Abdul Rashid & Ors Vs. State of J&K & Ors  Insc 1221 (5 December 2007)
Sinha & J.M. Panchal
APPEAL NOS. 5632-5635 OF 2007 [Arising out of SLP (Civil) Nos. 23347-23350 of
2005] S.B. SINHA, J :
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.
Names of the respondents were entered in the List E on 25.04.1978.
were promoted on officiating basis on 19.05.1979.
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
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.,
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
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 which the respondents were
brought on promotion List E.
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:
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'In 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 respondents only
subject to the fulfillment of the conditions mentioned against each by a
separate/ independent order."
regard to the question of seniority, it was held:
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
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
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.
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.
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.
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.
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.
Respondents were working as Assistant Sub-Inspectors at the relevant time. In
terms of Jammu and
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:
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."
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:
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."
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.
The relevant provisions of the Jammu and Kashmir Police (Gazetted) Service Recruitment Rules, 1984, being Rules 5, 14
and 20, read as under:
Method of recruitment Appointment to the service shall be made
promotion; in the ratio and in the manner specified against each post in
Recruitment by promotion
There shall be a Departmental Promotion Committee constituted by the Government
from time to time who shall examine the promotion cases.
*** *** *** (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.
Maintenance of seniority lists Seniority of the members of the service shall
be regulated under the Jammu
and Kashmir Civil
Services (Classification, Control and Appeal) Rules, 1956.
Administrative Department shall maintain an up to date and final seniority
lists in each grade of the service."
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.
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.
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.
of Bihar and Others v. Akhouri Sachindra Nath
and Others [1991 Supp (1) SCC 334], this Court held:
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
Kishore Singh v. Dy. Director of Education and Others [(2002) 9 SCC 634], this
Court stated the law, thus:
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."
State of Uttaranchal and Another v. Dinesh Kumar Sharma
[(2007) 1 SCC 683], it was opined:
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
appointment letter was issued by the appellant.
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
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.
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
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