Jammu & Kashmir High Court – Srinagar Bench
Union Territory Of J&K And Anr vs Ghulam Nabi Itoo And Others on 3 April, 2025
Bench: Rajnesh Oswal, Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Jammu cases taken up through virtual mode)
Reserved on 03.01.2025
Pronounced on 03.04.2025
WP(C) No. 2774/2023
c/w
WP(C) No. 895/2023
WP(C) No. 1182/2023
Union Territory of J&K and anr. .....Appellant(s)/Petitioner(s)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Nadia Abdullah, Assistant Counsel
Mr. T. M. Shamsi, DSGI
vs
Ghulam Nabi Itoo and others ..... Respondent(s)
Through: Mr. Jehangir Iqbal Ganie, Sr. Adv.
WP(C) No. 865/2021
c/w
WP(C) No. 784/2021
WP(C) No. 905/2021
WP(C) No. 949/2021
WP(C) No. 1073/2021
WP(C) No. 1973/2021
WP(C) No. 2720/2022
WP(C) No. 941/2023
WP(C) No. 942/2023
WP(C) No. 961/2023
WP(C) No. 962/2023
Mukhtar Ahmed Choudhary and .....Appellant(s)/Petitioner(s)
another
Through: Mr. Z. A. Shah, Sr. Adv. with
Mr. A. Hanan, Adv.
Mr. Sunil Sethi, Sr. Adv. with
Mr. Parimoksh Seth, Adv.
Mr. Abhinav Sharma, Sr. Adv. with
Mr. Abhirash Sharma, Adv.
Mr. R. A. Jan, Sr. Adv. With
Mr. Suhail Mehraj and Mr. Syed Mohd Yahya,
Advocates
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Mr. M. Y. Bhat, Sr. Adv. with
Mr. Sajid Ahmed Bhat, Adv.
Mr Javid Iqbal Balwan, Adv.
Mr. Dheeraj Choudhary, Adv.
vs
Union Territory of J&K and others ..... Respondent(s)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Nadia Abdullah, Assistant Counsel
Mr. Raman Sharma, AAG
in WP(C) No. 905/2021
Mr. Amit Gupta, AAG
Mr. Ravinder Gupta, AAG
Mr. T. M. Shamsi, DSGI
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Per Oswal-J
1. There are mainly two groups of petitioners before this Court. One
group comprises the petitioners in WP(C) 905/2021& WP(C)
1973/2021,who are the appointees of the year 1992, though they
entered the feeding services of the Jammu and Kashmir
Administrative Service(JKAS) through Combined Competitive
Examination held between 1980-1982. The other group comprises the
petitioners in WP(C) No. 865/2021, WP(C) No. 941/2023, WP(C) No.
784/2021, WP(C) No. 2720/2022, WP(C) No. 942/2023, WP(C) No.
962/2023, WP(C) No. 1073/2021 and WP(C) No. 961/2023, who are
the appointees of the feeding services of JKAS of the year 1999. The
learned Central Administrative Tribunal has decided all the
application/petitions filed by the appointees of the years 1992 & 1999
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by a common judgment dated 30.02.2021 even though the appointees
of the year 1992 had raised additional grounds other than the ones
urged by the appointees of the year 1999 that were not considered by
the learned Tribunal.
2. WP(C) No.1973/2021 has been filed by the petitioner, who was
inducted in JKAS by selection from officers of Technical Services in
the year 2012. Though the subject matter of this writ petition is the
order dated 15.04.2021 but the order dated 30.03.2021 has formed the
basis for passing of order dated 15.04.2021.
3. In all these petitions, the petitioners are aggrieved of the order dated
30.03.2021 passed by the learned Central Administrative Tribunal
(CAT) Jammu Bench, whereby the applications/petitions filed by the
petitioners challenging the Final Seniority list dated 24.06.2011, were
dismissed and Rule 15(4) of the Jammu and Kashmir Administrative
Service Rules (for short the ‘Rules of 2008’) and Clause(i) of Proviso
thereto, were held to be illegal and contrary to law.
4. In the writ petitions bearing Nos. WP(C) No. 2774/2023, WP(C) No.
895/2023 and WP(C) No. 1182/2023, impugned is the order dated
25.01.2023 passed by the learned Tribunal, whereby the application
filed by the private respondents was allowed and seniority list dated
07.04.2021 issued by the official respondents was quashed and the
seniority of the private respondents as fixed in the seniority list dated
24.06.2011 was restored.
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5. We propose to dispose of all these connected petitions by a common
judgment though we will be dealing with the additional grounds urged
by the petitioners who are the appointees of the year 1992 separately.
Factual matrix:
6. The petitioners have sought quashing of order dated 30.03.2021 and
also quashing of the subsequent orders issued by the official
respondents from time to time including SO No. 133 dated 15.04.2021
by virtue of which Rule 15(4) of the Rules of 2008 has been omitted.
A further relief has also been sought by the petitioners to direct the
official respondents to maintain the seniority of all the officers strictly
in accordance with the tentative seniority list of 2010 issued vide
order dated 485-GAD of 2010 dated 21.04.2010. The petitioners have
also sought a direction upon the official respondents to review the
omission of Rule 15(4) of the Rule of 2008 and further that the official
respondents be directed to enforce the said rule.
7. The grievance projected by the petitioners in these petitions is that
vacancies to the Time Scale posts of JKAS from the year 2004 to
2007 were available but were filled up only in the year 2008 through
the medium of various orders. After those orders were issued, the
Government issued SRO 386 of GAD dated 01.12.2008
nomenclated as the Jammu and Kashmir Administrative Service
Rules, 2008, thereby repealing the Rules of 1979. After the New Rules
came into force, the respondent Nos. 1 and 2 vide Government order
No.485-GAD of 2010 dated 21.04.2010 issued the tentative seniority
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list of Time Scale Officers of JKAS appointed to the services against
the vacancies, which were available with effect from 01.04.2004 till
31.12.2008. The said tentative seniority list was objected to by some
of the members of the Time Scale of JKAS and the Government vide
order No. 1076-GAD of 2010 constituted a committee of three
officers to examine the issue and consider the representations. The
said Committee submitted its report on 15.02.2011 and on 24.06.2011
the Government issued the final seniority list vide order No. 743-GAD
of 2011 dated 24.06.2011. Some of the members including the
petitioners herein assailed the seniority list issued vide order No. 743-
GAD of 2011 dated 24.06.2011 through the medium of various writ
petitions which were transferred to the learned Central Administrative
Tribunal. When SRO 386 of 2008 was issued by the Government,
some members of the service also assailed the said SRO through the
medium of other writ petitions. Ultimately, all the writ petitions were
transferred to the Tribunal and the learned Tribunal vide its judgment
dated 30.03.2021 disposed of all the petitions in the manner as
mentioned above.
8. Precisely, the contentions of the petitioners are that the Rule 15(4) of
the Rules of 2008 was provided to undo the injustice meted out to
them by not filling the vacancies, which arose in the year 2004-2008
and further that they are entitled to be inducted into Time Scale of
JKAS from the date, the vacancies were available, meaning thereby
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that they are entitled to retrospective promotion from the date,
vacancies arose for their services.
9. The petitioners/appointees of 1992 Batch, besides raising the grounds
as narrated above, have also submitted that in terms of Rules of 1979,
the petitioners had completed their five years’ service in the relevant
pay scale and had thus acquired eligibility for induction into the Time
Scale of JKAS between the years 1997 to 2008. Induction from the
Revenue Service (one of the feeding services) into JKAS took place in
the year 1997 and thereafter in the year, 2008. No officer from the
Revenue Gazetted Service, though eligible under Rules, was inducted
into Administrative Service after 1997 and before 2008. During that
period, the Selection Committee constituted under Rule 6 of the Rules
of 1979 met during the years, 2000, 2002, 2003, 2004, 2005, 2006 and
2007 but it did not consider any of the members of the Revenue
Gazetted Service for appointment to the JKAS. In the year, 2004,
many officers of the other feeding services came to be inducted in the
Time Scale of JKAS vide Government order dated 24.01.2004 but the
petitioners were not considered for induction into Administrative
Service though all the petitioners were eligible, and slots were also
available in the Administrative Service. It is also stated that in the year
2002, the counsel for the Government on 30.06.2002 had submitted
before the Division Bench of this Court in LPA No. 412/2001 that 120
vacancies were available in the Administrative Service out of which
18 posts fell to the share of Revenue Gazetted Service and the
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Division Bench after taking note of the submissions made by the
Government counsel, permitted the official respondents to go ahead
with the induction into JKAS and to consider the appellants therein
irrespective of their seniority but on their own merit and it was also
directed that the consideration of the Revenue Gazetted Service be
kept in a sealed cover till further orders. The official respondents did
not bother to comply the order of the Court and as such, no
consideration was accorded to the members of Revenue Gazetted
Service. The petitioners were ultimately considered and appointed in
the Time Scale of JKAS vide Government order dated 22.07.2008. It
is also urged by the petitioners that they were sanctioned to hold the
charge of Assistant Commissioners, SDMs and Collectors etc. which
posts fall in the cadre of JKAS and they were holding the charge of
these posts from 2004/2005 and as such, in any case, they are entitled
to claim their seniority from the date they were holding the charge of
cadre posts.
10. The official respondents have filed the response stating therein that the
validity of the seniority list issued by the official respondents has
rightly been determined by the Central Administrative Tribunal and
the same has been implemented by the Government in letter and spirit,
as such, the present petitions are not maintainable. It is stated that the
petitioners were appointed in terms of Rules of 1979. The
Government initiated the process of induction of eligible officers of 15
services to the JKAS in respect of the appointees of 1999 Batch as per
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availability of slots earmarked for each feeding service and as per their
eligibility. Rules 5(3) and 6 of the 1979 Rules provide for selection
committee to prepare a select list for appointment to the Time Scale
on the basis of merit and suitability as provided under Rule 8 of the
Rules of 1979. During the years 2005, 2006 and 2007, the induction of
officers of the various departmental feedings services of the year 1999
against the slots which became available from 2004 onwards could not
be considered on account of various reasons mostly procedural in
nature and during that period, neither the officers of the 1999 Batch
nor the officers from subsequent Batch of 2001, though they had
acquired eligibility in the year 2006, were inducted in to Time Scale
of JKAS. The Government after following due procedure and
recommendations of the Selection Committee appointed the officers
of 1999 Batch to the Time Scale of JKAS in terms of 1979 Rules,
however, the Government issued orders with regard to the promotion
of some of the officers of the 1999 Batch, even though enough
vacancies/slots were not available at the relevant point of time. This
was done to protect the interests of those officers, who would have
otherwise become junior to the officers of the subsequent batches of
the feeding services and the Government decided to utilise the
leave/reserve vacancies/slots and some anticipated slots, which would
have accrued in the year 2008 i.e. till 01.01.2009. The decision was
taken to avoid “lag behind class of officers of 1999 Batch”, otherwise
juniors would have taken march over the senior officers being eligible
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against the vacancies. A tentative seniority list of 239 officers
appointed to the Time Scale of the JKAS between 01.01.2004 to
31.12.2008 was notified vide Government order dated 21.04.2010.
110 representations were received against the said tentative seniority
list wherein substantial issues were raised. The Government appointed
three members committee headed by Sh. Samuel Varghese IAS vide
Government order dated 24.09.2010. The said Committee submitted
its report alongwith recommendations to the Government on
15.02.2011. While the issue of finalising the seniority list was under
active consideration with the General Administrative Department,
some officers approached this Court through SWP No. 1215/2011,
wherein an interim order was passed, and the respondents therein were
directed to consider the case of the petitioners therein for fixation of
their seniority in terms of Rule 15(4) of the Rules of 2008. In
compliance to the aforesaid directions of this Court, it was decided
that the petitioners, who were appointed to the Time Scale of JKAS
under the Rules of 1979 and not under the Rules of 2008, would be
entitled to seniority in terms of Rules of 1979 and not in terms of
Rules of 2008. Thereafter, a final seniority list of officers was issued
vide Government order No. 743-GAD of 2011 dated 24.06.2011,
which was issued without prejudice to the cases of the officer/officers
pending in any court of law.
11. The official respondents have given the details of litigations which
may not be relevant for the purpose of consideration of the present
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a/w connected matterscontroversy. It is also the stand of the official respondents that it is not
mandatory for the Government to set up a selection committee for
each calendar year for preparing a select list for promotion to the Time
Scale level post. As per Rule 6 of the Rules of 1979, it is for the
Government to constitute a selection committee on every
occasion/every time whenever it deems fit. The discretion is always
with the Government to constitute a selection committee whenever an
occasion arises, but whenever the selection committee is constituted
and meets, it will prepare a select list of all vacancies available on the
day of its meeting. Occasion arose in the year, 2008 when the
selection committee met. The selected candidate cannot have any plea
of retrospective promotion from the date on which the slots/vacancies
were available for their feeding cadre in the earlier /preceding
calendar years and it is the discretion of the Government to fill up the
vacancies occurred in any preceding or earlier calendar year. The
promoted member shall have the claim for the post on the date when
he joins the said post and not from the date on which the said vacancy
arose for their feeding service.
12. The official respondents have objected the claim of the petitioners, who
are appointees of 1992, on the ground that the petitioners were appointed
in the year 1992 after the judgment was passed by the Hon’ble Apex
Court and thereafter the appointees of 1992 including the petitioners
initiated the second round of litigation for fixation of their seniority
retrospectively i.e. the date from which the candidates who qualified the
11WP(C) No. 2774/2023
a/w connected mattersCombined Competitive Examination 1981 were appointed to service.
The Division Bench of this Court on 02.06.1999 decided the aforesaid
controversy by a common judgment and the petitioners were held
entitled to claim notional seniority with effect from the date the other
direct recruits came to be appointed i.e. 24.09.1984. The aforesaid
judgment of the Division Bench was assailed before Hon’ble the Apex
Court and Hon’ble the Apex Court vide its judgment dated 26.02.2003
upheld the judgment of the Division Bench and in compliance to the
same, the seniority of the petitioners was fixed with effect from
24.09.1984. The Hon’ble Supreme Court in its judgment dated
26.02.2003 had also ordered that no such seniority shall disturb the
promotions effected in the service with effect from 14.09.1984 till the
issuance of the order including the promotions made to JKAS.
Thereafter, a third round of litigation was initiated by the direct recruits
of the Revenue Gazetted Service challenging the grant of notional
seniority with effect from 24.09.1984 to the petitioners and all the
petitions and appeals related to the matter were clubbed by the Division
Bench of this Court and finally disposed of on 21.09.2006, whereby
various directions were issued thereby upholding the claim of the direct
recruits to the substantive seniority with all consequential benefits with
effect from 24.09.1984. The said judgment was assailed by the
Government before the Hon’ble Apex Court and the Hon’ble Apex
Court set aside the directions issued by the Division Bench and observed
that though the dispute of seniority was confined mainly to J&K
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Revenue (Gazetted) Service but directions of the High Court would
unsettle the long settled positions and cause dislocation across the board
in all services, even when there was no controversy earlier and the
Hon’ble Apex Court upheld the decision of the Government qua the
seniority of the direct recruits and promotees as settled in terms of order
dated 04.09.2003. The seniority of the direct recruits including the
petitioners in the J&K Revenue (Gazetted) Service was under
adjudication, as such, they could not be considered for induction into the
Time Scale of JKAS but was lastly settled by the Hon’ble Supreme
Court. It is stand of the official respondents that once the issue of
seniority at the level of J&K Revenue Gazetted Service stands settled by
the Supreme Court, the reference to any claim on that aspect is thus
misconceived. The official respondents have stated that as required in
terms of Rule 7 of JKAS Rules of 1979, the proposal of the eligible
member of the service for appointment by promotion to Time Scale of
the JKAS was not received from the Revenue Department considering
the seniority dispute between the members of the service, however, in
the year, 2008, a proposal on the basis of the seniority issued in year
2007 vide Government order dated 18.04.2007 was received and
accordingly, the members of the service were included in the select list
by the selection committee. It is also stated that pending disposal of the
writ petitions filed by the two groups of the petitioners, High Court on
30.09.2000 passed an interim direction allowing the Government to
make appointments/promotions on officiating basis in order to run the
13WP(C) No. 2774/2023
a/w connected mattersadministration and Government offices. All the writ petitions were
disposed of by the learned Single Judge on 08.11.2013 and liberty was
granted to the petitioners claiming induction against the slots of years
2004, 2005, 2006 and 2007 to seek review of their appointments by
filing formal review petitions before the concerned authorities in terms
of proviso (i) of sub-rule (4) of Rule 15 of the Rules of 2008 with a direction
to the Government to consider their review petitions and dispose of the
same in light of the observations made by the learned Single Judge in its
judgment. The Government filed Letters Patent Appeal bearing No.
20/2014 against the judgment, as did the 49 persons inducted against
leave/training reserve, who were also aggrieved of the judgment and
appeals were finally decided by the Division Bench vide judgment dated
18.04.2016 whereby the judgment of the Single Judge was set aside, and
the matter was remanded back for fresh adjudication. When the matter
was pending consideration before the Court, the Government constituted
a committee vide Government order No. 203-GAD of 2017 dated
20.02.2017 for suggesting a road map for resolving the seniority issue of
the members of JKAS. The Committee submitted a report on 31.03.2017
which was found to be inconclusive and accordingly, a new Committee
was constituted vide Government order dated 01.04.2020 to examine the
seniority issue of the members of the JKAS appointed to the Time Scale
of the service between 01.01.2004 to 01.12.2008. The Committee
submitted it report on 16.05.2020 which was accepted by the competent
authority. The final seniority list was placed before the Establishment-
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cum-Selection Committee in its meeting on 22.06.2020 for consideration
and for making recommendations in the matter. Establishment-cum-
Selection Committee accordingly considered and recommended the
redrawn seniority of the members of JKAS appointed between
01.01.2004 to 01.12.2008. The recommendations of the Establishment-
cum-Selection Committee were approved by the competent authority for
notification of draft/redrawn seniority list of the members of the JKAS
appointed to the service between 01.04.2004 to 01.12.2008. Various
objections were received against the draft of redrawn seniority and while
the process of examining the representation was under consideration, the
aforesaid seniority list was also challenged before the learned Tribunal in
OA 94/2020 and OA No. 95/2020 and in TA No. 3481/2020, wherein the
validity of Rule 15(4) of the Rules of 2008 was also challenged. It is
stand of the officials respondents that the seniority list of 2011 issued
vide Government order No. 743-GAD of 2011 dated 24.06.2011 is in
accordance with the rules as well as general principles of reckoning of
the seniority, except to the extent of modifying the seniority for placing
the appointees/promotes against leave and training vacancies/anticipated
vacancies etc. below those who were promoted/appointed against regular
vacancies.
13. The petitioners who are the appointees of year 1992 batch have filed the
rejoinder stating therein that the petitioners for the first time were placed
in the Time Scale of JKAS under Rules of 1979 in the year, 2008 and
thereafter placed in the Selection Scale in the year, 2011 and 2013. The
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petitioners have mentioned the pensionary benefits being received by
them and have stated that the candidates who were offered employment
in the year 1984 are receiving pensionary benefits either in Super Time
Scale of JKAS or as IAS retirees and their pensionary benefits are much
higher than what is being paid to the petitioners. It is further stated that
in order to do justice, supernumerary posts will have to be created in
various scales in recognition of the rights of the petitioners and the
placement of the petitioners be accordingly made so that no benefit
legally available to the petitioners and enforceable in law is denied there
to.
ARGUMENTS:
14. Mr. Z. A. Shah, learned Senior Counsel appearing for petitioners, who
are the appointees of 1992, has argued that the Rule 15(4) of the Rules
of 2008 was meant to do justice with the petitioners as despite
eligibility and availability of vacancies/slots for their respective
feeding departmental services, they were not inducted to the Time
Scale of JKAS with effect from the years 2004-2007. He has further
argued that the official respondents did not comply with the directions
issued by the Division Bench in the year, 2002 for keeping the
seniority in a sealed cover and further that the petitioners of 1992
Batch had been working against the posts meant for the JKAS from
the years 2004-2005 and even if the Rule 15 (4) of the Rules of 2008
is ignored, still the petitioners can be granted the benefit of seniority
from the date they were working on cadre posts, though on incharge
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basis. Mr. Shah has also placed much reliance upon the judgments of
the Hon’ble Supreme Court of India in cases of State of J&K v.
Javed Iqbal Balwan1, and Suraj Prakash Gupta and others v State
of J&K and others2.
15. Mr. R. A. Jan, learned Senior Counsel appearing for some of the
petitioners, who are the appointees of 1992, has argued that the fault,
if any, was of the official respondents that they did not make any
induction into the Time Scale of JKAS and the petitioners, who are
similarly situated to their counterparts of other feeding services to the
JKAS and were selected pursuant to the same selection process, have
been discriminated and the discrimination is writ large in the
pensionary benefits being received by them. He has placed reliance
upon the judgment of the Hon’ble Supreme Court of India in P.N.
Premachandran v. State of Kerala3.
16. Mr. M. Y. Bhat learned Senior Counsel appearing for some of the
petitioners, besides reiterating the submissions made by Mr. Shah,
learned Senior Counsel, has drawn the attention of this Court towards
the minutes of the meetings of the various meetings to demonstrate
that the vacancies were available for the petitioners right from the
years 2004-2007 and the petitioners were eligible for induction to the
Time Scale of JKAS from the date of acquiring of their eligibility but
the official respondents did not make any induction for the years 2004
1
(2009) 4 SCC 529
2
(2000) 7 SCC561
3
(2004) 1 SCC 245
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to 2007, as a result of which, the petitioners have been deprived of
their valuable right to a higher post when they were possessing the
requisite eligibility and the slots for their respective feeder services
were also available. Mr. Bhat has relied upon the judgment of the
Hon’ble Supreme Court in case ‘Vijay Singh Charak v. Union of
India‘ 4 to substantiate that the official respondents could not have
clubbed the vacancies for the various years for the purpose of issuance
of common seniority list and the seniority of the petitioners is to be
reckoned from the date when the vacancy had arisen subject to the
fulfilment of other eligibility conditions. Mr. Bhat has further argued
that the private respondents, namely, Dr. Ghulam Nabi and Mr. Tarik
Ahmed Ganie have no locus to question the entitlement of the
seniority of the petitioners, namely, Mukhtar Ahmed and Rajesh
Kumar Shawan with effect from the year 2006 and 2007 respectively
as both the private respondents had not acquired the eligibility for
induction into the Time Scale of JKAS in the year 2006 and 2007. He
has further argued that Mohd. Issac Shah and Pankaj Mangotra also
have no locus standi to question the validity of Rule 15(4) of the
Rules of 2008 as their quota in the Time Scale of JKAS stood already
exhausted.
17. Mr. Sunil Sethi, learned Senior Counsel for some of the petitioners
and other counsels have also argued on similar lines.
4
(2007) 9 SCC 743
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18. Per contra, Mr. Amit Gupta, learned AAG appearing for the official
respondents has argued that the benefit of seniority cannot be granted
to the petitioners retrospectively in absence of any such Rule in the
Rules of 1979 and so far as Rule 15(4) of the Rules of 2008 is
concerned, it stands omitted vide SO. No.13 dated 15.04.2021.He has
further argued that the Government has accepted the judgment of the
learned CAT. He has placed reliance upon the judgment of the
Hon’ble Supreme Court of India in State of Uttranchal and another
v Dinesh Kumar Sharma5.
19. Mr. Ravinder Gupta, learned AAG has argued that in case of the
petitioners, who are the appointees of 1992 batch, the controversy
stands already settled by the Hon’ble Supreme Court of India and
now, the petitioners cannot raise the issue of discrimination vis-a-vis
their counterparts from other feeding services.
20. Mr. Jahangir Iqbal Ganie, learned Senior Counsel appearing for the
private respondents has argued that the Rules of 2008 were put into
operation with effect from 01.12.2008 and the petitioners as well as
private respondents were inducted into Time Scale of JKAS prior to
01.12.2008 and by operation of the Rules of 2008, the rights which
had vested with private respondents were taken away by Rule 15(4) of
the Rules of 2008 and proviso (i) to the said Rule, which vested the
power with the Government to grant the benefit of seniority to the
eligible members of the service from the date of availability of the
(2007) 1SCC 683
5
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vacancies. He has placed reliance upon the judgment of the Hon’ble
Supreme Court of India in “Sunaina Sharma and others v State of
J&K and others“6.
21. Heard learned counsel for the parties and perused the record.
ANALYSIS:
22. The Jammu and Kashmir Administrative Service Rules of 1979 (for
short ‘the Rules of 1979’) provide that Jammu and Kashmir
Administrative Service (for short ‘the JKAS’) shall comprise of
following scales of pay:
(i) Super time Scale
(ii) Special Scale
(iii) Selection Grade
(iv) Time Scale
(v) Junior Scale
23. In terms of Rule 5(3) of the Rules of 1979, out of total vacancies to
Time Scale posts occurring in a calendar year, 65% of the vacancies
are required to be filled by promotion from departmental feeding
services, 10% of the vacancies are to be filled up by a selection from
amongst the persons of outstanding ability and merit serving in
connection with the affairs of the State, in departments/services but
not from amongst the members of the feeding services and remaining
25% of the vacancies are required to be filled up by promotion of the
Junior Scale JKAS officers, subject to their eligibility after completion
of 4 years of service.
2017 AIR SC 5101
6
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24. The petitioners before this Court are the members of the feeding
services, who were promoted to the Time Scale of JKAS on various
dates. The petitioner in WP(C) No.1973/2021 has been selected from
the service other than the feeding services in terms of 10% vacancies
as mentioned above. A member of Junior Scale of JKAS is to be
appointed by the direct recruitment. In terms of Rule 3(4) of the Rules
of 1979, a member of the junior scale of JKAS and a member from
feeding services can be promoted to the Time Scale of the JKAS,
subject to the various conditions including the one that the post in the
Time Scale of the JKAS for the relevant service is available. There are
16 feeding services, the members of which are eligible to be promoted
to the Time Scale in terms of Rule 3 (4) of the Rules of the 1979.
25. The main common grievance projected by the petitioners in the
present petitions is that after rendering the requisite period of service
in the feeding services to the Time Scale of JKAS, the petitioners
became eligible for promotion to the Time Scale of JKAS and despite
the availability of the slots for their respective services in the Time
Scale of JKAS, the petitioners were not promoted and to undo the
injustice meted out to the petitioners, the Government came up with
the Rules of 2008 more particularly the Rule 15(4) of the Rules of
2008 and Clause-(i) of proviso thereof.
26. A perusal of the impugned order reveals that the learned Tribunal had
framed the following issues for its adjudication:
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a/w connected matters
(i) Whether the final seniority list dated 24.06.2011,
suffers from any legal or factual infirmity;
(ii) Whether the KAS 2008 Rules, would cover the State
of affairs that existed before they came into force;
(iii) Whether Rule 15(4) and clause(i) of the proviso
thereof are legally valid; or whether they are liable to
be set aside;
(iv) Whether the exercise undertaken by the Government
in constituting a committee and publishing a further
separate seniority list in 2020 is valid and legal; or
(v) Whether leave vacancies can be treated as Part of
cadre.
27. The learned Tribunal while upholding the validity of final seniority
list of 2011 held that the Rules of 2008 will apply only to the
inductions made into the JKAS after 01.12.2008 and declared Rule
15(4) of Rules of 2008 and Clause-(i) of the proviso thereof as illegal
and contrary to law. So far as issue No. (v) is concerned, the learned
Tribunal observed that Rules of 1979 did not provide for inclusion of
any leave or training vacancy for the purpose of promotion, but the
promotions/appointments so made cannot be treated as invalid and as
such, appointees/promotees cannot be placed above those who were
appointed/promoted against regular vacancies.
Common issues for adjudication:
28. First, we propose to deal with the common issues involved in these
petitions filed by the petitioners who are appointees of the year 1999
and 1992.
Issue No. 1:
Whether rule 15(4) of the Rules of 2008 and Clause-(i) of the proviso
thereof is illegal as it snatches away the vested right in favour of some
22WP(C) No. 2774/2023
a/w connected mattersmembers of the service vis-a -vis other members who were inducted into
JKAS against the vacancies of the years 2004, 2005, 2006 and 2007?
Issue No. 2:
If the answer to issue No. 1 is not in affirmative, whether the petitioners
can be granted the benefit of promotion from the date when the vacancy
had arisen for their respective departmental feeding services in the Time
Scale of JKAS?
Issue No. 1
29. Whether rule 15(4) of the Rules of 2008 and Clause-(i) of the
proviso thereof is illegal as it snatches away the vested right in
favour of some members of the service vis-a-vis other members
who were inducted into JKAS against the vacancies of the years
2004, 2005, 2006 and 2007?
It would be proper to extract the Rule 15(4) and Clause (i) of proviso
of Rules of 2008, which are as under:
“15(4) Where select list cannot be prepared for the members of
any departmental feeding service in any particular calendar year
despite availability of vacancies owing to the procedural delay,
such members, when finally included in the select list at any
later date, shall be appointed to the service from the date on
which the vacancy was allocated to such feeding service.
Provided that
(i) cases of persons appointed against the vacancies of 2004,
2005, 2006 and 2007 shall be reviewed in terms of sub-rule (4)
above if their appointment has taken place at a subsequent date.”
30. This is an admitted fact that the petitioners as well as the private
respondents were inducted into the Time Scale of JKAS prior to
01.12.2008, when the Rules of 2008 were put into operation thereby
repealing the Rules of 1979, meaning thereby that the petitioners were
23
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a/w connected matters
inducted into Time Scale of JKAS under the Rules of 1979. It is the
case of the petitioners that they were eligible for induction to the Time
Scale of JKAS for the vacancies in the year 2004 to 2007 as per the
slots available for their services but the petitioners were not inducted
into the Time Scale of JKAS and were inducted into the Time Scale of
JKAS only in the year 2008. So far as Rules of 1979 are concerned,
there is absolutely no provision prescribing the reckoning of date of
induction/promotion to the Time Scale of JKAS from the date of
availability of vacancy in the Time Scale of JKAS for the relevant
feeding departmental services, when the candidate is promoted in any
year subsequent to the availability of vacancy where select list in any
calendar year could not be prepared due to procedural delay. Clause
(i) of proviso to Rule 15(4) of Rules of 2008 provided that the cases of
persons appointed against the vacancies of the years 2004, 2005, 2006
and 2007 shall be reviewed in terms of sub-rule (4) if their
appointments have taken place at a subsequent date. In fact, this
provision vests the power with the Government to review the
appointment of the petitioners in the Time Scale of JKAS, if they are
inducted in the Time Scale of JKAS against the vacancies for the
years 2004, 2005, 2006 and 2007 but from a date subsequent to the
availability of vacancies for their respective feeding services in the
Time Scale of JKAS. The practical effect of this sub-rule and proviso
thereof is that some appointees of 1999 Batch inducted/promoted
against the vacancies/slots of the year-2004, 2005, 2006 and
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a/w connected matters
2007 would figure higher in the seniority list of Time Scale posts of
JKAS than the others, who were inducted against the vacancies of the
year-2008, though all of them got inducted in to Time Scale of JKAS
in same calendar year. But for this sub-rule and proviso thereof, some
members of time scale of JKAS, who though are inducted against the
vacancies of 2004, 2005, 2006 and 2007 may figure below the other
members appointed against the vacancies of 2008. The operation of
Rules of 2008 provides the benefit of appointment to the members of
the Time Scale of JKAS, who were inducted into the JKAS for the
vacancies of the years 2004, 2005, 2006 and 2007 vis-a-vis the
members of Time Scale of JKAS appointed against the vacancies of
2008, from the date of availability of vacancies and not from the date
of order of appointment. In absence of this sub-rule and proviso
thereof, they would not get any benefit, and they may figure lower in
the seniority list against the other members of the service inducted
into JKAS even against the vacancies for the year, 2008. All the
orders of the promotions of the petitioners into Time Scale of JKAS
were issued in the year, 2008 but prior to 01.12.2008. In this view of
the matter, Rule 15(4) of the Rules of 2008 and Clause (i) of the
proviso to the above Rule would snatch away the vested right in
favour of the private respondents. This Court is of the considered view
that as the petitioners were appointed/inducted in to Time Scale posts
of JKAS under the Rules of 1979, so they were required to be
governed by the Rules of 1979 only. Rule 15(4) of the Rules of 2008
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a/w connected matters
and Clause (i) of the proviso, in fact had the effect of taking away the
vested right of some of the members of the service and as such, the
same is illegal.
31. In the above context, it would be beneficial to take note of the
observations of the Hon’ble Supreme Court of India in ‘V. Vincent
Velankanni v. Union of India’7, which are as under:
“43. If a Government Order is treated to be in the nature of
a clarification of an earlier Government Order, it may be
made applicable retrospectively. Conversely, if a subsequent
Government Order is held to be a modification/amendment
of the earlier Government Order, its application would be
prospective as retrospective application thereof would result
in withdrawal of vested rights which is impermissible in law
and the same may also entail recoveries to be made. The
principles in this regard were culled out by this Court in a recent
judgment of Sree Sankaracharya University of Sanskrit v. Dr.
Manu, in the following terms:–
“52. From the aforesaid authorities, the following principles
could be culled out:
i) If a statute is curative or merely clarificatory of the
previous law, retrospective operation thereof may be
permitted.
ii) In order for a subsequent order/provision/amendment to
be considered as clarificatory of the previous law, the pre-
amended law ought to have been vague or ambiguous. It is
only when it would be impossible to reasonably interpret a
provision unless an amendment is read into it, that the
amendment is considered to be a clarification or a
declaration of the previous law and therefore applied
retrospectively.
iii) An explanation/clarification may not expand or alter the
scope of the original provision.
iv)Merely because a provision is described as a
clarification/explanation, the Court is not bound by the said
statement in the statute itself, but must proceed to analyse the
nature of the amendment and then conclude whether it is in
reality a clarificatory or declaratory provision or whether it is a
substantive amendment which is intended to change the law and
which would apply prospectively.”
(emphasis added)
In view of the aforesaid discussion, we hold that the learned Tribunal is
right in striking down Rule 15(4) of the Rules of 2008. As a matter of
7
2024 SCC OnLine SC 2642
26
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a/w connected matters
fact, the Government too realised its folly and vide S.O. No.133 dated
15.04.2021 notified the deletion of Rule 15 (4) of the Rules of 2008. The
issue is answered accordingly.
Issue No. 2:
32 If the answer to issue No. 1 is not in affirmative, whether the
petitioners can be granted the benefit of promotion from the date
when the vacancy had arisen for their respective departmental
feeding services in the Time Scale of JKAS?
The petitioners were inducted into Time Scale of JKAS in the year-
2008 only and there is no provision in the Rules of 1979 which
provides for grant of benefit of appointment/seniority to a member of
a JKAS service anterior to the date of his induction into Time Scale of
JKAS. It was contended by Mr. M.Y Bhat, learned Senior Counsel
appearing for some of the petitioners that it is obligatory for the
selection committee to make selections/inductions for the calendar
year and as such seniority of inducted officers is to be determined on
the basis of year of vacancy as shown in the select list of that year in
terms of Rule 16(4) of the Rules of 1979. A perusal of Rule 16 (4) of
the Rules of 1979 would reveal that the inter se seniority of the direct
recruits on their promotion to the Time Scale, vis-a-vis those
appointed by promotion/selection shall be determined in the manner in
which the senior scale posts have to be allocated for
promotion/selection/direct recruitment as prescribed in the rules. For
this purpose, a calendar year shall be taken as a unit for determination
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a/w connected matters
of the seniority. In case appointment of any group does not take place
in a particular calendar year, such a group shall have no claim for
relating its seniority with those appointed to the Time Scale in the
previous year/years. This rule determines the inter se seniority of the
direct recruits vis-à-vis those appointed on promotion/selection.
Rather the Rule 16(1) of the Rules of 1979 would reveal that inter se
seniority of the persons appointed to the service is to be determined on
the basis of order in which names are arranged in the select list
prepared under Rule 8 of these Rules. Rule 8 of the Rules of 1979
provides that the selection committee shall classify officers as
‘outstanding’, ‘very good’ and ‘good’ or ‘unfit’, on overall relative
assessment of their service records and those classified as
‘outstanding’, ‘very good’ and ‘good’ shall be included in the select
list in the same order, meaning thereby that those classified as
‘outstanding’ will appear first and the remaining thereafter according
to respective classification. It needs to be noted that Rule 6 of the
Rules of 1979 provides that the Government shall on every occasion
on which selection has to be made for appointment to the services set
up a selection committee for making selections and Rule 7 provides
that Secretary of the Administrative Department concerned shall
submit a list of all eligible officers for selection against the vacancies
in the time scale of the service, of course, proportionate to their share
in the Time Scale Posts. It is only when the select list is prepared that
the Government has to appoint the selected candidates to the service
28
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a/w connected matters
in the order in which their names appear in the select list. There is no
rule that provides for the mandatory appointment/selection of the
candidates to the Time Scale posts for every calendar year. Only
mandate is that 65% of the Time Scale posts occurring in a calendar
year are to be filled up by promotion from the departmental feeding
services. In this context, it would be appropriate to take note of the
observations of the Hon’ble Apex Court in Deepak Agarwal v. State
of U.P8, which are as under:
“18. The short question that arises for consideration is as to
whether the appellants were entitled to be considered for
promotion on the post of Deputy Excise Commissioner under
the 1983 Rules, on the vacancies, which occurred prior to the
amendment in the 1983 Rules on 17-5-1999.
19. Under the un-amended 1983 Rules, the petitioners would be
eligible to be considered for promotion by virtue of Rule 5(2).
By virtue of the Note to Rule 8, a combined eligibility list has to
be prepared by arranging the names of Assistant Excise
Commissioners and Technical Officers in order of seniority as
determined by the date of their substantive appointment. The
appellants were, therefore, clearly in the feeder cadre of the post
for promotion to the post of Deputy Excise Commissioner. Rule
7 provides that the appointing authority shall determine the
vacancies to be filled during the course of the year and the
number of vacancies. There is no statutory duty cast upon
the State to complete the selection process within a
prescribed period. Nor is there a mandate to fill up the posts
within a particular time. Rather the proviso to Rule 2 [sic Rule
4(2)] enables the State to leave a particular post unfilled.
(emphasis added)
33. In State of Uttaranchal v. Dinesh Kumar Sharma 9 , the Hon’ble
Apex Court has observed as under:
34. Another issue that deserves consideration is whether the
year in which the vacancy accrues can have any relevance
for the purpose of determining the seniority irrespective of
the fact when the persons are recruited. Here the
respondent’s contention is that since the vacancy arose in
1995-96 he should be given promotion and seniority from
that year and not from 1999, when his actual appointment8
(2011) 6 SCC 725
9
(2007) 1 SCC 683
29WP(C) No. 2774/2023
a/w connected mattersletter was issued by the appellant. This cannot be allowed as
no retrospective effect can be given to the order of
appointment order under the Rules nor is such contention
reasonable to normal parlance. This was the view taken by
this Court in Jagdish Ch. Patnaik v. State of Orissa.
34. The Hon’ble Apex Court, after taking note of its various earlier
pronouncements, in Pawan Pratap Singh v. Reevan Singh 10 , has
held as under:
” From the above, the legal position with regard to
determination of seniority in service can be summarised as
follows:
(i) The effective date of selection has to be understood in the
context of the service rules under which the appointment is
made. It may mean the date on which the process of selection
starts with the issuance of advertisement or the factum of
preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry in a
particular service or the date of substantive appointment is
the safest criterion for fixing seniority inter se between one
officer or the other or between one group of officers and the
other recruited from different sources. Any departure
therefrom in the statutory rules, executive instructions or
otherwise must be consistent with the requirements of
Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the
backdate and if it is done, it must be based on objective
considerations and on a valid classification and must be
traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant service rules. It is so because seniority cannot be
given on retrospective basis when an employee has not even
been borne in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the
meantime.”
(emphasis added)
35 In Ganga Vishan Gujrati v. State of Rajasthan 11 , the Hon’ble
Supreme Court of India has held that a consistent line of precedent of
this Court follows the principle that retrospective seniority cannot be
10
(2011) 3 SCC 267
11
(2019) 16 SCC 28
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a/w connected matters
granted to an employee from a date when the employee was not borne
on a cadre. Seniority amongst members of the same grade has to be
counted from the date of initial entry into the grade.
36. From the above judicial pronouncements, it becomes crystal clear that
in absence of any rule providing for the benefit of promotion/seniority
from the date anterior to substantive appointment by promotion, the
benefit of retrospective seniority/promotion cannot be granted. As
such, this Court is of the considered view that the petitioners cannot
be granted the benefit of induction/promotion to the post of Time
Scale of JKAS for the vacancies of the years-2004, 2005, 2006 and
2007, from the date anterior to their promotion/induction. The issue
No.2 is answered accordingly.
37. It is also contended by Mr. M.Y Bhat, learned senior counsel for the
petitioners that the official respondents have clubbed the vacancies for
the years 2004, 2005, 2006 and 2007, which is not permissible. In
support of his submissions, he has placed reliance upon the judgment
of the Hon’ble Supreme Court of India in ‘Vijay Singh Charak v.
Union of India (supra). In this case, the vacancies for the years 1991-
1995 were clubbed resulting into the situation that the candidates, who
were not even eligible in the year 1991, were selected in the select list
of 1995, ousting the appellant therein, who claimed himself to be
eligible for induction in the IFS in the year 1991. So far as the present
case is concerned, all the candidates except those 49 candidates, who
were inducted against leave/training vacancies, were inducted into
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Time Scale of JKAS in accordance with the year wise vacancies. This
is not a case where private respondents have been promoted against
the vacancies belonging to the feeding services of the petitioners. It is
worthwhile to mention here that even in Vijay Singh Charak‘s case,
the Hon’ble Apex Court made the following observations:
“We have carefully considered the aforesaid decisions and we
are of the opinion that the decisions in H. R. Kasturi
Rangan12 and Nepal Singh Tanwar13 only lay down that it is
not an absolutely mandatory requirement of the regulation that a
select list must be prepared every year. Normally that should be
done, but if for some good reasons such a select list was not
prepared every year, that by itself would not invalidate the select
list for that year”.
38 In view of the above, there is no force in the aforesaid submission
made by the learned Senior Counsel and as such, the same is rejected.
Additional grounds raised by the petitioners, who are the appointees of the
year 1992:
39. These additional grounds, being considered by this court, were in fact
urged by the petitioners in their petitions/applications but have not
been taken note of by the learned Tribunal. In fact, Mr. Z.A Shah,
learned Senior Counsel for the petitioners has submitted that instead
of remanding the matter back to learned Tribunal for adjudication,
these issues be decided by this Court.
40 The petitioners, who are the appointees of the year 1992 Batch have
submitted that they had held cadre posts of Administrative Services
from the years 2004 to 2005 and as such, the petitioners were entitled
to claim seniority at least from the date they were holding the charge
12
[(1998) 1 Scale (SP) 11]
13
[(1998) 1 Scale (SP) 7]
32
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a/w connected matters
of cadre post in accordance with Rule 23 of the J&K Civil Services
(Classification, Control and Appeal) Rules, 1956. The petitioners have
placed reliance upon the order dated 26.10.2005 to demonstrate that
they were posted as In-charge Assistant Commissioners /SDMs
/Collectors, the posts which they held till they were inducted in Time
Scale of JKAS in the year 2008. All these posts were JKAS cadre
posts. They have further submitted that from the years 2002 to 2007
many officers of other feeding services junior to them came to be
inducted in JKAS but the petitioners were not considered in the years
2003, 2004, 2005, 2006 and 2007 for induction into the JKAS for
none of their fault and the act of the Government in not according any
consideration to the members of the Revenue Gazetted Service is
nothing but discriminatory, despite the fact that the Division Bench of
this Court had directed the Government to accord consideration to the
eligible members of the Revenue Gazetted Service irrespective of their
seniority in the feeding service and to follow sealed cover procedure
but the Government did not bother to comply with the said direction.
Their counterparts in other feeding services retired from the posts at
higher scale and some of them retired as IAS officers but they were
discriminated as they were not considered for induction from the date,
they were entitled to and because of that they are getting very meagre
pension as compared to their counterparts, as such, the directions are
required to be issued to the respondents for creation of supernumerary
posts, so that the injustice meted out to the petitioners is undone and
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they get the pensionary benefits, they were entitled to, had they been
considered in time for induction in to JKAS.
41 In Sunaina Sharma (supra), it has been held that the promotees can
be granted the benefit of seniority with retrospective effect, provided
they have been working on temporary/officiating/ad hoc or any other
basis to work against the post for which he has been promoted. In
Suraj Prakash Gupta (supra) it has been held that once a
promotee/recruitee by transfer is appointed on probation, it is
permissible to appoint him under Rule 23 of the J&K Civil Services
(Classification, Control and Appeal) Rules, 1956 as a member of the
service from an anterior date when a substantive vacancy existed in
his quota. It was further held that the stop gap/ad hoc/temporary
service of a person appointed by transfer as an Assistant Engineer or
by promotion as an Assistant Executive Engineer can be regularized
through PSC/DPC from an anterior date in a clear vacancy in his
quota, if he is eligible and found suitable for such transfer or
promotion, as the case may be and his seniority will count from that
date.
42. Now, it is to be seen whether the petitioners can be granted benefit of
seniority with effect from the date they had been working as Assistant
Commissioners/Collectors/SDMs or not, in terms of Rule 23 of the
J&K Civil Services (Classification, Control and Appeal) Rules, 1956.
43. In order to adjudicate the above-mentioned contention of the
petitioners, first of all it is to be determined as to whether Rule 23 of
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J&K Civil Services (Classification, Control and Appeal) Rules, 1956
is applicable in the case of the petitioners or not. So far as Sunaina
Sharma‘s case(supra) is concerned, there was Rule No. 13 of the
Excise Rules, which provided that seniority of the members of the
service shall be regulated under the Civil Services Rules and likewise
in Suraj Prakash‘s case (supra), Rule 11 of the Jammu and Kashmir
Engineer (Gazetted) Service Recruitment Rules 1978, provided that
the seniority of the members of the service shall be regulated under
the provisions of J&K Civil Services (Classification, Control and
Appeal) Rules, 1956. The Rule 23 of the J&K Civil Services
(Classification, Control and Appeal) Rules, 1956 provides for granting
the benefit of seniority retrospectively from the date when the
promotee or transferee has been working on
adhoc/officiating/temporary basis on the post in respect of which he
has been promoted. So far as Rules of 1979 are concerned, Rule Nos.
9, 10 and 16 of the Rules of 1979 are relevant and the same are
extracted as under:
“9. Appointment to the service
(1) The Government shall on the occurrence of vacancies
appoint the selected candidates to the service in the order in
which their names appear in the Select List.
(2) the Government may make appointments in temporary or
officiating vacancies from among persons included in the Select
List referred to in [(sub-rule (4)] of rule 8 of these rules and
shall not appoint an officer not included in the said list.
10. Period of probation
(1) All officers appointed to the service under rule 9 of these
rules shall be placed on probation or trial for a period of two
years.
(2) if it appears at any time during or at the end of the period of
probation or trial, as the case may be, that an officer has not
made sufficient use of his opportunities or if he has failed to
35WP(C) No. 2774/2023
a/w connected mattersgive satisfaction, he may be reverted to the post/service from
which he was appointed to the service.
(3) The Government may in the case of any person extend the
period of probation or trial up to a maximum of four years.
Explanation- Appointments on probation will be made against
substantive vacancies only. All other appointments will be on
trial; provided that any period of officiating appointment shall
be reckoned as period spent on probation when a person
appointed on trial is given regular appointment to the service.
(4) A probationer will be confirmed in the service at the end of
his probation if he has completed his period of probation to the
satisfaction of Government; provided that a substantive vacancy
is available for the purpose.
16. Seniority
(1) The relative seniority inter se of persons appointed to the
service shall be determined on the basis of the order in which
names are arranged in the select list prepared under rule 8 of
these rules.
(2) The inter se seniority of those belonging to one and the same
feeding service and who have been classified under rule 8 in the
same category shall be determined by reference to their seniority
in the feeding service.
(3) The inter se seniority of those who belong to different
service but have been grouped in one class by the selection
committee under rule 8 shall be determined by reference to the
service rendered at the time scale level of the feeding service.
Wherever, the dates of appointment to the Time Scale are the
same, the persons higher in age would be given seniority over
the younger persons.
(4) The inter se seniority of the direct recruits on their
promotion to the Time Scale, vis a vis those appointed by
promotion/selection shall be determined in the manner in which
the senior scale posts have to be allocated for
promotion/selection/direct recruitment as prescribed in the rules.
For this purpose a calendar year shall be taken as a unit for
determination of the seniority. In case appointment of any group
does not take place in a particular calendar year, such a group
shall have no claim for relating its seniority with those
appointed to the Time Scale in the previous year/years.
(5) Seniority of the members of the service appointed to at its
junior scale through competitive examination shall be regulated
under the Jammu and Kashmir Civil Service (Classification,
Control and Appeal) Rules 1956.”
44. Rule 9 of Rules of 1979 vests the power with the Government to
appoint the selected candidates to the service in the order in which
their names appear in the select list. It also empowers the Government
to make appointments on temporary or officiating basis from amongst
the persons included in the select list referred in sub-rule (4) of Rule 8
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a/w connected matters
of the Rules of 1979 and no officer can be appointed whose name
does not appear in the select list. Explanation in Rule 10 of the Rules
of 1979 provides that any period of officiating appointment shall be
reckoned as a period spent on probation when a person appointed on
trial is given regular appointment to the service. Thus, only in a case
where the appointment is made on trial from the persons whose names
appear in the select list, period spent on officiating appointment can be
considered as period spent on probation, when the said person is given
regular appointment to the service. This is admitted fact that when the
petitioners, who are the appointees of 1992 batch, were tasked to work
as In-charge Assistant Commissioners/Collectors/SDMs, no select list
in terms of in sub-rule (4) of Rule 8 of the Rules of 1979 was
prepared. Rule 16 of the Rules of 1979 deals with the seniority of the
persons appointed to the service. In terms of sub-rule 5 of Rule 16 of
the Rules of 1979, seniority of the member of the service appointed at
its junior scale through competitive examination is regulated under the
J&K Civil Services (Classification, Control and Appeal) Rules, 1956
and J&K Civil Services (Classification, Control and Appeal) Rules,
1956 have not been made applicable for the purpose of determining
seniority in the present case, unlike in Suraj Parkash and Sunaina
Sharma cases (supra). Rule 18 of the Rules of 1979 provides that the
matters not specifically covered by the Rules of 1979 shall be
governed by rules, regulations and orders applicable to State Civil
Services in general. Residuary power can be exercised only when
37
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there is no provision in the general rules. Also Rule 18 dealing with
residuary matters cannot be pressed into service, as Rule 16 of the
Rules of 1979 deals with the seniority and Select List in terms of
Rules of 1979 was never prepared, which is sine qua non even for
making appointments in temporary or officiating vacancies in terms of
Rule 9(2) of Rules 1979. In P.N. Premachandran (supra), the
Hon’ble Supreme Court upheld the decision of the Government in
granting benefit of retrospective promotion as the said power was
traceable in the Rules, which is not so in the case of petitioners.
45. In view of the rule position as mentioned above, the contention of the
appointees of 1992 batch for grant of seniority with effect from the
date they had been working as In-charge Assistant Commissioners/
SDMs/Collectors from the year, 2004/2005 cannot be accepted.
46. In order to buttress their submissions that the petitioners of 1992 batch
have been discriminated qua their counterparts, who were selected in
the same competitive examination Mr. Shah and Mr Jan, learned
Senior Counsel for the petitioners have laid much stress on the interim
order passed on 13.06.2002 in case titled as ‘Javed Iqbal Balwan
and others vs State of J&K and others‘ bearing LPA No. 412/200,
whereby the Government was directed to go ahead with the induction
into the KAS and during that process, the Government was directed to
consider the appellant therein i.e. petitioners herein irrespective of
their seniority but on their own merit. The respondent therein was
directed to keep the said consideration of Revenue Gazetted in sealed
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a/w connected matters
cover till further orders, but the official respondent did not comply the
said directions.
47. The above-mentioned LPA titled ‘State of J&K vs. Javed Iqbal
Balwan14‘ came to be decided by the Division Bench vide judgment
dated 21.09.2006,’ wherein following directions were issued:
“I. The official respondents shall undertake a fresh exercise to
fix the seniority of the promotees and the direct recruits. While
doing so due regard shall be given to the judgments of the Court
which have attained finality, by means of which seniority has
been fixed/confirmed by the Court in individual cases.
II. Out of the total posts available/falling vacant 50% posts shall
go to the direct recruits and 50% posts to the promotees;
III. Stop gap/adhoc promotion accorded to the promotees cannot
be treated as non-est merely because they were promoted
directly as Tehsildars from the post of Nai Tehsildars without
first being posted as Additional Tehsildars or without clearance
by the Public Service Commission.
IV. Services of the promotees, which have duly been regularized
as indicated above, shall be counted with retrospective effect
from the date a clear vacancy occurred in the promotional quota.
V. Temporary, Adhoc and stop gap appointments of other
promotees may be regularized in accordance with the rules and
the law laid down as has been cited above;
VI. On such regularization the promotees shall be deemed to
have been regularly adjusted against the posts falling within
their quota only;
VII. Where in a particular year appointment of both the direct
recruits and promotees has taken place, their placement in the
seniority list shall be made in accordance with their quota but
where appointment is only from one category, the candidates
will occupy the posts of their quota only.
VIII. In case there is any excess appointment from a particular
category, such appointments shall be valid only till candidates
from the other source became available. The period spent
against the other category post shall not count for seniority;
IX. Once the persons from other source became available, the
persons holding the excess posts shall stand pushed down. They
shall be adjusted against the available vacancies within their
quota in the subsequent years;
14
2006(3) JKJ 533[HC],
39WP(C) No. 2774/2023
a/w connected mattersX. As far as practicable the persons appointed/promoted shall
not be ousted and shall be assigned to and adjusted against the
posts falling within their quota in the subsequent years;
XI. Direct recruits (Petitioners (DR)) shall be placed in the
seniority list immediately after the last direct recruit appointed
in the year 1984 namely Mohd Ismail Baji, as per the
availability of posts within their quota. This shall be
notwithstanding the promotions granted to the promotees during
the period.
XII. Those of the petitioners (DR) who have not so far passed
the departmental Tehsildars examination shall do so without
further delay. Such petitioners shall be entitled to further
promotions only after qualifying such examination unless
exempted by the Government if permissible under the rules.
XIII. Those petitioners who have qualified such examination
and possess the requisite qualification, eligibility and other
requirements of the rules shall be, subject to availability of the
posts be considered for promotion and also for induction into the
KAS in accordance with the rules from the date their immediate
junior, got such promotion/induction.
XIV. While according consideration and granting such
promotion or induction into the KAS, as far as, possible, grant
of grade and promotion to the promotes or their induction into
the KAS, shall not be disturbed. In case posts are not available
for the qualified petitioners (DR), the Government may consider
sanctioning of supernumerary posts for them till the posts
become available.
XV. Direct recruits who are promoted or inducted into the KAS
as a result of this exercise shall be given the same seniority
position vis-a vis the promotees as they are entitled to as a result
of their notional seniority w.e.f. 24.9.1984.”
48. A perusal of the direction Nos. XIII and XIV would reveal that the
Government was directed to consider the petitioners therein for
induction into JKAS in accordance with the rules from the date their
immediate juniors got such promotion/induction and while according
consideration and granting such promotion or induction into KAS, as
far as possible, grant of grade and promotion to the promotees or their
induction into JKAS was not to be disturbed and in case of non-
40
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availability of the posts for qualified petitioners, the Government was
to consider sanctioning of supernumerary posts for them till the posts
become available. The Government assailed the judgment before
Hon’ble Supreme Court and the Hon’ble Supreme Court vide its
judgment in case titled ‘State of J&K v. Javed Iqbal Balwan (supra)
set aside the directions Nos. XIII and XIV, meaning thereby that the
relief granted to the petitioners for promotion/induction into KAS in
accordance with the rules from the date their immediate juniors got
such promotion/induction and for creation of supernumerary posts for
them in the event of non-availability of posts, was denied.
49. There is no force in the submissions made by the learned Senior
Counsels that the official respondents did not comply with the order
dated 13.06.2002, as the said order had merged in the final order dated
21.09.2006.Though the Division Bench directed the official
respondents to consider the case of the petitioners for their induction
into KAS in accordance with rules from the date their immediate
junior got such promotion/induction and if necessary to create
supernumerary posts but both these directions were set aside by the
Hon’ble the Supreme Court. It appears that after having failed before
the Hon’ble Supreme Court in getting the benefit of induction into
JKAS w.e.f. the date their counterparts were indicted into JKAS, the
petitioners intend to reopen the controversy which stands already
settled by the Supreme Court of India. Therefore, there is no merit in
this contention raised by the petitioners, as such the same is rejected.
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a/w connected matters
WP(C) No. 2774/2023,
WP(C) No. 895/2023 &
WP(C) No. 1182/2023
40. In writ petitions bearing Nos. WP(C) No. 2774/2023, WP(C) No.
895/2023 and WP(C) No. 1182/2023, the petitioners are aggrieved of
the order dated 25.01.2023 passed by the learned Tribunal, whereby
the seniority of the private respondents was restored in terms of
seniority list dated 24.06.2011.
51. As a matter of fact, after the order dated 30.03.2021 was passed by the
Jammu Bench of Central Administrative Tribunal, the official
respondents issued a seniority list, whereby the private respondents
Dr. Ghulam Nabi Itoo and Tariq Hussain Ganai were placed at Serial
No. 200 & 202, respectively. Both the private respondents challenged
the seniority list dated 07.04.2021 on the grounds that only option
open before the official respondents was either to file a writ petition
against order dated 30.03.2021 passed by the learned Tribunal or to
file a review application before the learned Tribunal and once the
seniority list was upheld by the Tribunal, the issuing Authority had
become functus officio. It was also contended that fixation of cut off
had nothing to do with the existence of vacancy and otherwise also,
fixing of 01.01.2008 for considering vacancy position is contrary to
Rules of 1979. It was also contended that Rules of 1979 do not
provide for year wise preparation of select list.
52. The petitioners objected to the writ petition by stating that the private
respondents were appointed against the leave vacancies as there were
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a/w connected matters
no clear vacancies available on 01.01.2008, as such, seniority position
was changed subsequently. It was also contended that the Rules of
1979 provide for preparation of year wise select list for the vacancies
which occurred in a calendar year.
53. The learned Tribunal vide order dated 25.01.2023 upheld the
contentions of the private respondents and quashed the seniority list
dated 07.04.2021. The order dated 25.01.2023 has been impugned on
the ground that private respondents were inducted to time scale of
JKAS against anticipated vacancies of the year 2008 and they were
required to be considered only in the year 2009, as vacancies till
01.01.2008 only were to be filled.
54. Rule 6 of Rules of 1979 envisages that the Government on every
occasion on which selection has to be made for appointment to the
service, shall set up a Selection Committee for making selection under
Rules and further Rule 5 (3) (a) of Rules 1979 provides filling up
vacancies of time scale posts, occurring in calendar year. The learned
Tribunal has come to conclusion that the vacancies for the private
respondents were available in the year 2008 as is evident from the
minutes of meetings of Establishment Committee dated 29.05.2008
and further that the Rules of 1979 do not provide that Selection
Committee will meet on a particular date(s), month(s) or year.
55. Mr. Abhinav Sharma, learned Senior Counsel for some of the
petitioners also contended that once the private respondents have
accepted order dated 13.08.2021, whereby the selection grade was
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a/w connected matters
released in favour of contesting parties and have not challenged the
same, the private respondents cannot assail the seniority list dated
07.04.2021. It needs to be noted that the grievance of the private
respondents was only to the extent that they were placed lower in the
seniority list dated 07.04.2021 as against their placement in the
seniority list dated 26.04.2011, which was upheld by the learned
Tribunal vide its judgment dated 30.03.2021. If the seniority list dated
07.04.2021 is quashed to the extent of private respondents, then as a
natural consequence, the seniority list dated 26.04.2011 except to the
extent of placing 49 members, adjusted against training and leave
vacancies, at the bottom, would govern the seniority. Therefore, this
contention of the petitioners is not sustainable in the eyes of law.
56. The petitioners have not been able to demonstrate that the private
respondents were empanelled for the anticipated vacancies. In fact, the
minutes of the meeting dated 29.05.2008 clearly establish that the
private respondents were considered against the vacancies of the year
2008. Apart from this, it was not open to the Government to alter the
seniority list to the detriment of the afore-named respondents, without
hearing them and once the Government accepted the judgment of the
Tribunal, whereby order dated 24.06.2011 was upheld, it could not
have altered the seniority list without challenging the judgment by
way of appropriate proceedings.
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57. In view of the above, we do not find any legal infirmity in the
impugned order passed by the Tribunal, so as to warrant any
interference at the end of this Court.
CONCLUSION:
58 For all what has been said and discussed above, there is no merit in
these writ petitions, as such, the same are dismissed, however, no
order as to costs.
59. Record of the Tribunal be sent back forthwith.
(SANJAY DHAR) (RAJNESH OSWAL)
JUDGE JUDGE
JAMMU:
03.04.2025
Rakesh PS
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
03.04.2025 21:56
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