DB directs respondents to accord the benefit of promotion

Jammu Tawi, July 13Jammu Tawi, July 13A Division Bench of State High Court Comprising Justice Alok Aradhe and Justice Sanjeev Kumar in a significant judgment decided a LPA and directed respondents to accord the benefit of promotion of the post of Dairy Engineer/Assistant Manager to the appellant with effect from the date it was given to the similarly situated persons (28.03.1980) and accord him all consequential benefits.  The LPA filed by Randhir Singh admittedly held Diploma in Mechanical Engineering and was appointed as Mechanical Overseer in the Milk Supply Scheme, Jammu on temporary basis in the pay scale of 140-10-200EB 10-250 against the post of Dairy Engineer vide order dated 27.09.1967. Thereafter vide order dated 02.05.1968, the appellant was sent for training at National  Dairy Research Institute, Karnal for a period of nine months as the department was in dire need of Dairy Engineers. Later on the period of training of the appellant was extended by order dated 26.10.1971. Admittedly, the appellant completed the training in the year 1971. In the meanwhile, the State Government framed the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules, 1970. In the aforesaid Rules, admittedly, the qualification which was prescribed for the post of Dairy Engineer was Degree in Dairy Engineering. The appellant did not have the degree in Dairy Engineering and had only Diploma in Dairy Engineering, which he had acquired after the commencement of the Rules of 1970.Division Bench after considering the submissions made by the  counsel for the parties and have perused the records, observed that the appellant was appointed on the post of Mechanical Overseer against the post of Dairy Engineer in the year 1967, prior to the enactment of 1970 Rules. Thereafter the appellant acquired Diploma in Dairy Engineering in the year 1971, i.e., after the enactment of 1970 Rules. In the 1970 Rules, for appointment to the post of Dairy Engineer, the minimum qualification prescribed was degree in Dairy Engineering, which the appellant did not possess. The appellant acquired the diploma in Dairy Engineering admittedly after 1970 Rules came into force. Therefore, the appellant is not entitled to claim appointment on the post of Dairy Engineer with effect from his initial date of appointment. However, we find substantial force in the submissions made by the  senior counsel for the appellant that after the merger of the Milk Supply Scheme with the Co-operative Milk Producer Federation and in the absence of any requirement in the Rules of possessing degree in Dairy Engineering for appointment on the post of Dairy Engineer, and especially in view of the fact that similarly situate employees, namely, H R Gupta, A K Kotha, R M Dhar and M K Choudhary, who were having lesser or similar qualification like the appellant, were promoted to the post of Assistant Manager, which is equivalent to the post of Dairy Engineer, we find no reason to deprive the appellant of the same benefit.          It is also pertinent to mention here that the averments made in paragraph No.16 of the writ petition with regard to the grant of benefit of promotion to the aforesaid persons have not been denied on behalf of the respondents. Admittedly, the aforesaid persons have been given the benefit of promotion w.e.f. 28.03.1980.  However, the Single Judge has deprived the appellant of the aforesaid benefit merely on the ground that the appellant had never claimed consideration for appointment as Dairy Engineer. The aforesaid fact is contrary to the record as from the communication dated 28.09.1972, we find that recommendation was made in favour of the appellant for appointment on the post of Dairy Engineer under ICAR Scheme. Similarly, a proposal was made for amendment in the Rules on 05.02.1973. Therefore, in our considered opinion, Single Judge grossly erred in denying relief to the appellant on this ground. We are informed that the appellant has already superannuated in the year 1999.
With these observations Division Bench quashed the order of Single Judge and disposed of the LPA with the direction to the respondents to accord the benefit of promotion of the post of Dairy Engineer/Assistant Manager to the appellant with effect from the date it was given to the similarly situated persons and accord him all consequential benefits. Let the aforesaid exercise be carried out within a period of four months from today. JNF

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