Government of Jammu and Kashmir General Administration Department (Services) Civil Secretariat, Srinagar

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1 Fax No (S) (J) Government of Jammu and Kashmir General Administration Department (Services) Civil Secretariat, Srinagar Subject: SWP No. 1693/2000 titled Mehraj-ud-din Khan Vs State of J&K and others accord of fresh consideration to the induction of Mr. Mehraj-ud-din Khan into the Jammu and Kashmir Administrative Service w.e.f Government Order No:620-GAD of 2014 Dated: Whereas, the process for filling up 56 vacancies, representing 15% of the sanctioned posts of KAS cadre, from amongst the persons other than those belonging to the departmental feeding services was started in ; and Whereas, this culminated with the issuance of Government Order No GAD of 2000 Dated , read with Government Order No. 115-GAD of 2014 Dated , in terms of which 50 officers were appointed by selection to the Time Scale of the Jammu and Kashmir Administrative Service. The remaining 06 posts could not be filled up and were reserved for one or the other reason; and Whereas, these appointments were made in terms of Rule 5(1) of Jammu and Kashmir Administrative Service (Amendment) Rules, 1993, which provided for the following method of recruitment to the Jammu and Kashmir Administrative Service: (a) (b) by competitive examination at the Junior Scale of the service; by promotion to the Time Scale of the service from amongst the members of the departmental feeding service, holding Time Scale of Rs (prerevised) or any other higher grade in the respective departmental service;

2 (c) by selection to the Time Scale of the service from amongst the persons of outstanding ability and merit, serving in connection with the affairs of the State in departments/services other than those covered under clause (b) above or in autonomous bodies/government Owned Public Sector Undertakings carrying the pay scale equivalent to or higher than the Time Scale of KAS, on the recommendation of the concerned department/ Autonomous Body/Government Owned Public Sector Undertaking respectively; and Whereas, the following selection criteria was decided to be adopted by the Selection Committee for considering appointment of the persons under this category: (i) evaluation with reference to a total of 100 marks; a maximum of 75 marks for the APRs for the period to 96-97, as per the following criteria: Grading Outstanding : 15 x 5 years = 75 Very Good : 12 x 5 years = 60 Good : 9 x 5 years = 45, and (ii) 25 marks for the viva-voce/interview; and Whereas, out of the 440 officers recommended by the respective departments/autonomous Bodies/Public Sector Undertakings for being considered for induction into KAS under this category, commonly known as Technical Quota, 190 officers only were finally short-listed for being evaluated as per the aforesaid criteria, with reference to the grading awarded to these officers in the APRs; and Whereas, it was decided that only those officers holding the qualifying grade of Rs (pre-revised), equivalent to the Time Scale of KAS, who would score 45 points or above on the basis of the grading awarded to them in their APRs would be called for the interview; and Whereas, 139 officers fulfilling this criteria were called for the interview, which was held on the 10 th, 13 th and 17 th of July, Among others, Mr. M.D. Khan was also called for interview,

3 notwithstanding further verification on whether he was holding the qualifying grade of Rs (pre-revised) at the relevant point of time; and Whereas, taking into account the points scored by these officers on the basis of the APRs and the performance in the interview, a select list of 102 candidates was prepared, which did not include Mr. M.D. Khan, who alongwith other 04 officers was rendered as ineligible on account of not holding the qualifying grade at the relevant point of time. One more officer was also not included in the select list on account of his appointment to the IAS; and Whereas, the decision to exclude Mr. M.D. Khan was taken by the Selection Committee in its meeting dated , based on the following inputs provided by the Agriculture Production and Rural Department, with whom the matter was taken to ascertain the eligibility of Mr. M.D. Khan: The Agriculture Production and Rural Department under letter No. Agri/RD/B/86/98 Dated have informed that there is no record available in that department to indicate as to whether the grade of Executive Engineer has been sanctioned in favour of the officer. The officer continues to be Assistant Executive Engineer as per records in the grade of Rs. 2,500-4,000 (pre-revised). The department further stated that they have received a judgment of the Hon ble High Court in SWP No. 1163/97 titled N. Pandita Vs State of J&K and others enclosing Government Order No. 531-RD of 1996 Dated , which is in respect of release of pay scale of Executive Engineer in favour of the officer ; and Whereas, out of the 102 officers figuring in the select list, only 50 officers, having scored 75 and above marks on the basis of the grading awarded to them in the APRs and the points scored by them in the interview, were recommended for appointment to the Time Scale of KAS, and were subsequently appointed as such vide Government Order No GAD of 2000 dated , read with Government Order No GAD of 2014 dated ; and Whereas, Mr. M.D. Khan could not make it to the final select list; not only on account of not possessing the qualifying grade at

4 the relevant point of time but also because he could score 67 points only on the basis of his APRs and performance in the interview. The last selected/appointed candidate had scored 75 marks; and Whereas, aggrieved of his non-inclusion in the list of selected officers and non induction into KAS, he filed a writ petition bearing SWP No. 1693/2000 titled Mehraj-ud-din Khan Vs State in the Hon ble Court, seeking following reliefs: (a) (b) (c) (d) (e) quashing the memorandum submitted to the Cabinet regarding induction of officers into KAS under 15% Technical Quota in so far as it relates to petitioner s ineligibility. quashing Government Order No GAD of 2000 dated together with its annexures. directing respondent no. 1 to 3 to induct him into KAS either in open merit category or in the reserve category. treating the petitioner to be entitled for induction in KAS. commanding the respondent 4 & 5 to refrain from performing and functioning as KAS officers and also from holding any cadre post in the said service; and Whereas, pending final disposal of writ petition SWP No. 1693/2000, the petitioner filed an application bearing CMP No. 2714/2000, praying therein that the respondents be directed to consider the petitioner s induction into the KAS, provisionally, till the main petition is finally decided or in the alternative petitioner s representations may be considered for induction in KAS; and Whereas, the CMP was disposed by the Hon ble High Court vide its order dated , directing as under: In the aforementioned backdrop, respondents are directed to reserve one post in KAS cadre till disposal of the writ petition. However, with a view to ensure expeditious disposal of the writ petition, the

5 respondents shall file counter within six weeks with an Advance copy to LC for the petitioner who shall have two weeks thereafter to file rejoinder if any ; and Whereas, in the counter affidavit, prepared with reference to the records maintained in GAD, the Hon ble Court was apprised of the following factual position: (a) (b) (c) (d) (e) that the petitioner was not at all eligible for induction in the said service. However, notwithstanding his ineligibility, he was considered for induction by the Selection Committee but he could not make the grade. that on the basis of his APRs and performance in the interview the petitioner could score only 67 marks out of 100, whereas the last selected /appointed candidate had scored 75 marks. that the petitioner was not at all holding the grade of Rs and the Government Order No RD of 1996 Dated (on which the petitioner relied to project that he was in the requisite pay scale) clearly indicated that he was holding the post of Executive Engineer in officiating capacity/on excadre basis, as he was on deputation to the Desert Agency where he was holding the said post at the relevant point of time. that the petitioner was not allowed the pay scale on substantive basis and was never cleared or recommended by the Departmental Promotion Committee, but the pay scale of Rs was released in his favour vide above referred Government Order in compliance to the Order dated , passed by the Hon ble High Court in writ petition No. 1545/96. that assuming, though not admitting, that the petitioner was holding the said pay scale substantively at the relevant point of time, even then he could not have been recommended for induction because of his poor merit; and

6 Whereas, these averments were reiterated in the supplementary affidavit filed before the Hon ble Court during In the said affidavit, it was categorically mentioned that the petitioner obtained 60 marks on the basis of Annual Performance Report and 7 marks in Interview, totaling 67 marks, as against 75 marks scored by the last candidate inducted into KAS, under Technical Quota. Against this contention of the respondents, the petitioner pleaded that he had scored 89 marks; 75 marks on account of his 5 APRs for the years 1992 to 1997 and 14 marks in the interview conducted by the Selection Committee. The petitioner also pleaded that he was entitled to induction on the basis of belonging to the Scheduled Tribe category, in terms of SRO-537 dated ; and Whereas, the Hon ble High Court disposed of the writ petition, on , operative part of which reads as under: For the reasons discussed the writ petition is allowed and the respondents are directed to accord fresh consideration to the petitioner s induction into Kashmir Administrative Service w.e.f having regard to his performance as assessed in his APRs of to and in the interview conducted by the Selection Committee in light of the selection criteria incorporated in para-4 of the memorandum of submission to the General Administration Department dated (annexure-a to the petition) as also having regard to his claim that he in terms of rules in vogue at the relevant time was also eligible for such consideration under Schedule Tribe Category. The respondents shall accord consideration as directed and take a final decision in the matter within four weeks from the date copy of this order is served on them ; and Whereas, on further examination of the issue, the Department of Law, Justice and Parliamentary Affairs was consulted who advised to accord fresh consideration to the petitioner s claim in compliance of the judgment passed by the Hon ble High Court in SWP No. 1693/2000 titled Mehraj-ud-din Khan Vs State of J&K and others; and Whereas, with a view to according fresh consideration to the case relating to the induction of Mr. M.D. Khan to the Time Scale of KAS, the parent department of Mr. M.D. Khan i.e. the Rural

7 Department was requested to provide the following information: (i) (ii) whether Mr. M.D. Khan has been regularized as Executive Engineer on the recommendations of the PSC/DPC. if so, the copies of the recommendations made by the PSC/DPC and orders issued pursuant to these recommendations by the Department may be provided to the GAD. (iii) copies of the APRs of Mr. M.D. Khan from to may be provided. (iv) details of the officers under whom he has worked during the period with effect from 1992 to 1997 may also be provided; and Whereas, Mr. M.D. Khan, presently posted as CEO/Managing Director, State Procurement and Supplies Agency, Rural Department, J&K, was separately requested to produce the following records: (i) copies of the APRs presented before the Hon ble High Court in the rejoinder filed by him in the above SWP. (ii) the orders of regularization/confirmation as AE/AEE/Ex. Engineer issued by the Rural Department pursuant to the recommendations of the PSC/DPC; and Whereas, while enclosing the attested copies of APRs of Mr. M.D. Khan, for the period to , submitted by Mr. M.D. Khan himself, the Department of Rural & Panchayati Raj mentioned that most of these APRs were not reviewed/accepted and that before considering these APRs as valid, it shall have to be confirmed from Desert Agency whether the APRs are genuine or not. It was further mentioned that Mr. M.D. Khan has never been regularized as Executive Engineer on the recommendation of PSC/DPC and that all his promotions from Junior Engineer to Executive Engineer have been irregular and happened in most clandestine manner without consultation of the DPC/PSC. Various other details were

8 provided by the Rural Department about the officer, which though not relevant to the issue speak volumes about the conduct of the officer; and Whereas, Mr. M.D. Khan in his response to the departmental communication alluded reference to the recommendations of the PSC which are mandatory for effecting promotions in respect of an officer to different levels. He, however, made reference of the Cabinet Decision/Government Order passed in 2003 to demonstrate that at the relevant time i.e. on , no rules, either statutory or administrative, relating to Rural Engineering Wing of RDD were in force, in view of which the question of issuance of orders at the level of AE/AEE/Executive Engineer pursuant to the recommendations of DPC/PSC does not arise; and Whereas, the copies of the APRs of Mr. M.D. Khan for the year to enclosed by him with the rejoinder filed before the Hon ble Court were also obtained to make a comparative analysis of the gradings shown to have been awarded to him in these APRs with those made available by the Department of Rural & Panchayati Raj and the petitioner himself; and Whereas, in compliance of the directions dated passed by the Hon ble Court, the matter was considered by the Establishment-cum-Selection Committee in its meeting dated ; and Whereas, the attested copies of the APRs of Mr. M.D. Khan for the period to were perused by the Establishmentcum-Selection Committee from which the position obtained as under: Period Initiated by Reviewed by Accepted by Graded as Remarks Project Officer, None None Excellent There is contradiction in the Desert two attested copies of the Agency, Leh APRs in respect of dates of initiation of APRs. [Signatures of the Initiating Officer are not shown to be affixed] o Whereas, in the copy of the APR enclosed with the rejoinder by Mr. M.D. Khan before the Hon ble Court, the APRs have been shown to be Initiated on , those submitted by the Rural Department and Mr.

9 M.D. Khan, himself, indicate the date of initiation as Project Officer, Desert Agency, Leh [Signatures of the Initiating Officer are not shown to be affixed] Chief Project Officer, Desert Agency, Leh District Commissioner, Leh [Signatures of the Reviewing Officer are not shown to be affixed] o Whereas in the copy of the APR enclosed with the rejoinder filed by Mr. M.D. Khan before the Hon ble Court, these APRs have neither been reviewed nor accepted. However, in another copy of the APR produced by Mr. M.D. Khan for the same year, the remarks have been shown to be recorded by the Reviewing authority, whose signatures are however, not affixed on the said APR. None Excellent The APRs have been shown to be Initiated and Reviewed but the signatures of the Initiating and the Reviewing authority are not affixed. None None Excellent The APRs have neither been reviewed nor accepted. The Initiating authority has recorded the grading under his own hand and signature Chief Project Officer, Desert Agency, Leh [Signatures of the Initiating Officer are not shown to be affixed] Commissioner/ Secretary to Government, Rural Department [Signatures of the Reviewing Officer are not shown to be affixed] In the copy of the APR enclosed with the rejoinder filed by Mr. M.D. Khan before the Hon ble Court, the APRs have been shown to be Initiated on , those submitted by the Rural Department and Mr. M.D. Khan, however, indicate the date of initiation as None Good The APRs for the year have been initiated by the Initiating Officer on on the same day when the APRs for have been recorded. In the copy of the APR enclosed with the rejoinder filed by Mr. M.D. Khan before the Hon ble Court, the APRs have been shown to be Initiated on , those submitted by the Rural Department and Mr. M.D. Khan, however, indicate the date of initiation as

10 Ex. Chief Project Officer, Desert Agency, Leh None None Excellent The Initiating authority has recorded his remarks on For the same period, the APRs have been shown to be Initiated on in another copy and reviewed by Chief Executive Officer, LAHDC on Whereas, while taking note of the aforesaid inconsistencies, the Committee observed that when the original APRs are neither available in the GAD nor in the Rural Department, how is it that the officer has been able to produce the attested copies of the APRs. The Committee felt that no objective assessment about the performance of the officer can be made on the basis of the attested copies of the APRs, with discrepancies, which in most of the cases are neither reviewed nor accepted and wherever initiated, the signatures of the Initiating Officer are not affixed; and Whereas, the Committee further felt that in the absence of the award sheets for interview and the gradation sheet prepared in 1999 on the basis of the performance of the officers reflected in their APRs, the notings in the departmental file which dates as late as and on the basis of which counter affidavit was filed by GAD in 2002, shall have to be relied upon and the grading awarded to the officer on the basis of the performance reflected in the APRs, then assessed by the Selection Committee, in 1999, based on which he was awarded 60 marks, taken as final; and Whereas, as regards the claim that Mr. M.D. Khan was eligible for induction into KAS under Scheduled Tribe category in terms of the rules in vogue at the relevant point of time, the Committee observed that the process of selections under Technical Quota was started much before the issuance of SRO-537 of 1999 dated and at the relevant point of time the reservation in promotion was not available to the posts above the scale of Rs (pre-revised) and any change in the policy concerning the method of recruitment would not apply to recruitment processes which were already underway. It was also observed that the benefit of reservation would not extend to the recruitment processes initiated much before the issuance of the SRO ibid. The claim of Mr. M.D. Khan on this count also was found to be devoid of merit; and

11 Whereas, the Committee accordingly recommended to issue a consideration order rejecting the claim of the petitioner in compliance of the directions of the Hon ble Court dated passed in SWP No. 1693/2000 titled Mehraj-ud Din Khan Vs State, mentioning inter alia that the matter has been considered with reference to the available records and the inputs furnished by the Rural Department, and found to be devoid of merit. Now, therefore, having accorded fresh consideration to the case of Mr. Mehraj-ud-din Khan for his retrospective induction into the Time Scale of KAS w.e.f in compliance of the directions dated passed by the Hon ble High Court in SWP No. 1693/2000 titled Mehraj-ud Din Khan Vs State of J&K and others, his claim for appointment to the Time Scale of KAS, under Technical Quota, with effect from , is devoid of merit and hence rejected. By order of the Government of Jammu and Kashmir. (Khalid Majeed) Deputy Secretary to Government General Administration Department No: GAD(Ser)Genl/97/2010 Dated: Copy to: 1. Principal Secretary to Hon ble Chief Minister. 2. Secretary to Government, Department of Rural & Panchayati Raj. 3. Mr. M.D. Khan, CEO/Managing Director, State Procurement and Supplies Agency, Rural Department, J&K. 4. Principal Private Secretary to Chief Secretary. 5. PA to Secretary to Government, General Administration Department. 6. Incharge website, GAD. 7. Government Order file/stock file.