Sunaina Sharma vs The State Of Jammu And Kashmir

2. The undisputed facts are that appointment to the post of ETO under the J&K Excise & Taxation (Gazetted) Recruitment Rules, 1977 (for short the ‘Excise Rules’) is made from two sources, promotion and direct recruitment. The appellants are the original writ petitioners. They are direct recruits who were appointed as ETOs on the basis of J&K Combined Competitive Examination. They were issued appointment letters on 23.07.2004. The private respondents are promotees who were promoted to the post of ETOs. The J&K Public Service Commission proposed and cleared the names of the private respondents for promotion on 05.10.2004 and the private respondents were promoted as ETOs on the recommendation of the Public Service Commission on 06.12.2004. It is not disputed that the direct recruits and promotees have been promoted within their quota and there is no violation of quota. However, the private respondents 2 were given retrospective promotion/appointment in the cadre of ETOs on various dates between 01.05.2002 and 01.01.2004. Resultantly, they were deemed to have been appointed as ETOs prior to the appellants who were appointed on 23.07.2004. As such the private respondents were placed senior to the appellants.

3. A seniority list of ETOs was issued on 03.01.2006 in which the promotee/respondents were shown senior to the appellants. The appellants filed a writ petition before the J&K High Court challenging the grant of retrospective appointment to the private respondents. It was urged by the appellants that the private respondents were not even born in the cadre of ETOs when the appellants were appointed as ETOs on 23.07.2004. It was further averred that the private respondents, i.e., promotees had never worked as ETOs either on officiating or stop-gap basis and, in fact, the promotees had worked under the direct recruits for a few months before their promotion. It was further submitted that the post of ETO was in a separate service being a gazetted service and, 3 therefore, the service rendered in the lower post could not be equated with the service rendered in the higher post. The stand of the contesting respondents was that in terms of Rule 23 of the J&K Civil Service (CCA Rules), 1956 (hereinafter referred to as Civil Service Rules), seniority could be assigned to the promotees from the date the vacancy occurred in the quota of promotees. The learned Single Judge held that retrospective promotions could not be granted, and allowed the writ petition. Two Letters Patent Appeals were filed which were disposed of by a common judgment of 06.03.2014 and the Division Bench held that in terms of Rules 23 and 24 of the Civil Service Rules the promotees were entitled to get retrospective promotion. The Division Bench placed reliance on the judgment of this Court in Suraj Prakash Gupta and Others vs. State of J&K and Others 1 to come to the conclusion that promotees were entitled to promotion from a date anterior to their appointment. This judgment is under challenge in these appeals.

5. The judgment in Suraj Prakash Gupta (supra) has been relied upon by both the sides and has been referred to by both the learned Single Judge and the Division Bench of the High Court. In this case also, Rule 23 and 24 of the Civil Services Rules were in consideration. Therefore, it is necessary to refer to this case in detail. The facts of Suraj 8 Prakash Gupta (supra) case are that as per the then existing rules 20% of the posts of Assistant Engineers had to be filled by direct recruitment, 60% by promotion from Junior Engineers having degree in Engineering or equivalent qualification and 20% from diploma holders with 10 years’ service. The Government of Jammu and Kashmir upgraded a large number of posts of Assistant Engineers and re- designated them as Assistant Executive Engineers. Therefore, a large number of promotions were made on ad hoc basis, initially for a period of six months. As per the rules, the stop gap/ad hoc arrangement could be made by the State only for six months without consulting the Commission and if such arrangement was to continue beyond six months, it was necessary to consult the Commission. The State, in violation of the rules, continued the ad hoc promotions for a long time. Direct recruitment to the post of A.E. prior to 1997 was done in the year 1984. Thereafter, no direct recruitment was done. As a result, the promotees worked on ad hoc basis against a large number of higher posts in excess of their quota. The State after a gap of almost 4 years made a reference to the 9 Commission to fill up 10% of the posts by direct recruitment [as against 20% provided in the rules]. The Commission issued advertisements in this regard on 03.12.1987. The finally selected direct recruits applied for the posts and appeared in the test. However, the Commission did not make any recommendations for almost 4 years. Thereafter, the candidates who were successful in the written test were interviewed during 1993-94 and the list of selected candidates of 10% of the posts was sent by the Commission to the State Government. Even then, the appointments were not made and some persons had to approach the High Court of Jammu and Kashmir, which gave directions on 22.02.1994. It was only after issuance of such directions that some of the direct recruits were offered appointment on different dates in the year 1994 and some direct recruits were offered appointment much later. The direct recruits filed writ petitions challenging the ad hoc promotion of Assistant Engineers, made by the Government without consulting the Commission and continued for a period of six months. According to the direct recruits, the service rendered by the promotees became non- 10 est and void and could not be recognised. They sought quashing of the seniority list and also contended that the seniority was in breach of the quota. The promotee officers filed writ petitions and contended that they should be granted promotion from the date when they were working irrespective of the quota. The J&K Government constituted a high level committee to look into the matter and the committee recommended that the seniority of both the direct recruits and the promotees were to be granted by placing them in the vacancies reserved for them in their respective quotas. The committee also recommended that the ad hoc stop-gap appointees, who had continued in violation of the rules, could not be granted any benefit. Despite this recommendation of the committee, the State Government in relaxation of the rules, regularised the promotees from anterior dates. The direct recruits challenged this order. The High Court held that the appointment could not be made to the promotional posts without consulting the Commission. The High Court also held that the promotees whose promotions were in excess of the quota had to be pushed down and those promotees had 11 to be fitted in the subsequent vacancies in their quota in the later years. The High Court also held that the ad hoc appointment can only be made initially for 6 months and where the ad hoc service had continued beyond this period without consultation with the Commission, the promotees were not entitled to seniority. It was held that an ad hoc promotee could not be treated to be a member of the service. The High Court also held that according to rule 24 of the Civil Service Rules, the seniority will have to be reckoned from the first appointment and, therefore, the order of the Government regularising ad hoc promotions was illegal and was accordingly set aside.

13. In Suraj Prakash Gupta’s case (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person 23 is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date.

16. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the 25 service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class , category or grade while determining the seniority. Note-1 to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade.

19. In view of the above discussion we set aside the judgment of the Division Bench dated 06.03.2014 and restore the judgment of the learned Single Judge dated 07.05.2013 in S.W.P. No.2356 of 2009.

20. The appeals are accordingly allowed.