Anil Kumar vs State of J & K

G.D. Sharma, J.—The petitioners are the permanent employee of the State of Jammu and Kashmir and borne on the permanent

establishment of J&K Funds Organisation of Jammu Division, (in short to be referred as Organisation). They alongwith respondents 4 to 28 had

been working as Compilers in the said Organisation. Vide Government Order No. DF/Adm/87 of 1991 dated 30.11.1991 and Order No.

DF/Adm/98 of 1991 dated 16.12.1991, they were appointed as Incharge Senior Compilers alongwith respondents 4 to 27 in their own pay and

grade. Vide Government Order No. DF/Adm/08 of 1996 dated 5.8.1996, sanction was accorded to the promotion and release of grade of Rs.

140040160050 2300EB602600 in favour of such of the Compilers, who were adjusted as Incharge Senior Compilers in their own pay and grade

vide Government Order No. 78 of 1991 dated 11.11.1991 with effect from the 1st day of the month in which they qualified the Departmental

Examination. This was done on the recommendation of the Departmental Promotion Committee, which held its meeting on 16.4.1996. Vide

AnnexureF (No. DF/Adm/Seniority/14761500 dated 1.7.1997). Tentative seniority list of J&K Subordinate Unfunded Debt Services Class II in

the scale of Rs. 14002600 as it stood on 30.6.1997, was prepared and date of posting in the grade of Senior Compilers (Rs. 14002600) was

shown from the year 1991 in favour of the petitioners as well as respondents 4 to 27. Respondents 4 to 27 have been shown senior to the

petitioners.

The case of the petitioners in brief is that neither the petitioner nor respondents 4 to 27 were eligible to hold the post of Senior Compilers in the

year 1991, because they could become eligible to hold the post only after passing the Departmental Examination in accordance with the relevant

rules. The petitioners passed the requisite Departmental Examination in the month of April, 1993, whereas, respondents 4 to 25 passed that

examination in the month of April, 1994 and respondents 26 and 27 passed the said examination in the month of May, 1995. In para 11 of the

above said Tentative Seniority List, it is provided that objections could be filed in respect of their seniority within a period of one month from the

date of its issuance and later than 2.8.1997 upto 4 p.m. This seniority list though has been termed as ""Tentative Seniority List"", yet in fact it has

been given the treatment of permanent seniority list. Respondents 5, 6, 7, 8, 9, 10, 11 and 26 have been promoted as Examiners on the basis of

this seniority list though in their own pay and grade.

The petitioners have prayed for the relief of issuance of writ of certiorari to quash the seniority list of Senior Compilers issued vide order No.

DF/Admn/Seniority/1476500 dated 1.7.1997 as it pertained to the petitioners visavis respondents 4 to 27 and to issue a writ of mandamus

commanding respondents 1 to 3 to prepare and issue final seniority list of Senior Compilers of Jammu Division according to the rules and depict

them senior to respondents 4 to 27. Respondents 1 to 3 may be restrained from making any promotion even on stopgap arrangement to the post

of Examiner till the final disposal of the petition.

Respondents 1 to 3 in their objections took the preliminary objection regarding the maintainability of the writ petition by stating that impugned

seniority list was of tentative nature and final seniority list yet has to be issued. The petition is premature and deserves dismissal. It is admitted that

as per the Jammu and Kashmir Subordinate Accounts (Unfunded Debt) Services Recruitment Rules of 1980, a person is eligible for promotion to

the post of a Examiner and Senior Compiler only if he qualifies Departmental Examination prescribed by the Administrative Department in this

behalf. Respondent No. 28 passed the Departmental Examination in the year 1990. The petitioners and respondents 4 to 27 were given Incharge

promotion to the post of Senior Compilers with the stipulation that they had to qualify prescribed Departmental Examination within three chances

failing which they were to be reverted to the post of Compilers. Petitioners and respondents 4 to 27 were appointed Senior Compilers in their own

pay and grade subject to the passing of the Departmental Examination within three chances. The tentative seniority list has been issued strictly in

accordance with Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. The date of the appointment

of the petitioners as well as of respondents 4 to 27 in the cadre of Senior Compilers is 11.11.1991. Thus seniority was fixed according to

AnnexureD as it stood on 21.9.1991 (vide Government Order No. 206 of 1991 dated 19.7.1991). Since these orders have not been challenged

in the writ petition, so petitioners are not entitled to any relief.

Respondents 4 to 27 in their objections stated that the seniority of the petitioners and respondents 4 to 27 after passing the required examination

has to relate back to the date of appointment and not from the date of the passing the examination. In this behalf, the case of Mohan Lal and others

v. State of Himachal Pradesh and others, 1997(2) S.C.T. 371 : AIR 1997 SC 3775 has been relied. The petitioners and respondents 4 to 27

passed the requisite examination within the prescribed period and thus their inter se seniority has to be reckoned from the date of joining.

Respondents 4 to 27 joined as Assistant Compilers on 1.12.1980. The petitioners and respondents 4 to 27 were given the notional promotion with

effect from 11.11.1991 and petitioners cannot claim seniority over respondents 4 to 27. Respondents 1 to 3 had failed to conduct any

Departmental Examination from 1980 to 1989 and there was no occasion to appear in the Examination. Under these circumstances, the petitioners

and respondents 4 to 27 were made Incharge Senior Compilers and this promotion was subject to passing of the Departmental Examination within

three chances, failing which they had to revert back. The petitioners were made Incharge Senior Compilers in their own pay and scale, subsequent

to the place of respondents 4 to 27 in that scale.

Heard the arguments.

Mr. P.S. Dutta, the learned Counsel appearing for the petitioners has contended that vide SRO520 of 1980, the rules were framed, which are

called the J&K Subordinate Accounts (Unfunded Debt) Service Recruitment Rules, 1980. Rule 5 lays down the qualification and method of

recruitment and prescribes that no person shall be eligible for appointment or promotion to any post in any class/category or grade in the service

unless he possesses the qualifications as laid down in Schedule II and fulfills other requirements or recruitment as provided in the rules and orders

for the time being in force. Proviso added to this rule further clarifies that no person shall be eligible for promotion to the posts specified against

Class I and Class II in schedule II unless he has qualified in such tests/examination as the Administrative Department may prescribes in this behalf.

In Schedule II, a person becomes eligible for promotion to the post of Senior Compilers by promotion from Class II category `A' from persons

having 4 years experience in that category. This is the only method of recruitment envisaged in the rule. Administrative Instructions are contained in

Supplement to G.P. Fund Manual (Ending April, 1988) and Instruction No. 5.1 reads as under :

A written examination shall be arranged by the Director J&K Fund Organisation at the end of the training period. The examination shall be held at

the premises of Accountancy Training Institutions under the supervision of the principals. It shall be made known to the Compilers/Assistant

Compilers that their future promotions and seniority shall be contingent upon passing of the said examination.

While concluding his arguments, the learned Counsel has contended that future promotion and seniority has to be determined upon passing of

the said examination and in the instant case, the promotion and seniority of the petitioners and respondents 4 to 27 was dependant upon passing

the examination and not from their first appointment as is being pleaded by the respondents 4 to 27. In support of this contention, he cited the case

of Direct Recruit ClassII Engineering Officers' Association and others v. State of Maharashtra and others, AIR 1990 SC 1607. In this case, the

Constitution Bench of the Apex court has held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from

the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is

only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for

considering the seniority.

In rebuttal, Mr. D.C. Raina has urged that respondents 4 to 27 joined the service as Assistant Compilers much earlier in time than petitioners

started their career in the said cadre. They could not pass the examination at the time when petitioners passed but they too became qualified after

availing chances which three in number were available vide letter written by Member Secretary of the Selection Board vide his No.

DF/Adm/9192/876 dated 19.7.1991 to the Director, J&K Fund Organisation, Srinagar. The Government had constituted this Selection Board

vide Government Order No. 206F of 1991 dated 19.7.1991. This mode of qualifying the examination by availing three chances was subsequently

ratified by the Director, J&K Funds Organisation, Jammu in his Orders No. DF/ADM/87 of 1991 dated 30.11.1991, No. DF/ADM/98 of 1991

dated 18.12.1991 (AnnexureB to this reply of respondents) and No. DF/Ad/08 of 1996 dated 5.9.1996 and affirmed in his letter No.

DF/Admn/176275 dated 21.7.1997 addressed to the Deputy Director, Divisional Fund Office, Jammu. Since the Department has provided three

chances to all the Compilers for qualifying the required Departmental Examination, so petitioners could not steal a march over them by passing the

examination in the first chance. To buttress his argument he cited the case of Mohan Lal and others v. State of Himachal Pradesh, AIR 1997 SC

3775. Concluding his argument, he submitted that impugned seniority list bearing No. DF/Adm/Seniority/14761500 dated 1.7.1997 is only

tentative in its nature, which yet has not assumed the nature of final seniority list. The petitioners can show cause to the fixing of their seniority and it

cannot be challenged in writ jurisdiction.

Mr. M.A. Bhat, the learned Counsel appearing for respondents 1 to 3 has canvassed that the appointment of the petitioners and respondents 4

to 27 as Senior Compilers was substantive in nature depending upon passing the required examination within three chances. That respondents 4 to

27 passed the examination within those three chances. The petitioners were similarly situated even if they had qualified on 1.4.1993 because the

Government has the power of relaxing settled procedure for promotion. In support of this contention, he cited the case of J.C. Yadav and others v.

State of Haryana and others, AIR 1996 SC 857. Referring to the facts of the present case, he stated that many posts of Senior Compilers were

lying vacant, so in order to meet the requirement, the petitioners and respondents 4 to 27 were promoted as Senior Compilers in the stopgap

arrangement. Later on, all of them passed the requisite Departmental Examination of Senior Compilers in the mode prescribed by the authority.

The officiating period of the petitioners and respondents 4 to 27 against the posts of Senior Compilers has to be counted because their officiation

remained uninterrupted till regularisation, which has been done in accordance with Service Rules. In support of this submission, he drew the

attention on the law laid down by the Apex court in the case of Direct Recruits Class II Engineering Officers (supra) and stressed that heads (B)

and (C) at page 1627 are very relevant to the present controversy.

After considering the rival contentions of the counsel for the parties, the controversy boils down to the method of recruitment to the post of

Senior Compilers. The case of the petitioners is that they became eligible for appointment immediately after they possessed the qualification of

passing the written test, which was held in accordance with Instruction 5.1 contained in the Circular issued by the Commissioner/Secretary to

Government, Finance Department vide No. HQ/Misc417/1165 dated 2.2.1985 (Supplement to G.P. Fund Manual). The petitioners qualified the

requisite examination on 1.4.1993 whereas, respondents 4 to 25 qualified the written examination a year later, i.e., on 1.4.1994. Respondents No.

26 and 27 became eligible qualified Compilers in the month of May, 1994. Respondents 4 to 27 are putting up the claim that they too became

eligible qualified candidates for promotion as Senior Compilers alongwith the petitioners retrospectively, because they qualified the examination

within the available chances. Their counsel has laid great stress on the recommendations contained in the letter of the MemberSecretary of the

Selection Board bearing No. DF/Adm/9192/876 dated 19.7.1991. In this letter, mode of qualifying the examination was prescribed with the

explicit condition that should any Compiler promoted as Senior Compilers fail to qualify the prescribed departmental examination within three

chances, which may extend not four chances in very special circumstances, he will be reverted to the post of Compiler. This advise tendered by the

MemberSecretary, who was of the rank of Deputy Director, Accounts and Treasuries to his superior, namely, Director, J&K Fund Organisation,

Srinagar was followed by the latter in letter and spirit by ratifying the same in various communications as noted in the arguments of Mr. D.C. Raina

(Supra). Rule 5 of the rules of 1980, which is a statutory rule made under SRO520 in unambiguous terms lays down the eligibility for the

promotion against the post of Senior Compiler and proviso contained in subrule (2) of the said rule emphatically says that a person becomes

eligible after qualifying the examination prescribed by the Departmental Examination. It is advantageous to reproduce Rule 5, which runs :

Qualification and method of recruitment. (1) No person shall be eligible for appointment or promotion to any post in any class, category or

grade in the service unless he possesses the qualifications as laid down in the schedule II and fulfils other requirements of recruitment as provided in

the rules and orders for the time being in force.

(2) Appointment to the service shall be made :

(a) By direct recruitment (which will include appointment by transfer);

(b) By promotion; or

(c) Partly, by direct recruitment and partly by promotion, in the ratio and in the manner mentioned against each post in the schedule II :

Provided that no person shall be eligible for promotion to the posts specified against Class I and Class II in schedule II unless he has qualified in

such tests/examinations as the Administrative Department may prescribe in this behalf.

(3) The Administrative Department may, till such time candidates become available to hold the posts specified against Class I Class II and Class

III category `A' in schedule II, make adjustment/appointment against the posts, in the said classes by temporary transfer of the members of the

Kashmir Subordinate Accounts Service.

Administrative Instruction 5.1 contained in Circular issued by Commissioner/Secretary to Government, Finance Department vide No.

HQ/Misc 417/1165 dated 2.2.1985, mandates that future promotions and seniority of the Compulers/Assistant Compilers has to be contingent

upon passing of the said examination. Petitioners became eligible qualified Compilers for promotion as Senior Compilers on .4.1993, whereas,

respondents 4 to 25 acquired that eligibility and qualification a year later, i.e., on 1.4.1994. Respondents 26 and 27 became so eligible and

qualified in the month of May, 1994. There is no rule or administrative instruction, which says that to an eligible qualified Compiler, promotion as

Senior Compilers can be given retrospectively. The advise tendered by the Deputy Director Central (Member Secretary) to his Superior Director,

J&K Fund Organisation, Sringar in his letter No. DF/Adm/9192/876 dated 19.7.1991, which subsequently was affirmed by the latter in his

various communications shall not take the form of any statutory rule or Government Instruction to be in conformity with Rule 5 of the Recruitment

Rules of 1980. Any instruction which runs contrary to this statutory rule is nonest in the eye of law and cannot be acted upon. In case, the

argument advanced by the counsel for respondents 4 to 27 is accepted that petitioners and respondents 4 to 27 stand on equal footing being

eligible qualified Compilers, then superior merit has to be scarified for inferior merit. This argument militates against the doctrine of equality

enshrined in the Constitution and spirit of efficient governance. Respondents 4 to 27 cannot be allowed to steal a march over the petitioners, who

on 1.4.1993 had become eligible qualified Compilers to be substantively promoted as Senior Compilers. The ad hoc appointments and officiation

in this stopgap arrangement of respondents 4 to 27 till becoming eligible qualified Compilers cannot be taken into account for conferring

retrospective seniority upto 1.4.1993. The argument advanced by Mr. M.A. Bhat that Government has the power of relaxing the Recruitment

Rules has no relevancy to the facts of the present case, because there is no such order, whereby their qualification for becoming eligible was

relaxed. The law cited by him contained in AIR 1990 SC 857 equally has no relevancy. Similarly, the law cited by Mr. D.C. Raina in the case of

Mohan Lal and others v. State of Himachal Pradesh and others (supra) has no application to the facts of the present case, because in that case,

seniority of the probationers was determined of two sets of Officers, i.e., those who passed the examination within two years and another set of

Officers, who sat for the examination within two years but passed the examination beyond two years. The relevant rule of that service reckoned

their seniority from the date of passing the examination and not from the date of appointments. The facts of the present case in hand are different

and there is no such rule available to the respondents, which permits them to claim retrospective seniority.

In view of the discussion made above, writ petition is accepted and writ of certiorari is issued to quash the tentative seniority list issued vide

Order No. DF/Adm/Seniority/14761500 dated 1.7.1997 as it pertains to the petitioners visavis respondents 4 to 27. Respondents 1 to 3 are

commanded to prepare the final seniority list of the Senior Compilers of Jammu Division according to Rue 5 of the Recruitment Rules, 1980 read

with Instruction 5.1 contained in Circular No. HQ/Misc417/1165 dated 2.2.1985 and any other relevant rule, instruction or order within a period

of four months determining the seniority of the petitioners and respondents 4 to 27. Furthermore, respondents 1 to 3 are restrained from making

any promotion even on stopgap arrangement to the post of Examiner till the issue of final seniority list.