Javaid Iqbal Balwan and Ors. vs State and Ors.

The dispute arising in the present petitions centers round the questions to the interse seniority between the direct recruits and the promotees

under the Jammu & Kashmir Revenue (Gazetted) Service. The dispute also relates to the regularization of the promotees and fixation of their

interse seniority in the cadre.

Appellants in LPA No: 412J/2001, petitioners in W. P. No: 2111J/2003 and petitioners in S.W.P No. 857, 858, 1556 and 1859 of 2004 are

the direct recruits (hereinafter also referred to as the petitioners (DR)) while as the appellants in LPA No: 415J of 2001 and petitioners in SWP

No: 855 and 856 of 2004 are the promotees (hereinafter also referred to as the respondents (PR)). The promotees were appointed as Naib

Tehsildars in the year 1973. In the year 1983 those Naib Tehsildars, who had qualified the departmental Tehsildar examination held by the State

Public Service Commission, were given stop gap promotions as Tehsildar, in their own pay and grade. Later the grade of the post too was

released in their favour and in the year 1997 their services as Tehsildars were regularized retrospectively with effect from 111984. Some of the

promotees were given promotion to the higher grade/posts and some of them have even been inducted into the Kashmir Administrative Service.

Various seniority lists of the members of the service were issued by the State from time to time which became the subject matter of litigation.

Though in some cases the matter went even up to the Apex Court, a part of the controversy is still unsettled. The respondents (PR) do not accept

111984 as the correct date of their regularization and claim that their seniority should be counted from the year they passed the departmental

examination for the post, in the alternative they pray for seniority from the date they were posted as Tehsildars. They are aggrieved that oven those

who could not qualify the examination within the prescribed period, have also been regularised and made senior to them.

Meanwhile selection of direct recruits took place which too gave rise to the litigation before this Court as well as before the Supreme Court. The

appellantdirect recruits got appointed into the service under the directions of this court upheld by the Supreme Court. In the second round of

litigation they prayed for retrospective seniority which too was granted but now they are aggrieved of the seniority position visavis the promotees

assigned to them in the seniority lists issued by the State. They are also aggrieved of the promotions granted to the promotees as also their

induction into the KAS, as according to them the promotees have been assigned undue seniority positions due to which they got illegally pushed

down depriving them of due place in the seniority. This all has resulted into filing of the present writ petitions/LPAs both by the promotees as well

as by the direct recruits before this Court.

In order to fully appreciate the issues involved we may examine the facts which led to the filling of these cases.

Our journey starts from October, 1973 when by means of Government Order No. Rev (A) 464 of 1973 dated 8.10.1973 about 118 persons

were appointed as Naib Tehsildars in the grade of Rs.340700 in the State Revenue Department, Government of Jammu and Kashmir (hereinafter

referred to as the department). The appointment was made on temporary basis on the terms and conditions indicated below:

i) that they shall undergo Revenue and Settlement training in the Revenue Training Schools Srinagar/Jammu and pass the examination on the

completion of said training.

(ii) that they shall within 2 years, pass the Departmental Examination for Naib Tehsildars conducted by the Public Service Commission, failing

which they shall be liable to be discharged from service.

The appointment was governed by the Jammu and Kashmir Revenue (Subordinate) Service Recruitment Rules, 1973 (notified vide SRO 471

dated 2.9.1973) (hereinafter referred to as 1973 Rules). Rule 7 of the rules provide as under:

Probation(1) Persons appointed, whether direct or by promotion to any class or category in the service shall be on probation for two years and

their confirmation in the class or category shall be regulated under the provisions of Jammu & Kashmir Civil Service (Classification, Control and

Appeal) Rules, 1956.

(2) During the period of probation, the probationers in Class I shall have to qualify in the prescribed departmental examination.

(3) The Government may in the case of a person who fails to qualify in the departmental examination within the period prescribed in subruled)

above, extend the period of probation by one year. A probationer, who does not pass the examination within the extended period, shall be liable

to be discharged from service.

The Naib Tehsildars appointed vide order dated 08.10.1973 appeared before the State Public Service Commission during the period between

19741976, to qualify the departmental examination as required by the appointment order. The Government vide Order Rev (A) 110 of 1976

dated 26.4.1976, extended the probationary period by one year for about 83 persons, who could not qualify the said examination within the

period of two years.

On 23.8.1978 the Government issued a tentative seniority list of Naib Tehsildars for which objections were received from the effected persons.

Ultimately vide office endorsement No. FC(A)l38/Misc dated 16.6.1980 the Financial Commissioner issued a final seniority lirt of these Naib

Tehsildars in which Moti Singh, Mohmmad Maqbool and Mushtaq Ahmad Malik (petitioners in SWP No.855 of 2004) were shown at

S.No.167,157 and 160 respectively. Some other Naib Tehsildars (who too got involved in the litigation later on) namely Mohmmad Shafi, Sardar

Shabir Ahmad Khan, Mirza Afroz Beigh and Abdul Kabir Wani figured at S.No.199,194, 165 in the said seniority list, while as one Qamaruddin

figured at S.No.161. Sardar Shabir Ahmad Khan, Mirza Afroz Beigh, Abdul Kabir Wani and Mohmmad Shafi Lone (Naib Tehsildars) felt

aggrieved of their position in the said seniority list and alleged that the same was not in accordance with Rule 22 and 24 of the Jammu & Kashmir

Civil Services (Classifications, Control and Appeal) Rules, 1956 (for short the CCA Rules). According to them while framing the seniority list,

Qamaruddin was wrongly shown senior to them at S. No. 161. They challenged the list before this Court through petition (SWP No.691 of 1982)

and prayed for its quashment and determining the same afresh in accordance with the CCA Rules.

After passing their departmental examination for Naib Tehsildars, some of the Naib Tehsildars also appeared in the Departmental Examination

of Tehsildars constituted by the Commission in terms of Jammu and Kashmir Departmental Examination (Tehsildars) Rules, 1979. Result was

issued by the Commission vide Notification No.PSC/Ex81/74 dated 7.12.1981.

Immediately after the declaration of the result, out of the 118 Naib Tehsildars, the Government vide order no. Rev (A) 47 of 1982 dated

4.2.1982 promoted four Naib Tehsildars, namely Ghulam Ali Giri, Mohd Yousf, Meharban Singh and Joginder Kumar Saini as Tehsildars.

In the year 1986, the Financial Commissioner (Revenue) J&K Government issued proposed seniority list vide No. Rev(A) 111/Misc of 1986

dated 14.2.1986, in which Gian Chand Sharma, Qamaruddin, Ali Mohmmad Dar and Moti Singh figured at S.No.9,15,18 and 19 respectively.

While SWP No.691 of 1982 was pending before the Court, the Government vide Order No. Rev(A) 40 of 1989 dated 9.2.1989 accorded

sanction to the confirmation of 28 Naib Tehsildars against lien free post w. e. f 8.10.1975, who had qualified the Naib Tehsildari Examination

within the stipulated period of two years. Gian Chand Sharma, Qamaruddin, Ali Mohmmad Dar and Moti Singh figured at S. No.9, 17, 20 and 21

while as Sardar Shabir Ahmad and Mohmmad Shafi Loan figured at S. No.27 and 28.

Before proceeding further it may be noted here that under Rule 7 of the Departmental Examination (Tehsildar) Rules, 1979, the maximum

marks for each paper of the examination were 100. A candidate had, however, to obtain not less than 45% of marks in the aggregate and not less

than 40% of marks in each individual paper to qualify the examination. Rule 5(4) provided that a candidate who appears in all the papers at a time

and passes in all but one paper, may be given by the Commission, grace marks not exceeding 10 marks to enable him to secure minimum number

of pass marks in the paper in which he had failed, provided that the total number of marks in all papers secured by him without the grace marks

aggregate to not less than 50% of marks.

There were some candidates who could not qualify the examination. When their result was declared vide notification dated 7.12.1981, they

got the aforesaid rules modified by means of SRO 57 dated 25.2.1982. The amendment incorporated retrospectively w. e. f 1.6.1981 by SRO 57

reduced the aggregate marks from 50% to 45% marks. Thus a candidate, who appears in all papers at a time and passes in all but one paper,

could be given 10 marks as grace marks to enable him to secure the minimum number of pass marks in that paper in which he has failed, provided

the total number of marks in all papers secured by him without the grace marks aggregate not less than 45% marks. This amendment benefited a

good number of candidates. The Commission, therefore revised the result of Naib Tehsildars under the Rules of 1979 as a result of which some

other Naib Tehsildars too, who had appeared in the examination, were declared as qualified in the examination. A Selection Committee was

constituted by the Government vide Order No.l099GD of 1982 dated 1.5.1982 for promoting eligible officers to the post of Tehsildar in the

Department. The Committee conducted interviews of the eligible candidates for the purpose of selection/promotion to the post of Tehsildars but

before any order could be issued on the recommendations of the selection committee, a writ petition titled Sohan Lal Raina and 17 Ors. v. State

came to be filed in this Court by about 18 Naib Tehsildars seeking reversal of Government Order No.l099GD of 1992 and also quashing of SRO

57 of 1982. This Court while entertaining the petition permitted holding of interviews of the candidates for their selection/promotion as Tehsildars

but directed the State not to declare their result or make any appointment on the basis of said interview. Another writ petition titled Pawan Kumar

and 18 ors v. State and ors also came to be filed by certain Naib Tehsildars seeking annulment of the result of Tehsildari candidates declared by

the Commission vide Notification No.PSC/Ex82/52 dated 18.8.1982, dated 21.8.1982, 8.9.1982, 14.9.1982, 15.9.1982 and 19.10.1982 on the

ground that the results were declared in contravention of Rule 6 of the Rules of 1979. In this petition too this Court while admitting the petition

directed the State not to make any promotion of any Naib Tehsildar to the post of Tehsildar on the basis of the said notification.

While these petitions were pending in this Court, the Government in the year 1983 felt that due to nonpromotion of Naib Tehsildars to the

posts of Tehsildars time bound programme of implementation of the Agrarian Reforms was suffering badly and the general public was facing

difficulties on that account. The Government therefore, after considering each aspect of the case, decided to make temporary arrangement in the

interest of Government work. So vide order No. Rev (A) 93 of 1983 dated 17.3.1983 the Government accorded sanction to the temporary

promotions of 31 Naib Tehsildars to the posts of Tehsildars in their own pay and grade pending final selection by the Departmental Promotion

Committee/Public Service Commission. The order specifically said that their temporary promotion as Tehsildars shall however, be without

prejudice to the position that may emerge from the final verdict of the Hon'ble High Court in the writ petitions pending consideration before it. The

officials promoted as such were:

(1) Mohmmad Amin Andrabi

(2) Mohmmad Sikander Malik

(3) Sohan Lal Raina

(4) Romesh Chander Sharma

(5) Sheikh Ghulam Rasool

(6) Harbajan Singh

(7)DurgaNathBhat

(8)DalipSingh

(9) Abdul Qayoom Mir

(10) Tara Chand

(11) Brij Mohan Sharma

(12) Roop Krishen Handoo

(13) Gian Chand Sharma

(14) Sawaran Singh Jamwal

(15) ShevRatan Singh

(16) FazalurRehman Javid

(17) Shiv Raj Singh

(18) Abdul QabirWani

(19) Faqir Mohmmad

(20) Om Prakash Kalandari

(21) Mohmmad Maqbool Wani

(22) Mohmmad Syed Khan

(23) Mushtaq Ahmad

(24) Qamaruddin Khan

(25) Abdul Hafiz

(26) ShafiqurRehman

(27) Mirza Afroz Beigh

(28) Moti Singh

(29) Ghulam Jeelani Khan

(30) Khursheed Ahmad Dev

(31) Qazi Mushtaq Ahmad

The order further said that the cases of such of the Naib Tehsildars as have not completed/passed the departmental examinations of Tehsildars

but were working as Tehsildars in their own pay and grade 'are being reviewed separately'.

Order dated 17.3.1983 came to be challenged through a writ petition (SWP No.243 of 1985) titled Janki Nath Dhar and ors v. State of J&K

and Ors. by some Naib Tehsildars. In the said petition the Court on 13.3.1985 directed the State Government not to give further extension to the

officers mentioned in the order dated 20.10.1984, on the post of Tehsildars until further orders from the Court. The Court, however, clarified that

the order will not be a bar for the Government for considering the cases of petitioners (Janki Nath and ors.) for their promotion to the post of

Tehsildars. The Division Bench later clarified the said order dated 13.3.1985 by observing that till writ petitions mentioned in the orders and LPA

No.20 of 1983 pending in the Court are finally decided, it shall be open to the Government to make promotion/posting to the post of Tehsildars,

only as a stop gap arrangement, which shall not confer any right on the beneficiaries so appointed in case his/their case fails ultimately in the Court.

The result was that the arrangement was discontinued in the year 1985. The Court directed:

We, clarify and to an extent modify the order of the Division Bench dated March 13, 1985, by observing that till the writ petitions mentioned in

this order and the Letters Patent Appeal No.20 pending in this Court are finally decided, it shall be open to the Govt. to make promotions/postings

to the posts of the Tehsildar, but only on a stop gap arrangement, which shall not confer any right on the persons so appointed to hold the post in

case his/their case fails ultimately in this Court. The stop gap arrangement shall be covered by Rule 85 of CSR and while making

postings/promotions on stop gap basis, the cases of all eligible candidates shall be considered by the Govt. We are told that writ petition No.218

of 1983 and writ petition No.273 of 1983, are pending in the Srinagar Wing of this Court. It is agreed to by the learned counsel for the parties that

the said writ petition be transferred to this wing of the Court and processed for hearing along with the connected petitions. We order accordingly.

The Deputy Registrar shall take necessary steps in this behalf...

The seniority list of the Naib Tehsildars issued vide office No. DC(A)/Misc dated 16.6.1980 was challenged by S/Sh. Krishan Singh Jamwal

and M. L. Pandita before this Court through writ petition No.94/1985 titled Krishen Singh Jamwal and Ors. v. State and ors. The Court quashed

the seniority list with a direction to reframe the list according to the directions contained in the judgment. The Court directed:

Accordingly I would only direct that the impugned seniority list be reframed and the petitioners be shown at appropriate place and they be

deemed to have been promoted as Naib Tehsildars on 8.10.73 as direct recruits. The seniority of the petitioners is, therefore, to be made on the

basis of their promotion having been made on 8.10.73 vizaviz respondents 3 to 103. The present seniority position of the petitioners at S.No.216

and 218 is accordingly quashed and the impugned seniority list is, therefore, rendered bad as a whole because the said list needs to be reframed

which may disturb serial numbers of each one in the Seniority list.

While the petitions titled Sohan Lal Raina and others v. State and others, Pawan Kumar and ors. v. State and ors, and Janki Nath and ors v.

State and ors. were pending before this Court, an Order No. Rev. (A) 92 of 1992 dated 17th July, 1992 was issued by the Government by means

of which Naib Tehsildars were allowed pay scale sanctioned to the post of Tehsildars from the date shown against each. The date being the date

of their holding the charge of the post of Tehsildars. Thereafter a final seniority list of Naib Tehsildars was issued vide Government Order No, FC

(A) 218/1993 dated 18011993.

Vide Government Order No. FC (A) 56/93 dated 11061993 various Tehsildars were posted as Special Officers, Revenue with immediate

effect from the date shown in the order. The officers were assigned higher responsibilities in their own pay and grade. Later vide Government

Order No. Rev. (A) 28/1994 dated 18021994, these officers including the petitioners of SWP No.855 of 2004 namely S. Moti Singh, Mohd

Maqbool and Mushtaq Ahmad Malik were appointed as Assistant Commissioners 'with due regard to their merit and suitability'.

In the same year vide a Circular No. Rev. (A) 15/1994 dated 24021994 it was stated that the Government was contemplating to induct

Revenue Officers into Kashmir Administrative Service. The Circular impressed upon all the concerned officers to furnish the annual performance

report of the concerned officers by 05031994.

While this process was going on, the Government vide Order No. Rev. (A) 20 of 1994 dated 27041994 issued a tentative seniority list of

Tehsildars. Objections were invited from the aggrieved officers, within a period of 30 days from the date of issue of the order. The order further

stated that in case the objections were not filed the list shall be construed as being in order and the final seniority list shall be issued after the expiry

of 30 days based on the tentative seniority list.

Since these Tehsildars were working against the post of Assistant Commissioners it appears that the grade of Assistant Commissioners was

not released in their favour. In the year 1996 vide Government Order No.1 126GAD of 1996 dated 20th Nov. 1996, the Government sanctioned

release of pay scale of Rs.3000 4500 in favour of 34 Under Secretaries who had been promoted to the Posts of Dy. Secretaries in their own pay

and grade and four cases for induction into Kashmir Administrative Service were also pending consideration with the Government. Said Tehsildars

felt aggrieved by the order as they found that the Government had released the higher pay scale in favour of the Under Secretaries while as a

similar benefit was denied to them though they were also entitled to the same. Seven officers namely Abdul Kabir Wani, Mohd Maqbool, Mohd

Syed Khan, Mushtaq Ahmad Malik, Afroz Beigh, Ali Mohammad Dar and Gh. Jeelani Khan filed before this Court a writ petition SWP No.

122128/97 titled Abdul Kabir Wani and ors. u. State on 22011997 in which appropriate writ for declaring the tentative seniority list of Naib

Tehsildars circulated on 27041994 as final and conclusive was prayed. They also prayed for framing, finalizing and circulating the seniority list of

Assistant Commissioners of Revenue Department. They also prayed for the release of higher pay scale in their favour with effect from 18021994.

The Court considered the matter and on 03021997 directed the State to effectively consider the grievances as projected by the petitioners and

maintain finality of the tentative seniority list issued on 2741994.

Two direct recruit officers namely Mohammad Afzal and Mukhtar ulAziz, who were appointed as Tehsildars in the year 1984 and 1992

respectively challenged the said order through a letters patent appeal. The Division Bench, which considered the matter directed the appellants to

file their objections to the main writ petition, treating them selves to have been arrayed as respondents there to. The Division Bench directed that till

the matter was heard by the learned Single Bench, status qua as it existed as on 2341997 shall be maintained. The petition thereafter was listed

before the Single Bench and the same is still pending for disposal.

In the year 1997, the Government vide Order No: Rev (A) 128 of 1997 dated 1761997 accorded sanction to the regular appointment of the

members of Jammu and Kashmir Revenue (Subordinate) Services (Naib Tehsildars) forming annexure to the said order as Tehsildars in relaxation

of rules w. e. f. 111984 in the grade of Rs. 10001560, ending March, 1987,Rs. 19003200 ending March, 1992 and Rs. 21253600 w. e. f

141992. Some of the Tehsildars felt aggrieved of the Order No: Rev (A) 128 of 1997 dated 1761997 as they found that their services have been

regularized w.e.f 11 1984 while as they were working on the posts continuously w.e.f 1731983. The order was, therefore, challenged by them

through Writ Petition SWP 297278/1997 titled Moti Singh & ors. v. State of Jammu and Kashmir &ors. While this petition was pending the

Government issued a seniority list of Tehsildars vide No: Rev (A) 134 of 1997 dated 2461997 whereby seniority of the direct recruits as well as

promotees was determined. This list also was challenged through a petition SWP No: 3278 of 1997 titled Mohammad Maqbool Want & ors. v.

State of Jammu & Kashmir & ors. The Court directed maintaining of status qua in the matter in respect of the petitioners as well as private

respondents position vide order dated 1071997. Both the writ petitions i.e. Writ Petition SWP 297278/1997 titled Moti Singh & ors. v. State of

Jammu and Kashmir &ors. & petition SWP No: 3278 of 1997 titled Mohammad Maqbool Wani & ors. v. State of 'Jammu & Kashmir & ors.

were, however, withdrawn by the petitioners allegedly on the assurance of the Government to settle their seniority in accordance with 1994

tentative seniority list. No progress in this behalf took place. The Government vide Order No: 1851GAD of 1997 dated 26111997 inducted

various Revenue Officers into KAS. Three persons namely Moti Singh, Mohammad Maqbool and Mushtaq Ahmad Malik filed writ petition SWP

No. 457 of 1998 (SWP No. 855 of 2004) titled Moti Singh & ors. v. State of Jammu & Kashmir & ors.

While this controversy over the regularization of Tehsildars and the seniority lists of the promotees issued from time to time was going on, the

Government initiated process of direct recruitment in various gazetted services including the Revenue Gazetted Service. The Notification to hold

combined competitive examination for the purpose was issued by the State Public Service Commission (for short the Commission) in May, 1979.

The main examination was conducted in August 1980 and viva voce of the qualified candidates was conducted in August 1981, It, however, took

two years for the Commission to complete the process and in the year 1983 the select list of 529 candidates was notified and the selected

candidates were sent for medical examination. The Commission instead of sending the list to the Government sent the names of selected candidates

by piecemeal The Government, acting on these recommendations, issued orders of appointment of the selected candidates in installments. 150

candidates were ap pointed on 9.2.1984, 21 candidates on 18.2.1984, 42 candidates on 6.5.1984 and finally 52 candidates on 20.9.1984. Thus

out of 529 candidates who were on the selection list, only 265 candidates were appointed by the Government. Various writ petitions came to be

filed in Jammu as well as Srinagar wing of this Court by the leftover candidates. The petitions bear the following numbers:

SWP Nos.680/1984, 399/1984, 15/1984, 868/1984, 892/1984, 946/1984, 78/1985, 85/1985, 87/1985, 97/1985, 111/1985, 135/1985,

141/1985, 374/1985, 438/1985, 477/1985, 689/1985, 801/1985, 919/1985, 81/1986, 1847/1134 of 1988/87.

Main grievance of the petitioners in these petitions was that the rules provide recruitment of the direct recruits and promotees on 50:50 basis

but the Government had created imbalance between the direct recruits and the departmental promotees, there were sufficient posts for direct

recruits to accommodate all the selected candidates but the posts had been usurped by the promotees and that the petitioners had acquired a right

as they were included in the select list of 529 candidates. The petitioners therefore prayed that the State be commanded to follow quota rota rules

including the rule dated 20.8.1983 which provided recruitment of direct recruits and promotees on 50:50 basis.

Out of these SWP No.680/1984 titled Nazir Ahmad and others v. State and ors. was taken up first by the Srinagar Bench. Learned Single

Judge (Hon'ble Mr. Justice M. L. Bhat) allowed the petition and passed various directions as under:

(a) That the respondent No.2 shall prepare a roaster indicating the number of vacancies available in respect of Combined Competitive Services

on 20.8.1983 and show the number of departmental candidates promoted against the vacancies substantively. This would include those also who

have retired from service after 20.8.1983.

(b) After ascertaining the exact number of Departmental promotees to the various services, the same number of vacancies shall be filled up from

among the direct recruits who have qualified in the Combined Competitive Service Examination and who are included in the list of 529 candidates.

For the vacancies those candidates shall be considered for appointment who as arranged in order of merit beyond 265 candidates already

appointed.

(c) Till the imbalance is rectified and parity is achieved between the direct recruits and the Departmental promotees in terms of Govt. Order

No.l285GD of 1983 no departmental candidate should be promoted. In order to achieve the balance and parity between the two feeding channels

of the Combined Competitive Service ratio of 50:50 should be adhered to while making the appointments.

(d) Till the parity is achieved and imbalance is rectified between direct recruits and departmental candidates, the list of 529 candidates selected by

the respondent No.3 shall remain operative. After the parity is achieved, respondent No.3 may be at liberty to conduct fresh examination for filling

up the vacancies which may arise in future.

(e) Respondent No. 2 shall prepare the list of available vacancies as on 20.8.1983 as also departmental candidates appointed against the said

vacancies till date within two months from today. The number of vacancies which were in existence as on 20.8.1983 shall be published department

wise after the period fixed herein above so as to inform the petitioners and other similarly situated with them who are included in the list of 529

candidates about their aright to seek consideration for appointment against any post in order of merit arranged by the Public Service Commission.

Against the judgment the State filed a Letters Patent Appeal bearing No.20/1986 which was heard and disposed of by the Division Bench

(comprising Hon'ble Mr. Justice A. S. Anand, Chief Justice and Hon'ble Mr. Justice G. A. Kuchai) on 16th August, 1988 in which the following

agreed order was passed:

The respondent State shall ascertain exact number of the departmental promotees to the various services referred to Public Service Commission

for making selection or otherwise promoted by the State (other than in stop gap arrangement) from 1979 till the last reference was made by the

respondent State to the Public Service Commission in September, 1984 and after ascertaining the same and taking into consideration the

appointments of 265 candidates as direct recruits, rectify the imbalance, if any, between the direct recruits and the departmental promotees in the

ratio, if any, prescribed in the Rules regulating the respective service, if any, shall be filled from the category to which they belong. In the event as a

result of rectification of the imbalance between the departmental promotees and the direct recruits, it is found that the resultant vacancies arise

which have to go to the direct recruits, the State shall consider the cases of such candidates who had appeared in the written/viva voce and

medical test conducted by the Public Service Commission in 1983 and the vacancies shall be filled up on merit accordingly. After the vacancies are

so filled up, the list of the Public Service Commission prepared on 30th September, 1983 shall cease to be effective and the future vacancies may

be filled up by the respondent State in accordance with rules as and when the same arise.

The remaining writ petitions Nos. 399/1984, 15/1984, 868/1984, 892/1984, 946/1984, 78/1985, 85/1985, 87/1985, 97/1985, 111/1985,

135/1985, 141/1985, 374/1985, 438/1985, 477/1985, 689/1985, 801/1985, 919/1985, 81/1986, 1847/1134 of 1988/87 which were pending

in Jammu wing of the High Court were referred to the Division Bench in view of the decision in LPA 20/1986, The Division Bench (comprising

Hon'ble Shri Justice S. S. Rang, Chief Justice and Hon'ble Mr. Justice K. K. Gupta), disposed of these petitions vide its order dated 22nd August

1991. The Court directed:

.......... The respondents are directed that they shall appoint the petitioners and other out of 529 candidates selected by the Public Service

Commission and rectify the imbalance between the departmental promotees and the direct recruits. Since 260 promotees have been appointed

during the relevant period, 260 more candidates out of 529 candidates selected by the Public Service Commission shall be appointed to the

seventeen aforementioned gazetted services in accordance with the merit. Even some or any of these candidates have become overage during the

pendency of these writ petitions. They shall also be appointed because those candidates, if any, had become overage for no fault of their own but

because of the unjustified refusal of the respondents to appoint them despite their selection. Since the matter has already been delayed, the

appointments shall be made within two months.

Against this judgment (dated 22.8.1991) the State Government filed a SLP (Civil Appeal No.3485/1992 arising out of SLP(C) No.518 of

1992) before the Supreme Court. The Supreme Court disposed of the said appeal by means of judgment dated 27th August, 1992. The Supreme

Court found that the view expressed by the Division Bench of this Court was in consonance with the Rules in question. The State submitted before

the Court that there were only 181 vacancies and not 260 as indicated by the Division Bench. The Court however did not go to this aspect but

order that only those petitioners who had approached and sought relief from the Courts be considered for appointment. The Court held:

We have heard learned counsel for the parties. The finding of fact reached by the High Court is based on the appreciation of detailed information

supplied by the State Government at the hearing of the petition. We find no infirmity is the reasoning and the conclusions reached by the High

Court."" The Court further observed:

Mr. D. P. Gupta, learned Solicitor General appearing for the State of Jammu and Kashmir has contended that the latest affidavit containing

complete information regarding the vacancies was filed by Mr. R. C. Gupta, Deputy Secretary to Government, General Administration

Department. According to him the Division Bench of the High Court did not take the said affidavit into consideration. Mr. D. D. Thakur, learned

counsel appearing for the respondentswrit petitioners has very fairly conceded that there is a discrepancy while counting the deficient number of

vacancies in the quota of direct recruits. According to him the number of deficient vacancies comes to 181 and not 260 as found by the High

Court. The view we are taking it is not necessary for us to go into this question.

The selection in this case was completed in the year 1982. Most of the writ petitions were filed in the High Court and in this Court during the year

1984. Some of the petitions before the High Court were also filed during the period 1985 to 1989. We are of the view that only the candidates

who filed the writ petitions are entitled to the relief granted by the High Court. We, therefore, modify the relief granted by the High Court to the

extent that only the candidates who filed writ petitions in the High Court or in this Court are entitled to be appointed in terms of the High Court

Judgment. We grant two months time from today to the State Government to make the necessary appointment in terms of the High Court judgment

as modified by us. The appeal is accordingly disposed of in the above terms.

In compliance to these directions of the Apex Court, the Government by means of Order No. 1065GAD of 1992 dated 13.11.1992 ordered

appointment of about 97 candidates in various services. Service wise number of candidates was as under:

J&K Revenue (Gazetted) Service ....................... 18

J&K Secretariat (Gazetted) Service ....................... 12

J&K Excise and Taxation (Gazetted) Service .......................... 5

J&K Cooperative (Gazetted) Service ....................... 6

J&K Industries (Gazetted) Service ....................... 1

J&K Informations (Gazetted) Service ....................... 6

J&K Labour (Gazetted) Service ....................... 1

J&K Social Welfare (Gazetted) Service ....................... 4

J&K Transport (Gazetted) Service ....................... 2

J&K Police (Gazetted) Service ....................... 20

J&K Accounts (Gazetted) Service ....................... 22

Out of the candidates appointed vide Government Order No. 1065 GAD of 1992 dated 13.11.1992, 23 candidates (i.e. 8 candidates from

Revenue service namely Jagdev Singh Manhas, Ashok Kumar Gupta, Kewal Krishan Kohli, Brij Nath Thakar, Rajinder Singh, Bikram Singh

Jamwal, Javed Iqbal Balwan and Sudershan Kumar Kapoor, 5 candidates from J&K Secretariat (Gazetted) Service namely Madan Lal Padha,

Virinder Singh Salathia, Romesh Chander Sharma, Jai Pal Singh and Sunita Anand, 2 candidates from J&K Excise and Taxation (Gazetted)

Service namely Jugal Kishore and Kuldeep Kumar, 1 candidate from J&K Cooperative (Gazetted) Service namely Ravi Bushan Suri, 1 candidate

namely Ram Paul Gupta from J&K Industries (Gazetted) Service. 1 candidate namely Mohd Shafi from J&K Information (Gazetted) Service, 1

candidate from J&K Social Welfare (Gazetted) Service namely Narinder Kour, 2 candidates from J&K Police (Gazetted) Service namely Rattan

Lal Bhollum and Ravinder Singh and two candidates from J&K Accounts (Gazetted) Service namely Ravinder Kumar Kaphi and Ajay Singh

Jamwal felt aggrieved of the said Government order, Though they accepted the appointment under the order they felt that their placement in the

seniority was not in accordance with the rules. They felt that the Government ought to have conferred on them the benefits of notional

appointment/seniority w. e. f 1984 when their batch mates were appointed, They challenged the said Government Order and claimed the benefits

through petition (SWP No.904 of 1993 titled Javed Iqtaal Balwan and ors v. State and ors). While admitting the petition this Court vide its order

dated 12.8.1993 directed that all the promotions and seniority in all the 17 Gazetted services shall be subject to out come of the petition and no

special claim by way of such promotions can be made thereafter. The said order was subsequently made absolute on 21.9.1993 after hearing the

counsel for the State Government. It is alleged that in spite of the directions of the Court the State Government went on making the unmindful

promotions in order to confer undue advantage to the promotees as they were being promoted without clearance by the DPC and in excess of the

promotion quota, and when the same was again brought to the notice of this Court, this Court vide its order dated 28.1.1997 again directed that if

any promotion is made, the question of seniority and such promotions shall be subject to the result of the writ petition.

When the matter came for final hearing before the learned Single Judge, he framed following two question of law and referred these questions

to the larger bench for authoritative pronouncement :

(i)"" Whether in the light of judgment by Division Bench of this High Court in case Javid Iqbal Balwan and ors Vs State and ors. Dated 23.08.1991

holding that: ....The respondents were directed that they shall appoint the petitioners and others out of 529 candidates selected by Public Service

Commission and rectify the imbalance between the departmental promotees and the direct recruits. Since 260 promotees have been appointed

during the relevant period 260 more candidates out of 529 candidates selected by the Public Service Commission should be appointed to the

seventeen gazetted services in accordance with the merit...,"" And uphold by the Apex Court vide judgment dated 27.08.1992 with the

modification that only the candidates who filed the petition in the High Court or Supreme Court would be entitled to be appointed in terms of the

judgment of the High Court the petitioners' seniority will have to be reckoned along with direct appointees of 1984 out of the same list or from the

date of their actual appointment?

(ii) Whether in view of the judgment of the Apex Court in Keshav Chandra Joshi and others Vs Union of India and others, 1992 Supp.(1) SCC

272 and M.S.L Patel Vs State of Maharashtra (1996) II SCC 327, holding that when promotees came to be promoted in excess of the quota,

they cannot be given seniority in this case can be finally determined in the absence of those likely to be effected, even though petitioners could

perhaps be entitled only to notional appointment before their appointments were made in order to claim seniority against the promotees in excess

of the quota ?.

The Division Bench while answering these questions held:

(i) The direct recruit i.e. the petitioners are entitled to claim notional seniority with effect from the date the other direct recruit came to be

appointed. This question is answered in favour of the direct recruits,

(ii) That in view of the position of law noticed above the seniority of the petitioners is to be fixed while fixing so the person who are likely to be

affected even though not party to this petition can be heard by the State Government. The State Government after taking note of the points of view

which they would like to put across will refix the seniority. No direction is given at this stage to fix the seniority over and above such and such

persons. As and when question of fixing the seniority is examined by the State Government the persons who are likely to be affected be heard.

This question is again answered in favour of the Direct recruits. In view of the agreed stand taken by the parties that his petition be decided on

merit. This is being finally decided. The respondentState would take notice of the answers given to the two questions, referred to above and taken

remedial measures. Let this be done so far as the relief which is to be granted visavis question No.1, within a period of one month from the date a

copy of this order is made available to the respondentsState, by the petitioners. The other matter be decided within a period of three months. This

period would also begin in the same manner i.e. with effect from the date of copy of this order is made available to the RespondentState. The

process be intimated within a period of one week of the receipt and it be completed within the period referred to above. The petitions are

disposed of accordingly.

Aggrieved by the order of Division Bench the State Government filed a SLP which was disposed of by the Supreme Court observing that

there was no good reason or valid ground to disturb the impugned judgment. The Court directed the state to comply with the order of Division

Bench and till that is done no regular promotions shall be made.

The Court held:

Having heard the learned counsel on either side and after perusal of the impugned judgment keeping in view the facts and circumstances of the

case we do not find any good reason or valid ground to disturb the impugned judgment.,.. We are informed that the directions given in the

impugned judgment have yet not been complied with by the State Government, although a time frame was set in the impugned judgment. We think

it is appropriate to direct the State Government to comply with the direction given in the impugned judgment, with in three months from today. We

direct accordingly. In complying with these directions the State Government shall hear the concerned parties as indicated in direction No.2, their

point of view supported by the decision of this Court, if any. We are also told that contempt proceedings are initiated by the aggrieved parties. In

the light of the directions we have given above, the contempt proceedings need not be perused. Hence the contempt proceedings are dropped.

We are also told that there have been some promotions during this period and some of the officers have also retired from service. We do not say

any thing on this aspect. It is for the State Government to examine all the aspect while considering the direction no.2 given in the impugned

judgment.

We also make it clear that till the directions contained in the impugned judgment are complied with, no regular promotions shall be made.

In pursuance to the directions of the Supreme Court, the Government constituted a Committee of officers vide Government Order

No.386GAD of 2003 dated 24.3.2003 for the implementation of the said judgment. The Committee invited representations from the interested

parties through electronic and print media and after hearing the concerned parties on the occasion and considering the representation received, the

Committee submitted its report to the Government. The Government considered the report of the Committee and vide Order No.ll45GAD of

2003 dated 4.9.2003 granted notional seniority to the petitioners (of SWP 904 of 1993) w. e. f 24.9.1984 i. e, date on which the last direct

recruit was appointed on the basis of recommendations of PSC after conducting Combined Competitive Examination. The Government however

refused to disturb the promotions granted to the members of the Services including the promotions made into KAS during the period from

24.9.1984 to 4.9.2003 as according to the order, it was neither expedient nor in the interest of public administration to unsettle the settled issues.

The Government ordered:

.... Whereas, the Government is of the opinion that in terms of the judgment of the Hon'ble High Court read with judgment of Hon'ble Supreme

Court dated 26.02.2003, the petitioners are entitled to notional seniority from 24.09.1984 i.e, date when last direct recruit was appointed on the

recommendations of PSC after holding Combined Competitive Examination.

Whereas, certain promotions have been made during the aforesaid period in different Services including promotions to J&K Administrative

Service;

Whereas, it is neither expedient nor in the interest of public administration to unsettle the settled issues and

Whereas, Government is further of the view that the promotions granted to the members of the Services including the promotions made into KAS

during the period 24.09.1984 till issuance of this order should not be disturbed by grant of notional seniority to the petitioners.

Now, therefore, it is ordered that the petitioners are hereby granted notional seniority; with effect from 24.09.1984 i. e date on which the last

direct recruit was appointed on the basis of recommendations of PSC after conducting Combined Competitive Examination. It is further ordered

that grant of such notional seniority shall not disturb promotions effected in the Services w. e. f 24.09.1984 till issuance of this order including

promotions made into KAS. All the Departments shall assign the petitioners seniority on notional basis in their respective seniority list.

LPANo.412Jof20Ql

Javed Iqbal Balwan v. State of J & K and others

LPA No.412/2001 titled Javed Iqbal Balwan and others v. State and ors arises out of the judgment of Single Bench of this Court in SWF

No.345/91,1041/92, 1059/97 and 1420/98. The petitioners in petitions (SWP No: 345/91, 1041/92 and 1420/98) are the direct recruits. They

have mainly challenged various Government orders by means of which the promoted Tehsildars who have been arrayed as private respondents in

the case, have been regularised with retrospective date. The promotees too have filed a separate writ petition bearing No. 1059/97 in which Dalip

Singh and ors prayed for regularisation of their services as Tehsildars from the year 1983. Petitioners in other writ petitions are the direct recruits

who allege that the promotees should not have been regularised with retrospective date. They have in particular challenged Government Orders

No. Rev (A) 128 of 1997 dated 17.6.1997 and No. Rev (A) 134 of 1997 dated 24.6.1997 whereby the services of the promotees have been

regularised as Tehsildars in relaxation of the rules, w. e. f 1.1.1984. The petitioner's case is that in the matters of conditions of service they are

governed by J&K Revenue (Gazetted) Service Rules, 1977. Vide SRO 581 of 1977 dated 5.10.1977 the J&K Revenue (Gazetted) Service was

constituted w.e.f 26.10.1976 i.e, the date when the said SRO was made applicable. Said rules provided for 60 posts of Tehsildars and 23 posts

of Additional Tehsildars. The Tehsildars were in the grade of 520900 while as the Additional Tehsildars were in the grade of 475850. Under the

rules as per Schedule B an Additional Tehsildar could be promoted as Tehsildar. Before the issuance of SRO 581, the posts of Tehsildars were

included in the cadre of J&K Administrative Service Recruitment Rules, 1965. Under these rules which stand repealed in the year 1979, a person

could be appointed as Tehsildar either by way of examination and/or by selection from amongst the Naib Tehsildars.

In the year 1972 the State Legislature enacted Agrarian Reforms Act, 1972. A need was felt for creation of posts for the implementation of the

provisions of the Act. The State Government, therefore, created 23 posts of Additional Tehsildars vide Government Order No. Rev (A) 447 of

1973 dated 26.9.1973. These posts were out side the cadre of J&K Administrative Service Recruitment Rules, 1965 and were in the scale of

475850. Consequent to the creation of these posts several officers who were working as Naib Tehsildars got appointed on ad hoc basis vide

Government Order No. Rev (LR) 487 of 1973 dated 23.10.1973. Thus 23 Naib Tehsildars got promotion on ad hoc basis as Additional

Tehsildars. In the year 1979 vide Government Order No.481F of 1979 dated 5.10.1979 the Additional Tehsildars were given parity with the pay

scale of Tehsildars. This order was made applicable from 1st of September, 1979. These officers after having obtained the grade of Tehsildars

claimed seniority within the service. The Government vide order No. Rev (A) 342 of 1984 dated 16.10.1984 directed that 39 officers shall be

deemed to have been promoted notionally to the pay scale of 520900 with effect from the dates shown in the annexure for the purpose of the

seniority. In the year 1980 the Government vide Orders No. 164/80 dated 4.6.1980, No.280/80 dated 2.9.1980, No.361/80 dated 3.10.1980,

No.459/80 dated and No.470/80 dated 20.11.1980 ordered 28 Naib Tehsildars to work as Tehsildars in their own pay and grade. Subsequently

vide Government Order No. Rev (A) 147 of 1,988 dated 14.6.1988 and the Government Order No. Rev (A) 149 of 1988 dated 14.6.1988 20

persons out of these 28 Naib Tehsildars were made Tehsildars on substantive basis. The orders stated that these persons shall be deemed to hold

the posts of Tehsildars within their own quota from 198081. Thus 20 Naib Tehsildars were made on substantive basis as against 28 Naib

Tehsildars promoted earlier as Tehsildars on ad hoc basis.

The petitioners' further case is that in pursuance to the examination conducted by J&K Public Service Commission held between 11.9.1981 to the

result was notified and on the basis of the said examination 529 candidates including the appellants came to be selected and out of 529 selected

candidates only 265 persons came to be appointed. Out of these persons 34 persons were allotted Revenue Gazetted Service between 9th of

February, 1984 to 20th September, 1984. The appellants through a prolonged litigation came to be appointed in the Government Revenue

(Gazetted) Service in the year 1992. Respondents 70 to 154 were temporarily promoted in their own pay and grade between 1.4.1982 to

2.8.1994 vide various Government orders. The Government Order No. Rev(A) 93 of 1983 dated 17.3.1983 came to be challenged before this

Court in writ petition No.243/85. Latter the Government vide Order No. Rev (A) 32 GR of 1986 dated 31.8.1986 promoted 42 persons as

Tehsildars in their own pay and grade. Latter 27 more persons came to be promoted as Tehsildars in their own pay and grade vide order

AnnexureB. In this manner according to the petitioners 69 persons came to be promoted as Tehsildars in their own pay and grade. Thus between

1.4.1982 till 2.8.1994, 171 Naib Tehsildars came to be promoted as Tehsildars in their own pay and grade. Their status continued as such till

1997 when vide Government Order No. Rev (A) 128 of 1997 dated 17.6.1997 the Government in relaxation of the recruitment rules and w.e.f

1.1.1984 accorded sanction to the regularisation of the promotion of 86 out of 171 Naib Tehsildars as Tehsildars. The first seniority list was issued

vide Government Order No. Rev (A) 221 GR of 1986 dated 14.8.1986. The second seniority list was issued vide Government Order No. Rev

(A) 171 of 1991 dated 6.9.1991 and the third and final seniority list was issued vide Government Order No. Rev (A) 134 of 97 dated 24.6.1997.

The petitioners challenged the orders through the medium of various writ petitions as indicated above. Learned Single Judge who heard and

disposed of these writ petitions through the judgment dated 13.7.2001, which is impugned in the present LPA, observed as under:

(i) direct recruits shall be deemed to have been appointed with effect from the dates their counter parts who had taken part in the competitive

examination came to be appointed. If in doing so their quota stands exceeded supernumerary posts be created, ii) the challenge made by the direct

recruits or by the promotees to the dates of regularisation given to the promotees is without any basis. The date which was given is found to be

correct. Again if by giving effect to this date the quota or promotees is increased in any manner, the respondentState would create supernumerary

posts and see to it that imbalance if created is rectified, iii) That so far as the issue of quota is concerned that be also examined in the light of the

judgment in Suraj Parkash's case (Supra). Issue of rota shall also stand decided in terms of the decision given in Suraj Prakash's case.

Aggrieved by the decision of the learned Single Judge the present LPA has been filed on various grounds inter alia that the learned Single

Judge has failed to appreciate that the ad hoc/stop gap service of the promoteesprivate respondents was non est because Public Service

Commission was neither consulted in respect of continuance of the ad hoc service beyond six months nor their services were regularised under the

service rules. The petitioners have prayed for setting aside the judgment impugned in the present petition. They have prayed as under:

In the premises it is humbly prayed that for the reasons stated above and other to be urged at the time of hearing the appeal of the appellants may

kindly be allowed and the judgment and order impugned passed by Hon'ble Single Judge to the extent

(i) he has upheld the order of regularisation of respondent nos.70 to 156 in relaxation of recruitment rule,

(ii) he did not returned any findings in respect of the seniority lists nor quashed the various government orders impugned by the appellants in the

writ petition,

(iii) he has directed creation of supernumerary post for the promotees promoted in excess of their quota in contravention to the quota rule and

(iv) has given the benefit of the amendment of recruitment rules retrospectively to the promotees in violation of the law may kindly set aside and the

writ petition filed by the appellants may kindly be allowed/granted.

LPA(S)No:415Jof2001

QammuudPin & ors. v. State of Jammu & Kashmir and ors.

The appellants in the LPA are the petitioners of writ petition SWP No. 1059 of 1997 titled Dalip Singh & ors. v. State & ors. They are

aggrieved of the findings arrived at by the learned single Judge, as according to them the Court has not properly appreciated the issues raised by

them in the petition. By upholding the date of regularization as 111984 their position in the seniority gets seriously prejudiced. They are also

aggrieved of the retrospective seniority accorded to the direct recruits. They state that the direct recruits can claim seniority only from the date of

entry into service i.e. from the year 1992 and that in no case they are entitled to be placed over and above the promotees.

Broadly speaking the pleas raised by them were as under:

(a) That the quota rule having been broken the rota rule could not be enforced.

(b) That the seniority by the petitioners in writ petition No. 1420/98 i.e. respondents in the writ petition SWP No. 1059 of 1997 can be claimed

only from the date of entry into service i.e. from the year 1992, in no case they were entitled to be placed over and above the promotees.

(c) That the said petitioners came to be appointed in pursuant to judgment delivered by Supreme Court in Civil Appeal No.3485/92 titled State of

J&K v. Jaued Iqbal Balwan and ors.

(d) That in view of the rule 24, the direct recruits being appointees of the year 1992, can claim the seniority from the date when they were

appointed to the service.

(e) That the petitions filed by direct recruits were hopelessly time barred and suffered from latches

(f) That the direct recruits arrayed as respondents could not be shown over and above the promotees who admittedly were promoted/appointed to

the post of Tehsildar on 17th March 1983 and not the year 1992 as in case of direct recruits. Similarly the 1984 batch of direct recruits could not

be shown above the promotees in the ratio of 1:1 as the court had already opined that rota rule could not be maintained as such they would figure

after the promotees.

(g) That the direct recruits had not qualified the Tehsildari examination in terms of the rules during the period of probation or otherwise and could

not be treated to be members of service and least so could not claim their regular appointment from the year they claimed to have been appointed.

The appellants have sought the relief on the following amongst other grounds:

(a) That on having passed the Tehsildari examination from the year 1981 the appellants need to be promoted from the day their counterparts

promotees figuring as respondents No. 178 to 184 were promoted.

(b) That the cases of the appellants were not processed to the logical end by the Public Service Commission, even though there has been scores of

correspondence between the department and the Public Service Commission on the subject and the appellants could not have been penalized for

the lapse of the department and therefore, their regularization in that context was correctly held to be legal by the Hon'ble Single Judge, however,

with reservation to the date they have been regularized from.

(c0 That due weightage ought to have been given in the judgment about the decision handed down in LPAs No.81/1998, 78/1998, 79/1998,

80/1998 vizaviz the counterpart promotees who without qualifying the examination in terms of Tehsildari examination rules were shown senior to

the appellants which was also the subject matter of challenge in S WP No. 1059/97.

(d) That the interse seniority determined between the appellant promotees and respondent promotees was wrong for number of reasons and one

being that they had not qualified the requisite test in terms of the Tehsildari Examination Rules.

(e) That the seniority determined vide order dated 24.6.1997 between the appellant promotees and direct recruit respondents was also wrong as

the effect given to the direct recruit respondents was again from the year 1984 when their appointment to the service was made admittedly after the

petitioners and strangely the effect given to them was from the year 1984.

(f) That the direct recruit respondents' appointment was from the year 1992 which need not to be given the effect from the year 1984 yet their

appointment to the service would not be earlier than the appellant promotees herein as it is in the month of August 1992 that the appointments

were made to the service.

(g) That the controversy of relegating the promotees or pushing them down to the inferior position to that of direct recruits was ruled out in the

Division Bench judgment in writ petition No.399 of 1984 and other writ petitions of similar nature on 22.8.1991.

(h) That the number of vacancies as having been counted towards the account of the promotees were 66 as against 38 given to the direct recruit

and the imbalance was shown to be 28 according to the own claim of the respondents before the Division Bench.

(i) That 31 Tehsildars promoted vide order dated 17.3.1983 were also counted in the excessive quota. If that be the position then their

regularization ought to have been done from the date they were appointed to the promoted post or earlier when their counterpart amongst the

promotees were promoted.

(j) That the direct recruitment were claiming more posts against the imbalance worked out in the chart and once their date of appointment have

been taken as 1984, they could not be regularized from the date prior to the appellants and obviously the appellant promotees are the

promotees/appointees of earlier date than the direct recruit respondents, resultantly they have to be regularized from the date of their appointment

at least.

(k) That as per the averments made in writ petition No. 1059/97 the appellants had pleaded that 32 posts were found vacant at the time their

counterpart were promoted to the post of Tehsildars, namely J.K. Sawhney, Maherban Singh (now dead), Ghulam All Giri and M.Y. Indrabi.

Therefore, their claim was two fold with regard to the date of promotion which is against their own counterpart from the date they were promoted

and secondly they are to be appointed to the post from the date they at least passed the examination.

(l) That the court below was not able to appreciate the triangular contest of the appellants vizaviz the direct recruits and their own promotions inter

se.

(m) That the issue settled in the impugned judgment with regard to rota is indeed the correct, in view of the latest judgement of the Hon'bte

Supreme Court given in Suraj Parkash 's case.

LPA (S) No. 69J Of 2002

State of Jammu and Kashmir v. Javed Iqbal Balwan & ors.

Besides the direct recruits and the promotees, the State is also aggrieved of the findings returned by the learned Single Judge in petitions SWP

No. 1420 of 1998, SWP No. 1041 of 1992, SWP No. 345 of 1991 and SWP No.1059 of 1997 dated 1372001 as according to them the

learned Judge has not appreciated law and facts of the cases. Relying on A. Janardhanav. Union of India AIR 1983 SC769 and A .TV. Pathakv.

Secretary AIR 1987 SC 716, it has been pleaded that a direct recruit cannot claim seniority from a date before his birth in the service and that the

slots cannot be kept reserved for the direct recruits for retrospective appointments. Assailing the finding of the learned Single Judge that the direct

recruits shall be deemed to have been appointed with effect from dates their counter parts, who had taken part in the competitive examination

came to be appointed, the State submits that by this direction the learned Judge has given deemed appointment to the direct recruits from the year

1984 which is not sustainable in law. According to the appellants the Hon'ble Single Judge has failed to appreciate the facts of the different

petitions correctly with the result the judgment so delivered is not in accordance with law as such deserves to be set aside.

SWPNo.2111J of 2003

Javed Iqbal Balwan v. State of J & K and others

Javed Iqbal Balwan, Kewal Krishan Kohli, Rajinder Singh, Bikram Singh Jamwal, Brij Nath Thakar and Sudershan Kumar Kapoor from

J&K Revenue (Gazetted) Service, Dr. Rattan Lal Bhellum from J&K Police (Gazetted) Service, Ajay Singh Jamwal from J&K Accounts

(Gazetted) Service and Bhushan Lal Bhat from J&K Information (Gazetted) Service are aggrieved of Government order No. 1145GAD of 2003

dated 4.9.2003 as they feel that the same has rendered the judgment of the High Court (dated 2.6.1999) affirmed by the Supreme Court

(judgment dated 26.2.2003) as redundant and infructuous. According to them they have been granted notional seniority w.e.f 24.9,1984 but the

order is silent regarding their consequential benefits like pay fixation, promotion and other benefits as admissible under rules. They have through the

medium of this petition (SWP No.2111 of 2003) (filed before Jammu wing of this Court) challenged the said Government Order (No.ll45GAD of

2003 dated 4.9.2003) on the ground that instead of complying with and implementing the judgment of this Court in true spirit, the State

Government has chosen to perpetuate the injustice.' The petitioners have prayed for the following reliefs:

(a) By an appropriate writ direction or order the following portion appearing in Government Order No.H45GAD of 2003 dated 04.09.2003 be

quashed/set aside:

(i) Whereas it is neither expedient nor in the interest of public administration to unsettle the settled issue; and

(ii) Whereas the Government is further of the view that the promotions granted to the members of the services including the promotions made into

Kashmir Administrative Service during the period 24th September, 1984, till the issuance of this order, should not be disturbed for grant of

notional seniority to the petitioners.

(b) By an appropriate writ direction or order including a writ in the nature of mandamus the respondents be directed to:

(i) Induct the petitioners into Kashmir Administrative Service as from the year 1997 when the juniors of the petitioners were so inducted and for

this purpose to constitute immediately the Selection Committee to consider the records of the petitioners between the years 19921997.

(ii) Availability or nonavailability of the posts in Kashmir Administrative Service for the petitioners be declared in consequential and it be provided

that if there is no post available in the said service, all such persons who are junior to the petitioners, be reverted to the respective feeding services

and the petitioners inducted against the posts thus becoming available.

(iii) Upon induction of the petitioners into Administrative Service, their seniority in the said service be fixed keeping in view their seniority in the

feeding service as also their classification.

(c) That the respondents be further directed to grant monetary benefit to the petitioners to which they are entitled to as a result of fixation of their

seniority as from 13.11.1992 when they came to be appointed and also consequent to their induction into the Administrative service as from 1997

when their juniors were so inducted and that the respondents be further directed to place the petitioners within the Administrative service in the

selection grade/special scale as has been granted to their juniors.

The petitioners state that as a result of refixation of their seniority as from 24th September, 1984 they are entitled to the monetary benefit and

on the basis of their seniority and having regard to the Kashmir Administrative Rules, 1979, they have also become eligible for induction into the

Administrative Service.

Petitioners are aggrieved of the Governments stand that it is not in the public administration to unsettle the settled issue and submit that the

grounds stated by the Government are perverse.

Official respondents have resisted this petition on various grounds. It is submitted that the orders of Apex Court dated 26.2.2003 has clothed

them with a duty to carry out its directions in a fair and equitable manner. They have heard all the concerned parties and issued the impugned

orders. According to them a number of appointments/promotions have been made in between 1984 to 1992 in accordance with rules, as such,

those promotions/appointments could not be disturbed. It is further stated that the petitioners cannot claim retrospective promotions on the basis of

notional seniority when admittedly they have not rendered any service on their respective posts from 1984 to 1992. This court as also the Apex

Court has granted only notional seniority to the petitioners which the respondents have complied with. The respondents state that induction into

KAS is governed under well defined rules namely J&K Administrative Service Rules, 1979, which provides a detailed and comprehensive

procedure for such; induction. The petitioner, according to the respondents, cannot seek retrospective promotion on the basis of their notional

seniority from 1984 when they were never borne on the service.

SWP No.855 J of 2004 (No.457 of 1998)

S. Moti Singh & ors. v. State of J & K and ors.

Facts which led to the filing of this petition have been given in detail above. Petitioners S. Moti Singh, Mohd Maqbool and Mushtaq Ahmad

Malik have challenged the Government Order No. Rev (A) 128 of 1997 dated 1761997, the final seniority list of Tehsildars issued vide Order

No. Rev (A) 134 of 1997 dated 2461997 and Govt. Order No. 1854GAD of 1997 dated 26111997. They have further prayed that the tentative

seniority list dated 2741994 be treated as final and to maintain the position assigned to them in the said list and on that basis the seniority list of

Assistant Commissioners (R) be prepared. The petitioners have further prayed that selection grade and the pay attached to the post of Assistant

Commissioner be given to them with effect from 1161993 alongwith other benefits and that they be inducted into Kashmir Administrative Service.

All the three petitioners were appointed as Naib Tehsildars vide Government Order No. Rev (A) 464 of 1973 dated 8101973. By means of

Government Order No. Rev (A) 93 of 1983 dated 1731983 they, along with other 28 Naib Tehsildars, were temporarily promoted to the posts

of Tehsildar in their own pay and grade. Later by means of Government Order No. Rev (A) 92 of 1992 dated 1771992 pay scales sanctioned for

the post of Tehsildars was released in their favour from the date of their holding the charge of the post subject to their clearance by the

Departmental Promotion Committee/Public Service Commission. In the year 1993 vide Order No. FC (A) 56 of 1993 dated 1161993 the

Government appointed petitioners Mohd. Maqbool Wani and Mushtaq Ahmad Malik as the Special Officer (Revenue) (equivalent to the post of

Assistant Commissioner) in their own pay and grade purely as a temporary measure till regular selection. All the three petitioners were by means of

Government Order No. Rev (A) 28 of 1994 dated 1821994 appointed to hold the posts of Assistant Commissioners as stop gap measure.

The petitioners have prayed for the following reliefs in the petition:

i/by issuance of an appropriate writ, order or direction including one in the nature of certiorari Govt. Order No. Rev(A) 123 of 1997 dated

17.6.1997, the final seniority list of Tehsildars issued vide Order No. Rev(A) 134 of 1997 dated 24.6.1997 and Govt. Order No. 1854 GAD of

1997 dated 26.11.1997 issued by respondent No. 2 and 3 be quashed; and by a writ of mandamus, respondents be directed;

(a) to treat the tentative seniority list dated 27.4.1994 as final and to maintain the position of petitioners assigned to them in the said tentative

seniority list and not to alter the same in any manner whatsoever;

(b) to prepare and circulate the seniority list of Assistant Commissioners (R) and to show the petitioners in the said seniority list to have been

appointed to the said post on

(c) to give selection grade and they pay attached, to the post of Assistant Commissioner to the petitioners with effect from 11.6.1993 along with

other benefits etc. They be also directed to induct the petitioners into Kashmir Administrative Service and to issue

iii/necessary orders in this regard as early as possible and in any case before the induction of the respondents to the said service.

SWPNo.856 J of 2004 (No. 122128 of 1997)

Abdul Kabir Wani & ors. v. State of J & K and ors.

Facts which led to the filing of this petition have been given in detail above. The petitioners have mainly prayed for quashment of the

Government Order No. Rev (A) 29/94 dated 18.2.1994 issued by respd. No.2 through the Additional Secretary to Government, Revenue

Department.

The petitioners have prayed for the following reliefs in the petition:

i/by issuance of an appropriate writ, order or direction including one in the nature of certiorari the Government Order No. Rev (A) 29/94 dated

18.2.1994 issued by respd. No. 2 through the Additional Secretary to Government, Revenue Department, be quashed; and

ii/by issuance of an appropriate writ, order or direction including one in the nature of mandamus, respondents be directed:

(a) to allow the petitioners to draw the salary in the pay scale of Rs. 30004500 attached to the post of Assistant Commissioner with effect from

18.2.1994 as also annual increments earned by them on the said scale of pay;

(b) to treat the tentative seniority list of the Tehsildars circulated vide circular No. Rev(A) 28/89 dated 27.4.1994 as final and conclusive and to

frame, finalize and circulate a seniority list of Assistant Commissioners of the Revenue Department and to show the petitioners in the said list at

their appropriate place on the basis of their date of appointment to such cadre as is revealed by the order No. Rev (A) 28 of 1994 dated

18.2.1994. The respondents be further directed to induct the petitioners to KAS and after inducting them so, they be further directed to promote

the petitioners to the next higher grade and post on the basis of their appointment as Assistant Commissioners on 18.2.1994.

Issues involved in both the writ petitions are:

(a) Whether Government Order No. Rev (A) 128 of 1997 dated 17.6.1997 and Government Order No. Rev (A) 134 of 1997 dated 24.6.1997

and Government Order No. 1854GAD of 1997 dated 26.11.1997 are liable to be quashed?

So far as Government Order No. Rev (A) 128 of 1997 dated 17.6.1997 and Government Order No. Rev(A) 134 of 1997 dated 24.6.1997 are

concerned, validity of both these orders is also the subject matter of L.P.A. No. 412/2001 and 415/2001. That so far as Government Order No.

1854 GAD of 1997 dated 26.11.1997 is concerned, in terms of the said order various officers were inducted into K.A.S. The validity of the said

order is also subject matter of challenge in L.P.A. No. 412/2001.

Whether the tentative seniority list dated 27.4.1994 can be treated as final?

Whether the petitioner is entitled to be shown in the seniority list to have been appointed as Assistant Commissioner @ on 11.6.1993?

Whether the petitioner is entitled to selection grade and pay attached to the post of Assistant Commissioner with effect from 11.6.1993 and is also

entitled to be inducted into KAS?

In S.W.P. 1228/1997 the following issues are involved:

(a) Whether Government Order No. Rev (A) 29 of 1994 dated 18.2.1994 is liable to be quashed (in terms of this order various officers were

made in charge of the post of Assistant Commissioner).

This order is also subject matter of challenge in L.P.A. No. 412/2001.

SWP No.1859 J of 2004 (SWP No. 1838 S of 19961 MukhtarulAziz v. State of J & K and ors.

SWP No.858 J of 2004(SWP No. 3662 S of 1997) MukhtarulAziz v. State of J & K and ors.

SWP No.857 J of 2004(SWP No. 140 S of 1998) MukhtarulAziz v. State of J & K and ors.

SWP No.1556 J of 2Q04(SWP No. 1764 S of 2003) MukhtarulAziz v. State of J&K and ors.

All the four petitions have been filed by a direct recruit namely MukhtarulAziz who was appointed as Tehsildar in the Revenue Gazetted

Service vide Government Order No: 1065GAD of 1992 dated 13111992. He is aggrieved of the release of grade of the post of Tehsildar to the

promotees and their promotion to the post of Assistant Commissioner. He is also aggrieved of the regularization of 85 Tehsildars vide the

Government Order No. Rev. (A) 128 of 1997 dated 1761997. In SWP No.1859 J of 2004 (SWP No. 1838 S of 1996), he has prayed for

quashing of the Government Order No. Rev. (A) 92 of 1992 dated 1771992 by means of which grade of the post of Tehsildar has been released

in favour of 32 ad hoc Tehsildars, whose names are shown in the Annexure to the said order, and quashing of the Government Order No. Rev.

(A) 28 of 1994 dated 1871994 by means of which these officers were given promotion to the post of Assistant Commissioner on stop gap basis.

The petitioner also prayes that since he was qualified and eligible to get promotion to the post of Assistant Commissioner, he be accorded

consideration for such promotion and also be inducted into the KAS. In SWP No.858 J of 2004 (SWP No. 3662 of 1997), he has prayed for

quashing of the Government Order No. Rev. (A) 128 of 1997 dated 1761997 by means of which respondents 4 to 88 in the said petition have

been regularized to the post of Tehsildars 'retrospectively and in relaxation of Recruitment Rules'. He has also prayed for quashing of seniority list

of Tehsildars issued vide Government Order No. Rev. (A) 134 of 1997 dated 2461997 and also for quashing of the Government Order No. Rev.

(A) 142 of 1997 dated 3061997 by means of which these Tehsildars have been promoted to the post of Assistant Commissioners, Government

Order No. Rev. (A) 194 of 1997 dated 971997 by means of which these Tehsildars have been granted selection grade. In SWF No.857 J of

2004 (SWP No. 140 of 1998), he has prayed for quashing of Government Order No. 1854 GAD of 1997 dated 26111997 so far it pertains to

grant of grade of 30004500 (un revised) to respondents 5 to 21 and has prayed that the official respondents be directed to grant the same grade in

his favour in the cadre of Kashmir Administrative Service with effect from 1988. In SWP No.1556 J of 2004 (SWP No. 1764 of 2003), he has

prayed for quashing of the part of the Government Order No. 1145 GAD of 2003 dated 492003 and has payed that the respondents be directed

to fix his seniority from 1861984 in direct recruitment quota and thereafter to accord promotion to him to the cadre to which his juniors have been

promoted.

We have given our anxious consideration to the submissions made at the bar. We have also gone through the record of the cases.

The pleas taken would show that both promotees as well as the direct recruits are aggrieved of various Government orders relating to the

appointment/regularization of the promotee tehsildars, fixation of seniority between the direct recruits and the promotees and promotions to the

posts of Assistant Commissioners and regarding induction of the promotees into the KAS. Main issues raised are:

a. Petitioners (DR) have been appointed as members of the service notionally w.e.f 24.09.1984 as such they are entitled to the benefit which

accrues to them under the service rules, but the same has not been granted to them;

b. The Government could not make promotions of Naib Tehsildars direct to the post of Tehsildar between 5.10.1979 to 26.2.1985 as there was

no provision for such a promotion in the rules. Naib Tehsildars became eligible for promotion to the posts of Tehsildars only under the amendment

carried out in the rules in the year 1985;

c. Additional Tehsildars were holding the posts on stop gap basis out side the cadre of regular establishment, therefore, they cannot be granted

seniority over the direct recruits;

d. Naib Tehsildars who could not qualify the Departmental Examination meant for Tehsildars were not eligible to be promoted as Tehsildars so

they cannot be placed over and above the persons who had qualified for such promotion and were eligible for it. Such Naib Tehsildars have

therefore, been wrongly placed above them in the seniority list.

e. Appointment of Tehsildars in a stopgap arrangement pending selection and their regularization does not entitle them benefit of intervening

stopgap service for computing seniority. Respondents (PR), on the other hand, state that since they have duly qualified the departmental

examination, they should be regularized as Tehsildars with from the date of passing of such examination or at least from the date they were

promoted as Tehsildars. According to them by fixing the date of regularization as 111984, those promoted on later dates have been shown senior

to those who were appointed much earlier.

f. The promotees have been promoted in excess of their quota and adjusted against the quota of direct recruits. The period of service rendered on

posts outside one's quota cannot count for purpose of seniority.

Before we proceed to examine these issues in light of the factual matrix of the cases, it would be pertinent to go through the recruitment rules

and the relevant provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956.

Appointment to and the conditions of service of Revenue (Gazetted) Service is governed by the Jammu and Kashmir Revenue (Gazetted)

Service Recruitment Rules, 1977, (1977 Rules) made vide General Department Notification SRO 581 dated 5th October, 1977. The rules were

made applicable with retrospective effect from 26th October, 1976.

Rule 3(e) of the rules defines ""Member of Service"" as an officer appointed to a post in the service under the said rules. Rule 4 provides for

constitution of service. Under the rule, the Government was empowered to appoint to service any person who at the commencement of the rules

was holding any post in its sanctioned scale of pay included in the cadre of the service. Rule 4(3) gives the time scale of Rs. 100040

1240EB501440EB 1560 (prerevised) and provides that twenty five percent of the posts in time scale pay shall be in the Selection Grade of Rs.

120050145055 1560EB 601800. Rule 5 gives the strength and composition of the service and provides that the authorized permanent and

temporary strength of the cadre and the nature of the posts included therein shall be determined by the Government from time to time. The initial

constitution of the service under the rules is given in the Schedule A annexed to the rules. Rule 6 gives the source of recruitment. It provides

recruitment from two sources namely:

(a) by competitive examination 50%

(b) by selection as detailed in Schedule 'B' 50%

Proviso to Rule 6 gives powers to the Government to vary the said percentage in consultation with the State Public Service Commission for a

particular recruitment year, for good and sufficient reasons. Under rule 7 competitive examinations for recruitment in the service is to be conducted

by the Commission in accordance with the rules annexed to Notification SRO 548 dated 26th Nov.1975. Under rule 9 person appointed to the

service, either by direct recruitment or by selection, shall be placed on probation or trial for two years. Period of two years can be extended by the

Government upto four years 'in the case of any person'. Explanation to the rule provides that 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 formally appointed to the service. Rule 10 provides that persons appointed to the service

by competitive examination shall be required to undergo such training from time to time during the course of service and to pass during the period

of probation or trial such departmental examinations as the Government may prescribe. The Government is, however empowered to grant

exemptions in this behalf in certain cases. Rule 13(1) provides that seniority of the members of the service shall be regulated under the Jammu and

Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Sub Rule 2 of rule 13 provides that the Revenue Department shall

maintain final and upto date seniority of the service. Under Rule 16 in regard to matters not specifically covered by the rules or by regulations or

orders, issued thereunder or by special order, the member of the service shall be governed by rules, regulations and orders applicable to the State

Civil Services in general. Schedule B gives the method of recruitment to the service as under:

(a) 50% by direct recruitment on the basis of competitive examination as laid down by the Government for such direct recruitment.

(b) 50% by selection from amongst confirmed/quasipermanent Naib Tehsildars having a service of at least 5 years as such and having passed the

Departmental examination of Tehsildar standard.

Besides the recruitment rules relevant provisions of the Jammu and Kashmir Civil Service (Classification Control and Appeal) Rules, 1956 also

need to be taken note of. Under Rule 2(e) of the said rules member of service means as a person holding or appointed to a whole time pensionable

post. Rule 2(f) defines 'period of probation' of a member of the service as the period prescribed in the rules. Rule 2(g) defines 'probationer' as a

person appointed to a Service who has not been declared to have satisfactorily completed his probation. Rule 2(h) defines 'promotion' as the

'appointment' of a member of a service or class or service in any category or grade, to a higher category or grade of such service or class. Rule

2(i) defines a person 'recruited direct' as one recruited otherwise than by promotion or by transfer. Rule 2(j) defines Recruitment by transfer as one

where at the time of his'appointment' thereto, he is either a member/probationer in another service. Rule 9 refers to 'first appointment' as (a) one by

promotion or by transfer and (b) by direct recruitment or (c) partly by (a) or partly by (b), Rule 14(1) deals with 'temporary appointment' not

exceeding three months at a time and under Rule 14(3), the temporary appointee is to be replaced by a member of the service or a candidate

qualified and considered fit to hold the post under the 1956 Rules. Rule 14(4) says that a temporary appointment will not be regularised as a

probationer nor will he have any preferential claim for future appointment Rule 15, permits commencement of probation from an anterior date.

Under Rule 20 no person shall be eligible for confirmation as a member of a service or class, until he has been on probation in such service or class

continuously or in the aggregate for a period of two years. Rule 22 deals with declaration of completion of probation. Rule 23 which deals with

'appointment of Members' with retrospective effect reads as follows:

Rule 23: (1) A probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected exists, be appointed to

the service at the earliest possible opportunity in the order of seniority, and if such vacancy existed from a date previous to the issue of the order of

appointment, he may be so appointed with retrospective effect from such date or, as the case may be, from such subsequent date from which he

was continuously on duty as a member of the service.

Rule 24 of the rules deals with the Seniority, which under the rules is to be determined by the date of first appointment to such service, class or

category or grade. It reads as under:

Rule 24: Seniority: (1) The seniority of a person who is subject to these rules has reference to the service, class, category, and grade with

reference to which the question has arisen. Such seniority shall be determined by the date of first appointment to such service, class, category or

grade, as the case may be.

Note 1:...

Interpretation: The words ""date of first appointment"" occurring in the above rule will mean the date of first substantive appointment, meaning

thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being

subject to good work and conduct and/or passing of any examination or examinations and/or tests. Provided that the inter se seniority of two or

more persons appointed to the same service, class, category or grade simultaneously, will, notwithstanding the fact that they may assume the duties

of their appointments on different dates by reason of being posted to different stations, be determined;

(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade;

(b) in the case of those recruited direct (except those who do not join their duties when vacancies are offered to them) according to the positions

attained by and assigned to them in order of merit at the time of competitive examinations or on the basis of merit and ability and physical fitness

etc., in case no such examination is held for the purpose of making selections;

(c) as between those promoted and recruited direct, by the order in which appointment have to be allocated for promotion and direct recruitment

as prescribed by the rules.

Note: ......................

Rule 25 deals with temporary and regular promotions. It reads as follows:

(1) All promotions shall be made by the appointing authority. (2) Promotions to a service or class or to a selection category or grade in such

service or class shall be made on grounds of merit and ability and shall be subject to the passing of any tests that Government may prescribe in this

behalf, seniority being considered only where the merit and ability are approximately equal.

(3) ........................

(4) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a

vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or

cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these rules temporarily until

a person is promoted in accordance with these rules, but such temporary promotion shall in no case exceed three months on each occasion.

(5) A person promoted under subrule (4) shall not be entitled by reason only of such promotion to any preferential claim to future promotion.

Grievance of the petitioners (DR) is that though they have been granted notional seniority w.e.f 24.9.1984 under the Government Order

No.1145GAD of 2003, the order is silent on the consequential benefits like pay fixation, promotion and the benefits as admissible to them.

The Division Bench in SWP No.904 of 2003 vide the order dated 2.6.1999 directed that the petitioners are entitled to claim notional seniority

with effect from the date the other direct recruit came to be appointed. The findings were upheld by the Supreme Court and have now become the

basis for the Government Order No.1145GAD of 2003. Relevant portion of the order reads as under:

...Now, therefore, it is ordered that the petitioners are hereby granted notional seniority; with effect from 24.09.1984 i.e date on which the last

direct recruit was appointed on the basis of recommendations of PSC after conducting Combined Competitive Examination....

The order would show that the petitioners have been granted notional seniority w.e.f 24.9.1984 i.e, date on which the last direct recruit was

appointed on the basis of recommendations of the Commission.

It is argued by the learned counsels appearing for the Direct Recruits that once the notional seniority is allowed by the Courts retrospectively

and fixed by the Government w.e.f 24.9.1984, the petitioners (DR) would be entitled to all the monetary and other service benefits which

consequently flow as a result of such fixation. In support the petitioners (DR) have placed reliance on B. S. Bhima Rao v. The State of Mysore and

another, 1970 SLR 190, S. Krishnamurthy v. The General Manager, Southern Railway (1976) 4 SCC 825, Sardara Singh v. The Administration

of Union Territory, Chandigarh 1980(3) SLR 702, G. Hanumantha Reddy v. Union of India and ors 1980 Lab I. C. 1529 (A.P), Amar Singh

Birdhi u. The State of Punjab and another 1986 (3) A1SLJ 24 (P&H), Union of India and ors v. M. Bhaskar and ors (1996)4 SCC 416 and

Sanjay Dhar v. J&K Public Service Commission (2000) 9 SCC 182.

Learned Advocate General on the other hand submits that fixation of seniority 'notionally' would not confer any monetary benefit to the Direct

Recruits except that making them entitled to appointment to the service as Direct Recruits. No other benefit, according to him would flow from it.

He has referred to and relied on the following dictionary meaning of word 'Notional':

Notional: a. Of or pertaining to a notion or idea, (of a word etc.) abstract. B. of or pertaining to semantic content as opposite to grammatical

structure or behaviour. 2. of knowledge etc; purely speculative; not based on fact or demonstration.3. existing only in thought; imaginary.4.

Hypothetical; for the purposes of a particular interpretation or theory.

Word 'notional' has not been defined by any of the rule relating to the recruitment or other service conditions of the employees in the State but

there cannot be any dispute on the principle that once the Government appoints a person notionally with effect from a particular date or fixes

seniority of an employee retrospectively, such employee is entitled to fixation of pay and other benefits from that date.

In B. S. Bhima Rao v. The State of Mysore and another, 1970 SLR 190, a Division Bench of the Mysore High Court held that the

Government cannot deny payment of the pay and allowances to a Government employee who was prevented to do the duty due to no fault of his.

It was a case of an overseer, who could not hold charge for a certain period of time due to an order of suspension. Later the disciplinary

proceedings were dropped against him and he was treated as on duty and was given promotion too. The pay and allowance was however denied

to him. He challenged it through a petition, wherein the court observed:

7.As the disciplinary proceedings against the petitioner were dropped, there was no adverse finding against him. Hence, he has to be placed in

position in which he would have been had the disciplinary proceedings not been started, and had he not been kept under suspension. It is in

recognition of this position, that Government directed in its letter, AnnexureB that his pay should be fixed at what he would have got had he been

promoted on the due date but for the pending enquiry against him. Having treated him as having been on duty and having promoted him as

Overseer, as if the disciplinary proceedings had not been taken, it is not open to the Government to deny him the benefits flowing from treating him

as being promoted on 4121958 (the date on which, according to ExhibitB, he would have been promoted but for the disciplinary proceedings).

The petitioner not holding the actual charge as Overseer between 4121958 and 111961, was due to no fault of his that was entirely due to the

unjustified order of suspension. Hence, it is not open to the Government to deny payment to him of the pay and allowances of the post of Overseer

during that period on the sole ground that he did not actually hold charge of the post of Overseer.

We think, Rules 22 and 23 cannot be construed as preventing a Government servant from drawing the pay and allowance of a post, the holding

of which he has been prevented on account of the action of the Government which is subsequently found to be unjustified.

This case was followed in K. K. Jaggia v. The State of Haryana and anr 1972 S. L. R578(P&H). In that case the department had refused to

pay wages to the petitioner an Engineer for the period he had not worked against the post. The court held:

If a Government servant is debarred from performing his duties on account of an illegal order having been passed, he cannot be deprived of his

pay and allowances for this period. Accepting this rule, the State allowed pay to the petitioner as Assistant Engineer after the order of his dismissal

was quashed even though he had not worked against that post. There is no rational basis for not extending this rule while considering the question

of paying to the petitioner his wages as Executive Engineer and Superintending Engineer.

In S. Krishnamurthy v. General Manager, Southern Railway AIR 1977 SC1868 the appellant joined the Southern Railway as a clerk way

back in October 1948 and was confirmed as train clerk on April 1,1949. He worked his way up and became a wagon chaser in an excadre post.

Thereafter, he was entitled to become Assistant Yard Master but be continued as wagon chaser. The promotion post for Assistant Yard Master

was that of traffic inspector. The appellant was not considered for that post although others similarly situated like him were absorbed as traffic

inspectors. The Railway Administration discovered the injustice and set right the error of not treating the appellant as an Assistant Yard Master by

its order dated November 10, 1965; but by that time others had been absorbed as traffic inspectors and the appellant was not. His representation

proving unsuccessful, he moved the High Court under Article 226 on 20121967 for the relief of being treated as traffic inspector with effect from

1st January, 1959 when others similarly situated were so absorbed. 11 was held that on the strength of the policy decision taken on December

31,1958, the appellant was eligible to be absorbed as traffic inspector like his confrere. Moreover, he had actually worked as Assistant Yard

Master for some time. It was observed:

On the strength of the policy decision taken on December 31,1958 the appellant was eligible to be absorbed as traffic inspector like his

confreres but was not. Moreover, he had actually worked as Assistant Yard Master for some time. In the circumstances, he was entitled to be

taken into the cadre of traffic inspector. We cannot put the clock back for all purposes and treat him as having been notionally appointed as traffic

inspector with effect from January 1, 1959. All that we can do, in conformity with his right and in the justice of the case, is to direct the respondent

to appoint him as a traffic inspector from the date on which he came to the High Court with his writ petition, viz, December 20, 1967. Those who

were promoted earlier might be adversely affected if we direct the appellant's appointment as traffic inspector with effect from an earlier date. We

desist from doing so. However, we categorically direct that the railway administration shall appoint the appellant as traffic inspector with effect

from December 20, 1967.

The next question that arises is regarding his fitment for the purpose of salary. Undoubtedly, he would have been a traffic inspector much earlier

had the railway not committed the mistake which it discovered subsequently, It is, therefore, reasonable that the appellant should be fitted into the

scale of pay at a point where full notional seniority which he would have been entitled to, had the right thing been done at the right time, is

recognized. Plainly put, he will be drawing a salary on December 20, 1967 on the basis of a notional appointment as traffic inspector as on January

1, 1959. This will govern the salary part of his service from December 20, 1967.

Yet another point that arises is as to what is to happen regarding his arrears of salary from December 20, 1967 and for the post writ petition

period. We make it clear that while seniority is being notionally extended to him from January 1, 1959, the appellant will not be entitled to any

salary qua traffic inspector prior to December 20, 1967. However, he will be entitled to salary on the terms indicated above from December 20,

1967 as traffic inspector; that is to say, he will be eligible to draw the difference between what he has drawn and what he will be entitled to on the

basis we have earlier indicated in this judgment.

In Sardara Singh v. The Administration of Union Territory, Chandigarh 1980(3) SLR 702 the Apex Court relying on K. K. Jaggias case

(supra) held:

So far as the merits of the case of the petitioner are concerned, the learned counsel for the respondents has hardly anything to oppose the

same. It has been held in K. K. Jaggia v. The State of Haryana and another, 1972 S.L.R 578, that once an employee is promoted with effect from

a retrospective date, he cannot be deprived of the pay and other benefits to which he would have been entitled had he in fact been promoted to the

said post on the date on which he has been later promoted. Any condition imposed to the effect that the said employee would not be entitled to the

pay and allowances as a result of the promotion as has been imposed in paragraph 2 of the impugned order in this case would be illegal, the reason

being that the Government by not promoting such an employee on the date on which he was entitled to be so promoted, cannot take advantage of

its own wrong or illegal order in not promoting him, and then while conceding the claim of the employee for promotion with retrospective effect it

cannot withhold that is due to the said employee on account of such promotion in the matter of pay and allowances. Similar principle was

enunciated by a Division Bench of the Mysore High Court in B. S. Bhitna Rao v. The State of Mysore and another, 1970 S.L.R 190. In fact the

learned counsel for the respondents has not brought to may notice any judgment or provision of law under which the condition imposed in

paragraph 2 of the impugned order could be supported or sustained.

In G. Hanumantha Reddy v. union of India and others 1986 Lab I.C. 1529 (Andhra Pradesh), it was held:

Not that we feel the need for any precedence of the conduct of respondents 1 and 2 themselves to reinforce the conclusion we have reached,

but we would like to add that our attention was drawn to a communication of the Central Government Dt.671976 where in the case of one

Apparao, a member of the State Forest Service, his notional date was taken into account by the authorities for the purpose of reckoning his

seniority for inclusion in the I. F. S list. We notice that this fact was brought to the notice of the learned Single Judge also. The learned single judge

is seen to have brushed aside this aspect of the matter by observing as follows: ""As I see, that interpretation was based upon the term of the order

which gave retrospective promotion to the officer concerned, stating that for all practical purposes the said officer must be deemed to have been

promoted.

We are not able to appreciate the logic behind this reasoning. If 'deemed promotion' could be taken into account for the purpose of eligibility,

should not the analogy hold good for 'notional seniority' also? 'Deemed promotion' is nothing but promotion conferred by a fiction. If deemed

promotion means that, the person was not factually and actually promoted at the relevant time, but was only deemed to have been promoted; and

if such promotion could be taken into account, there is no reason why notional seniority should also not be taken into account without insisting on

actual service

In Union of India and ors v. M. Bhaskar and ors (1996) 4 SCC 416, it was observed:

The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years' period of experience has to be

reckoned, not from 1110.1988, but from 2191989. There is no dispute that the eligibility condition is 2 years' experience in Grade II. Now, this

respondent having really started working in Grade II pursuant to the order of 2191989, he could not have gained experience prior to the date he

had joined pursuant to this order. The mere fact that his promotion in Grade II was notionally made effective from 11101988 cannot be taken to

mean that he started gaming experience from that day, because to gain experience one has to work. Notional promotions are given to take care of

some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher

grade cannot gain experience from the date of the notional promotion; it has to be from the date of the actual promotion.

In Sanjay Dhar v. J&K Public Service Commission (2000) 8 SCC 182, which was a case from this State, the Apex Court observed:

We have already noticed the learned Single Judge having directed the appellant to be appointed on the post of Munsiff in the event of his

name finding place in the select list subject to the outcome of the writ petition which order was modified by the Division Bench in LPA staying the

order of the learned Single Judge but at the same time directing one vacancy to be kept reserved. The High Court and the Government of J&K

(Law Department) were not justified in bypassing the judicial order of the High Court and making appointments exhausting all available vacancies.

The right of the appellant, if otherwise sustainable, cannot be allowed to be lost merely because of an appointment having been made wittingly or

unwittingly in defiance of the judicial order of the High Court.

For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to

have been appointed along with other appointees under the appointment order dated 631995 and assigned a place of seniority consistently with his

placement in the order of merit in the select list prepared by J&K PSC and later forwarded to the Law Department. During the course of hearing

the learned Senior Counsel for the appellant made a statement at the Bar that the appellant was interested only in having his seniority reckoned

notionally in terms of this order and was not claiming any monetary benefit by way of emoluments for the period for which he would have served in

case he would have been appointed by order dated 631995. We record that statement and direct that the appellant shall be entitled only to the

benefit of notional seniority (and not monetary benefits) being given to him by implementing this order. The appeal is disposed of accordingly. The

contesting respondents shall pay the appellant costs quantified at Rs.5000.

In the present case the Government has fixed notional seniority of the petitioners w.e.f 24.9.1984 so their pay fixation and grant of increments

is to be regulated from that date. They may not be entitled to the arrears of pay from 24.9.1984 to the date of their actual appointment, as they did

not actually perform work for the period, but their pay on the date of their actual joining would be fixed w.e.f 2491984 and pay payable worked

out accordingly. Thus they should be fitted in to the scale of pay at a point where notional seniority is fixed. Thus they will be drawing a salary on

the basis of notional appointment as on 2491984. While doing so regard shall be had to rules4&9of the 1977 Rules.

During the arguments it was submitted by the learned counsel for the petitioners (DR) that once the seniority of the petitioners (DR) has been

fixed as on 2491984, the consequential benefits would include grant of selection grade under rule 4.

Rule 4(3) of the 1977 Rules deals with grant of selection grade and provides:

(3) The service shall have the time scale of Rs. 1000401240EB501440EB601560:

Provided that twentyfive percent of the posts in time scale pay shall be in the Selection Grade of Rs. 1200501450551560 EB601800. Provided

further that members of the service shall be eligible for promotion to the selection grade on completion of 5 years service in the time scale of pay"".

On perusal of the rule 4 of 1977 Rules and consideration of the matter, we find conquerable force in the argument.

In Amar Singh Birdhi u. The State of Punjab and another 1986(3) AISLJ 24, Punjab and Haryana High Court was of the view that when the

promotion was made with retrospective effect as per order of the court, the period counting from the date from which his promotion takes effect is

to be treated as working experience on the post. The court observed:

The learned counsel for the petitioner has vehemently contended that since the petitioner was entitled to be given notional promotion from the

date his juniors were so promoted in the year 1973 as a consequence of the order dated 14.1.1975 of this Court in O.W.P No. 1826 of 1973, he

is deemed to possess 5 year's experience on the post of Excise and Taxation Officer on the date his juniors were promoted vide order Annexure

P.4 i.e. on 7.12.1978.1 find force in this contention of the learned counsel, when an officer is afforded relief as a consequence of an order of the

Court and is given promotion retrospectively, it cannot be said that the period counting from the date, from which his promotion takes effect shall

not be treated as working experience on the post. If the stand taken by the Respondents is accepted, the relief granted by the Court is rendered

nugatory after an ephemeral phase. The relief granted by the court is to have lasting effect unless the officer is found otherwise unfit for promotion

to the higher post.

(emphasis supplied)

We find over selves in complete agreement with the view expressed by the Punjab and Haryana High Court. We, therefore, hold that in view

of the circumstances under which the petitioners (DR) got the appointment and the retrospective seniority accorded to them, they petitioners (DR)

shall be entitled to all consequential monetary benefits including the benefit of the selection grade, while fixing their pay as directed above.

It is next submitted by the Petitioners (DR) that the Government was not empowered to make promotions of Naib Tehsildars direct to the post

of Tehsildar between 5.10.1979 to 1.1 .1984, as there was no provision for the same under the 1977 Rules as it existed prior to 1985

amendment. According to them before a Naib Tehsildar could get a post of Tehsildar, he should first have held the post of Additional Tehsildar.

Order dated 5.10.1979 required the concerned administrative department to carry out amendments in the rules but no such amendment was made

tilk26.2.1985. The Naib Tehsildars for the first time became eligible for appointment direct as Tehsildars only on 26.2.1985 after such amendment.

The Government, therefore, according to the petitioners (DR), had no powers to grant retrospective promotion to these persons from the date

anterior to 26.2.1985 when the amendment was made in the rules.

Learned Single Bench while dealing with this ground has observed that the Naib Tehsildars were eligible even under the unamended rules and

therefore, to say that they became eligible only in the year 1985 is an argument which cannot be accepted. The petitioners (DR) have assailed the

finding of the learned Single Bench in LPA No: 412 of 2001.

In all services there is invariably a hierarchy of posts, comprising higher posts and lower posts. Promotion generally means appointment in the

higher category, class or grade. Higher post is generally called the promotional post and the lower post from which the promotion takes place is

called as the feeder post.

By means of SRO 581 dated 5.10.1977 the Government made rules called the Jammu arid Kashmir Revenue (Gazetted) Service Recruitment

Rules, 1976 which came into force w.e.f 26.10.1976. Prior to the coming into force these rules, the posts of Tehsildars were manned by the Junior

KAS officers whose appointments were being made in accordance with the KAS Rules of 1965. The new rules superseded all existing rules and

orders relating to the matters covered by the said rules. By means of these rules the Revenue (Gazetted) Service was constituted and erstwhile

Junior Scale Kashmir Administrative Service stood abolished. Schedule A to the rules prescribed the permanent and temporary strength of the

service as under:

I. Permanent Strength of the Service

S. No

Designation of the post

Number of post

1.

Principal, Revenue Training School

7501350

2.

Assistant Commissioners Nazool

7501350

3.

Tehsildars Territorial

520900

46

4.

Tehsildar Nazool Srinagar

520900

5.

Headquarter Assistants to Deputy Commissioners

520900 6

II,,,TempQrary Strength of the Service

1.

Director Consolidation of Holdings

7501350

2.

Settlement Officers Consolidation

7501350

3.

Instructor Revenue Trainings Schools, Jammu/Srinagar

520900

4.

Tehsildars (Consolidating Officers)

520900

5.

Special Tehsildars Recovery

475850

6.

Additional Tehsildars

475850

25

7.

Tehsildar Nazool Jammu

520900

Total

35

(D Total I & II

93

(ii) Leave and Deputation reserve at 10%

92

(ii) Training Reserve 10%

Schedule B to the Rules prescribed method of recruitment for the posts mentioned in the Rules. For the posts of Tehsildars, Tehsildars Nazool

Jammu/Srinagar, Headquarter Assistant to Deputy Commissioners, Instructors Revenue Training Schools (Tehsildars rank) and Tehsildars

(Consolidation Officers) (all in the grade of Rs. 520900) the method of recruitment provided was as under:

(a) 50% by competitive examination as laid down by the Government for such competitive examination;

(b) 50% by selection from class II category B having passed the departmental examination by Tehsildar standard.

The posts of class II category (B) posts were as under:

(i) Additional Tehsildars (Land Reform) (Rs.475850)

(ii) Special Tehsildars Recovery (Rs.475850)

Method of recruitment for both these posts was as under:'By promotion from out of confirmed or quasi permanent Naib Tehsildars having at least

5 years service as such and having passed the departmental examination of Tehsildars.'

Naib Tehsildars under the Jammu and Kashmir Revenue (Subordinate) Service Recruitment Rules, 1973 belonged to Class I Category

Executive.

Schedule 'A' and 'B' to the 1977 Rules were amended and substituted by new schedules as under:

I. Permanent Strength of the Service

S. No.

Designation of the post

Number of post

1.

Tehsildars Territorial

10001560

59

2.

Tehsildar Nazool Srinagar

10001560

3,

Headquarter Assistants to Deputy Commissioners

10001560

Total

68

II. Temoorarv Strength of the Service

1.

Tehsildars Agrarian Reforms

10001560

46

2.

Instructor Revenue Training Institute

10001560

4.

Tehsildar Consolidation of Holdings

10001560

5.

Special Tehsildars Recovery

10001560

Total

54

(i) Total I & II

122

(ii) Leave and Deputation reserve @ 10%

12

(iii) Training Reserve @10%

12

Grand Total:

146

The 1977 Rules (before 1985 amendment) broadly provided two categories of Tehsildars, namely Tehsildars in the grade of Rs. 520900 and

Additional Tehsildars in the grade of Rs. 475850. Under these rules a Naib Tehsildar having at least 5 years service as such and having passed

departmental examination of Tehsildar was eligible to first become Additional Tehsildar in the grade Rs.475850 and these Additional Tehsildars

could become Tehsildars after having at least 5 years service as such and having passed the departmental examination, eligibility, fitness and

availability of vacancies in promotional quota. Vide Government Order No: 481F of 1979 dated 5.10.1979 pay scales of Tehsildars including

Additional Tehsildars was made uniform viz Rs.520900 against the existing two scales of Rs.475850 and Rs.520900. The Additional Tehsildars

were re designated as Tehsildars. This order though made on 5.10.1979 was made applicable w.e.f 1.9.1979 and it was ordered that

consequential amendments in Recruitment Rules will be made by the concerned Administrative Departments. The relevant portion of the order

reads as under:

GOVERNMENT OF JAMMU AND KASHMIR

FINANCE DEPARTMENT

SUBJECT: 3RD AND FINAL REPORT PAY REVIEW COMMITTEE

REFERENCE CABINET DECISION NO. 405 DATED 2191979

GOVT. ORDER NO. 481 F OF 1979

DATED: 5101979 It is hereby ordered that

(a) The pay scale of all Excise and Taxation Officers and Tehsildars including Addl. Tehsildars will be uniform viz. 520900 against the existing two

scales of 475850 and 520900. The Additional Tehsildars will be redesignated as Tehsildars.

(b)

2........................

This order shall be deemed to have come into force with effect from 191979, consequential amendments in Recruitment Rules of the related

Services, if any, required will be made by the concerned Administration Department.

It appears that no steps were thereafter taken by the concerned department to amend the rules till the year 1985. The requisite amendment

was effected in that year through SRO: 78 of 1985 dated 26.2.1985.

The pay of a public servant and matters connected therewith are generally governed by Service Rules or administrative instructions. The

fixation or revision of pay scales is essentially an executive function and is a matter of discretion of the Government. Similarly merger of grades or

posts also falls within the exclusive powers and jurisdiction of the Government. In Inder Singh v. Vyas Muni Mishra 1987 (Supp) SCO 257, it was

held by the Supreme Court that the question whether two posts should be merged into one or not is absolutely within the jurisdiction and authority

of the Executive Government.

The Government in exercise of its powers provided only one grade (of Rs. 520900) for the post of Tehsildar and for that purpose

redesignated the post of Additional Tehsildar as Tehsildar. Such a merger or absorption of the two posts into one post is not unknown to the

service jurisprudence. In Katyani Dayal v. Union of India (1980 (3) SCR 139, in order to meet some special requirements of new situations

created by new projects in the Indian Railway Service, some new posts of Temporary Assistant Officers, were created under a special scheme.

These Temporary Assistant Officers belonged neither to class I nor to class II service, though on completion of three years service it was declared

that they could be considered for absorption in Class I, Junior Scale. The Temporary Assistant Officers filed a writ petition claiming that they were

appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as

belonging to neither Class I nor Class II, The Court held that the service comprising the Temporary Assistant Officers and the Indian Railway

Service of Engineers Class I started separately and never became one. The objects of their recruitment were dissimilar and the appointing authority

was not the same. Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated

differently thereafter, Their seniority would ordinarily be reckoned from the date of their absorption into the Railway Service of Engineers as

promised in their letters of appointment.

After redesignation or merger of the posts of Additional Tehsildar and Tehsildar, promotion to the post of Tehsildar was made from the post of

NaibTehsildars. This was done as there was no category of Additional Tehsildars existing at that time from which such promotions could be made.

Since the grade of Additional Tehsildars had merged with that of the Tehsildars, there was no option for the Government but to promote Naib

Tehsildars direct to the post of Tehsildars. In the administrative exigencies the Government could not have kept the posts of Tehsildars vacant, it

therefore rightly promoted these Naib Tehsildars direct to the posts of Tehsildars, With the redesignation of the post of Additional Tehsildars as

Tehsildar, the post of Tehsildar became next higher post (or promotional post) for the post of Naib Tehsildars which became feeder post for the

post of Tehsildar. The said Government order also contained a stipulation for the amendment of recruitment rules to satisfy the Government order.

Admittedly no amendment was carried out in the rule's till 1985 but due to such delay in carrying out the amendment, the promotion of Naib

Tehsildars direct to the post of Tehsildar cannot be objected to. Inaction on the part of the Government to carry out the necessary amendments in

the recruitment rules should not cause prejudice to those NaibTehsildars who got the promotion to the post of Tehsildar between 5101979 and

2621985.

Though no formal amendment was made in the rules but we find that after the redesignation of the post of Additional Tehsildar as Tehsildar, the

Government acted upon the same and in subsequent statutory rules only one category of Tehsildars found place in the hierarchy of the Revenue

Gazetted Service. The Jammu and Kashmir Civil Services (Revised Pay) Rules, 1982 made vide SRO91 of 1982 dated 22nd March, 1982,which

came into force on the first day of January, 1982 provided only one category of Tehsildars with 520900 scale of pay which was revised to

10001560 by the said Rules. S.No.16 to 21 of Schedule No.51 contained the entries relating to these posts. The rules did not contain the post of

Additional Tehsildar. SRO 91 of 1982 thus gave statutory recognition to what was contained in the Govt. Order No. 481F of 1979 dated:

5101979, even than a formal amendment in the 1977 Rules was made in the year 1985. In such circumstances delay on the part of Government to

effect any such amendment in the rules will not, therefore, render the promotion of the Naib Tehsildars directly to the posts of Tehsildars as illegal.

We, therefore, do not find any force in the plea raised and submissions made by the petitioners (DR) in this behalf.

In the Revenue Gazetted Service Rules 1976, twentyfive (25) temporary grade posts of Additional Tehsildars (475850) were created besides the

posts of Tehsildars (520900). Since both the posts of Tehsildars and Additional Tehsildars were carrying different pay scales and the method of

recruitment to the two posts was entirely different, these constituted two separate classes. Under the Rules, Naib Tehsildar was first to get

promoted as Additional Tehsildar after completing five years of service as Naib Tehsildar thereafter, subject to passing of the Departmental

examination, eligibility, fitness, he could be considered for the promotion to the post of Tehsildar. In the year 1979 vide Government order

No.481F of 1979 dated 5th October 1979, the Additional Tehsildars were given the grade of Tehsildars i.e, Rs.520900 and the posts were

redesignated as Tehsildars. Thus, the posts of Additional Tehsildars got merged into the cadre of Tehsildars. These 25 posts therefore, were

added to the posts of Tehsildars existing at that time. Since the Additional Tehsildars belonged to the promotion quota and their grade promotion

from Rs. 475850 to Rs.520900 was made after the commencement of the Revenue Gazetted Service as such, their seniority is to be fixed from the

date of grade promotion subject to the availability of the vacancies in the promotion quota. In view of the fact that the Additional Tehsildar prior to

the year 1979 formed a separate category, the Additional Tehsildars, who were occupying the posts at the time of redesignation of the posts never

belonged to the same class, category or grade, as such, their seniority cannot be counted with that of the Tehsildars. There seniority will be fixed

and counted as such only with effect from the year 1979 when the posts got redesignated subject to the availability of the vacancies in the quota.

Vide SRO 57 of 1979 dated: 12101979 J&K Departmental Examination (Tehsildars) Rules were notified. Under Rule 5(4) of the said Rules a

candidate who appears in all papers at a time and passes in all but one paper may be given by the Commission grace marks not exceeding 10 to

enable him to secure the minimum number of pass marks in the paper in which he has failed provided that the number of marks in all the papers

secured by him without the grace marks aggregates to not less than 50 %. In pursuance of the said Rules, candidates appeared in Tehsildar

examination in June, 1981 but some of them could not qualify the examination and as such were not eligible for being considered for promotion to

the posts of Tehsildars. Vide SRO 57 of 1982 dated: 25021982, Rule 5(4) was amended by means of which pass percentage was reduced from

50% to 45%. On the basis of this amendment, the candidates who had failed in the 1981 examination were declared to have passed and were

subsequently promoted to the posts of Tehsildars. This retrospective operation of SRO57 of 1982 came to be challenged by the aggrieved

candidates before this Court with a prayer for the exclusion of the names of those failed candidates from the seniority list who were given benefit to

the exclusion of those who passed the examination within the appointed period;

LPAs, viz. LPA Nos. 81/98, 80/98, 78/98, 79198 titled: Gian Chand Sharma and ors. v. State of J&K, Mushtaq Ahmed Qazi and ors. v.

State of J&K, QamarudDin Khan and ors. v. State of J&K& ors. v. State of J&K, Shiu Raj Singh and ors. v. State of J&K have been allowed

and the retrospective effect of SRO57 has been quashed .The Government has been ordered to redraw the merit by excluding the 20 beneficiaries

of the SRO. The Court held:

As a result of the aforesaid discussion what follows is that SRO 57 of 1982 could not have been made retrospectively applicable and it is

declared to be so. Thus all four LPA No's. 81/98,80/98,78/98,79/98, deserve to be allowed and as a consequence of it SWP No. 623/1982 is

hereby allowed and SWP No s.724/83,273/83 and 429/94 stand dismissed. As further consequence of allowing these appeals, it is ordered that

Respondent No. 1 shall redraw the merit of the appellants on the basis of SRO 571/79 by excluding the private respondents and any other

candidate who was considered along with them by operating SRO 57/82 retrospectively; thereafter grant further relief to the appellants on the

basis of this direction.

The judgment of the Division Bench has attained finality as a SLP (No. 5321/2001) filed in the Supreme Court by the State against the said

judgment of the High Court got dismissed. Government Order No. Rev. (Gaz) 103 of 2002 dated 2452002 has taken care of this situation. The

order, on the basis of the above referred findings, directs exclusion of the following officers 'from the redrawn merit/seniority list, as they have been

and they still continue to be unqualified and ineligible to hold or seek promotion to the posts of Tehsildar or above'. The officers are:

Triloki Nath Bhat (Rtd.),

Sat Parkash Gupta (Rtd.),

Shiban Jee Revoo,

Gh. Ahmad Ganai,

Abdul Gani (Rtd.),

Ajit Singh Jasrotia,

Prem Bhushan Gupta,

Abdul Ahad Lone (Rtd.),

Balwant Raj,

Daljeet Singh (Rtd.),

Mohan Singh,

Moh'd Amin Khan (Rtd.),

Ujjal Singh,

Mohinder Nath Sharma,

Manzoor Ahmad Khan,

Ali Moh'd. Sangeen,

Parvez Sikender,

Bodh Raj Malager (Rtd.),

Nek Raj Bhagat,

Nazir Ahmad Ahanger

Relevant portion of the order reads as under:

Whereas the import and scope of the Judgment of the aforesaid case was examined and considered in the Revenue Department and in

compliance thereto, the above named officers (para 26 supra) beneficiaries, of the SRO57 are to be excluded with issuing of a revised, uptodate,

complete and comprehensive merit list abinitio from the constitution of the Revenue (Gazetted) Service and as envisaged under Rule 13 of the

Revenue (Gazetted) Service Recruitment Rules so that all known distortions that have crept in the cadre are removed;

Whereas in compliance to the abovequoted judgment (para 24 above), after excluding the officers benefited out of retrospective implementation of

SRO57. such officers, thus, shall be and shall always be deemed to have been placed in the due and eligible cadre position of Naib Tehsildars in

the Scale of Rs. 650010500 (Revised) notwithstanding their promotion, elevation, upgradation or regularization/confirmation made, if any, during

the intervening period on any higher post"".

The order is, therefore, in consonance with the judgments noted above. In view of this fact no further directions are required in the matter

except that this part of the said Government order should be strictly implemented and the beneficiaries of the SRO57 shall be excluded from the

Service.

It is next contended by the learned counsel for the petitioners (DR) that the ad hoc/stop gap service of the promotees could not be counted for

seniority as Tehsildars as the same was not permissible under the recruitment rules. We do not find any force in the submissions.

In the case before us the promotee Tehsildars were appointed as Tehsildars in the year 1983. They continued to hold the posts without any

break and most of them have retired from service by now. Some of them have been promoted as Assistant Commissioners while a few have even

been inducted in to the KAS. In the year 1997, by Government Order No: 128 of 1997, they were regularized w.e.f. 111984, in relaxation of the

rules. We will examine later on the relevancy of the date 111984 mentioned in the said Government, impugned in these cases, but here we may

examine the competence of the Government to accord regularization to such promotees with retrospective effect.

The Government, as observed above, ordered temporary appointment of the respondent (PR) as Tehsildar in the year 1983 vide

Government Order No: Rev (A) 93 of 1983 dated 1731983. Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and

Appeal) Rules, 1956 deals with temporary appointments. It provides as under:

(1) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a

vacancy in a post borne, on the cadre of service, class or category and the making of an appointment to such vacancy in accordance with these

rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may appoint a person otherwise

than in accordance with these rules temporarily with the prior approval of the Chief Minister in Coordination until a person is appointed in

accordance with these rules but such temporary appointment shall in no case exceed three months on each occasion and not more than nine

months in all.

(2) A person appointed under subrule (1) shall be replaced as soon as possible by a member of the service of a candidate qualified and considered

fit to held the post under these rules.

(3) A person appointed under subrule (1) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of

such appointment to any preferential claim to future appointment to such service, class or category.

Rule 15 &16 of the Rules provide as under:

If such person is subsequently appointed to such service, class or category in accordance with these rules, he shall commence his probation

therein from the date of such subsequent appointment or from such earlier date as may be determined by the Ministerin charge.

(1) No parttime post shall be created in lieu of a wholetime post borne on the cadre of any service, class or category without the sanction of

the Government. A person appointed to any parttime post created in lieu of a wholetime post borne on the cadre, of a service, class or category

shall not be regarded as a probationer in such service nor shall he be entitled by a person only of such appointment to any preferential claim to

future appointment to such service, class or category.

(2) Notwithstanding anything contained in these rules, if and when a temporary post is created as an addition to the cadre of any service and the

holder thereof is required by Government to possess any special qualifications, knowledge or experience, any person who possesses such

qualifications, knowledge or experience and who is considered to be best fitted to discharge the duties of such post may, irrespective of other

considerations, be appointed to that post. But the person so appointed shall not by reason only of such appointment, be regarded nor probationer

in such service, class or category nor shall he acquire thereby any preferential right to future appointment to such service, class or category.

Rule 14 empowers the appointing authority to appoint a person temporarily otherwise than in accordance with the rule if (i) it is necessary in

public interest and (ii) where an emergency has arisen to fill any particular post which has fallen vacant, immediately. The appointments made under

Rule 14 are intended to be invoked to serve emergent situations which could not brook delay. Such appointments are intended to be stopgap

temporary appointments to serve the stated purpose and not long term ones. The rule is not intended to fill a large number of posts in the service

but only those which could not be kept vacant till regular appointments were made in accordance with the rules. But once the appointments

continued for long, the services had to be regularised if the incumbent possessed the requisite qualifications. Employees who have been working on

the establishment since long, and who possess the requisite qualifications for the job as obtaining on the date of their employment must be subject

to other conditions and requirements in the rules, allowed to continue on their jobs and their services should be regularised. In Jacob M.

Piithuparambil v. Kerala Water Authority, AIR 1990 SC 2228 the Apex Court while dealing with a similar situation observed:

Now to the text of Rule 9(a)(i) of the Rules. It empowers the appointing authority to appoint a person temporarily otherwise than in

accordance with the rule if (i) it is necessary in public interest, and (ii) where an emergency has arisen to fill any particular post which has fallen

vacant, immediately. In the present case it is difficult to say that all appointments made after 1st April, 1984 were required to be filled immediately

because of an emergency of the type contemplated by the said rule. On the contrary it seems appointments were routinely made in purported

exercise of power conferred by this rule. The proviso on which reliance is placed, which we have extracted earlier, merely states that ordinarily

such appointments will be of those persons who possess the requisite qualifications for the post. If any person who does not possess the requisite

qualifications is appointed under the said clause, he will be liable to be replaced by a qualified person. Clause(iii) of Rule 9. states that a person

appointed under claused shall, as soon as possible, be replaced by a member of the service or an approved candidate qualified to hold the post.

Clause (e) of Rule 9, however, provided for regularisation of service of any person appointed under clause (i),of subrule (a) if he had completed

continuous service of two years on December 22, 1973, notwithstanding anything contained in the rules. This is a clear indication that in the past

the Government also considered it just and fair to regularise the services of those who had been in continuous service for two years prior to the

cutoff date. The spirit underlying this treatment clearly shows that the Government did not consider it just, fair or reasonable to terminate the

services of those who were in employment for a period of two or more years prior to the cutoff date. This approach is quite consistent with the

spirit of the rule which was intended to be invoked to serve emergent situations which could not brook delay. Such appointments were intended to

be stopgap temporary appointments to serve the stated purpose and not long term ones. The rule was not intended to fill a large number of posts in

the service but only those which could not be kept vacant till regular appointments were made in accordance with the rules.

But once the appointments continued for long the services had to be regularised if the incumbent possessed he requisite qualifications as was done

by subrule (e). Such an approach alone would be consistent with the constitutional philosophy adverted to earlier. Even otherwise, the rule must be

so interpreted if the language of the rule permits, as will advance this philosophy of the Constitution. If the rule is so interpreted it seems clear to us

that employees who have been working on the establishment since long, and who possess the requisite qualifications for the job as obtaining on the

date of their employment must be allowed to continue on their jobs and their services should be regularised. It is unfair and unreasonable to remove

people who have been rendering service since sometime as such removal has serious consequences. The family of the employee which has settled

down and accommodated its needs to the emoluments received by the bread winner will face economic ruination if the job is suddenly taken away.

Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered 'age

barred' for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his

earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to

the constitutional philosophy, particularly the concept of right to work in Art. 41 of the Constitution. Therefore, if we interpret Rule 9(a)(i)

consistently with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that

employees who are serving on the establishment for long spells and have the requisite qualifications for the job should not be thrown out but their

services should be regularised as far as possible. Since workers belonging to this batch have worked on their posts for reasonably long spells they

are entitled to regularisation in service"", (emphasis supplied)

Government Order No: Rev (A) 93 of 1983 gives the reasons for temporary appointment as Tehsildars. Relevant portion of the order states:

which was intended to be invoked to serve emergent situations which could not brook delay. Such appointments were intended to be stopgap

temporary appointments to serve the stated purpose and not long term ones. The rule was not intended to fill a large number of posts in the service

but only those which could not be kept vacant till regular appointments were made in accordance with the rules. But once the appointments

continued for long the services had to be regularised if the incumbent possessed he requisite qualifications as was done by subrule (e). Such an

approach alone would be consistent with the constitutional philosophy adverted to earlier. Even otherwise, the rule must be so interpreted if the

language of the rule permits, as will advance this philosophy of the Constitution. If the rule is so interpreted it seems clear to us that employees who

have been working on the establishment since long, and who possess the requisite qualification for the job asjpbtaining on the date of their

employment must be allowed to continue on their jobs and their services should be regularised. It is unfair and unreasonable to remove people who

have been rendering service since sometime as such removal has serious consequences. The family of the employee which has settled down and

accommodated its needs to the emoluments received by the bread winner will face economic ruination if the job is suddenly taken away. Besides,

the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered 'age barred'

for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his earnings

and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the

constitutional philosophy, particularly the concept of right to work in Art. 41 of the Constitution. Therefore, if we interpret Rule 9(a)(i) consistently

with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who

are serving on the establishment for long spells and have the requisite qualifications for the job should not be thrown out but their services should be

regularised as far as possible. Since workers belonging to this batch have worked on their posts for reasonably long spells they are entitled to

regularisation in service"". (emphasis supplied)

Government Order No: Rev (A) 93 of 1983 gives the reasons for temporary appointment as Tehsildars. Relevant portion of the order states:

Whereas the matter relating to the promotion of eligible Naib Tehsildars to the posts of Tehsildars is pending settlement for more than a year now

as a result of which the timebound programme of implementation of agrarian reforms is suffering badly and the general public is facing difficulties on

that count.

The order would show that there existed sufficient grounds for temporary appointment of the Naib Tehsildars as Tehsildars. Admittedly all of

them were eligible to hold the posts as they had qualified the departmental tehsildar examination held by the Commission, They continued to hold

these posts without break for more than a decade.

The Supreme Court has, in a number of cases held that when an officer has worked for a long period in a post and has never been reverted it

cannot be held that the officer's continuous officiation was a mere temporary or local or stopgap arrangement even though the order of

appointment may state so.

In D. R. Nim v. Union of India, (1967) 2 SCR 325: (AIR 1967 SC 1301) it was observed that when an officer has worked for a long period

as in this case for nearly fifteen to twenty years in a post and had never been reverted it cannot be held that the officer's continuous officiation was

a made temporary or local or Stop gap arrangement even though the order of appointment may state so. In such circumstances the entire period of

officiation has to be counted for seniority. Any other view would be arbitrary and violative of Arts. 14 and 16(1) of the Constitution because the

temporary service in the post in question is not for a short period intended to meet some emergent or unforeseen circumstances. Cl. (b) of R. 9C

of the Rule which deals with the question of seniority of promotees becomes irrelevant in the circumstances of this case as regards the promotees

who have been holding the posts from a long time as stated above.

In I. J. Divakar v. Govt. of A.P. AIR 1982 SC 1555 it was held that where the Government had the power to make temporary appointments

and where appears necessary to regularize such appointments for peace and harmony in service, the Government can regularize such service and

the action of the Government in this behalf would be justified. The Court observed:

The next contention is that G. O. No. 647 by which services of temporary Government servants holding various posts were regularised would

be violative of the statutory rule and, therefore, would be bad, It was urged that even if it be conceded that the Government had the power to

regularise services in certain circumstances, where the incumbents of the posts were recruited in violation or contravention of statutory rules the

services of persons illegally recruited cannot, be regularised because if such power is conceded the Government would be able to act always in

flagrant violation of statutory rules and it would be negation of rule of law and a contravention of Art. 16 of the Constitution. It was urged that at

the relevant time when the temporary servants whose services were sought to be regularised were recruited in the category of Junior Engineers, the

post of Junior Engineer was within the purview of the Commission and, therefore, no one could have been recruited without being recommended

by the Commission. It does appear that when the temporary servants whose services were sought to be regularised by the impugned G. O. were

appointed, the post of Junior Engineer was within the purview of the Commission. Conditions of service of Junior Engineers were governed

amongst others by A. P. State and Subordinate Services Rules. Rule 10 (a) (i) (1) provides that where it is necessary in the public interest to fill

emergently a vacancy in the post borne on the cadre of a service, class or category and if the filling of such vacancy in accordance with the rules is

likely to result in undue delay, the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules. The said

temporary appointee must possess the qualifications, if any, prescribed for the post, class or category and if any one is appointed who does not

possess such qualification he shall be replaced, as soon as possible, by a person possessing such qualification.

In the face of this rule the validity of which is not in question it is futile to contend that recruitment to a post falling within the purview of the

Commission cannot even temporarily be made without the intervention of the Commission. It is not disputed that such temporary appointees whose

services were sought to be regularised by the impugned G. O. did possess the necessary qualification. Therefore, it does transpire that the

Government had the power to make temporary appointments without the intervention of the Commission to posts which were within the purview

of the Commission. The Administrative Tribunal has found that there was an embargo on recruitment during certain years because of the peculiar

situation in Andhra Pradesh and, therefore, for manning posts falling vacant temporary appointments were made. The Government had the power

to make such appointments.

The Tribunal also found that the Government received representations from large number of service unions for regularising services of such

temporary employees who were holding the posts for a number of years. If their services were terminated it was bound to cause heartburning.

Therefore, the Government by the impugned G. O. regularised, the services of those temporary Government servants who were in service on the

relevant date being Aug. 9,1979. We are broadly in agreement with the Tribunal that the Government had the power to regularise services.

Looking to the circumstances set out in the affidavit in opposition filed on behalf of the State that it had become a compelling necessity to regularise

services of such temporary servants for peace and harmony in service, we are satisfied that the action of the Government was justified and was in

consonance with the Rules. We find, therefore, no substance in the contention that the regularisation of services of temporary Government servants

was in contravention or violation of statutory rules"".

In Narender Chadha v. Union of India AIR 1986 SC 638, it was held that where persons have been allowed to function in higher posts for

15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted un

ceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the

Rules to unjust results.

Narender Chadha's case was referred to in the Direct Recruitment's case (1990 (2) SCC 715 and it was observed that there is considerable

force in the view.

Recently in Suraj Parkash Gupta v. State ofJ and K, AIR 2000 SC 2386, it was held that retrospective regularization of ad hoc/stop gap

service is possible under Rule 23 of the J and K Civil Service (CCA) Rules, 1956.

The Court while dealing with this rule held:

Under Rule 23, whenever probation is commenced in respect of an officer, it is permissible to appoint him to the service with retrospective effect

from such date from which the person was ""continuously on duty as a member of the service"". Read with Rule 2(e) which defines 'member of

service' it means the time from which he was ""continuously holding the pensionable post"". Rule 23 does not make any distinction between different

modes of recruitment. It is well settled that in the case of a direct recruit, the probation can commence only from a date after his selection and he

can hold a permanent vacancy only after such selection. According to service jurisprudence (see in fact, discussion under Pointr4), a direct recruit

cannot claim appointment from a date much before his selection. So far as a promotee and also one who is recruited by transfer, are concerned,

before such persons are appointed as members of the service under Rule 23, first their probation must commence. Then such person becomes a

probationer for purposes of Rule 23. Once he is on probation, and if a substantive vacancy in the permanent cadre existed in which the promotee

or a recruitee by transfer can be accommodated, and if such a vacancy has arisen from a date previous to the issue of the order of appointment

(i.e. appointment by promotion or transfer) then under Rule 23 he may be appointed to the service (i.e. regularly) with retrospective effect from

such anterior date (or, as the case may be, from such subsequent elate) from which (he has been continuing on duty on a nonpensionable post (see

2 (e) defining 'member of service'). This period can certainly be one that a person holds in a stop gap or ad hoc manner. The order of promoting a

person in the service' regularly from an anterior date and the can be of probation from an anterior date can be simultaneously passed. That is how

under Rule 23, a person holding a temporary, stopgap or ad hoc appointment beyond three months can become a probationer and get appointed

regularly to the service with retrospective effect"".

The Court further held:

It is true that while Rule 15 permits probation to be commenced from an anterior date in the case of one 'appointed' temporarily there is no such

clause in Rule 25 dealing with 'promotions'. That does not, in our opinion, mean that in respect of a person temporarily promoted or a person

temporarily appointed by transfer, probation cannot be commenced from an anterior date, fn our view, this power is implicit in Rule 23 itself when

it speaks of a probationer being, appointed as a member of a service with retrospective effect. Once a promotee or recruitee by transfer is

appointed on probation, it is permissible to appoint him under Rule 23 as a member of the service from an anterior date when a substantive

vacancy existed in his quota. It is then obvious that such power to make a retrospective appointment of a member implies a power to commence

probation of such person from an anterior date when a clear vacancy existed in his quota. We cannot imagine that the Rulemaking authority did not

visualise delays in regularisation of ad hoc or stopgap or temporary service rendered by promotees or those recruited by transfer and kept in mind

delay only in cases of appointments under Rule 14. 56. Thus, the stopgap/ad hoc or temporary service of a person appointed by transfer as an

Assistant Engineer or by promotion as an Assistant Executive Engineer can be regularised 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"".

Such retrospective regularization is possible under the CCA Rules of 1956. The Supreme Court while dealing with a case from West Bengal

(Md. Israils v. State of W.B AIR 2002 SC 468) where the rule did not permit such a regularization, referred to the Suraj Prakash's judgment and

observed that under Rule 23 of the J and K Civil Services (CCA) Rules, 1956, the State Government has the power to regularise the services

from an anterior date, and therefore, when appointment is made without consultation with the Public Service Commission, entire service will not be

wiped off. 'This conclusion was possible because of the existence of Rule 23. In the case in hand we do not have any Rule corresponding to Rule

23, and therefore, the ratio of the aforesaid case will have no application', the Court said.

In Santosh Kumar v. State of A.P. AIR 2003 SC 4036 it was held:

In the case on hand the appointment of the respondent made under R. 10(a)(i)(I) was regularised by relaxing the relevant service rules and the

Standing Order No. 107 of Andhra Pradesh Police Manual Part I by exercising the powers under R. 47 of General Rules. The Government, as

observed by the High Court, for good reasons have chosen to regularize the services of the respondent with effect from the date of temporary

promotion as SubInspector in recognition and providing incentive for merit and in public interest. The High Court also noticed that the respondents

were given out of seniority promotions on the basis of their individual extraordinary services and merit....

Another important factor Jo be kept in mind is that a finding is recorded by the High Court that the promotion given to the respondent to the

post of SubInspector was against the vacancies meant for the quota of promotees. The respondent was admittedly promoted on temporary basis

as QSS1 prior to the recruitment of the appellant. Once his services were regularised that too in the promotee quota, the appellant being direct

recruit cannot make any grievance. In this view it cannot be said that the appellant was an affected person for want of notice before passing the

order of relaxation to question the seniority of the respondent."", (emphasis supplied)

This being the legal position we do not find any illegality or irregularity in the retrospective regularization of the respondents (PR). But such

regularization is possible within the promotees quota only.

The matter, however, does not end here. The regularization of the promotees has been accorded without consultation/clearance by the State

Public Service Commission (hereinafter called the Commission). The petitioners are aggrieved of the same as according to them while promoting

the respondents to the post of Tehsildars the requirement of consultation with the Commission has not been complied with. According to them the

process for making direct recruitment was initiated vide Notification dated 23rd May, 1979 by this time the Additional Tehsildars had not been

promoted as Tehsildars nor had they been allowed the grade of Tehsildars. After the reference was made to the Commission and by the time

Commission made its recommendations and ultimately when the appointments were made, these Additional Tehsildars obtained illegal and undue

benefits from the Government which willingly conferred such benefit on them to the prejudice and detriment of the direct recruits. Having regard to

the source and nature of the appointment of these persons, the respondents, according to the petitioners (DR), should not be ranked senior to

them.

So far as the requirement of consultation with the Commission is concerned, according to the learned Single Judge non consultation of the

Commission in the matter was not fatal at all as the provisions of section 133 of the State Constitution were not mandatory in nature. In arriving at

such a conclusion the learned Single Judge has relied on State of U.P v. Manbodhan Lal Snvastva, AIR 1957 SC 912, where it was held that

provisions of Article 320 of the Constitution of India are not mandatory.

Section 133 of the State Constitution provides as under:

Functions of the Commissions

(1) It shall be the duty of the Commission to conduct examinations for appointments to the services of the State.

(2) The Commission shall be consulted

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions arid transfers from one service to

another and on the suitability of candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under the Government including memorials or petitions relating to such matters, and it shall

be the duty of the commission to advise on any matter so referred to them or on any other matter which the Governor may refer to them:

Provided that the Governor may make regulations specifying the matters in which either generally, or in any particular class of cases or in any

particular circumstances, it shall not be necessary for the Commission to be consulted.

(3) Nothing in subsection (2) shall require the Commission to be consulted as respects the manner in which a provision may be made by the State

for the reservation of appointments or posts in favour of any class of permanent residents which in the opinion of the Government is not adequately'

represented in the services under the State.

(4) All regulations made under the proviso to subsection (2) by the Governor shall be laid for not less than Fourteen days before each House of the

Legislature as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as the

Legislative Assembly may make during the session in which they are so laid"".

The section is akin to Article 320 of the Constitution of India. In State of U.P v. Manbodhan Lal Srivastva, (supra) the question before the

Court was whether the provisions of Article 320 (3)(c) are mandatory in character and are in the nature of a rider to Article 311. The Court

observed that the expression ""shall be consulted"" in Art. 320 (3) of the Constitution did not make it mandatory upon the Government to consult the

Public Service Commission. The Court observed:

Article 320 does not come under chap. I headed ""Services"" of Part XIV. It occurs in chap. II of that part headed ""Public Service Commissions.

Articles 320 and 323 lay down the several duties of a Public Service Commission. Article 321 envisages such ""additional functions"" as may be

provided for by Parliament or a State Legislature. Articles 320 and 323 begin with the words. ""It shall be the duty "", and then proceed to prescribe

the various duties and functions of the Union or a State Public Service Commission, such as to conduct examinations for appointments; to assist in

framing and operating schemes of joint recruitment; and of being consulted on all matters relating to methods of recruitment or principles in making

appointments to Civil Services and on all disciplinary matters affecting a civil servant. Perhaps, because of the use of the word ""shall"" in several

parts of Art. 320, the High Court was led to assume that the provisions of Art. 320 (3) (c) were mandatory, but in our opinion, there are several

cogent reasons for holding to the contrary. In the first place, the provisions to Art. 320, itself, contemplates that the President or the Governor, as

the case may be,

may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not

be necessary for a Public Service Commission to be consulted,

The words quoted above give a clear indication of the intention of the Constitution makes that they did envisage certain cases or classes of cases in

which the commission need not be consulted. If the provisions of Art. 320 were of a mandatory character, the Constitution would not have left it to

the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary.

If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have

been there, or, at any rate in the terms in which it stands. That does not amount to saying that it is open to the Executive Government, completely

to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted.

Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the

Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the

Service that a wholly independent body not directly concerned, with the making of orders adversely affecting public servants, has considered the

action proposed to be taken against a particular public servant, with an open mind; and secondly, to afford the Government unbiased advice and

opinion on matters vitally affecting the morale of public services.

It is, therefore, incumbent upon the Executive Government when it proposes to take any disciplinary action against a public servant, to consult the

Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.

Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Com mission on

those matters, binding or/the Government. Of course, the Government, when it consults the Commission on matters like these, does it not by way

of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the

suitability and adequacy of the penalty proposed to be imposed.

If the opinion of the Commission were binding on the Government, it may have been argued with greater force that noncompliance with the rule for

consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding

character, it is difficult to see how noncompliance with the provisions of Art. 320 (3)(c) could have the effect of nullifying the final order passed by

the Government.

Thirdly Art, 320 or the other articles in chap. 11 of Part XIV of the Constitution, deal with the Constitution of the Commission and appointment

and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals

with the relation between Government and the Commission but not between the Commission and a public servant"".

Manbodhan Lai's case dealt with a case of reduction in rank followed by compulsory retirement and the question involved was as to whether

Article 311 of Constitution was controlled by Article 320 or not.

Without referring to Manbodhan Lal the Supreme Court in J & K Public Service Commission v. Dr. Narinder Mohan AIR 1994 SC 1808,

after noting that it settled law that consultation is not mandatory, observed that whenever the Government is to make an appointment to a high

public office it is required to consult the Public Service Commission. The Court Held:

Moreover the proviso to Art. 320 (proviso to S. 133 of J and K Constitution), though gives power to the State Government to specify case or

class of cases in respect of which consultation with the PSC may be dispensed with still the recruitment shall be in compliance with either of the

Art. 320(1) and S. 133(1) of the J and K Constitution or by duly constituted body or authority. The rules or instructions should be in compliance

with the requirements of Arts. 14 and 16 of the Constitution. The procedure prescribed shall be just, fair and reasonable. Opportunity shall be

given to eligible persons by inviting application through the public notification and recruitment should be according to the valid procedure and

appointment should be of the qualified persons found fit for appointment to a post or an office under the State. Therefore, it must be held that

power of relaxation exercised by the Government is ultra vires the Rules and the High Court is right in holding that Government cannot relax the

rules of recruitment to be made by the PSC. Government have no power to make regular appointment under the Rules without selection by the

Public Service Commission under S. 133(1) read with Rule 5 and Schedule III of the Rules"".

In M. A. Hague (Dr) v. Union of India, (1993) 2 SCC 213, the Supreme Court said:

... the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and

the bypassing of the Public Service Commissions are permitted, it will open a backdoor for illegal recruitment without limit. In fact this Court has,

of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the

services through the Public Service Commission, It appears that since this Court has in some cases permitted regularisation of the irregularly

recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the

recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being

recruited as a matter of course"".

In a recent case of Suraj Parkash Gupta v. State of J&K, AIR 2000 SC 2386 which was a matter from this State and where the issues

involved were almost identical, i.e., appointment of promotees on the gazetted posts without consultation with the Commission, the Apex Court

dealt with the issue in detail. The Court framed various points for determination. Point No. 1 related to the issue in hand and was as under:

(1) Can the promotees, for recruitment to the gazetted service, avoid the Service Commission? Can the Government order that the entire ad

hoc/stop gap service of Assistant Engineers and Assistant Executive Engineers is to be counted for seniority and can the order of regularisation

dated 2198 passed by Government (in respect of the Electrical wing) be treated as amounting to an implied relaxation of the rules of recruitment

requiring consultation with the Service Commission? Whether relaxation of recruitment rule is permissible?

While dealing with this point, the Apex Court took note of various pronouncements of the Court on the issue and while concluding the matter

held that the promotees cannot avoid going through the Service Commission for recruitment to the gazetted service. The Court observed as under.

The result of the discussion, therefore, is that the wholesale regularisation by order dated 211998 (for the Electrical Wing), by way of implied

relaxation of the recruitment rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without

consulting the Service Commission. Further, power under Rule 5 of the J and K CCA Rules, 1956 to relax rules cannot, in our opinion, be treated

as wide enough to include a power to relax rules of recruitment. On facts, relaxation bad: 31. On facts, the reasons given in the Cabinet note for

granting relaxation are hopelessly insufficient. In fact, the letter of the Commission dated 251197, shows that the Commission was prepared to give

its opinion in regard to regularisation of each promotee but the Government backed out when the Commission called for the ' records relevant for

considering suitability for regular promotion. In our view, there can be no hardship for a person seeking appointment or promotion to go by the

procedure prescribed therefor. The relevant recruitment rule for promotion cannot itself be treated as one producing hardship. Narender Chadda's

case (AIR 1986 SC 638: 1986 Lab 1C 590) must be treated as an exception and not as a rule. In fact, if such relaxation is permitted in favour of

promotees then the same yardstick may have to be applied for direct recruits. In fact the J. K. Government has already started to do so and this

has not been accepted by this Court in Narinder Mohan's case (1994 AIR SCW 1701 : AIR 1994 SC 1808) and Dr. Surinder Singh Jaswal's

case (1996 AIR SCW 3481 : AIR 1996 SC 2775 : 1996 Lab 1C 2444) referred to above, if it is to be held that direct recruitment can also be,

permitted without consulting the Service Commission (in case it is required to be consulted) there will, in our opinion, be total chaos in the

recruitment process and it will lead to backdoor recruitment at the whims and fancy of Government such a blanket power of relaxation of

recruitment rules cannot be implied in favour of the Government.

In the present case, the Government was merely carried away by sympathy to the promotees. By not making direct recruitment after 1984, by

restricting direct recruits to 10% rather than permitting 20% and by deliberately promoting the Junior engineers to the other 10% quota of the

direct recruits. The State Government had definitely acted in a biased manner. There is any amount of justification for the grievance of the direct

recruits that the State had passed an omnibus order on 2198 regularising all ad hoc promotees (Electrical Wing) without consulting the

Commission, by way of deemed relaxation, in a wholly arbitrary manner, counting the entire ad hoc service of promotion. Their illegal occupation

of direct recruitment quota was not even noticed. Their eligibility or suitability was not considered. It is probable that even those who had bad

ACRs were regularly promoted. The requirement of following quota for each year was not respected. The regularisations order dated 21 98 was

therefore bad and was therefore rightly quashed by the High Court. (This declaration is confined to Assistant Engineers and Assistant Executive

Engineers (Electrical Wing) as stated under Point No. 2 of the High Court's judgment) we confirm the view of the High Court on this point. The

result is that the promotees have to go through the Service Commission for getting into the gezetted category of Assistant Engineers. The Assistant

Engineers have to go through DPC for promotion as Assistant Executive Engineers. Point 1 is decided accordingly.

From the pronouncement of the Apex Court, therefore, it is settled now that the promotees have to go through service Commission for

getting into the gazetted service.

Non consultation with the Commission, however, does not mean that the whole service of the promotees, rendered on the post of Tehsildar

on ad hoc/stop gap basis gets wiped off. The Supreme Court in Suraj Prakas Gupta 's case (supra) dealt with this issue too and held that stop gap

promotions could be regularized from anterior date after consulting the Commission. The Court made the observations while dealing with point 3,

which was as under:

(3) Whether the ad hoc/stop gap promotion of Assistant Engineers (and Assistant Executive Engineers) could be made beyond six months and till

regularisation, by Government without consulting the Public Service Commission? whether Government could have regularised the ad hoc service

by executive order dated 2198?

whether, the point raised in para IX of written submissions by the direct recruits that retrospective regularisation cannot be made in respect of the

ad hoc stop gap service and could be made only if the initial appointment as Assistant Engineers or Assistant Executive Engineers was ""in

accordance with rules"", is correct?"" The Court held:

Thus, there is overwhelming authority of this Court to hold that ad hoc, stop gap service could be regularised from an anterior date after consulting

the Service Commission from the date of vacancy in promotee quota, after considering fitness, eligibility suitability and ACRs. Therefore, the ad

hoc/stop gap service rendered by promotees beyond six months and without the consent of the Public Service Commission as per Regulation 4(d)

(ii) cannot be treated as nonest. It can be regularised later after consulting the Commission in respect of posts in the promotion quota and subject

to eligibility and suitability based on ACRs. etc. Only the period rendered outside quota or the period rendered within quota when the promotee

was not eligible or found fit has to be excluded

Settled legal position therefore, would be that temporary appointment is permissible under the CCA Rules, 1956 but such an appointment,

beyond six months requires approval of the Commission. The appointment cannot be regularized without the consultation of the Commission. Such

an appointment can be regularized through the Commission even from an anterior date against a clear vacancy within the quota.

In the present case we are, however, faced with a peculiar situation. The Naib Tehsildars were appointed as Tehsildars on temporary basis.

They got appointed as they possessed the requisite qualifications for the post. They had qualified the departmental examination through the

Commission. They continued to hold such posts for years together. The government took steps for their regularization through the Commission but

the same did not materialise. Various cases were filed by the parties and interim directions passed by the Courts from time to time in such cases

delayed the efforts of the Government to finalise the seniority lists. During this period most of the promottees got retired from the service. Some of

the promotees were further promoted as Assistant Commissioners while a few of them have even been inducted into the KAS. Now it appears not

only difficult but practically impossible to get regularization of these promottees done through the Commission. We feel it will not be in the interest

of justice to ask these officers to get their regularizations approved by the Commission at this stage. Following the principle laid down in Narender

Chadha v. Union of India (supra), we find that since the promottees have been allowed to function on higher posts for more than 15 years with due

deliberation, it would be unjust to hold that they have no sort of claim to such posts. Treating the present case as an exception, in view of the

circumstances indicated, we hold the regularization of the promottees in relaxation of the rules cannot be interfered with.

Main grievance of the petitioners (DR) is that the Government Order No: 1145GAD of 2003 has denied to them their right placement in the

seniority above the promotees, on the ground that ""it is neither expedient nor in the interest of public administration to unsettle the settled issues.

According to them since the promotees, promoted w.e.f 24.9.1984 to 26.2.1985, have been promoted in excess of the quota fixed by the rules

for the promotees, their appointment being dehors the rules, they should be 'pushed down' and the direct recruits should be given due placement

above such promotees. It is further submitted that since they stand substantively appointed from 2491984 their seniority has to be reckoned from

that date only. According to them Tehsildars who came to be promoted prior to 2621985 in their own pay and grade cannot claim seniority earlier

than that date.

The petitioner's (DR) grievance is that since the Revenue Gazetted Service Rules were sanctioned in the year 1977 vide S.R.O 581 of 1977

dated 26101977, ratio 50:50 had to be followed in the matter of appointment to the service between 'direct recruits' and the 'promotees' and that

the posts against which these 108 officers have been regularized as Tehsildars retrospectively between the year 1979 to 1984, did not fall to the

share of promotees.

The petitioners have, during arguments, also referred to the Government Order No: Rev (Gaz) 103 of 2002 dated 2452002 by means of

which the Government has, during the pendency of these petitions, prepared a tentative seniority list of the Revenue Gazetted Officers as on

152002. In the list the Tehsildars, who came to be appointed in 1984 as direct recruit as a result of the same competitive examination in which the

petitioners (DR) have been appointed under the directions of the Court, have been given the position from serial no. 128 to 164, except the

persons mentioned at serial Nos. 129,131 and 133, who are the promotees. The petitioners (DR) claim that since their seniority has been fixed as

from 2491984, their names should appear in the said seniority list from serial no. 165 onwards. According to them the persons shown from serial

no. 107 to 127, 129,131 and 133 in the said list have been made Tehsildars between 5101979 to 111984 and that they were regularized under

the orders impugned by them, which the Government could not do. The promotees should be placed against the posts falling with their quota only

and if these persons are assigned their proper place in the seniority from 2621985, the petitioners (DR) will get pushed up in the seniority and their

position will improve in the service. They have in support relied on P. S. Mahal v. Union of India AIR 1984 SC 129, H. V. Pardasani v. Union of

India AIR 1985 SC 781, Masood Akhtar Khan & ors u. State of Madya Pradesh & ors (1990) 4 SCC24, Keshav Chandra Joshi v. Union of

India AIR 1991 SC 284, Union of India v. S.K. Sharma (1992) 2 SCC 728, J. and K. Public Service Commission v. Dr. Narinder Mohan AIR

1994 SC 1808, Y. H. Pawar u. State of Karnataka AIR 1996 SC 3194 and C. K. Antony v. B. Muraleedharan AIR 1998 SC 3 136.

When recruitment to a service is made from two or more sources the statutory provision may fix a quota in respect of each of the sources

according to which such recuirement is to take place. On appointment to the service inter se seniority of the appointees is to be fixed in accordance

with and on the basis of such quota.

In H. V. Pardasani v. Union of India AIR 1985 SC 781 the Supreme Court observed:

There is no dispute that in the absence of any special provision regulating determination of seniority, length of continuous service in any particular

grade would be the basis for determining seniority in that grade. The legal position is well settled that if a rule prescribes a method of fixation of

inter se seniority, the normal practice would not apply and the rule shall prevail, obviously subject to its constitutionality"".

In the present case the relevant rules provide 50:50 basis for such recruitment i.e, 50% of the vacancies are to be filled up by direct

recruitment and 50% of the vacancies by promotion.

In N.K. Chohan v. State of Gujarat, AIR 1977 SC 251, the Supreme Court observed that while laying down a quota while filling up vacancies in a

cadre from more than one source, it is open to Government, subject to tests under article 16 to chose a year or other period for the vacancy by

vacancy basis to work out the quota among the sources. Under the 1977 rules however only a broad fixation of 50:50 has been made, the rules do

not provide any period for working out the quota on the vacancy by vacancy basis among the sources.

Since the 1977 Rules provide quota for recruitment to service of the direct recruits and promotees as 50:50, appointments to the posts are to

be governed by this quota only. The ratio, as is evident from the rules, is not made dependent on whether any direct recruit was appointed in any

particular year or not. The promotees, in such circumstances, are entitled to 50% of the vacancies falling vacant in a particular year, whether or not

there was direct recruitment by competitive examination in that year. Similarly direct recruits can be appointed against their quota if available

irrespective of the fact whether any in service candidate is available or suitable for promotion or not.

In S. C. Jaisinghani v. Union of India (1967) 2 SCR 703: (AIR 1967 SC 14 27) it was said that when the quota was fixed for the two

sources of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been

promoted in excess of the prescribed quota should be held to have been illegally promoted.

In Bishan Sarup Gupta v. Union of India & ors. AIR 1972 SC 2627 it was held that when it was ascertained that not more than 1/3 of the

vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was

appointed in any particular year or not, the promotees were entitled to 1/3 of the vacancies in any particular years, whether or not there was direct

recruitment by competitive examination in that year. Two principles are established in the decision: firstly that quotas which are fixed are unalterable

according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule; secondly

that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because

there has been a number in excess of quota the same should be absorbed depriving the other group of quota.

In Bachan Singh v. Union of India (1972) 3 SCR 898: (AIR 1973 SC 441,, the two appellants were promoted in the years 1958 and 1959.

The respondents were appointed by direct recruitment in 1962,1963 and 1964. The respondents were confirmed in their posts before the

appellants. The appellants contended that the respondents who were directly appointed after the appellants had been promoted were not to be

confirmed in permanent posts before the appellants. It was held that the direct recruits were confirmed against permanent vacancies within their

quota. The earlier confirmation of direct recruits though appointed later was upheld on the ground that they fell within their quota of permanent

vacancies.

In A. K. Subraman v. Union of India. (1975) 2 SCR 979: (AIR 1975 SC483) it was held that each quota would have to be worked

independently on its own force. In that case the Assistant Executive Engineers who were initially entitled to 3/4th and subsequently to 2/3rd of the

vacancies while Assistant Engineers who were entitled initially to l/4th and subsequently to V3rd of such vacancies were held to be entitled to their

respective quotas independent of the fact whether any person from one class or the other was promoted or not. It was illustrated by saying that if

there were three vacancies in a year, two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if

there were not eligible Assistant Executive Engineers who could be promoted to fill in two vacancies belonging to their quota, one vacancy is to be

filled up by promotion of an Assistant Engineer, if he was eligible. Similarly, if two vacancies belonging to the quota of Assistant Executive

Engineers are to be filled by Assistant Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant

Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment

could be regularised as a result of absorption in their lawful quota for those years.

In N. K. Chauhan u. State of Gujarat AIR 1977 SC 251 a resolution of the Government of Bombay dated July 30 1959 directing that, as far

as practicable 50% of the substantive vacancies occurring in the cadre with effect from 1st Jan. 1959, should be filled in by nomination of

candidates to be selected in accordance with the Rules appended herewith/came in for consideration of the Supreme Court. The contention was

that the Resolution prescribed a quota and the Government had no discretion to make recruitment in relaxation of the quota and, therefore, any

recruitment made in excess of the quota in view of the decision in Jaisinghani's case and B. S. Gupta's cases would be invalid. Repelling this

contention and distinguishing both the decisions in Jaisinghani's case and B. S. Gupta's case. the Court observed that the sense of the rule is that as

far as possible the quota system must be kept up and if not practicable promotees in place of direct recruits or direct recruits in place of promotees

may be inducted applying the regular procedures without suffering the seats to lie indefinitely vacant. After examining the facts of the ease, the

Court held that the State had tried as far as practicable to fill 50 per cent of the substantive vacancies from the open market, but failed during the

years 196062 and that therefore it was within its powers under the relevant rule to promote mamlatdars who, otherwise, complied with the

requirements of efficiency. Thus when recruitment is from two independent sources, subject to prescribed quota, but the power is conferred on the

Government to make recruitment in relaxation of the rules, any recruitment made contrary to quota rule would not be invalid unless it is shown that

the power of relaxation was exercised mala fide. It was held:

(i) The quota system does not necessitate the adoption of the rotational rule in practical application. Many ways of working out 'quota' prescription

can be devised of which rota is certainly one.

(ii) While laying down a quota when filling up vacancies in a Cadre from more than one source, it is open to Government, subject to tests under

Article 16 of the Constitution, to choose 'a year' or other period or the vacancy by vacancy basis to work out the quota among the sources. But

once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free

play in choosing one or other of the familiar processes of implementing the quota rule. The court cannot strike down the particular scheme because

it is unpalatable to forensic taste.

(iii) Seniority, normally, is measured by length of continuous, officiating service the actual is easily accepted as the legal. This does not preclude a

different prescription, constitutionality test being satisfied.

(iv) A periodisation is needed in this case to settle rightly the relative claims of promotees and direct recruits, 196062 forms one period (period A)

and 1962 onward's forms another period (period B). Promotees regularly appointed during period A in excess of their quota, for want of direct

recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for

seniority even against direct recruits who may turn up in succeeding periods.

(v) Promotees who have been fitted into vacancies beyond their quota during the period B the year being regarded as the unit must suffer survival

as invalid appointees acquiring new life when vacancies if their quota fall to be filled up. To that extent they will step down, rather be pushed down

as against direct recruits who were later but regularly appointed within their quota"".

The State Government was directed to draw up de novo, a gradation list showing inter se seniority on the above lines.

In B. S. Yadav v. State of Haryana, (1981) 1 SCR 1024: (AIR 1981 SC 561), which related to confirmation, the earlier decision in

Chauhan's case (AIR 1971 SC 251) was reiterated and Chandrachud, C. J. speaking for the Court observed that Quota rule and the rota rule

must be applied in a practical fashion so as not to cause injustice to any employee. The Court held:

the application of Rota system at the stage of confirmation is beset with practical difficulties. For example, if vacancies in the quota of direct

recruits cannot be filled for 2 or 3 years for the not uncommon reason that direct recruits are not available and during that period several vacancies

occur in the quota of promotees who have been officiating continuously for two or three years, can the postponement of the confirmation of such

promotees against vacant posts in their quota until the direct recruits are appointed and become eligible for confirmation on completing the

prescribed period of probation, be justified on any reasonable ground? Is it proper and fair to defer the confirmation of the promotees merely

because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by

rotation? This, precisely, is what the High Court has done by the impugned notification dated 2581976 and that is the reason why it has not

confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.

We are of the opinion, on a proper interpretation of the rules, that promotees are entitled to be confirmed in the vacancies which are available

within their quota of 2/3rd. whether or not l/3rd of the vacancies are occupied by confirmed direct recruits. And similarly, direct recruits are

entitled to be confirmed in vacancies which are available within their quota of l/3rd, whether or not 2/3rd of the vacancies are occupied by

confirmed promotees. What we find lacking in justification is the refusal of the High Court to confirm the promctees even if vacancies are available

in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time,

without the confirmation of a proportionate number of direct recruits. The fairness which Articles 14 and 16 postulates is that if a promotee is

otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought

not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for

confirmation"".

These authorities, and similar other cases on the subject would show that the Supreme Court has stressed that the quota rule should be

strictly followed and if it was violated in favour of a particular group by recruitment in excess of the quota, then the excess recruits could not take

advantage of the infraction by claiming seniority on the basis of their earlier entry into service compared to those of the denied group whose entry

was deferred for some reason.

In V. B. Badami v. State of Mysore AIR 1980 SC 1561 the Court laid down the following principles to working out the quota rule:

First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear

vacancies in the permanent strength of the cadre;

Second, confirmed persons are senior to those who are officiating;

Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service;

Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies,

the promotion is either by selection or on the principle of senioritycummerit. A promotion could be made in respect of a temporary post or for a

specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise

at or about the period of probation is expected to be completed.

Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The

promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies

which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota.

Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies

within their quota in the facts and circumstances of a case.

The Court observed:

The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota

of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between 11 September,

1959 and 26 October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26 October, 1964 will not rob

the direct recruits of their quota which remained unfilled from 2 December, 1957"".

After Badami 's case the Apex Court reiterated its view in a number of other cases.

In T.N. Saxena u. State of U.P., AIR 1982 S C 1244 it was held that the quota rule and the rota rule must be applied in a practical fashion

so as no to cause injustice to any employee. In that case the candidates had passed the High School Examination and entered the service of the

Government as Marketing Inspectors under the establishment of Food and Supplies Department on various dates and were later confirmed on

these posts. The next higher post in the hierarchy of the Department was that of Senior Marketing Inspector and previous to the year 1964 these

posts were filled entirely by promotion from Marketing Inspectors. As the employees were already confirmed in their original post of Marketing

Inspector, they were promoted to the rank of Senior Marketing Inspectors with effect from Sept. 1964 and since then had been holding the post

until their further promotion as Deputy Marketing Regional Officers in June 1974. Right from 7121944 up to Sept. 1964 the criteria for

determining the seniority of the aforesaid employees was total length of service including identical and higher scale of pay. The employees fulfilled

both these criteria mentioned. Sometime in 1964, however, the Government took a policy decision that so far as the cadre of Senior Marketing

Inspectors was concerned, the posts would be filled by two sources, viz., (1) promotion and (2) direct recruitment in the ratio of 50:50. The posts

of the Senior Marketing Inspector at the time of the new policy taken by the Government were increased and the employees had been promoted

purely in the quota when the Government decided to recruit the other 50% by direct recruitment. However after the direct recruits were taken as

Senior Marketing Inspectors, sometime after 1970 they were put above the employees who, by the time the direct recruits were appointed, had

already been promoted even to a higher post, viz., Deputy Marketing Regional Officers. The employees had not exceeded their quota of 50 %

when they were promoted as Senior Marketing Inspectors. They were promoted as Senior Marketing Inspectors long before the Government

evolved the policy of filling up the posts of Senior Marketing Inspectors by direct recruits. None of them had encroached on the 50% quota which

was reserved for direct recruits under the new Rules framed by the Government.

It was held that in these circumstances, it was not open to the Government to prepare a seniority list by pushing the promotees far below the

position of seniority which they would legally occupy merely to accommodate the direct recruits. The rule of alternate seniority does not mean that

the genuine seniority based on length of service by a previous employee should be completely overlooked or obliterated. The quota rule and the

rota rule must be applied in a practical fashion so as no to cause injustice to any employee.

Held further if the rota and the quota rules are properly interpreted, the Government order cannot be said to be bad or legally invalid. The

defect lay in the Government itself misconstruing its own order while issuing the seniority list.

In A. Janardhana v. Union of India AIR 1983 SC 769 it was held that where the quota rule is linked with the seniority rule if the first breaks

down or is illegally not adhered to giving effect to the second would be unjust, iniquitous and improper. I was held:

In the '1949 Rules' which came into force on April 1, 1951, a provision was made for determining inter se seniority between direct recruits and

promotees. In para 3 (ii) of AppendixV of 1949 Rules' it was provided that a roster shall be maintained indicating the order in which appointments

are to be made by direct recruitment and promotion in accordance with the percentages fixed for each method of recruitment in the recruitment

rules. The relative seniority of promotees and direct recruits shall be determined by the dates on which the vacancies reserved for the direct recruits

and the promotees occur. It would appear at a glance that this rule was related to the quota of 9:1 between direct recruits and promotees

prescribed in R. 4. A combined reading of Rule 4 and para 3(iii) of Appendix V would clearly show that a roster has to be maintained consistent

with the quota so that the relative inter se seniority of promotees and direct recruit be determined by the date on which vacancy occurred and the

vacancy is for the direct recruit or for the promotees. If quota prescribed by Rule 4 was adhered to or was inviolable, the rule of seniority

enunciated in para 3(iii) of Appendix V. will have to be given full play and the seniority list has to be drawn in accordance with it. But as pointed

out by this Court in Bachan Singh's case, (AIR 1973 SC 441), during the years 1959, 1969 and especially during 1962,1963 and 1964 on

account of adverse market conditions for recruitment of engineers, the Government had to make recruitment in complete relaxation of Rr. 3 and 4

including the relaxation of the quota rule. As quota rule was directly interrelated with the seniority rule, and once the quota rule gave way, the

seniority rule enunciated in para 3(iii) of AppendixV became wholly otiose and ineffective. It is equally well recognised that where the quota rule is

linked with the seniority rule if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, inequitous and

improper.

It was further held that a direct recruit who comes into service after the promotee who was already unconditionally and without reservation

promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or nonstatutory rules should not be permitted

by any principle of seniority to score a march over a promotee because that itself being arbitrary would be violative of Articles 14 and 16.

In Paramjit Singh Sandhu v. Ram Rakha Mai AIR 1983 SC 314, it was held that ordinarily speaking, where recruitment is from two sources

with a view to integrating recruits from both sources after the recruitment seniority is determined from the date of entry into the cadre except where

there has been a substantial violation of the quota giving undeserved advantage to one or the other source. It was further said that while making

recruitment quota rule is required to be strictly adhered to and the quota rule would apply to vacancies and recruitment has to be made keeping in

view the vacancies available to the two sources according to the quota. The Court held:

Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of

continuous officiation. These notions of service jurisprudence may have to yield place to the specific rules and the fact situation with reference to

Rule 10 did compel this Court to depart from the normal concept in service jurisprudence. However, introduction of a roster system is very well

known in service jurisprudence. What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that

quota should be correlated to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant

because retirement from service may not follow the quota rule. Promotees who come to the service at an advanced age may retire early and direct

recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees

retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited it would substantially disturb the

quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered to. That was what was meant by this Court when

it said: ""The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources

according to the quota."" The quota in the present case is 4:1 that is, four promotees to one direct recruit. Therefore, whenever vacancies occur in

the service the appointing authority has to go on recruiting according to quota. In other words, whenever vacancies occur, first recruit four

promotees irrespective of the factors or circumstances causing the vacancies and as soon as four promotees are recruited bring in a direct recruit.

That was what was meant by this Court when it said that a roster has to be introduced and this roster must continue while giving confirmation. The

sentence which seems to have created a difference of opinion reads as under: ""A roster is introduced while giving confirmation ascertaining every

time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source.

The sentence cannot be read in isolation. It has to be read with the earlier sentence that the quota rule would apply to the vacancies and

recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. The Court then proceeded to say

that if the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of

confirmation.

Introduction of a roster system is well known to service jurisprudence. When a roster is to be introduced it only means that ascertain the

available number of vacancies and proceed to make recruitment keeping in view the quota. Now, if recruitment is strictly made according to quota

there will be no difficulty in applying the very rule of quota even while giving confirmation. To illustrate, assuming there are five vacancies in a

givenperiod, the recruitment will be four from the cadre from which promotion can be given and one would be a direct recruit. Naturally when the

date of confirmation comes it would obviously follow that confirmation will proceed along that very fine. In our opinion, therefore, there is neither

any ambiguity nor any blurred area which requires to be explained"". This judgment is to be read in continuation to AIR 1979 SC 1073.

In P. S. Mahal u. Union of India AIR 1984 SC 1291, cited by the Petitioners (DR), the Court observed:

Now there can be no doubt that a rule of seniority based on rotation of vacancies according to the quota prevailing at the time would be

constitutionally acceptable if the quota rule were strictly implemented, barring minor deviations. It is well settled as a result of several decisions of

this Court that there is nothing inherently wrong in working out the quota rule by adopting the rotational rule of seniority. But, as pointed out by this

Court in TV. K. Chauhan v. State of Gujarat (AIR 1977 SC 251) (supra) quota is not ""so interlocked with rota that where the former is expressly

prescribed the latter is impliedly inscribed"". The quota rule does not inevitably invoke the application of the rotational rule of seniority. Even where

a quota is prescribed for recruitment from different sources there may be different modes proscribed for determining seniority of officers on entry

into the cadre.

We have already pointed out that there is no inherent vice in the quota rule being operated through the rotational rule of seniority. Where the

rotational rule of seniority is adopted, the relative seniority of promotees from different sources has to be determined on the basis of a roster

maintained in accordance with the quota rule, so that when promotion of an officer is regularly made within his quota, he is fitted into the vacancy

reserved for promotees from his source and his seniority is reckoned from the date when such vacancy arose. But this rotational rule of seniority

can work only if the quota rule is strictly implemented from year to year. Some slight deviations from the quota rule may not be material but as

pointed out by Palekar, J. in the Bishan Swarup Gupta's case, ""if there is enormous deviation, other considerations may arise"".

In G. S. Lamba v. Union of India AIR 1985 S C 1019 there was a breakdown of the 'quotarota' Rule as it had not been followed. The

problem was how was seniority to be determined between directrecruits and promotees. D. A. Desai, J. with whom Khalid, J. agreed after

noticing the decisions in B. S. Gupta v. Union of India, 1975 Suppl. SCR 491: (AIR 1972 SC 2627), A. K. Subramana v. Union of India (1975)

2 SCR 979 : (AIR 1975 SC 483). P. S. Mahal v. Union of India, AIR 1984 SC 1291. Janardhana v. Union of India (AIR 1983 SC 769), O. P.

Singla v. Union of India AIR 1984 SC 1595 observed:

In the absence of any other valid principle of seniority it is wellestablished that the continuous officiation in the cadre, grade or service will provide

a valid principle of seniority. The seniority lists having not been prepared on this principle are liable to be quashed and set aside.

In H. V. Pardasani v. Union of India AIR 1985 SC 781, relied upon by the petitioners (DR), it was held that where recruitment to a service

or a cadre is from more than one source, the controlling authority can prescribe quota for each source. It is equally correct that where the quota is

prescribed, a rule of seniority by rotating the vacancies can be a valid rule for seniority. But if the rule of seniority is inextricably intertwined with the

quota rule and there is enormous deviation from the quota rule, it would be unjust, inequitous and unfair to give effect to the rota rule. In giving

effect to the rota rule after noticing the enormous departure from the quota rule would be violative of Articles 14 and 16.

The Court held that:

where recruitment to Intergrated Grades II and III was to be from three sources : (I) 1/6th of the substantive vacancies to be filled in by direct

recruitment on the result of a competitive examination to be held by the Union Public Service Commission, (ii) 331/3% of the remaining 5/6th of

the vacancies had to be filled in by bringing them on the Select List on the basis of the results of a limited competitive examination and the remaining

vacancies to be filled in by promotion on the basis of seniority from specified Grades and promotions had been in excess of the quota for years but

the promotees were appointed to substantive vacancies in the service and had been holding the posts for over 6 to 8 years and the promotions

were not temporary, ad hoc or stopgap and direct recruitment had not been made for years and limited competitive examination had also not been

held for years and in the seniority list placements at certain Sr. Nos. has been kept vacant and those places were to be filled in by direct recruits

who would join at some future date not specified, it being clearly a case either of nonimplementation of the quota rule or malfunctioning of the

quota rule and yet the rota rule being adhered to, both impermissible under the Rules as well as unjust, unfair and inequitous being violative of Arts.

14 and 16, the seniority list was liable to be quashed. In such a case, assuming that quota rule was mandatory in character, its departure must

permit rejection of rota rule as a valid principle of seniority.

The matter can be viewed from a different perspective. Rule 29(a) indisputably confers power to relax any of the provisions of the Rules which

shall also comprehend Rule 13(1) which prescribes the quota, undoubtedly, when the power to relax any of the provisions of the Rules is

exercised, the controlling authority must be of the opinion that it is necessary or expedient so to do for reasons to be recorded in writing before

exercising the power. It is well settled that failure to record reasons will not invalidate the exercise of power. Once the power to relax a given

mandatory rule exists and an action in derogation of the rule has been repeatedly taken year after the year, it would be a permissible inference that

the action was taken in relaxation of the rule for which the power exists and in this case is located in Rule 29(a). To hold otherwise would be to

come to a rather disconcerting conclusion that a body like the Government of India acted deliberately in contravention of the mandatory rule from

year to year. It would as far as possible be proper to avoid such an inference unless it is inescapable. A body like the Government of India

presumably knew that there is a statutory quota for recruitment but it also presumably knew that it had power to relax and for exigency of service

repeatedly acted in derogation of the quota rule, and therefore, it would be permissible to infer that the action was taken in relaxation of the

mandatory quota rule. In such a case, assuming that the posts in Integrated Grades II and III were within the purview of the Union Public Service

Commission and further assuming there was failure to consult the Union Public Service Commission before exercising the power to relax the

mandatory quota rule the action taken would not be vitiated nor would it furnish any help to Union of India which itself cannot take any advantage

of its failure to consult the Commission. Approaching the matter from a slightly different angle R. 21(4) and R. 25(1)(ii) bearing on the question of

seniority can both be harmoniously read because they operate in two different areas. Rule 21(4) provides that subject to other provisions of this

rule (not all rules) persons promoted or recruited earlier on the basis of earlier selection or recruitment shall be senior to those promoted or

recruited on that basis of subsequent selection or recruitment. If the expression 'selection' refers to those promoted via the select list and the

expression 'recruitment' refers to those entering service by direct recruitment, in view of R. 21 (4) those who enter service by 'recruitment' or

'selection' at any time will always necessarily be senior to those promoted or recruited on the basis of a subsequent selection or recruitment. This is

what Rule 21 (4) provides.

In terms it caters to a situation where recruitment or selection is at intervals with a time lag. Vacancies in the cadre or the grade arise every year.

Normally the substantive vacancies in the cadre have to be filled in as they occur or within a reasonable time. The process of selection and

recruitment must continuously be in operation roughly from year to year. By the impact of Rule 21(4). The selection or recruitment of one year shall

have precedence over selection or recruitment of the next year and this is what is known in service jurisprudence as seniority according to

continuous officiation in the cadre or the grade which has been statutorily recognised in subrule (4) of Rule 21. This is in tune with fair play and

justice and ensures equality as mandated by Article 16. Now R. 25(1) (ii) provides for integrating direct recruits and persons entering via the select

list to a grade. It is implicit in subclause (ii) of Rule 25(1) that it would operate at a time when in a given year almost simultaneously or within an

measurable distance from each other recruitment is made from all the other sources. To illustrate: if in a given year candidates are selected for

appointment to the grade by direct recruitment as also by holding the limited competitive examination and giving promotion and if all the three enter

the service or the grade at or almost at the same time or within the year and within a reasonable time lag from each other, a question is bound to

arise how to integrate all of them entering service form different sources in the common seniority list. Rule 25(l)(ii) caters to this situation and helps

in integrating appointees from three sources to be integrated into common seniority list according to quota. Now contrast R. 25(1)(ii) with Rule

21(4) and the meaning of Rule 25(1)(ii) reveals itself and becomes clear and understandable. A block of recruits in a given year coming from three

independent sources may be integrated inter se according to quota and rota. The block in subsequent year would be always junior to the block of

recruits in the earlier years. This is how

Rules 21(4) and 25(1)(ii) can be harmoniously read and it is unquestionable that they operate in two different situations and both have to be given

effect to.

In Pran Krishan Goswami v. State ofW.B.AIR 1985 SC 1605:

The proposition is now undisputed, and, indeed none of the Counsel who appeared before us disputed it, that in the absence of Rules to the

contrary regulating the question of seniority between 'directrecruits' and the 'promotees', the general principle to be implied and followed to

determine seniority is to base it on continuous officiation, in nonfortuitous vacancies"".

In Masood Akhtar Khan & ors v. State of Madya Pradesh & ors (1990) 4 SCC 24, it was observed that Direct Recruit Class II Engineering

Officer's Association v. State of Maharashtra (1990) 2 SCC 715, D.N. Agrawal v. State of Madhya Pradesh (1990) 2 SCC 553 and Union of

India v. Ansusekhar Gain (1989) 1 SCC 283 unequivocally make it clear that if the initial appointment is not made according to the Rules,

subsequent regularization of service of an employee does not entitle him to the benefit of intervening service for seniority.

Much of the controversy relating to the application of the quota rule and the effect of its violation has been settled by the 5 Judge Bench

judgment of the Supreme Court in the land mark judgment of Direct Recruit ClassH Engineering Officers 'Association v. State of Maharashtra AIR

1990 SC 1607, where it was held:

To sum up, we hold that:

(A) 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.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly

till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules

are framed in this regard they must ordinarily be followed strictly.

In Union of India v. S.K. Sharma (1992) 2 SCC 728, cited by the petitioners (DR), the Supreme Court found that the respondents, who

were not regularly appointed, were not entitled to claim seniority on the post of Professor.

The Constitution Bench decision in Direct Recruit Class11 Engg. Officers Association's case was considered by a 3Judge Bench of the Apex

Court in State of West Bengal v. Aghore Nath Dev, (1993) 3 SCC 371 and principles (A) and (B) were explained as under:

There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly

excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted

from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according

to rules'. The corollary set out in conclusion (A), then 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 posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A)

expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap

arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts

cannot be taken into account for counting the seniority.

It was also explained as under:

The conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of

certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial

appointment is not made by following the procedure laid down by the 'rules' and the latter expression 'till the regularisation of his service in

accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial

appointment is made against an existing vacancy, not limited to a fixed period of item or purpose by the appointment order itself, and is made

subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at

the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in

such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms

of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rule has

to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till

the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural

requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a

regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest.

In Y. H. Pawar v. State of Karnataka AIR 1996 SC 3194, cited by the petitioners (DR), it was held that when the appointments are made

on ad hoc basis without conducting any competitive examination, the appoint ments cannot be considered to have been made on regular basis. The

Court observed:

It is contended by the learned counsel for the appellant that in view of the judgment of the Constitution Bench of this Court in Direct Recruit Class

H Engineering Officer's Association v. State of Maharashtra (1990) 2 SCC 715: (AIR 1990 SC 1607) where appointment was made on regular

basis, the seniority was required to be determined with effect from the initial date of appointment. We find no force in the contentions. As seen, the

appointments are made on ad hoc basis without conducting any competitive examination. As and when vacancy had arisen local candidates were

called from Employment Exchange and were appointed. Therefore, the appointments cannot be considered to have been made on regular basis.

When the Rules came to be made, all the appointments are sought to be regularised. The sanction given by the Government for such an

appointment is only to enable the candidates to continue till the statutory Rules are made to regularise the services"".

The Constitution Bench decision was followed in Keshav Dev v. State of U. P., (1999) 1 SCC 280 as also in Shri L Chandrakishore Singh

v. State of Manipur, 1999 AIR SCW 3631.

In Keshav Chandra Joshi v. Union of India AIR 1991 SC 284, cited by the Petitioners(DR), the appointment of the promotees as Assistant

Conservators of Forest was not in accordance with R. 5(b) read with Appendix 'B' of the rules. The promotions were on ad hoc basis pending

direct recruitment and were in excess of the quota prescribed under R. 6. It was held that it could not be said that the promotions were made to a

substantive post in accordance with the rules. Therefore, the promotees do not hold the post in substantive capacity and entire length of such

service cannot be counted for seniority.

In Union of India v. S.D. Gupta AIR 1996 SC 3325 it was held:

It is seen that admittedly the vacancies for the promotees had arisen on May 3, 1979, and thereafter V. P. Misra is entitled to the vacancy that

arose on that date. Therefore, when the interseseniority is determined between the promotees to the substantive vacancies that have arisen on May

3, 1979 and thereafter, though the direct recruits were recruited later, their fitment in the order of seniority should be determined with reference to

rota and quota prescribed under the aforestated administrative instructions and the statutory rules. It would appear that the Government of India

had worked out the rota and quota in tune with the above rules.

In C K, Antony v. B. Muraleedharan AIR 1998 SC 3136, cited by the petitioners (DR), the Supreme Court observed that a person, who

has been appointed to a service or post temporarily or provisionally as a stopgap arrangement, can never be considered as one, who has been

appointed to that post or service. If there is no substantive vacancy in the permanent cadre available, no direct recruitment can be resorted to. The

direct recruits should get substantive vacancies in the permanent cadre, while recruits by transfer can be adjusted against a permanent vacancy or a

temporary vacancy depending upon the vacancy position. The Court held:

A direct recruit to the cadre of A.C.F. can count seniority only with effect from the date of his appointment as a probationary Assistant

Conservator. A person, who has been appointed to a service or post temporarily or provisionally as a stopgap arrangement, can never, be

considered as one, who has been appointed to that post or service. If there is no substantive vacancy in the permanent cadre available, no direct

recruitment can be resorted to. The direct recruits should get substantive vacancies in the permanent cadre, while recruits by transfer can be

adjusted against a permanent vacancy or a temporary vacancy depending upon the vacancy position. A person, who gets a temporary

appointment or promotion, as the case may be, shall not be regarded as a probationer in that category and on account of that temporary

appointment or promotion; he cannot have any preferential claim to that post. Any commencement of probation for the purpose of counting

seniority must precede by an appointment in accordance with the rules. In case a temporary appointee is allowed to start his probation from a date

anterior to the date of his subsequent appointment in accordance with the rules, that should be without prejudice to the seniority of others in the

service, in this case, without prejudice to the seniority of direct recruits"". The Court further held:

An attempt was made to reconsider the ruling in Sanjay Thakre's case (supra) in M.S.L. Patil, Asstt. Conservator of Forests, Solapur

(Maharashtra) v. State of Maharashtra, (1996) 11 SCC 361. This Court while repelling such a plea, reiterated its earlier view in the following

manner:

In view of these contentions, the question that arises is whether the judgment of this Court has been vitiated by any error of law warranting

reconsideration at the behest of some of the persons who are not parties to the earlier proceedings? It is undoubted that they were not parties to

the earliest petition but this Court has laid down the general principle of law and, therefore, whether or not they are parties to the earlier

proceedings, the general principle of law stands applicable to every person irrespective of the fact whether he is a party to the earlier order or not.

It is not in dispute that there is a ratio prescribed for the direct recruits and the promotees, namely, 1:J. In other words, for every 100 vacancies the

promotees are entitled only to 50 vacancies. It is not in dispute that these promotees have been promoted in excess of the quota. Under those

circumstances, it is settled law that the promotees who are appointed in excess of the quota cannot get the entire length of service. Therefore, they

are required to be fitted into seniority according to the rules. As to what is the date on which the promotees or the direct recruits came to be

appointed into the respective quota is a matter of record and the seniority is required to be determined according to the law laid down by this

Court. In several judgments of this Court, it is now firmly settled that merely because of the fact that the State Government could not make direct

recruitment due to its inaction, it cannot be said that the rule of quota has been broken down. Therefore, as and when the direct recruitment has

been made, the direct recruits are entitled to placement of their seniority into the vacancies reserved for them as per the ratio and the seniority

determined as per the rules within the respective quota. Similarly, when the promotees came to be promoted in accordance with the rules in excess

of their quota, this Court stated in Keshav Chandra Joshi v. Union of India, (AIR 1991 SC284) through a Bench of three Hon'ble Judges, that the

promotees in excess of the quota cannot be given seniority from the respective dates of their promotions. They have to be considered only from

the respective dates on which their respective quota is available. The same decision was followed and reiterated in A. N. Sekgal v, Raje Ram

Shear an, (1991 AIR SCW 1246).

Under these circumstances, we do not think that the judgment of this Court is vitiated by any error of law for reconsideration. Even Rule 4, second

proviso has no application to the facts in this case. Rule 4 contemplates the seniority and second proviso postulates that when the recruitment could

not be made, they have to certify the ground on which it could not be made and thereafter the seniority has to be determined. In view of the law

now laid down, the certification of the nonmaking of direct recruitment according to rules, bears no relevance. The question of carry forward in this

case, as laid down in Mandal case, has no application for the reason that the recruitment in proportion is one of the methods of recruitment and is

required to be made. The balance posts are required to be recruited by subsequent publication and the promotees have no right to get into the post

reserved for the direct recruits. Mandal case concerns carry forward posts reserved under Article 3 6 (4) for Scheduled Castes, Scheduled Tribes

and other Backward Classes, which has nothing to do in this case. Though some of the grounds will be available to argue the case on merits, that

are no ground to reopen the settled law laid by this Court in earlier decision.

In Rudra Kumar Sain v. Union of India AIR 2000 SC 2808, cited by the promotees, five judges bench of the Apex Court observed that in

the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with

the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held

to be ""stopgap or fortuitous or purely ad hoc.

In Md. Israils v. State ofW.B. AIR 2002 SC 468 it was held that the inter se seniority of the direct recruits and the promotees has to be

worked out treating the services of the direct recruits from the date of their initial appointment and the services of the ad hoc promotees from the

date of their service being approved by the Public Service Commission. It was further held that promotion in favour of promotees purely on ad hoc

basis without consultation with the Public Service Commission cannot be held to be a regular service in the cadre and as such the same cannot be

counted for purposes of reckoning their seniority in cadre. Their year of promotion would be the year when the Public Service Commission

approves their promotion. Suraj Prakash Gupta v. State, 2000 held applies in peculiar circumstances only. The principles laid down in the case,

however, cannot be made applicable to the present case for the reasons mentioned in the said judgment itself.

In Santosh Kumar v. G. R. Chawla AIR 2003 SC 3304 it was held:

In the present case rule of the seniority clearly provides that seniority in any category or cadre post shall be determined from the date of the order

of substantive appointment. The posts of Drug Inspectors was within the purview of Public Service Commission. But, ad hoc appointments were

made. The said ad hoc appointments cannot be deemed to be the substantive appointments. It were in the nature of stopgap or fortuitous

appointments, hence the period during which ad hoc appointees worked, cannot be counted for the purposes of seniority.

In M Subba Reddy v. A.P.S.R. T.C AIR 2004 SC 3517 it was held by the majority judgment:

It is settled law that regularisation of the promotees with retrospective effect is permissible in law. It has also been held by Supreme Court that if

promotees occupied the quota belonging to the direct recruits they need not be pushed down whenever direct recruitment was made.

Very recently in Arvinder Singh Bains v. State of Punjab 2006 AIR SCW 2927 the Supreme Court took note of the judgments on the

subject in Mervyn Continho v. Collector of Customs, Bombay AIR 1967SC 52, MSubba Reddy & another v. A.P. State Road Transport

Corporation and ors. (2004) 6 SCC 729, Prafulla Kumar Das & ors. v. State of Orissa & ors. (2003) 11 SCC 614 and laid down as under:

(A) 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.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly

till the regularization of his service in accordance with the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules

are framed in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to, the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation.

In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irreversible

that the quota rule had broken down.

(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following

the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source

inducted in the service at a later date.

(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised, that there was

such relaxation when there is a deviation from the quota rule.

(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the

executive instruction has ceased to remain operative.

Having examined the legal position on the application of quota rule, the next question would arise as to how the seniority of the direct recruits

and the promotees is to be fixed. It is pleaded by the direct recruits (SWP No. 1420 of 1998) that while fixing the seniority system of rotation

should be applied and that the gradation list be arranged in such a way that there shall be one person from direct recruitment, other from

promotees.

The law on the subject is well settled now. One of the leading cases in this context is the case of Meruyn Coutinho v. Collector of Customs

AIR 1967 SC 52, In this case, appraisers in the customs department were recruited from two different sources namely, direct recruits and

promotees, 50% being reserved for direct recruits and 50% for promotees. As to seniority, it is so arranged that there is one person from the

direct recruits and one from the promotees alternately. That is to say, relative seniority of direct recruits and promotees was determined according

to the rotation of vacancies between direct recruits and promotees according to the roster where one direct recruit is followed by a promotee. The

Supreme Court held that this system of determining seniority did not violate the equality clause in the Constitution. The Court held that ""where

therefore recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be

fixed... by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of

opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the

9ther half of promotees...."".In the instant case, anomalies, however, arose due to insufficient recruitment of direct recruits. Such recruitment did not

keep pace with the quota fixed for the direct recruits. As a result, direct recruitment fell short of the quota fixed for it. But the Court was not

prepared on that ground to strike down the rotational rule for fixing seniority. The Court said, ""Any anomalies which may have resulted on account

of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system which, as we have

said, does not itself amount to denial of equality of opportunity in the matter of employment in government service"". Having held so, the Supreme.

Court also held that, if the short fall in direct recruits is subsequently made up, these subsequent direct recruits may be accommodated in the vacant

places in the roster caused by non recruitment of direct recruits.

In the instant case, promotees complained that, due to this, they found themselves below direct recruits recently recruited though they had served

as promotees for years preceding. The promotees complained that it amounted to carryover of vacancies which was frowned upon by the

Supreme Court in T. Devadasan v. Union of India and others AIR 1964 SC 179. The Court distinguished that case, however, by holding that in

that case ""certain quota is fixed annually for a certain class of persons and it is carried forward from year to year. This is very different from a case

where a service is divided into two parts and there are two sources of recruitment, one by promotion and the other by direct recruitment. In such a

case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the

matter of annual intake.... The petitioners therefore cannot get any assistance from Devadasan's case (supra)"".

The decision in Mervyn Coutinho v. Collector of Customs is important in more senses than one. This case also decides that where two

sources integrate in one cadre, there cannot be any question of any quota for promotion continuing between them. In the instant case. Appraisers

were recruited from direct recruits and promotees and the quota as between them had to be confined only in regard to promotion to that cadre.

But once promoted both direct recruits and promotees lost their separate identity and, in their next promotion to Principal Appraisers, the quota in

force for promotion to the grade of Appraisers could not be invoked or revived. In the words of the Supreme Court, ""the source of recruitment of

Principal Appraisers is one, namely, from the grade of Appraisers. There, is therefore no question of any quota being reserved for two sources in

their cases. The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment. In a

case therefore where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his

seniority in that grade according to the date of promotion subject to his being found fit and being confirmed in the higher grade after the period of

probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one.

There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade"". In

the instant case, the Supreme Court held that ""Appraisers selected for the post of Principal Appraisers must be treated equally. That means that

they will, rank in seniority from the date of their continuous acting in the Principal Appraisers' grade subject of course to the right of the

Government to revert any of them who have not been found fit during the period of probation. But if they arc found fit after the period of probation

they rank in seniority from the date they have acted continuously as Principal Appraisers whether they arc direct recruits or promotees"".

Though Mervyn Coutinho case allows fixation of seniority on rotational basis, the same is possible, as is evident from the judgment itself, only

when there exists a specific rule relating to such a fixation. In absence of a specific rule in this behalf, the principle of rotation of the vacancy cannot

be applied.

In the 1977 Rules we find such a provision does not exist at all so the fixation of seniority cannot be on rotational basis but the direct recruits

and the promotees will get adjusted on 50:50 basis against the vacancies available within their respective quotas.

The cases cited above lay down the following principles:

i. When recruitment of service is to be made from two or more sources the rules may fix a quota in respect of each of the sources according to

which such recruitment is to take place;

ii. When the quota is fixed for the two sources of recruitment the quota can not be altered according to exigencies of the situation;

iii. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule;

iv. Each quota would have to be worked independently on its own force. Thus when a particular quota is fixed for the promotees, the ratio is not

dependent on whether any direct recruit was appointed in any particular year or not or vice versa. The promotees are entitled to be promoted only

against the vacancies which fall within their quota in any particular years, whether or not there was direct recruitment by competitive examination in

that year;

v. As long as the quota rule remains neither promotee can be allotted to any of the substantive vacancies of the quota nor direct recruits can be

allotted the promotional vacancies;

vi. Where the promotees Cor the direct recruits) are promoted in excess of the prescribed quota, they should be held to have been promoted in

contravention of the quota rule;

vii. If promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular.

Similar will be the case with the direct recruits;

viii. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If a promotee occupies any

vacancy which is within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their

quota;

ix. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be pushed down and

absorbed in the vacancies within their quota in the subsequent years;

x. It is not correct to say that the rule of rota must necessarily be read into the rule of quota unless specifically provided by the rules.

If the promotees occupy vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will

occupy the vacancies within their quota and the promotees, who were occupying the vacancies within the quota of direct recruits, will either be

reverted or they will be absorbed in the vacancies within their quota, falling vacant in the subsequent years. This principle also referred to as

pushing down was accepted by the Apex Court in N.K, Chohan v. State of Gujarat AIR 1977 SC 251, P.S. Mahal v. Union of India AIR 1984

SC 1291, Sonal SehiMapa v. State of Karnataka AIR 1987 SC2359 and AwadPrasad Singh v. State of Bihar AIR 1990 SC 1256. The Apex

Court held that if promotion has been made in excess of the quota reserved for the promotees, the rule of pushing down will apply and their

regularisation could only take place against the vacancies arising for them in accordance with the prescribed quota.

Situation may arise when there is break down of quota rule and the appointments are made from one source in excess of the quota but if such

appointments are made after following the procedure prescribed by the rules for appointment, the appointees cannot be pushed down below the

appointees from the other source inducted in the service at a latter date. For various reasons the Executive might fail to implement the quota rule

and recruit from a particular source in excess of the quota assigned to it. The person so inducted in violation of the prescribed quota cannot be held

responsible for this irregular entry. Exigencies of administration might give rise to an emergent situation calling for immediate recruitment without the

risk of delay involved in completion of formalities for direct recruitment or for regular promotion. If in meeting this compulsive situation, the

administration keeps the quota rule aside and recruits promotees not in accordance with the prescribed quota but to fulfill its administrative needs,

it would be totally unfair and unjust to deprive those promotees of the service rendered by them after such promotion and till the time they are

subsequently absorbed regularly within their lawful quota. Such an action is permissible only when there is break down of the quota rule. The

Supreme Court has dealt with this situation in the Direct recruits case (supra) and held as under:

(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation.

In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible

that the quota rule had broken down.

(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following

the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source

inducted in the service at a later date.

(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such

relaxation when there is a deviation from the quota rule.

(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.,

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the

executive instruction has ceased to remain operative"".

On going through the facts of the cases we find the quota rule has not broken down in the present case. No doubt there has been delay on

certain occasions in making selection of direct recruits but that in itself would not amount to breaking down of the quota rule.

The information contained in Government Order No. Rev (Gaz) 103 of 2002 dated 24.5.2002 regarding the appointments made to the

Service would show that in the year 1977 the total vacancies available were 22 out of which 14 were for Direct Recruits while as 8 were of

promotees. Out of these 20 appointments were made from direct recruits and 2 appointments were made from the promotees. In the year 1978

neither any post was available nor were any appointment/promotion made. In the year 1979, 38 vacancies became available out of which 13 were

from DRs quota and 25 from the promotees quota. Promotee quota was utilized in full while as no post of DRs was filled up. In the year 1980, 12

vacancies were available out of which 6 were from DRs quota and 6 for promotees. Thus the total vacancies from DRs quota available were 19

(i.e 6+13 of the year 1979). Out of these only 6 posts of promotees were filled up. In the year 1981, 11 vacancies became available raising the

DRs quota to 24 out of which no post was filled up while as all the 6 posts available to the promotees were filled up. Again in the year 1982, 29

posts became available out of which 15 belonged to the DRs. All these posts however remained unutilized raising the total to 39 (i.e, 24+15) while

as all the 14 posts of promotees quota were filled up.

In the year 1983,6 posts became available in the ratio of 3:3. No appointment from DRs side was made while as all the posts of promotees were

filled up. Since no DR was appointed, the number of posts for DR got raised to 42. Thus in the year 1984,42 posts of DRs were available. In that

year four more vacancies became available out of which one vacancy went to the quota of DRs raising the number of DRs vacancies to 43. In that

year too 3 vacancies of promotees became available which were utilized in the same year. Out of the 43 vacancies of DRs, 34 vacancies were

utilized. Remaining 9 vacancies were carried forward to the year 1985. In that year the total vacancies available were 49 out of which 25 posts fell

to the share of DRs and 24 posts to the share of promotees. Out of 25, one post of DRs was utilized while as all the 24 posts of promotees were

utilized. In the year 1986 no post of DR was utilised while as in the year 1987, 3 posts of DRs were utilized. In that year 10 posts of promotees

became available and were utilized. Thereafter during the years 1988, 1989, 1990, 1991 no post of DRs was utilized but in the year 1992, 17 out

of 41 available posts of DRs were utilized. During the period 3 posts out of 3 posts in the year 1990, 2 posts out of 2 posts in the year 1991 and 7

posts out of 7 posts in the year 1992 from promotees quota were utilized. From 1994 to 1998 no post of DRs was utilized but in year 1999 21

out of available 55 posts of DRs were utilized. During this period 8 posts out of available 8 posts in the year 1994,3 posts out of available 3 posts

in the year 1995, 5 posts out of available 5 posts in the year 1996, 29 posts out of available 29 posts in the year 1997 and 3 posts out of 3

available posts in the year 1998 were utilized out of promotional quota. In the year 1999, only 1 post of promotees quota was available which was

utilized in that very year.

On going through the replies submitted by the Government in these proceedings from time to time we find no cause much less a sufficient

cause is shown for delay in filling up the DR posts which could show that there was a break down of the quota rule. We do not find any assertion

on the part of the Government that the direct recruitment was not possible or that such recruitment had become impracticable. Almost a similar

situation arose in Suraj Parkash Gupta v. State of Jammu and Kashmir, AIR 2000 SC 2386 where the Apex Court held that the lethargy of the

State Government and its inaction and its not asking the service commission to make direct recruitment, is no cause to hold that the there is break

down of quota rule.

Similar observation was made in M. Subba Reddy v. A.P.S.R.T.C AIR 2004 SC 3517 where the Court held that where there is inaction on

the part of the Government or employer or imposed ban on direct recruitment, in filling up the posts meant for direct recruits, it cannot be held that

the quota has broken down.

Since the quota has not broken down in the present case, appoint ments/promotions made to the post of Tehsildar should be taken as on

50:50 basis and the seniority of such appointees/promotees worked out on that basis only. Applying this principle we find that the seniority lists

issued from time to time, impugned in these proceedings are not in accordance with the rules hence can not be allowed to stand. The same are

therefore set aside.

In such circumstances the findings arrived at by the Id. Single Judge (Judgment dated 1372001) that the challenge made by the direct recruits

or by the promotees to the dates of regularisation given to the promotees is without any basis. The date which was given is found to be correct'

cannot stand and are, therefore, set aside. The LPA's filed by the direct recruits and the promotees to that extent stand allowed.

On the reasoning recorded by the Id. Single Judge to hold that direct recruits shall be deemed to have been appointed with effect from the

dates their counter parts who had taken part in the competitive examination came to be appointed' we find the finding cannot be interfered with as

the same is in accordance with the settled principles of law. We, therefore, uphold the same and dismiss the LPA of the State challenging the same.

We find the main issue raised in almost all the petitions is regarding the proper placement of the promotees and the direct recruits in the

seniority lists. Once the seniority is properly fixed, the consequent benefits of higher grade, promotion and induction in to the KAS will become

available to the eligible officers. Thus a proper seniority list in accordance with the rules is required to be framed afresh.

Record of the cases would show that in certain cases the Courts have passed judgments/issued directions, some of which have even become

final. All such judgments which have attained finality should be complied with while preparing a revised seniority list. Similarly all direct recruits who

as a result of such revision in the seniority list, are placed senior to a promotee, shall get service benefits like higher grade, promotion and induction

in to the KAS, if already given to and availed of by such a promotee.

Grant of higher grade or promotion shall, however, be subject to qualifying any examination as prescribed under the rules for such direct

recruits.

We are conscious of the fact that with the redrawl of the seniority list, most of the promotees, who have been promoted or inducted into the

KAS on the basis of existing seniority, may get effected. But that can not be helped. They cannot be allowed to continue at the present place of

seniority at the cost of the rights of the direct recruits. We only wish that the Government may, while considering the matter try to adjust them on

the positions held by them and as far as practicable try not to oust them lest it may cause humiliation to and dissatisfaction amongst them. In case

the situation permits the Government may consider sanction of supernumerary posts for them in case any of such promotees is under a threat of

reversion. We however leave it to the Government to deal with the matter and adjust such promotees, if any, in a just and suitable way without

causing any prejudice to the rights of the direct recruits.

The petitioners (DR) have, in petition SWP No. 1420 of 1998 (out of which LPA (S) of 412 of 2001 arises), SWP No.1859 J of 2004,

SWP No.858 J of 2004, SWP No.857 J of 2004 and SWP No. 1556 J of 2004 challenged the legality of the Government Orders No: Rev (A)

92 and 93 of 1992 dated 1771992, Government Orders No: Rev (A) 38 of 1994 and (A) 29 of 1994 dated 1821994, Government Order No:

Rev (A) 128 of 1997 dated 176 1997, GovernmentOrder No: Rev (A) 134 of 1997 dated 2461997, Government Order No: Rev (A) 142 of

1997 dated 3061997, Government Order No: Rev (A) 1854GAD of 1997 dated 26111997. Besides the Government Order No: Rev (Gaz) 173

of 2003 dated 2182003, Government Order No: Rev (Gaz) 229 of 2004 dated 6102004, Government Order No: Rev (Q) 342 of 1984 dated

16101984, Government Order No: Rev (A) 221GR of 1986 dated 1481986, Government Order No: Rev (A) 147 and 148 of 1988 dated

1461988, Government Order No: Rev (A) 149 of 1988 dated 1461988, Circular No: Rev (A) 54/88 dated 2941989, Government Order No:

Rev (A) 52 of 1991 dated 212 1991, Government Order No: Rev (A) 171 of 1991 dated 691991 and Government Order No: Rev (A) 201 of

1991 dated 10101991 are also under challenge.

The Promotees too are aggrieved of the Government Order No: Rev (A) 128 of 1997 dated 1761997 and Government Order No: Rev (A)

134 of 1997 dated 2461997. Promotees Qamaruddin and others have through LPA 415 of 2001 (which arise out of writ petition SWP No. 1059

of 1997) prayed for quashment of these orders. Similarly Promotees Moti Singh and others have through petition SWP No. 855 of 2004

challenged the Government Order No: Rev (A) 128 of 1997 dated 1761997 and Government Order No: Rev (A) 134 of 1997 dated 2461997

and Government Order No: Rev (A) 1854GAD of 1997 dated 26111997. Other Promotees Abdul Kabir and others have through petition SWP

No.856 of 2004 challenged the Government Order No: Rev (A) 29 of 1994 dated 1821994. Both Moti Singh and Abdul Kabir have also prayed

that tentative seniority list dated 2741994 be treated as final and conclusive.

Out of these impugned orders the Government has now by means of Government Order No: Rev (Gaz) 103 of 2002 dated 2452002

ordered supersession of Government Order No: Rev (Q) 342 of 1984 dated 1610 1984, Government Order No: Rev (A) 221GR of 1986 dated

1481986, Government Order No: Rev (A) 171 of 1991 dated 691991 and Government Order No: Rev (A) 134 of 1997 dated 2461997.

We have given above the circumstances under which various orders, impugned in these petitions, came to be passed by the official

respondents from time to time. To appreciate the grounds raised by the parties to assail these orders we may briefly refer to the contents of these

orders and also to some other connected orders.

Under Government Orders No: Rev (A) 147, 148 and 149 of 1988 dated 1461988 about 20 Naib Tehsildars have been granted promotion

on regular basis with retrospective date. By means of the Government Order No: Rev (A) 147 of 1988 dated 1461988 respondents Badri Nath

Kaul, Sri Niwas Gupta, Dilawar Singh, Gian Singh, Badri Nath Tickoo, N.N. Raina, Isher Dass Padha, C.L. Kaul, Yash Paul Gupta, Haq

Nawaz, Noor Din Dand, Ghulam Ali Giri, Mohd Yousuf Andrabi, Mafiarban Singh and Joginder Kumar Sawhney have been promoted as

Tehsildars on regular temporary basis with effect from 1982.

By means of the Government Order No: Rev (A) 128 of 1997 dated 1761997 respondents namely Girdhari Lal Mangi, M.L. Bhat, Mohd

Ibraham, Mohd. Amin Andrabi, Mohd Rafiq Gani, Krishan Lal Sharrna, Janki Nath Dhar, Abdul Hamid Wani, Mohd. Sikandar Malik, Sujan

Singh, Tarloki Nath Bhat, Mulkh Raj Sharma, Attal Singh, Mohd. Amin Hakak, Omkar Nath Koul, Ghulam Ahmad Mir, Trawing Derje, Sat

Parkash, Bashir Ahmed ud Din Naqashbandi, Habib Ullah Mir, Siraj ud Din, Rattan Chand Khajuria, Ghulam Nabi Dar, Mohan Lal Koul, Pritam

Singh, Gh. Nabi Dar, Hem Raj Gupta, Shivban Ji Rivoo, Sohan Lal Raina, Romesh Chander Sharma, Krishan Singh Jamwal, Ghulam Rasool

Seikh, Ghulam Mohd. Malik, Ghulam Ahmad Gania, Makhan Lal Pandita, Dina Nath, Ghulam Mohd. Sheikh, Shrafat Ali Khan, AzizudDin, Nazir

Ahmad Parriary, Abdul Ghani, Ghulam Ahmad Malla, Harbajan Singh, Ajit Singh Jasrotia, Durga Nath Bhat, Punjab Singh, Prem Bhushan, Dalip

Singh, Abdul Ahad Lone, Jaswant Singh, Soom Nath Raina, Nisar Hussain Gelani, Mohd Amin, Abdul Qayoom Mir, Balwant Raj, Tara Chand,

Brij Mohan Sharma, Roop Keishan Handoo, Gian Chand Sharma, Swaran Singh Jamwal, Shiv Rattan Singh, Nager Mai, FazalurRehman, Shiv

Raj Singh, Qadir Ahmed Malik, Abdul Kabir Wani, Daljit Singh Tiger, Faquir Mohammed, Krishan Kant Gupta, Mohan Singh, Mohd. Amin

Khan, Mohd. Maqbool Wani, Ghulam Mohd, Mir, Mohd. Sayed Khan, Mushtaq Ahmed Malik, Qamar Din Khan, Abdul Hafiz, Narayan Dutt

Sharma, ShafiqurRehman, Afroz Beg, Ali Mohd. Dar, Moti Singh, Ghulam Geelani Khan, Ghulam Hyder Mir, Khur sheed Ahmed Dar and

Mushtaq Ahmed Qazi have been regularized as Tehsildars in relaxation of rules with effect from 111984.

Vide Government Order No: Rev (Gaz) 173 of 2003 dated 2182003 the Government granted promotion to two Naib Tehsildars w.e.f

17121981 .Vide Government Order No: Rev (Gaz) 229 of 2004 dated 6102004 promotion has been granted to 4 persons as Tehsildars w.e.f

17121981. Thus the Government has in all granted promotion to 108 officers retrospectively. These officers substantively held the post of Naib

Tehsildar and were promoted in their own pay and grade as Tehsildar between the years 19791985 and under these orders the government has

accorded regularisation to their promotion from various dates indicated in the said orders.

By means of Government Order No: Rev (A) 52 of 1991 dated 2121991 respondent No.63 and by means of Government Order No: Rev

(A) 93 of 1992 dated 1771992 officers namely Mohd Ibrahim Khan, Mohd Rafiq Ganai, Ab. Hamid Wani, Krishan Lal Sharma, Mohd Amin

Andrabi, Sohan Lal Raina, Romesh Chander Sharma, Gh. Rasool Sheikh, Harbajjan Singh, Durganath Bhat, Dalip Singh and Abdul Qayoom and

by means of Government Order No: Rev (A) 28 of 1994 dated 1821994 and Government Order No: Rev (A) 29 of 1994 dated 1821994 other

promotees have been promoted to the posts of Assistant Commissioners on stop gap arrangement and have been allowed to draw the charge

allowance.

Order No: Rev (A) 93 of 1993 dated 1731983 sanction has been accorded to the temporary promotion to the posts of Tehsildars of the

Naib Tehsildars mentioned in the order and vide order No: Rev (A) 92 of 1992 dated 1771992 pay scale sanctioned for the post of Tehsildars

has been released in favour of these Tehsildars with a retrospective dates shown in the order. Order No: Rev (A) 128 of 1997 dated 1761997 on

the other hand gives the date of regularization as 111984. The later order also contains names of the Tehsildars who find place in the earlier orders.

Thus in the case of these Tehsildars two dates of regularizations have been given. Promotees are aggrieved of the second order of regularization

vide order No: Rev (A) 128 of 1997 dated 1761997. According to them since they had already got the grade vide the earlier orders from the year

1983, there was no need of the order No: Rev (A) 128 of 1997 dated 1761997 and that the date of 111984 fixed by the later order is artificial,

unreal and arbitrary. They have, therefore, challenged the order No: Rev (A) 128 of 1997 dated 1761997.

The direct recruits have challenged these orders on the ground that these confer on the promotees regular status of Tehsildars in violation of

the rules which provide for regularization only through the Public Service Commission.

As observed above retrospective regularization of ad hoc/stop gap promotion is permissible by the rules. Rather non regularization or delay in

regularization of an employee, who is holding the post for a long period would amount to violation of Art. 14 and 16 of the Constitution. Reliance

in this behalf may be placed on I. J. Divakar v. Gout, of A.P. AIR 1982 SC 1555. The material issue in such cases would be as to with effect from

which date such regularization should be accorded.

The law is settled on the issue, as laid down by the Supreme Court, that regularization can be considered only from the date of the vacancy

within the quota. The previous promotion/appointment would be regular only from the date of the vacancy which arose within the quota.

The Government has reexamined the whole matter pertaining to placements of the petitioners (DR) and respondents (PR) in the seniority list

relating to the Service. By means of Government Order No. Rev. (Gaz) 103 of 2002 dated 2452002 sanction has been accorded to the redrawal

of the merit and tentative seniority of the members of the service ab intio from the initial constitution of the service.

Before proceeding further it may be noted here that both the petitioners (DR) and respondents (PR) have prayed for taking the copies of the

said order on file. Petitioner (DR) (Appellants in LPA 412/2001) have vide CMP No. 248 of 2002 (filed in LPA (SW) No. 412 of 2001) on

12.6.2002 sought permission of the court to place the order on record on the ground that 'the order may be of some assistance to the court'. The

petitioners (DR) have in the said CMP said:

That in the aforesaid appeal which is pending consideration, the State Government has issued a Government Order No. Rev (Gaz) 103 of

2002 dated 24,5.2002. It is a comprehensive order and is intended to tentatively determine the position of Revenue Gazetted Service from its

initial constitution and the exercise seems to have been undertaken by the Government pursuant to the decision of Hon'ble Supreme Court,

delivered in Suraj Prakash'SCase.

That the Government order so issued may be helpful to Hon'ble Court with regard to certain aspect of appeal pending consideration. It will also

help the Hon'ble Court to know as to how government has worked out vacancy position of direct recruit and promotees. As also the appointment

made thereto in each year. The order may be of some assistance to the Court, and it having been issued during pendency of appeal, it will be just

and proper to bring it to the notice of the court.

Similarly the respondents (PR) Moti Singh and ors (petitioners in SWP No. 855 of 2004) have through a CMP No. 761 of 2005, moved on

5.5.2005, prayed for permission to place on record various documents including Government Order No. Rev (Gaz) 103 of 2002 dated

24.5.2002. The respondents have stated that these documents had an important bearing on the controversy raised in the writ petition.

The petitioners (DR) have, however, during the arguments objected to their placements shown in the seniority list enclosed with the said

Government Order. In the written submissions submitted by them, they allege that their colleagues who have been appointed in the year 1984 as

direct recruits, their names have been mentioned in the tentative seniority list from serial No. 128 to 164 and that they (the appellants) should get

the placement in the seniority list as from serial No. 165 onwards. Similarly the promotees (petitioners of SWP No. 855 of 2004) have by a

separate CMP No. 801 of 2005 placed on record copy of the objections filed by the said promotees to the Pr. Secretary to Government Revenue

Department against Government Order of 103 of 2002. According to them the Government has, while determining the tentative seniority, not

taken into consideration the order passed in other petitions.

Except these objections to their placements in the seniority list appended to the said Government order, the direct recruits and petitioners of

SWP No. 855 of 2004 have not raised any objection to other parts of the order regarding initial constitution and the vacancy position of the direct

recruits and promotees.

Promotees QamarudDin and others (appellants in LPA (S) No. 415 of 2001 have, however, disputed the vacancy position contained in the

order and have, on the basis of affidavits submitted by the State from time to time worked out their own vacancy position. They have, in the written

submissions filed by Mr. U.K Jalali, learned Sr. Advocate, given the following vacancy position of the posts:

Total cadre strength as per SRQ 78 dated 26.2.1985.

Duty post = 122

Leave & Deputation Reserve = 12

Training Reserve = 12 Total = 146 Direct recruitment = 38 Promotion made = nil

Direct recruitment excess appointed: = 39 Excess

59(21+38)20

Vacancies available as on 1.1.1987

Promotion quota = 52

Direct Quota = 12

Total promotion made from 19771987: = 20

15+4+1:

Total Direct recruitment made from 1977 = 59

to 1987: = 21+34+3

Ratio prescribed in the recruitment rules = 50: 50

Excess direct recruitment made=5920 39

According to Mr. Jalali the vacancy chart sent by the Revenue Deptt. vide communication No. Rev (A) 20/89 dated 1141989 to the Chair

man, J & K Public Service Commission for the purpose of promotion of Naib Tehsildars to Tehsildar SCadre contain totally different information

regarding the number of the posts lying vacant. He has also referred to the affidavits/replies of Mr. Ahamdullah and Mr. R.C. Gupta, which

according to him give entirely a different position.

We have considered these submissions. We have also minutely studied the contents of the Government Order No. Rev. (Gaz) 103 of 2002

dated 2452002. We find a detailed exercise has been undertaken by the Government in working out the strength of the Service and the actual

number of posts/vacancy available from time to time. In view of the year wise details and utilization of the quotas given in the order we do not find

any objection to the information provided can be entertained. The information provided by the said order is so lucid and complete that we feel any

other information, if provided by the Government to the Court or to the Commission earlier has lost its significance now. In such circumstances we

find it safe to act upon the information provided by the Government in the said order.

As we have held that ratio of 50:50 was to be maintained in making the appointments/promotions to the post of Tehsildar in the Service, the

number of year wise vacancies available in the Service assumes significance.

The Government has in the said Order No. Rev. (Gaz) 103 of 2002 dated 2452002 given the details of the posts available and of the posts

filled up from the direct and promotee quota. The information provided can be shown in the tabular form as under:

DR PR

Available Utilised Balance Year Available Utilised Balance

Total vacancies available

39 25 14 1976 72 33 25 8

14 20 6 1977 22 8 2

ISIS Nil

13 13 1979 38 25 25

6 6+13=19 1980 12 6 6

5 5+19=24 1981 11 6 6

15 15+24=39 1982 29 14 14

3 Nil 3+39=42 1983 6 3 3

1 34 1+42=4334=9 1984 4 3 3

25 1 19=8+25=33 1985 24 24

10 10+33=43 1986

20 10 10

1 3 433=41 iasjz 11 r 10 10

41 1988 Nil

41 1989 Nil

41 1990 3 3 3

41 1SS1 2 2 2

17 4117=24 1992

v 7 7

24 1993 2 2 2

24 1994

8 8 8

24 1995 3 3 3

24 1296 5 5 5

28 28+2452 1997

57 29 29

3 a 3+52=55 1998 6 3 3

21 5521=34 1999 1 1 1

1 341 2000 5 5 5

1 31 33+1=3431=3 2001

8 7 7

Under the Jammu & Kashmir Revenue (Gazetted) Service Rules, 1976 the cadre strength of the Service (Tehsildars) as per Schedule A

annexed to the rules was as follows:

A. Permanent

Tehsildars Territorial 520900 46

Tehsildar Nazool Srinagar 520900 1

Headquarter Assistants to Deputy 520900 6

Commissioners

Total 53

B. Temporary

Instructor Revenue Trainings 520900 2

Schools, Jammu/Srinagar

Tehsildars (Consolidating Officers) 520900 4

Tehs.ldar Nazool Jammu 520900 1

Total 7

Plus 10% L.R & 10% T.R i.e 6+6 =12

Total 72

Besides the Tehsildars (520900), there were 25 posts of Additional Tehsildars in the grade of 475850 in the Temporary cadre.

At the time of framing of 1977 Rules and constitution of the Revenue i, Gazetted) Service, 51 Tehsildars were holding the posts of Tehsildars

(520900) as against the total number of 72 posts available in the Cadre. These 51 Tehsildars were made the members of the Service under Rule 6

of the rules. As such the ratio of 50:50 will have to be assumed to have been satisfied. This fact has been admitted even by the State in paras

17&18 of the Government Order No. 103 of 2002.

After adjusting 51 Tehsildars against the initial constitution, we are left with 21 posts of Tehsildars. In the same year one officer out of these

51 Tehsildars got inducted in the Kashmir Administrative Service due to which the number of vacant posts went up to 22. Annexure I to the

Government Order No: 103 of 2002 shows that out of the 22 posts 14 posts fell within Direct Recruitment Quota and 8 posts within the

promotees quota, which means that next 14 posts must go to the direct recruits. The said order would show that in the year 1977 there were 22

appointments to the service out of which 20 were the direct recruits and 2 were the promotees. Thus there was excess utilization of 6 posts by the

direct recruits. The proper way to fix the seniority would have been to first adjust 14 direct recruits against S.No.52 to 65 followed by 2

promotees against S.No.66 and 67 and then adjust remaining 6 direct recruits against S.No.68 to 73. These six direct recruits adjusted thus

against S.No.68 to 73 held the promotees quota posts till the promotees became available. In the year 1978 neither any post became available nor

were any appointment/promotions made to the services. But in the year 1979 a very significant development took place. 25 posts of Additional

Tehsildars got upgraded and were redesignated as Tehsildar by means of Government Order No: 481F of 1979 dated 5.10.1979 w.e.f 1.9.1979.

Thus these 25 posts were added to the cadre of Tehsildars due to which the number of posts of Tehsildars went upto 103 (i.e 60+25+18 L.R and

Trg. posts). With the redesignation of the posts of Additional Tehsildars as Tehsildars all the officers holding the posts of Additional Tehsildars

(whose list is given in annexure B to Government Order No: Rev(A) 187 ""of 1980 dated 20.6.1980) were designated as the Tehsildars and thus

became the member of the service. Out of the newly added posts 16 posts went to the share of direct recruits and 15 to the share of promotees.

In the same year one officer got retired and six were inducted in the KAS due to which 7 more posts became available. Out of which 3 posts went

to share of direct recruits and 4 posts to the share of promotees. Thus 19 (16+3) posts became available for direct recruits and 19 (15+4) posts

became available for promotees. Out of the 19 posts which thus became available for direct recruits 6 officers who were occupying promotees

quota in the previous year will get adjusted against the posts of their own quota from S.No.68 to 73. As against this on the 25 posts (i.e. 19 posts

of this year and 6 posts of previous year), available in promotees quota, 25 promotees will get adjusted from S.No.74 to 98. The last promotees

namely Mohmmad Sidiq Chadnoo has therefore rightly been placed at S.No.98 in the Government Order NO: 103 of 2002, in the year 1979.

In the year 1980,12 posts became available due to the retirement of 3 officers and induction of 9 officers into the KAS. Out of the 12 posts,

6 went to the direct recruits and 6 to the promotees. No direct recruitment took place during that year as the same was in process. However,

against the 6 posts of promotee's quota, six officers got promoted which are shown against S.No.99 to 104 of the said order. Six posts of direct

recruits thus remained vacant.

In the year 1981,4 new creations took place besides 7 posts became available due to the recruitment of 2 officers and induction of 5 officers

into the KAS. Out of these 5 posts (i.e., 2 out of the creations and 3 out of retirement/KAS posts) went to the direct recruits while as 6 posts (i.e.

2 out of the creations and 4 out of retirement/KAS post) went to the promotees. In that year too no direct recruitment took place and their posts

remained vacant while as all the six promotions took place. Thus the promotees got adjusted against S.No.105 to 110, again correctly depicted in

the said order.

In the year 1982,9 new creations were made which raised the total number of posts to 118 (i.e. 89 +9+20 LR & Trg. posts) as against 107

posts in the year 1981. Out of these six posts went to direct recruitment and five to the promotees. In that year 8 officers attained superannuation

and 10 officers were inducted into the KAS. Out of these 9 posts went to the direct recruits and 9 posts to the promotees. In that year too no

direct recruitment was made but as against 14 promotee quota posts, 14 officers were promoted as Tehsildars. Thus these 14 officers occupied

the promotees post from S. No. Ill to 124. These have been correctly shown in the order.

In the year 1983 one new post waSCreated and 5 posts fell vacant due to the retirement of 3 persons and induction into the KAS of 2

persons. Out of the total 6 posts which thus available 3 went to the direct recruits against which no appointment was made in that year and 3 posts

went to the promotees against which 3 promotions were made. Since 3 posts became available in the promotion quota S.No.125,126,127 will go

to the promotees while as the direct recruit posts will remain vacant.

Year 1984 is the most material year for the present case. In that year the selection process of direct recruits which was initiated in the year

1979 got completed. 34 direct recruits got appointed in the normal course. In that year the position of posts was as under:

Total cadre strength : 99

Training reserve : 10

Leave reserve : 10

Total : 119

Posts in position : 77

Retirement : 3

Induction into KAS : 1

Out of the 4 posts which became available due to retirement/induction into KAS, 3 posts went to the promotees and 1 post went to the

direct recruits. Three promotees next in the list will get adjusted against these posts of their own quota at S. No. 128, 129 and 130. With the

availability of one post of direct recruits the number of vacant posts of the direct recruits went up to 43 (i.e. 13 of the year 1979 + 6 of the year

1980 + 5 of the year 1981+ 15 of the year 1982 + 3 of the year 1982 and 1 of the year 1984). Out of these 34 posts were utilized for direct

recruits who got selected in the normal course. Thus these 34 direct recruits will occupy the posts from S. No. 131 to 164. The petitioners (DR)

under the orders of the Court too got appointed in the same competitive examination in which the above mentioned 34 direct recruits got selected.

As observed above the Government has vide order No.11

45GAD of 2003 dated 4.9.2003 granted notional seniority to them w.e.f 24.9.1984 i.e., date on which the last direct recruit was appointed on the

basis of recommendations of the Commission after conducting combined competitive examination. Last direct recruit appointed as such is

Mohmmad Ismail Baji (S. No. 164) Under the said Government order the petitioners (DR) are entitled to get seniority immediately after last direct

recruit appointed i.e. Mohd Ismail Baji. Thus direct recruits appointed vide Govt. order No.1065GAD of 1992 dated 13.11.1992 namely Jagdev

Singh Manilas, MukhtarulAziz, Bashir Ahmad Khan, Ram Dutta, Radesh Kumar Sethi, Ashok Kumar Gupta, Nazir Ahmad, Kewal Krishan

Kohli, Brij Nath, Arvind Sharma, Rajinder Singh, Ghulam Mohuddin, Abndul Rashid, Balram Singh, Javaid Iqbal Balwan, Sudarshan Kumar

Kapoor, Mohmmad Ibrahim Shah, Mushtaq Ahmad Beigh will get placement in the seniority immediately after Mohmmad Ismail Baji. But since

only 43 posts of direct recruits were available at that time out of which 34 were occupied by the direct recruits only first nine of the above

mentioned direct recruits will get adjusted against the nine remaining posts within the direct recruit quota in the year 1984. These candidates will get

adjusted at S. No: 165 to 173.

I In the year 1985, 23 new posts were created due to which the total number of posts went up to 146 (i.e. 99+23+12 leave reserve and 12

training reserve). In that year 22 posts became available due to the retirement of 2 officers and induction into the KAS of 20 officers. Out of the 23

of newly created posts 11 fell within the share of direct recruits. Out of 22 posts which fell vacant 11 posts went to them. Thus the total posts for

direct recruits were 22 posts (i.e. 11+11). Similarly 13 posts out of newly created posts and 11 posts out of the vacant posts went to the

promotees share i.e total 24 posts. In that year one direct recruitment post was utilized while as from the promotees side 24 posts were utilized.

This being the vacancy position in the year 1985, 9 left over direct recruits of the year 1984 will get adjusted against the nineout of 34 posts

available within the direct recruits quota followed by the one candidate of the year 1985. Against the 24 promotee posts, the 24 promotees next in

the line as per seniority will get adjusted.

We have referred to these facts to show that though the details of posts given in the order is exhaustive and can safely be relied upon, the

seniority positions allotted to the parties in the order is not in accordance with the quota fixed by the 1977 Rules and the settled law on the issue

aSCited above. Since the said order gives only a tentative list, we hope the Government shall, while finalizing it, consider the fixation of seniority

strictly in accordance with the rules.

In these circumstances, in addition to our observations made above on the issues arising in these cases, we hold and direct as under:

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/ad hoc promotion accorded to the promotee SCannot be treated as non est merely because they were promoted directly as

Tehaildars from the post of Naib 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, Ad hoc 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;

X. 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; XL 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 nul 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 promotees 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 visavis the

promotees as they are entitled to as a result of their notional seniority w.e.f. 24.9.1984.

In view of the circumstances of the case, we direct that the State shall complete this exercise, as far as practicable, within a period of three months

from the date this order is served on them.

With these observations, all the LPAs/Petitions mentioned above shall stand disposed of as indicated.