Serial No. 12 Regular Cause list IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 3391/2023 Fayaz Ahmad Lone and Anr. ….. Appellant/petitioner(s) Through: - Mr. S. A. Naik, Advocate V/s UT of J&K and Ors. ….. Respondent(s) Through: - Mr. Jahangir Ahmad Dar, GA CORAM: HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR JUSTICE SANJAY PARIHAR, JUDGE (ORDER) 21.05.2025 01. The petitioners, two in number invoke the extraordinary writ jurisdiction vested in this Court under Article 226 of the Constitution of India to throw challenge to an order and Judgment dated 09.12.2023, passed by the Central Administrative Tribunal, Srinagar Bench [“the Tribunal”] in OA No. 1159/2022 titled Reyaz Ahmad Dar and Ors. Vs. UT of J&K and Ors., whereby, the Tribunal has dismissed the OA filed by the petitioners. 02. Briefly put the relevant facts necessary for disposal of this petition are that the petitioners were initially appointed as Helpers on 30th October, 2012 and were holding the qualification of Matriculation at the time of their initial appointment. In the year 2007, the Superintending Engineer/Executive Engineer concerned changed their nomenclature from Helpers to Orderlies. In the final seniority list, issued by the respondents vide Circular No. PHE/Estt/14667-700 dated 21.08.2017, the petitioners herein were shown at serial Nos., 14 and 15 respectively and their designation was shown as Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document Orderlies. Vide communication No. JSD/Estt/11827-62 dated 29.09.2020, updated final seniority list of qualified Orderlies was issued by the respondents, in which names of the petitioners’ figure at serial Nos., 5 and 6 respectively. This was again updated by the respondents vide Circular No. JSD/Estt/22045- 80 dated 13.09.2022, wherein also the petitioners came to be shown at serial Nos., 5 and 6 respectively. 03. In the year 2018, the respondents issued notice to all the eligible matriculate orderlies for appearing in the Type test, so as to consider them for promotion to the post of Junior Assistant against 25% quota, earmarked for them under rules. The petitioners appeared in the examination, but could not qualify the Type test. 04. Feeling aggrieved by the promotion orders issued by the respondents in respect of juniors of the petitioners, who had qualified the Type test, the petitioners filed SWP No. 54/2018. The said writ petition was later transferred to the Tribunal and re-numbered as TA No. 4677/2020. During the pendency of the aforesaid writ petition/OA, the petitioners made a representation before the respondents for grant of promotion to the post of Junior Assistants and consequently withdrew their writ petition/TA. The representation made by the petitioners was placed by the respondents before a committee, which vide its order dated 17.12.2021, recommended that the petitioners and few others be reverted to the original cadre with all consequential benefits. 05. Feeling aggrieved by inaction of the respondents to implement the recommendations of the Committee, the petitioners filed OA No. 1159/2022, which OA has been dismissed by the Tribunal in terms of Judgment impugned in this petition. Before we proceed to analyse the submissions made by learned Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document counsel on both sides and evaluate the material on record, we deem it necessary to take note of the fact that in compliance with an interim order dated 08.12.2022, passed in OA, the case of the petitioners was considered by the Chief Engineer, Jal Shakti and consequently, a consideration order bearing No. 11605-10 dated 04.07.2023, was passed. 06. From perusal of the consideration order, it clearly transpires that the petitioners were initially engaged as daily-rated workers and thereafter regularized as Helpers/ALM. In the year 2007 and 2012, they were shifted to the ministerial cadre as Orderlies. It is noted in the consideration order that this change of cadre from Helper to Orderly was not permissible under rules. It is stated that the petitioners, who were without any avenues of promotion, were granted time bound non-functional promotions as per SRO 14 of 1996. 07. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the petitioners, upon their regularization, were appointed as Helpers, which is a post clubbed with the post of Orderly as well as Chowkidar and figures as class VI in Schedule-II ‘B’ (Ministerial) of the Engineering Subordinate Service Recruitment Rules, 1997 [“the Rules of 1997”], issued in terms of SRO 180 of 1997. It is thus not in dispute that the posts of Orderly and Helper are class VI posts borne on Schedule-II ’B’ (Ministerial) of the Rules of 1997. That being the position, changing of the nomenclature of the petitioners from ‘Helpers’ to ‘Orderlies’ and vice-versa, does not involve the change of cadre or even class. It needs to be clarified that the Rules of 1997 are applicable to all Wings of Public Works Department, viz Hydraulic, Road and Building, Mechanical, including Design Directorate and Store Procurement Department, having common designation. It is, however, correct that the post of Helper borne on the cadre of the J&K Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document Public Health Engineering Department (Subordinate) Service Recruitment Rules, 1989 [“the Rules of 1989”], figures in Schedule-C (Civil Wing Operation and Maintenance J&K P.H.E Department) and the minimum qualification prescribed for the post is middle pass with ITI certificates in Civil Trades. The petitioners are only matriculate without any qualification of ITI in any Civil Trades. Upon their regularization, they could not have been appointed as Helpers, the post indicated as category-C of class VI of Schedule-C of the Rules of 1989. 08. Viewed thus, we have no manner of doubt that the petitioners upon their regularization were appointed as Helpers/Orderlies in the respondent department under the Rules of 1997 and, therefore, were entitled to their promotion to the post of Assistant Storekeeper as well as Junior Assistant/ Typist. For facility of reference, the relevant extract of Schedule-II ‘B’ (Ministerial) is set out below:- Class Category Designation of the post Grade Minimum qualification for direct recruitment Method of recruitment IV A Junior Assistant/Typist [3050-4910] [(i) Graduation from any recognized University with knowledge of type writing having not less than 35 words speed per minute (ii) Six months certificate course in Computer applications from a recognized institute.] (i) 75% by direct recruitment. (ii) 25% by promotion from Class V and VI having type writing speed at least 30 words per minute. If sufficient number of candidates not available in promotion quota in particular calendar year, vacancies shall be filled up by direct recruitment. B Assistant Storekeeper 950-1500 Matriculation Examination or its equivalent or above from any recognized Institute/University. (i) 50% by direct recruitment. (ii) 50% by promotion from Class V and VI Orderlies/ Chowkidars/Helpers Office having minimum academic qualification as Matriculation on the basis of seniority- cum-merit. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 09. From reading of the extract reproduced above, it is crystal clear that a person working as Helper, Chowkidar or Orderly is entitled to be considered for promotion to the post of Assistant Storekeeper on the basis of seniority- cum-merit, provided he or she possesses minimum academic qualification of matriculation. Similarly, an Orderly, Chowkidar/Helper is also entitled to be promoted to the post of Junior Assistant, provided he or she has type writing speed of at least 30 words per minute, for which the department conducts Typing tests as and when the post of Junior Assistant in the quota of promotion becomes available. 10. In view of the clear position emerging from the reading of the relevant rules, the order of consideration dated 30.11.2022, which was subject matter of challenge before the Tribunal is bad in the eye of law and, therefore, cannot sustain. The Tribunal has not appreciated the controversy in right perspective and has erroneously dismissed the OA. Although the petitioners have not specifically prayed for a relief of seeking a direction to the respondents to consider them as Orderlies/Helpers in the ministerial cadre of the Rules of 1997, yet having regard to the facts and circumstances of the case and to address the grievance of the petitioners once for all, we deem it appropriate to dispose of this petition by providing as under:- I. That the impugned order and Judgment of the Tribunal is set aside. II. The respondents are directed to treat the petitioners having been appointed as Orderlies/Helpers in class VI of Schedule-II ‘B’ (Ministerial) of the Rules of 1997. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document III. That the petitioners shall be considered for promotion to the posts of Assistant Storekeeper/Junior Assistant, strictly as per Rules of 1997. The consideration of the petitioners for promotion to the post of Assistant Storekeepers in the quota of promotion shall be on the basis of merit-cum-seniority, whereas the promotion to the post of Junior Assistant shall be on the basis of qualifying the Typing test and achieving the speed of at least 30 words per minute. The seniority of eligible candidates shall of course be relevant in making such promotions. IV. The respondent department shall undertake an exercise to find out as to whether there is any post of Assistant Storekeeper in the promotion quota, lying vacant and, accordingly, initiate the process to fill up the same by way of promotion by according consideration to the petitioners in the manner aforesaid. The respondents shall also find out the number of posts of Junior Assistants, lying vacant in the promotion quota and, accordingly, take appropriate steps to fill up the said posts by promotion by according due consideration to the petitioners in the manner aforementioned. 11. Disposed of along with all connected CM(s). (SANJAY PARIHAR) (SANJEEV KUMAR) JUDGE JUDGE SRINAGAR 21.05.2025 “Mohammad Yasin Dar” Whether the ORDER is reportable: Yes/No Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document