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Judgment
Anand Mathur, Member (A)
Mr. Jahangir Ganai, Sr. Advocate, learned counsel for the applicant, and Mr. Bikram Deep Singh, learned counsel for the respondents were present.
Learned counsel for the applicants stated as under:-
(i) In acceptance of the recommendation made by the Jammu and Kashmir Public Service Commission, pursuant to the selection made on the basis of Combined Competitive Examination 2002, applicants came to be appointed to the J&K Police (Gazetted) Service against the post of Dy. Superintendent of Police.
(ii) In the matter of appointment, the services of the applicants are governed by the J&K Police (Gazetted) Service Recruitment Rules, 2002 notified vide SRO 132 of 2002.
(iii) As per the mandate of the Rules of 2002, 25% of the sanctioned strength of Dy. Superintendent of Police are to be placed in the selection grade by promotion from Class IV (Dy. S.P.) with at least 05 years of service as such. Despite having completed 05 years of service, no steps were taken by Respondents No.1 for placement of the applicants in the selection grade. It appears from the record that the issue with regard to the promotion of the Dy. Superintendent of Police to selection grade was considered by the Departmental Selection Committee of the Home Department on 05.08.2014 and in acceptance to the recommendation made, under and in terms of Government order No.395-Home of 2014 dated 11.08.2014, sanction was accorded, amongst others, to the placement of the applicants in the selection grade w.e.f. 05.08.2014.
(iv) After being promoted against the post of Dy. Superintendent of Police (selection grade), the applicants have a right of consideration for being promoted to the post of Superintendent of Police as per the Rules of 2002.
(v) The cadre strength of the posts available in the police department is notified in the form of gradation list. The gradation list 2014 notified on 29.08.2014, amongst others, provided for the total authorized strength of Superintendent of Police to be 221. It also provided for the total number of posts of Superintendent of Police occupied in the year 2014 to be 198. The gradation list, 2014 also indicated the status of the applicants against the post of Dy. Superintendent of Police.
(vi) Out of the total strength of 221 posts, only 198 posts were occupied in the year 2014, having regard to the eligibility of the applicants, under and in terms of Government order no. Home-479 of 2014 dated 15.10.2014, amongst others, sanction was accorded to the placement of the applicants as Incharge Superintendent of Police in their own pay and grade with the benefit of charge allowance as admissible under the rules.
(vii) The representation filed by the applicants qua Government order No.395-Home of 2014 dated 11.08.2014 resulted in consideration of the issue and thereto in issuance of Government order no.195-Home of 2020 dated 22.09.2020, in terms whereof, the date of placement of the applicants in the selection grade has been fixed as that of 07.10.2011.
(viii) Despite it being the requirement of the rules to conduct DPC and regularize the services of eligible officers at the earliest, no steps were taken by respondent No.1 to regularize the promotion of the applicants. However, off late the process initiated has resulted in issuance of Government order no.196-Home of 2020 dated 22.09.2020, in terms whereof, sanction has been accorded to the regularization/promotion of Incharge Superintendent of Police as Superintendent of Police in the pay matrix Rs. 67700-208700 (Level 11) as per the list forming annexure to the Government order. However, applicant no.1 has been regularized w.e.f. 01.07.2016 and applicant nos. 2 to 4 have been regularized w.e.f. 07.09.2016 instead of 15.10.2014. Hence, the applicants have filed the present OA seeking the following reliefs:-
(a) The Government order No.196-Home of 2020 dated 22.09.2020 be quashed to the extent it provides for the date of regularization of the applicants as that of 01.07.2016 and 07.09.2016 instead that of 15.10.2014.
(b) Direct the respondents to give effect to the regularization of the services of the applicants as against the post of Superintendent of Police w.e.f. 15.10.2014, the date of applicants were placed as Incharge Superintendent of Police against available vacancies and thereto grant all consequential benefits to the applicants to which they are entitled to.
On notice, learned counsel for the respondents filed a counter reply and submitted that the applicants had been appointed in terms of Government order No.971-GAD of 2004 dated 23.07.2004 and allotted the Jammu and Kashmir Police (Gazetted) Service. Jammu & Kashmir Police (Gazetted) Service Recruitment Rules, 2002 notified vide SRO 132 dated 3rd April, 2002, provides for placement of Deputy Superintendent of Police in the Selection Grade of Dy. SP, after completion of five years of service, on the basis of seniority and on the recommendations of the Selection Committee, subject to availability of vacancy and other eligibility conditions.
The applicants, amongst others were placed in the Selection grade vide Government Order No.395-Home of 2014 dated 11.08.2014 on the basis of provisional seniority list of Dy. SP as on 01.03.2013, which was drawn on the basis of an exercise undertaken by the department, with due deference to the orders of the Hon'ble High Court, on petitions pending before it on the issue of long-pending seniority dispute between direct recruit Dy. SPs and promotee Dy. SPs. keeping in consideration that the final seniority list of Dy. SP is contingent upon redrawing the seniority list pursuant to the decision of the Hon’ble High Court passed in clubbed writ petitions No.3065/2010 and 1620/2008 titled Anita Sharma and Ors vs. State of J&K and Ors and SWP No.1079/2010 titled Ali Mohd. Shah and Ors vs. State of J&K and Ors. of Dy. and subject to any review upon notification of the final and firm list of Dy. SPs and superior claim of any officer if found genuine subsequently. Further, as a postlude to a comprehensive exercise to settle the long pending seniority dispute, after obtaining the approval of the State Administrative Council in September 2019, the date(s) of promotion of the members of the Jammu and Kashmir Police (Gazetted) Service at the level of Dy. SP w.e.f. 01.01.1994 to 31.12.1999, were reviewed. Further, final seniority list of the members of the Jammu and Kashmir Police (Gazetted) Service at the level of Dy. SP (Executive) was notified, paving the way for further career progression of the members of the Service.
Heard learned counsel for both the parties and perused the pleadings available on record.
It has been brought out that in terms of Government Order No.Home-479 of 2014 dated 15.10.2014, the applicants were placed as I/C Superintendents of Police against vacancies with the proviso that their placement shall be purely temporary in nature, in the interest of government work and without prejudice to the final seniority list of Dy. SP (Executive) and any review upon notification of the said seniority list. Further, as a postlude to a comprehensive exercise to settle the long pending seniority dispute, after obtaining the approval of the State Administrative Council in September 2019, the date(s) of promotion of the members of the Jammu and Kashmir Police (Gazetted) Service at the level of Dy. SP w.e.f. 01.01.1994 to 31.12.1999, were reviewed. Thereafter, final seniority list of the members of the Jammu and Kashmir Police (Gazetted) Service at the level of Dy. SP (Executive) was notified, paving the way for further career progression of the members of the Service. The cadre strength of the posts available in the Police Department is notified in the form of gradation list. The gradation list 2014 notified on 29.08.2014, amongst others, provided for the total authorized strength of Superintendents of Police to be 221. It also provided for the total numbers of posts of Superintendents of Police occupied in the year 2014 to be 198. The gradation list, 2014 also indicates the status of the applicants against the post of Dy. Superintendent of Police. Out of the total strength of 221 posts, only 198 posts were occupied in the year 2014, thereby leaving 23 clear vacancies. As per the clause contained in the placement order dated 15.10.2014, the said placements were subject to finalization of the seniority list of Dy. SPs which was pending consideration before the Hon’ble High Court due to the writ petitions filed regarding the seniority position of direct recruits vs. the promotees. On settlement of this dispute, the final seniority list was issued vide Government Order No.196-Home of 2020 dated 22.09.2020 wherein only 7 persons figuring from Sl. Nos.112 to 118 have become senior to the first applicant. Therefore, connecting this fact with the position brought out above that there were 23 vacancies, the applicants should have been given the benefit of retrospective promotion from the date they had been placed as I/C SPs i.e. from 15.10.2014 instead of 01.07.2016 and 07.09.2016. Moreover, in terms of Government Order No.743-GAD/2007 dated 28.06.2007 in compliance of the case titled Suraj Prakash Gupta vs. State & Others, inter alia, the following guidelines have been issued:-
“Promotion of a Government employee shall take effect from the date, he has been formally put in charge of the higher post subject to his eligibility in accordance with the recruitment rules and availability of the vacancy. His clearance/regularization shall take effect from the date of his placement against the higher post or availability of vacancy or the date of his eligibility, which ever is later. In all other cases, the promotion of a Government employee to the next higher post shall take effect from the date of issuance of the order. ”
It is on the basis of these guidelines that retrospective promotion has been given to similarly placed officers from the date they had been placed as I/C SPs.
To sum up the discussion, we find that the applicants had been placed as I/C SPs w.e.f. 15.10.2014 subject to finalization of the seniority list of Dy. SPs. After finalization of the said seniority list only 07 Officers have become senior to the 1st applicant who is at Sl. No.119 of the said list. The other applicants are at Sl. Nos.122, 123 and 126. Since there were 23 vacancies available and the applicants were only four in number, there is no reason why the applicants should not get the benefit of retrospective promotion w.e.f. the date of their placement as I/C SPs i.e. 15.10.2014.
Accordingly, the OA is allowed and the respondents are directed to extend the benefit of retrospective promotion as Superintendents of Police to the applicants w.e.f. 15.10.2014 by partially modifying the impugned Government order No.196-Home of 2020 dated 22.09.2020 qua the applicants. This exercise shall be completed within six weeks from the date of receipt of a certified copy of this order.
Parties are directed to bear their own costs.