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CASE NO.: Appeal (civil)  5632-5635 of 2007

PETITIONER: Sheikh Abdul Rashid & Ors

RESPONDENT: State of J&K & Ors

DATE OF JUDGMENT: 05/12/2007

BENCH: S.B. Sinha & J.M. Panchal

JUDGMENT:

J U D G M E N T  

CIVIL APPEAL NOS.      5632-5635            OF 2007 [Arising out of  SLP (Civil) Nos. 23347-23350 of 2005]

S.B. SINHA, J :          1.      Leave granted.          2.      Vexed question of inter se seniority between the appellants and the  private respondents herein is in question in this appeal which arises out of a  Judgment and Order dated 27.07.2005 passed by the High Court of Jammu  and Kashmir at Srinagar in LPA No. 164 of 2004 and LPA Nos. 6, 19 and  20 of 2005.

3.      Names of the respondents were entered in the List E on 25.04.1978.   They were promoted on officiating basis on 19.05.1979.

4.      The Government of Jammu and Kashmir, however, on or about  01.08.1985 issued a notification directing their promotion with retrospective  effect ignoring the seniority of the appellants herein inter alia stating:

"(a)    The above mentioned petitioners as well as  non-petitioners, who were brought on promotion  list ’E’ vide PHQ order No. 282 of 1978 and 283  of 1978 dated 25.04.1978, barring these who face  any moral stigma notwithstanding the fact that  they were brought on promotion list ’E’ and have  not so far been promoted as SIs, shall be deemed  to have been promoted as SIs for the purpose of  their seniority only, w.e.f. the date they were  brought on list ’E’, i.e., 25.04.1978.

(b)     The ASIs who were promoted as SIs, vide  Kashmir Police Office Order No. 288 of 1978  dated 05.06.1978 and Jammu Range Police Office  order dated 158 of 1978 dated 07.06.1978, w.e.f.  1.6.1978, shall also be deemed to have been  promoted as SIs, w.e.f. 24.6.1978 for seniority  purposes only and shall figure at appropriate  places in the combined seniority list of SIs in order  of their seniority."  

5.      Realising that the said order may be held to be illegal by a court of  law, by an order dated 3.12.1985 the same was cancelled.  On the same day,  however, by an order No. 1263 of 1985, promotions were directed to be  granted with retrospective effect from 25.04.1978, i.e., from the date on

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which the respondents were brought on promotion List E.   

6.      Questioning the said order, a writ petition was filed by the appellants  herein in the High Court.  A learned Single Judge of the said High Court  allowed the said writ petition opining:

"\005Unless a person is formally promoted to the  post of Sub-Inspector, he cannot press his claim  that he has been promoted substantively to the post  of Sub-Inspector merely on the ground of having  been brought in the panel of eligible candidates in  promotion list ’E’\005In such event, the private  Respondents, therefore, in terms of the Order dated  25.4.1978, cannot be said to have been promoted  to the posts of Sub-Inspectors.  They have been  only brought on the promotion list and their  promotion orders had to be issued by the official \026  respondents only subject to the fulfillment of the  conditions mentioned against each by a separate/  independent order."

       In regard to the question of seniority, it was held:

"It is not in dispute that the Petitioners in both the  writ petitions have been appointed on 25.4.1979 as  Sub-Inspectors and their seniority, therefore, has to  commence from that date notwithstanding that  they have been put on probation for a period of  three years.  Therefore, the non-official  respondents including respondents 124 to 134,  whose names figured in Order No. 141 of 1980  dated 14.4.1980 issued by DIG of Police, Kashmir,  as officiating promotions against the vacancies of  Inspectors/ Sub-Inspectors undergoing practical  training, who have been promoted after 25th April  1979 cannot claim to rank senior to the Petitioners.   It, therefore, follows that all those persons/  respondents, who have been promoted after 25th  April, 1979 (when the Petitioners were appointed  as direct recruits), have to be termed as junior to  the petitioners.  Under Rules 382 to 399, modes of  promotions to the higher rank specified therein are  provided.  The non-obstante clause or expression  used in Rule 399 further gives a discretion to the  Inspector General of Police for making substantive  promotions to the posts of Sub-Inspectors after  holding oral/ written test in addition to what is  provided in other Rules referred supra."           So far as the question of inter se seniority between the appellants and  the private respondents is concerned, unhesitatingly it was opined that the  appellants are seniors.  The learned Single Judge held that the concept of  retrospective promotion having been contemplated under the Rules, the  manner in which promotion was effected was held to be illegal.  

7.      The Division Bench of the High Court accepted the said findings of  the learned Single Judge.  It, however, proceeded to determine the issue on  equitable considerations opining that as both the appellants as also the  private respondents were already promoted to the posts of Deputy  Superintendent of Police in the J&K Police (Gazetted) Service, governed by  another set of rules, the writ petition became infructuous and the direction of  the learned Single Judge on the aforementioned premise to re-draw the  seniority list placing the respondents above the appellants in the seniority list  of Sub-Inspectors was not necessary to be implemented.  

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8.      Mr. Paramjit Singh Patwalia, learned senior counsel appearing on  behalf of the appellants, submitted that the Division Bench of the High Court  committed a serious error insofar as it failed to take into consideration that  unless and until the appellants are held to be entitled to promotion in terms  of the extant rules, their cases may not be considered for promotion to the  post of Superintendent of police.

9.      Indisputably, the matter relating to seniority and promotion is  governed by Jammu and Kashmir Civil Services (Classification, Control and  Appeal) Rules, 1956 (for short "the 1956 Rules") and Jammu and Kashmir  Police Manual.   

       Rule 24 of the 1956 Rules provides that seniority should be  determined on the basis of initial appointment to the post.  Appellants were  appointed on 25.04.1979 as direct recruits in the post of Sub-Inspectors.    Private Respondents were working as Assistant Sub-Inspectors at the  relevant time.  In terms of Jammu and Kashmir Police Manual, different  registers are maintained.  Regulation 382 of the Police Manual provides for  promotion from one rank or grade to another rank or grade.  Clause (3) of  Regulation 382 reads, thus:

"(3) For the purpose of regulating promotion  among enrolled police officer, six promotion lists  A, B, C, D, E and F shall be maintained.  Lists A,  B, C and D shall be maintained in the offices of the  Range Deputy Inspectors General of Police, as  prescribed in rules 386, 387, 388 and 389 and will  regulate promotion to the ranks of Head Constable  Junior Grade, Head Constable Senior Grade and  Assistant Sub-Inspector.  Lists E and F shall be  maintained in the office of the Inspector General of  Police as prescribed in rules 390 and 393(2) and  will regulate promotion to the ranks of Sub- Inspector and Inspector."

11.     Regulation 384 of the Police Manual also provides for the power to  make officiating promotions which in case of promotion to Sub-Inspectors  and Assistant Sub-Inspectors was within the jurisdiction of Inspector  General of Police.  Clause (2) of Regulation 384 deals with officiating  promotions.  Clause (2) of Regulation 390 provides that entry in the List E  would be the entry point for the purpose of promotion to the post of Sub- Inspector stating:

"(2)    No Assistant Sub-Inspector shall be  confirmed in a substantive vacancy in the rank of  Sub-Inspector unless he has been tested for at least  a year as an officiating Sub-Inspector in  independent charge of a police station."

       Regulation 392 of the Police Manual provides for the method of  filling up temporary vacancies in the rank of Sub-Inspector in terms whereof  "the order in which names occur in the list should be disregarded, the  opportunities of officiating in the higher rank being distributed as evenly as  possible".  Regulation 398 provides for promotion register.   

13.     The relevant provisions of the Jammu and Kashmir Police (Gazetted)  Service Recruitment Rules, 1984, being Rules 5, 14 and 20, read as under:

"5.     Method of recruitment \026 Appointment to the  service shall be made \026  (a)     by direct recruitment (b)     by promotion; in the ratio and in the manner specified  against each post in Schedule \026 II.

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14.     Recruitment by promotion \026 (1) There shall  be a Departmental Promotion Committee  constituted by the Government from time to time  who shall examine the promotion cases.

(2)     ***                     ***                     *** (3)     The Committee shall examine the service  records of the officers included in the aforesaid list  and prepare a select list of officers on the basis of  merit and suitability with due regard to seniority.

20.     Maintenance of seniority lists \026 Seniority of  the members of the service shall be regulated  under the Jammu and Kashmir Civil Services  (Classification, Control and Appeal) Rules, 1956.   The Administrative Department shall maintain an  up to date and final seniority lists in each grade of  the service."                  

14.     It is not in dispute that if the order dated 3.12.1985 is set aside, the  appellants herein would be held to be senior to those of the respondents.   

       The order dated 3.12.1985 is ex facie bad in law.  Not only no  retrospective promotion could be granted as has been held by both the  learned Single Judge as also the Division Bench, entry in List E, having  regard to Regulation 390 of the Jammu and Kashmir Police Manual per se  did not confer any right upon the respondents to be promoted from that date.   

15.     No executive order could be issued in derogation of the statutory rules  far less a legislative act.  The Rules being statutory in nature and having  been framed under Jammu and Kashmir Civil Servants Removal of Doubts  and Declaration of Rights Ordinance, 1956 have statutory force, the  executive order in question was required to be issued in consonance and not  in derogation thereof.  

       In      State of Bihar and Others v. Akhouri Sachindra Nath and  Others [1991 Supp (1) SCC 334], this Court held:

"\005It is well settled that no person can be  promoted with retrospective effect from a date  when he was not born in the cadre so as to  adversely affect others. It is well settled by several  decisions of this Court that amongst members of  the same grade seniority is reckoned from the date  of their initial entry into the service\005"  

       In Kaushal Kishore Singh v.  Dy. Director of Education and Others  [(2002) 9 SCC 634], this Court stated the law, thus:

"5. The claim of seniority of the employee is  always determined in any particular grade or cadre  and it is not the law that seniority in one grade or  cadre would be dependent on the seniority in  another grade or cadre."

       In State of Uttaranchal and Another v. Dinesh Kumar Sharma [(2007)  1 SCC 683], it was opined: "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

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from that year and not from 1999, when his actual  appointment letter 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"  

20.     Similarly, although the statute provides for grant of officiating  promotion, but the same is not conducive in the sense that even after getting  officiating promotion, one may be reverted to the original post held by him.   We do not mean to say that the seniority would be reckoned from the date of  confirmation but we only intend to point out that the Rules having been  provided for officiating promotion, the learned Single Judge was correct in  taking that factor also into consideration for the purpose of determining the  validity of the impugned order before the High Court.  The said order dated  3.12.1985 even otherwise appears to be mala fide having been passed for  unauthorised purpose.  If the said order dated 3.12.1985 is read with the  earlier one being dated 1.08.1985, the intention of the Government to favour  the private respondents herein becomes explicit.  It is not expected of a  government to brazenly favour one set of employees so as to defeat the bona  fide claim of the other set of employees.  We, therefore, are of the opinion,  that the impugned judgment cannot be sustained which is set aside  accordingly.  The appeals are allowed.

21.     However, in exercise of our discretionary jurisdiction under Article  142 of the Constitution of India, we direct that despite this order if any  monetary benefit has been conferred upon the private respondents, the same  may not be recovered.