Jammu, Apr 13: In Original Application No. 61/498/2023 titled Hitesh Paba, Through Advocate: Mr. F A Natnoo Versus 1. UT of J&K through Commissioner-cum-Secretary to Government, Social Welfare Department & ors after hearing bench of Hon’ble Mr. Sanjeev Gupta, Judicial Member Hon’ble Ms. Pragya Sahay Saksena, Administrative Member ordered as under:-
(Per:- Sanjeev Gupta, Judicial Member):- The present Original Application (in short O.A.) has been filed by the applicant seeking the following reliefs:
- “I. Allow this Original Application of the applicant. II. Quash/set-aside the order impugned No. 43-DSWJ of 2023 dated 17.04.2023 as well as circular dated 03.09.2022 issued by respondent No. 2. III. Direct the respondents, more particularly respondent no. 2 to accord consideration to the case of the petitioner for the purpose of insertion of the name of the applicant in the seniority list of Head Assistants and also accord consideration for further promotion against the next higher post in the hierarchy. IV. Any other relief which this Hon’ble Tribunal may deem just and proper in the given facts and circumstances of the case may also be passed in favour of the applicant and against the respondent.”
2. Mr. F A Natnoo, learned counsel for the applicant stated that the applicant who was placed as Head Assistant, Social Welfare Department, initially on incharge basis, was promoted as Head Assistant w.e.f. 02.05.2017 by Departmental Promotion Committee conducted on 20.02.2018, as per eligibility, however, the applicant has not been appropriately placed by the respondents, in the seniority list in terms of impugned circular dated 03.09.2022 issued by respondent No. 2, due to misconstrued understanding of the interim order dated 31.10.2018 passed by the Hon’ble High Court of Jammu & Kashmir in T.A. No. 4503 of 2020 titled Gulam Qadir and ors V/s State of J&K and others, in which promotion of the applicant as Head Assistant has been challenged by the petitioners therein.
3. It is further submitted by the learned counsel for the applicant that impugned order No. 43-DSWJ of 2023 dated 17.04.2023, passed by respondent No. 2 in compliance to direction of this Tribunal in O.A. No. 165 of 2023 dated 17.02.2023, has caused serious prejudice to the applicant due to which applicant was constrained to file the present O.A. throwing challenge to circular dated 03.09.2022 and impugned Order dated 17.04.2023.
4. In T.A. No. 4503 of 2020, the Hon’ble High Court has passed the interim direction that subject to objections, the regularization of the private respondent (applicant herein) to the post of Head Assistant shall remain subject to outcome of the writ petition.
The aforesaid T.A. has been dismissed on 03.04.2025 and the interim direction passed in SWP No. 2245 of 2018 in I.A. No. 1 of 2018, dated 31.10.2018 stands vacated.
5. The stand taken by the respondents in their reply/counter is that Hon’ble High Court in SWP No. 2245/2018, IA No. 01 of 2018 has passed the interim directions, besides the matter of regularization of applicant as Head Assistant is under investigation by the Anti Corruption Bureau in terms of communication No. ACB-SW-G-18/20- 8603 dated 10.05.2020. However, respondents for reasons best known to them have not placed copy of the aforesaid communication on record.
6. Heard the learned counsel for the applicant and learned D.A.G. and perused the record.
7. It appears that applicant after his appointment as Junior Assistant in Social Welfare Department of the Government of Jammu & Kashmir in the year 2009, qualified Secretariat Assistant Examination/Training during the period of his probation and was promoted as incharge Senior Assistant on 25.10.2012 and regularized on said post on 31.12.2012 and thereafter, promoted as Head Assistant on 20.02.2018 w.e.f. 02.05.2017.
8. In so far as the applicants in T.A. No. 4503 of 2020 are concerned, except, applicant Subash Chander, the other applicants could not qualify the Secretariat Assistant Examination/Training during their service career and were not found eligible for their promotion as Head Assistant, which fact is admitted by the learned D.A.G.
9. Admittedly, the applicant was promoted to the post of Head Assistant in the year 2017, but his seniority position in the cadre of Head Assistant has not been determined due to the impugned circular dated 03.09.2022 and impugned order dated 17.04.2023 passed by Respondent No. 2. Now, after the dismissal of T.A. No. 4503 of 2020, the impugned circular dated 03.09.2022 and impugned order dated 17.04.2023 have lost their relevance, which in our view were otherwise issued on account of total non-application of mind by the respondent No. 2 by misunderstanding the interim direction of Hon’ble High Court in the above mentioned T.A.
10. In the facts and circumstances of the case, the O.A. filed by the applicant is allowed and the impugned circular dated 03.09.2022 and order No. 43-DSWJ of 2023 dated 17.04.2023 are quashed and set aside.
The respondents are directed to fix the seniority of the applicant in the cadre of Head Assistant at the proper place with all consequential benefits including promotion, within a period of six weeks from the date of receipt of a certified copy of this order.
11. No order as to costs.
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