Excelsior Correspondent
SRINAGAR, Dec 26: The State High Court today quashed the order of appointment of three Incharge Chief Engineers for not being in consonance with rules and regulations and directed the Government for regular promotions of Engineers.
“In my considered view, the order impugned dated 26.10.2017 is neither falling within the scope of rule 25 of CCA Rules nor within the scope of Regulation 85(3) of the CSR”, Justice Mohammad Yaqoob Mir said while hearing a petition challenging the order whereby I/C SEs was posted as I/C Chief Engineer.
Government had appointed (Order No.440-PW (Hyd) of 2017 dated 26.10.2017) Ghulam Qadir Bhat as Incharge CE PDC, Jatinder Kumar Sharma as Incharge CE Chenab Valley Power Project and Mir Shahnawaz CE Irrigation and Flood control Kashmir.
However, Court while quashing it, directed: “The arrangement as made in pursuance to the order impugned bearing No.440-PW (Hyd) of 2017 dated 26.10.2017 is not in consonance with CCA Rules and CSR, as such, is quashed leaving it open to the respondent authorities to have recourse to rule 25 of CCA Rules or Regulation 85 of the CSR or any other enabling provision, rule or regulation for making stop-gap arrangements for the posts of Chief Engineers.”
“Admittedly, as on date in the system of inchargeship, neither petitioners nor respondents No.4 to 6 fall within the feeding category because for promotion to the post of Chief Engineer, selection has to be from Class II i.e. from amongst Superintending Engineers. Both petitioners and respondents No.4 to 6 are I/C Superintending Engineers”, read the judgment.
In the Government instructions, it has been emphasized that 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.
Court directed the authorities to ensure initiation of the process for regular promotion by referring all the cases at all levels to DPC/PSC and on the basis of recommendation of the DPC/PSC proper promotions are granted to the deserving Engineers at respective levels. In the process Reservation Rules of 2005, so far as those are applicable to the extent of permissible limit at the respective levels, shall be strictly adhered to.
Unless and until petitioners and respondents No.4 to 6, Court said, are not regularized at the level of Executive Engineers and then at the level of Superintending Engineers, they shall not be eligible to be incharge of the higher post. A thick line of demarcation, as per Government instruction, as, is that the person to be gives the charge must be eligible.
Petitioners, who are at present working as I/C Superintending Engineers, have a grouse against the adjustment of respondents No.4 to 6 who, vide Govt. order No.440-PW(Hyd) of 2017 dated 26.10.2017, have been asked to look after the charge of the post of Chief Engineers.
They claimed that they being senior to those who have been given I/C CE post, therefore, should have been asked to look after the charge of the post of Chief Engineers and prayed for quashment of said Government order No.440-PW(Hyd) of 2017 dated 26.10.2017 with a further prayer to command the authorities to promote the them as I/C Chief Engineers from the date their juniors have been placed as I/C Chief Engineers i.e. being the senior most Superintending Engineers.
State counsel submitted that holding of positions by the petitioners as well as by private respondents on incharge basis is not based on any seniority or merit but it, in effect, is being done as a result of administrative exigency.
“In-charge placement is not to confer any special right of promotion to such officers. The merit and seniority and the rule position will govern the regular promotion, therefore, by no stretch of imagination any Engineer put on incharge basis can claim seniority at the level of Executive Engineer or at the level of Superintending Engineer”, State counsel contended.
Court said, that seniority at the level of Executive Engineer, Superintending Engineer and Chief Engineer will depend upon the promotion on regular basis in accordance with rules and such promotion as on date has not been granted to the petitioners and private respondents.
“That is why, in-charge arrangement has continued. Now the question which arises for consideration is as to whether incharge arrangements are to be made in accordance with seniority. Normally, as per rules, in the emergent situations when the exigency so demands. Irrespective of seniority, officer from a lower post is given the charge of the higher post but in his own pay and grade with a rider that same will not confer him any right to claim to be superior to his seniors, means that when regular process of promotion has to be initiated, same will be strictly in accordance with seniority and merit, incharge position or arrangement, will not reckon for seniority”, read the judgments.
Court said that the practice of placing Assistant Engineers as Incharge AEE’s, then Incharge AEE’s as Incharge Executive Engineers, and then Incharge Executive Engineers as Incharge Superintending Engineers is totally in derogation of the Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978.
“The order governing the Incharge position contained a stipulation that it shall be for a period of six months purely on temporary basis against available vacancies or till the posts are filled up under rules on regular basis by the DPC/PSC, whichever is earlier”, court said.
Court said, this stipulation has never been respected, instead position of Inchargship has been continued at all levels. It is not forthcoming as to why on regular basis, cases for promotion at every level are not referred to DPC/PSC nor it is understandable as to why Inchargship is continued, which appeared to be with some design.
“However, under the garb of In-chargeship, in effect, at every level Engineers discharge the duties as Assistant Executive Engineers, then as Executive Engineers and then as Superintending Engineers. In the process, both seniority and merit becomes casualty and in a way favouritism gets promoted because In-chargeship is not based on any seniority or merit, has to be like that because it is a stop gap arrangement which does not confer permanent status at the respective levels”, court further added.
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