of Functional Managers and Project Managers irrespective of technical/non-technical qualifications and by ignoring the channel of promotions prescribed is bad in law and, as such, cannot sustain.
40. The instant O.A. is, consequently allowed with the following directions: (i) The Government Order No. 38-JK(IND) of 2024 dated 26.02.2024 is quashed;
(ii) The respondents are directed to strictly adhere to the prescribed discipline-specific qualification and channel of promotions while filling up the posts of Functional Managers and Project Managers, whether substantively or on in-charge basis, by restricting the zone of consideration to the Industrial Promotion Officers possessing non- technical qualification while making promotion/ placements against the posts of Functional Manager and, likewise, by restricting the zone of consideration to Industrial Promotion Officers possessing technical qualification while making promotions/placements against the posts of Project Manager
. (iii) Respondents are, further, directed not to grant any promotion/placement/posting to any Industrial Promotion Officer possessing technical qualification, in excess of number of available vacancies of Project Managers.
41. No order as to cost.
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