Rakesh Kumar and Others vs State and Others

Hasnain Massodi, J.—The question that calls for consideration in the writ petition on hand is whether it is permissible to give retrospective

promotion from the dates, the promotional posts were available for promotion but not filled up and left vacant. The dispute as usual is between

promotees and direct recruits. Petitioners participated in Jammu and Kashmir Combined Competitive Examination in 2002 and came to be

selected and thereafter, appointed vide Government Order No. 971-GAD of 2004 dated 23rd July, 2004 as Excise and Taxation Officers in

Jammu and Kashmir Excise and Taxation (Gazetted) Service. The private respondents (6 to 15) at the time of appointment of petitioners in Jammu

and Kashmir Excise and Taxation (Gazetted) Service, were working as Inspectors in the Excise and Taxation Department. They continued to

work as such till they vide Government Order No. 232-F of 2004 dated 6th December, 2004, were on recommendation of Jammu and Kashmir

Public Service Commission/Departmental Promotion Committee appointed as Excise and Taxation Officers in the pay-scale of Rs. 7500-12000

from the dates shown against each of them in the said Government Order. The Government Order No. 232-F of 2004 dated 6th December,

2004, in effect, retrospectively promoted respondents 6 to 15 from the dates shown against each of them in the said Government Order. They,

therefore, became senior to petitioners, appointed as Excise and Taxation Officers in the grade of Rs. 7500-12000 vide Government Order No.

971-GAD of 2004 dated 23rd July, 2004.

The State Government vide Government Order No. 258-F of 2004 dated 31st December, 2004 assigned respondents 6 to 15, duties of Excise

and Taxation Officers. This was followed by finalization of seniority of the petitioners and private respondents. The respondents vide Government

Order No. 05-F of 2006 dated 3rd January, 2006 notified the Final Seniority List of the members of Jammu and Kashmir Excise and Commercial

Tax Officers. The respondents while fixing seniority of private respondents, relied on the date, Jammu and Kashmir Public Service

Commission/Departmental Promotion Committee vide its Communication No. PSC/DPC/ETO/98-II dated 5th October, 2004 had conveyed

approval to their promotion. Resultantly, petitioners have been shown at serial Nos. 71 to 79 and junior to the private respondents in the final

seniority list.

Petitioners question the communication addressed by Jammu and Kashmir Public Service Commission/Departmental Promotion Committee

dated 5th October, 2004 recommending the private respondents for promotion as Excise and Taxation Officers with effect from the dates, earlier

to the date of communication, the Government Order No. 232-F of 2004 dated 6th December, 2004 appointing the private respondents as Excise

and Taxation Officers with effect from the dates shows against each as also the final seniority list bearing Government Order No. 05-F of 2006

dated 3rd January, 2006 to the extent it fixes the seniority of private respondents over and above the petitioners on the grounds set out in the

petition. They seek quashment of the aforesaid communications/government orders and also Writ of Mandamus commanding the official

respondents to fix the seniority of petitioners over and above the private respondents (respondents 6 to 15) and not to make any further promotion

on the basis of impugned final seniority list.

The respondent-Commission opposes the writ petition on the grounds that the Commission on receipt of proposal No. ET-SE/15/95-II dated

4th April, 2003 and 7th July, 2004 for clearance of Officers including the private respondents in the Excise and Sales Tax Department for

promotion to the post of Excise and Taxation Officers accorded consideration to the proposal including all the relevant factors like APRs, Integrity

Certificate and Vigilance clearance etc. at the relevant time and recommended the officers for promotion to the said post. It is insisted that while

seniority of the direct recruits has reference to the date of their actual appointment, in case of promotees seniority is determined on the basis of the

factors, APRs, Integrity Certificate and Vigilance clearance etc. considered by the Commission. The petitioners, according to the respondent-

Commission, cannot have any grievance against the recommendation impugned in the petition and the consequential orders passed in favour of the

private respondents.

The private respondents question locus standi of petitioners to challenge their promotion on the ground that the petitioners and private

respondents have been appointed against two different quotas, and petitioners cannot question their promotion. It is pointed out that the private

respondents have not encroached upon or eaten up the quota meant for petitioners and, therefore, the petitioners have no cause to question their

promotion. The writ petition is also said to be hit by delay and laches inasmuch as the private respondents have been promoted as Excise and

Taxation Officers on 6th December, 2004 with effect from the dates shown against each of them in the said Government Order and the petitioners

have waited for five years to question the promotional order. It is pointed out that the private respondents after their promotion as Excise and

Taxation Officers have successfully completed the period of probation, have been confirmed in Jammu and Kashmir Excise and Taxation

(Gazetted) Service and vide Government Order No. 173-F of 2010 dated 19th May, 2010 got the selection grade. It is pleaded that private

respondents initially appointed as Excise and Sales Tax Inspectors, acquired eligibility for promotion to the post of Excise and Taxation Officers

after serving the department for a period of five years and their promotion was got delayed because of administrative reasons and the private

respondents cannot be punished for the delay caused by the official respondents in convening Departmental Promotion Committee and placing

their case for promotion before the Committee.

It is pointed out that eligibility of private respondents for promotion to the post of Excise and Taxation Officer on the date with effect from which

the promotion has been given is not even disputed by the petitioners. Admitting that the petitioners were not promoted on adhoc, stop gap,

temporary basis on the date, they acquired eligibility for promotion, the private respondents insist that failure on part of the Government to promote

them on stop gap/adhoc/temporary basis does not change complexion of the matter inasmuch as the eligibility depends not on stop gap promotion

but fulfillment of eligibility criteria laid down under Rules. The private respondents defend their placement and that of petitioners in the final seniority

list impugned in the petition on the ground that the petitioners were appointed to the service after the private respondents and, therefore, have to

rank junior to the private respondents. It is denied that the Government orders dated 16th January, 2007 and 28th June, 2007, extend support to

the petitioner's case. It is pleaded that the aforestated Government Orders cannot have retrospective effect and that Government order of 2002

occupies the field. The private respondents insist that the matter is covered by the judgment rendered by Supreme Court in Suraj Prakash Gupta's

case. The petitioners are said to be erroneously relying upon Jammu and Kashmir Excise and Commercial Taxes (Gazetted) Service Recruitment

Rules of 2007, least realizing that the Rules were not in force in the year 2004, when promotion in question was effected and that Jammu and

Kashmir Excise and Sales Tax (Gazetted) Service Recruitment Rules, 1977 occupied the field on the relevant date. It is pointed out that in terms of

Rule 30, Recruitment Rules of 1977, seniority of the Members of Service is to be regulated under the Jammu and Kashmir Civil Services

(Classification, Control and Appeal) Rules, 1956.

The petitioners in their rejoinder reiterate that date of seniority as Excise and Taxation Officers is to be reckoned from the date private

respondents discharged duties of Excise and Taxation Officers, i.e. 31st December, 2004 and not from any earlier date as before 31st December,

2004, the respondents were not discharging duties of Excise and Taxation Officers. It is pointed out that the respondent Commission in its

recommendation categorically recorded that out of three dates, i.e. date of acquisition of eligibility, date of availability of vacancy and date of

placement against the promotional post, latest in point of time be taken into account for determining the date of regularization and the respondent

no. 1 unmindful of the observations of the Commission, unauthorizedly fixed the date of availability of the vacancy as the date of regularization. The

promotion of private respondents, it is alleged, is in contravention of Rule 9 of Jammu and Kashmir Excise and Taxation (Gazetted) Service

Recruitment Rules, 1977. The respondents are said to have failed to conduct test of private respondents contemplated under Rules of 1977 before

directing regularization. The petitioner's claim that the legal opinion rendered by Law Department at the instance of Finance Department and

conveyed vide Letter No. LD(Ser) 2011/41-RTI dated 19.04.2011 supported the petitioner's case explaining delay in approaching the Court. The

petitioners plead that they acquired a cause to file the writ petition only after final seniority list was notified vide Government Order No. 05-F of

2006 dated 03.01.2006 and, therefore, the writ petition does not suffer from delay and laches. The official respondents by giving retrospective

promotion to the private respondents are said to have made them senior and jeopardized promotional prospects of the petitioners.

It is denied that the petitioners were given an opportunity to file objections to the tentative seniority list before its finalization. The Government

Order No. 107/GAD/2002 dated 16th January, 2002, according to the petitioners, does not extend any help to the case set up by the private

respondents in opposition to writ petition for the reason that para-7 applies to the promotees not regularized for a long time. It is pleaded that as

the petitioners were not promoted on adhoc, stop gap basis, they cannot find support from the Government Order dated 16th January, 2002. The

Government Order No. 743 GAD of 2007 dated 28.06.2007, it is insisted, also does not support the respondent's case. It is further pleaded that

in terms of all the Government Orders relied upon by the private respondents, their seniority is to be reckoned from the date, they were placed as

Excise and Taxation Officers, i.e. 31.12.2004.

I have gone through the pleadings as well as record available on the file. I have heard learned counsel for the parties.

Let us first examine whether it is permissible to appoint an employee by promotion to a service, retrospectively with effect from the date, the

post in promotional quota became available though not filled up in accordance with rules. Once we find answer to the question, we will proceed to

examine whether the petitioners claim is hit by inordinate delay and laches. It needs to be pointed out at the outset that the private respondents

were not promoted as Excise and Taxation Officers on adhoc or stop gap basis on the date(s), the post(s) in promotional quota became available.

Had the petitioners been appointed by promotion subject to their eligibility on adhoc or stop gap basis on the date(s), post(s) of Excise and

Taxation Officers in promotional quota became available, there would be no difficulty in regularization of their promotion with effect from the date,

they were so promoted. The case would squarely fall within ambit of law laid down in Suraj Parkash Gupta and Others Vs. State of Jammu &

Kashmir Others, . The Apex Court in the aforesaid case observed;

Summarising the position, we therefore hold that the ad hoc/stop gap service of the promotees cannot be treated as non-est merely because

P.S.C. was not consulted in respect of continuance of the ad hoc/stop gap service beyond six months. Such service is capable of being regularized

under Rule 23 of the J&K (CCA) Rules, 1956 and rectified with retrospective effect from the date of occurrence of a clear vacancy in the

promotion quota, subject to eligibility, fitness and other relevant factors.

The posts in promotional quota in terms of the Recruitment Rules though available were not filled up on adhoc/stop gap or substantive basis. In

the meantime, the petitioners participated in the Jammu and Kashmir Combined Civil Services Examination, 2002 and came to be appointed as

Excise and Taxation Officers against the direct recruitment quota. The private respondents as Inspectors in the Excise and Taxation Department

worked under the petitioners for a while till they were promoted as Excise and Taxation Officers vide Government Order No. 232-F of 2004

dated 6th December, 2004.

It is contended by learned counsel for the petitioners that the promotion of private respondents is to take effect from 31st December, 2004

and it is not open to the official respondents to give retrospective effect to their promotion, making them senior to the petitioners. Learned counsel

for the petitioners seeks to draw support from law laid down in Nani Sha and Others Vs. State of Arunachal Pradesh and Others, , Uttaranchal

Forest Rangers' Asson. (Direct Recruit) and Others Vs. State of U.P. and Others, , Sheikh Abdul Rashid and Others Vs. State of Jammu &

Kashmir and Others, , State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, , State of Bihar and others Vs. Sri Akhouri Sachindra Nath

and others, & Jagdish Ch. Patnaik and Others Vs. State of Orissa and Others, .

Mr. Shukla, appearing counsel for private respondents, on the other hand, insists that a Government employee otherwise due for promotion

against available vacancy cannot be allowed to suffer for the only reason that the Competent Authority does not initiate process for accord of

consideration to his promotion well in time. It is argued that the vacancies of Excise and Taxation Officers in promotional quota admittedly were

available on the date(s) shown in the Government Order No. 232-F of 2004 dated 6th December, 2004 and there was no impediment in the way

of official respondents to give effect to the promotion of private respondents as Excise and Taxation Officers from the date(s), the vacancies in

promotional quota were available. Learned counsel to buttress his arguments placed reliance on law laid down in P.S. Sadasivaswamy Vs. State of

Tamil Nadu, , U.D. Lama and Others Vs. State of Sikkim and Others, , Asis Kumar Samanta and Others Vs. State of West Bengal and Others,

& Mr. Ram Shiroman Mishra Vs. Mr. Vishwanath Pandey, . Mr. Shukla further argues that the petitioners being direct recruits do not have locus

standi to question the promotion of private respondents, who admittedly have been promoted against promotional quota. Learned counsel places

reliance of Sunil Sharma and Others Vs. State and Others, . The stand is also endorsed by learned counsel for official respondents.

Learned counsel for the parties agree that there is divergence of opinion on the question of permissibility of retrospective promotion. In Dinesh

Kumar Sharma's case (Supra), the Court held that a person cannot claim promotion from the date of occurrence of vacancy but can only get

promotion and seniority from the date, he has been substantially appointed, as no retrospective effect can be given to order of appointment. The

Court making reference to observations made in Uttaranchal Forest Ranger's Asson. (Direct Recruit)'s case (Supra) and Sri Akhouri Sachindra

Nath's case (Supra) held that the respondent was not entitled to seniority from the date, when promotional post became vacant as no retrospective

effect would be given to the order of appointment under Rules and that the seniority has to be decided on the basis of rules in force on the date of

appointment and retrospective promotion or seniority cannot be granted from the date, when an employee has not even been borne on the cadre.

The Court referred to following observations made in Sri Akhouri Sachindra Nath's case;

In the instant case, the promote respondent Nos. 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service,

Class II at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given

seniority in the service of Assistant Engineers over the respondent Nos. 1 to 5. It is well settled that no person can be promoted with retrospective

effect from the date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that

amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se

amongst Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant

Engineers. This being the position in law the respondent Nos. 6 to 23 cannot be made senior to the respondent Nos. 1 to 5 by the impugned

Government orders as they entered into the said Service by promotion after the respondent Nos. 1 to 5 were directly recruited in the quota of

direct recruits. The judgment of the High court quashing the impugned Government orders made in annexures, 8, 9 and 10 is unexceptionable.

The Court in Sri Akhouri Sachindra Nath's case held that the appellants, who were direct recruits shall be considered senior and over the

promotees not born on the cadre when the direct recruits were appointed in service and that the grade and list drawn under which promotees were

given seniority over direct recruits could not be sustained. The legal proposition that retrospective promotion was not permissible, was reiterated in

Sheikh Abdul Rashid's case (Supra). However, the three Judge Bench of the Supreme Court in U.D. Lama's case (Supra), in the peculiar facts

and circumstances, upheld retrospective promotion. The divergence in opinion reflected in the aforementioned reported cases was noticed by

Supreme Court in Asis Kumar Samanta's case (Supra). It would be advantageous to extract paras 4 to 7 of the judgment;

Normally, there are two modes of service i.e. one by way of recruitment or other by way of promotion. Sometimes the process of direct

recruitment is carried on but the recruitment through promotion is held up on account of dispute in the seniority among the promotees or sometimes

by the intervention of the Court and for some other reasons. In most of the States, the rule is that whenever direct recruitment and promotion is in

the same year then the promotees are ranked senior to the direct recruits. The problem arises when the direct recruits do not accept this

proposition, it leads to litigation that the promotees do not find their berth in the service, therefore, they cannot be given benefit of their service from

retrospective date so as to make them senior to direct recruits. In some cases, this Court has affirmed this line of argument and in some other

judgments, this line has not been accepted. In this connection, two sets of cases can be classified as under:

In the under mentioned cases the promotees were given retrospective promotions and seniority was accepted by this Court. The following

decisions have upheld such line of reasoning:

Devi Prasad & Ors. v. Government of A.P.

U.D. Lama v. State of Sikkim

State of A.P. v. K.S. Muralidhar

Ram Pal Malik v. State of Haryana.

As against this, the other line of reasoning which has been affirmed by this Court is that in case the promotees are promoted and given

retrospective seniority as against the direct recruits that was held to be ultra vires in the following cases:

State of Gujarat v. C.G. Desai

G.S. Venkata Reddy v. Government of A.P.

K. Narayanan v. State of Karnataka

State of Bihar & Others v. Akhouri Sachindra Nath

Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P.

In view of conflicting views expressed by this Court, it would be appropriate to refer this case to a larger Bench so that the controversy can

finally be resolved and put to rest. Therefore, the Registry is directed to place the matter before the Hon'ble the Chief Justice of India for

constitution of larger Bench. Similar request has been made in Civil Appeal Nos. 1712-1713 of 2002.

Learned counsel for the parties agree that the matter is yet to be placed before the larger Bench. The question arises as to what is the course

open to this Court, when the Supreme Court has referred the matter to a larger Bench and the matter is yet to come up before such Bench and the

Court does not have an opportunity to seek guidance from the judgment of the larger Bench.

Mr. Shukla insists that in absence of judgment from a larger Bench, the right course would be to follow judgment rendered by three Judge

Bench in U.D. Lama's case (Supra). It is pointed out that all other judgments that support the petitioner's case are from two Judge Benches and,

therefore, judgment in U.D. Lama's case has precedence over other judgments. The focus, in view of the above controversy is to shift to the facts

of U.D. Lama's case. It will help us to find out whether the facts are identical to the facts of the present case or the facts of the case in hand are

different from the facts of U.D. Lama's case and, therefore, law laid down in U.D. Lama's case would not be applicable to the present case.

In U.D. Lama's case, the appellants as well as respondents were members of the feeding service of Sikkim Civil Service. The Sikkim State

Rules, 1977 provided for recruitment to the Service by; i) Competitive examination to be held by Public Service Commission, ii) Selection (in the

ratio of 50:50) and iii) in exigencies of the Service, after, consultation with the Public Service Commission, by other methods. Because of omission

on the part of the Government to set up a Public Service Commission, Competitive examination could not be held and recruitment made to the

service. The State Government decided to make recruitment to the service by availing the second option, i.e. make appointments to the service

from the officers already in service of the Government. The State Government ought to have made such appointments on the basis of seniority-

cum-merit. It instead conducted a written and oral test and made appointments to the service from the officers already in service of the

Government on the basis of their performance in written and oral test. This course was not permissible under Rules as Rules did not

contemplate/provide for any written or oral test to the service from the officers already in service of the Government. The methodology adopted by

the State Government resulted in denial of appointment to the service to a number of senior officers. The State Government, thereafter, on

representation made by the Association of Officers rectified the error and also appointed/inducted the left out officers to the service. The officers

appointed/inducted on the basis of written and oral test, resentful the appointment of left out officers. Their grievance was that the left out officers

subsequently appointed/inducted to the service from the date, they were so appointed/inducted, were to rank senior to them. They maintained that

it was not permissible for the Government to give retrospective promotion to their left out colleagues. It is against the said factual backdrop that the

Supreme Court rejected the contention of the officers appointed/inducted to service on the basis of written and oral test and upheld retrospective

promotion (appointment by promotion) of left out officers. The Supreme Court pointed out that the officers appointed/inducted on the basis of

written and oral test were not appointed by following the regular procedure of appointment as the 'device' of holding a written test, was not laid

down by the Rules. The Court held that the officers appointed on the basis of written and oral test (appellants before the Court), were ""appointed

under very special circumstances"" and they ""cannot claim any special right in the matter of promotion or seniority."" The Court pointed out that it

was not the fault of the left out officers (respondents) before the Court that appointments according to Rules could not be made in time. The

challenge to the appointment of left out officers was, in peculiar facts and circumstances of the case, disallowed.

The facts of the present case as would be clear on a closer look to the facts of U.D. Lama's case are markedly different and distinguishable

from the facts of aforementioned case. In U.D. Lama's case, as pointed out, the induction was made from amongst officers serving in the

Government was made dehors Rules and left out officers were excluded again in violation of Rules. The selection and appointment of first batch of

officers on the basis of written being against Rules was liable to be set aside. However they were allowed to continue because of special

circumstances. The subsequent decision taken by the State Government on 29th December, 1990 in light of recommendations of two Committees,

as observed by the Supreme Court ""to remove injustice"" as left out officers could not be made to suffer for failure on part of the State Government

to adhere to the Rules.

In the present case, in the first place, petitioners and private respondents constitute two distinct and different classes and are not one class as

was the case in U.D. Lama's case where the appointees of 1982 as well as appointees of 1990 were from the same class, i.e. officers in service of

the Government. Secondly, there has been no violation of Rules in case of selection of direct recruits appointment of the petitioners, so as to justify

the order dated 6th December, 2004 impugned in the petition and label it as one ""removing injustice"". Therefore, law laid down in U.D. Lama's

case would not be applicable in the present case, as the facts of two cases are different and distinguished. The facts of the case, on the other hand,

are similar to the facts of Uttaranchal Forest Ranger's Asson. (Direct Recruit)'s case (supra), Sri Akhouri Sachindra Nath's etc. The judgment in

Asis Kumar's case (supra) was rendered by the Division Bench of Supreme Court on July 12th 2007 and the case referred to Larger Bench ""so

that the controversy involved can be resolved and put to rest"". However, subsequently Supreme court in Shri Abdul Rashid's case (decided on

05.12.2007) held that no person can be promoted with retrospective effect from a date when he was not borne in the cadre, so as to adversely

affect the others. In the circumstances, in absence of the matter having been referred to the Larger Bench, the course available to the court is to

follow the Apex court judgment later in point of time.

It is pertinent to point out that the question involved in the present petition is not one of promotion within the same service. To illustrate, the

question is not one of promotion of a Sub-Inspector, Excise and Taxation department to the post of Inspector, Excise and Taxation department.

Both Sub-Inspector as well as Inspector, Excise and Taxation department are part of Sub-ordinate Service. Here the question is one of

appointment by promotion to a different service [Jammu and Kashmir Excise and Taxation (Gazetted) Service]. The appointment by promotion in

favour of an Inspector as Excise and Taxation Officer, i.e. borne on Jammu and Kashmir Excise and Taxation Service cannot be given

retrospective effect from the earlier date, as the officer was not at all borne on the service from such date, so as to earn him seniority in the Jammu

and Kashmir Excise and Taxation (Gazetted) Service.

So viewed, there is merit in petitioner's case that the official respondents by giving retrospective promotion to the private respondents and

placing them above the petitioners in the seniority list have violated petitioner's fundamental rights guaranteed under Articles 14 and 16,

Constitution of India.

Let us now deal with the plea raised by the respondents as regards delay and laches on part of the petitioners to voice their grievance. Learned

counsel for the respondents argues that even, if it is assumed that it was not open to the official respondents to retrospectively appoint by

promotion the private respondents as Excise and Taxation Officers from the date(s), the post had become vacant in the promotional quota, still the

petitioners cannot maintain the writ petition and question such appointment by promotion as they have slept over the matter for pretty long time and

lost right to maintain the writ petition. Mr. Shukla points out that the private respondents were appointed by promotion as Taxation Officers vide

order dated 232-F of 2004 dated 6th December, 2004 with effect from an earlier date; that the petitioners expected to be well aware of the

aforesaid Government order, should have approached the Court with due dispatch. The petitioners, it is pointed out, instead slept over the matter

for next four years and approached the Court only in the year 2009, when the private respondents were in place for more than four years. Mr.

Shukla seeks to draw support from law laid down in P.S. Sadasivaswamy Vs. State of Tamil Nadu, , Shiba Shankar Mohapatra and Others Vs.

State of Orissa and Others, , High Court of Judicature at Patna Vs. Madan Mohan Prasad and Others, , and Rajendra Pratap Singh Yadav and

Others Vs. State of U.P. and Others, .

In Sadasivaswamy's case (supra), the Government employee aggrieved with denial of promotion approached the Court after a period of

fourteen years. The Court held the writ petition filed after fourteen years hopelessly delayed, observing;

A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of

such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never

be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of

discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it

expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle

settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court.

It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that

the High Court was right in dismissing the appellant's petition as well as the appeal.

In Mohapatra's case (Supra), the Supreme Court after scanning the case law on the subject of delay and laches in throwing challenge to the

seniority list held; ""Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in

existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear

words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period

for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in

approaching the adjudicatory forum, by furnishing satisfactory explanation."" In Madan Mohan Prasad's case (Supra), petitioner's claim for

promotion was held to be stale as he did not lay claim when he filed successive writ petitions to question different orders relating to his service

career and at that time his juniors in service were promoted. In Rajendra Pratap Singh Yadav's case (Supra), the Court reiterated that immense

sanctity is attached to the final seniority list and once notified, it cannot be disturbed at the behest of a person, who ignores to question it for four

long years. The Court observed that ""the sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order

to do substantial justice. To maintain sanctity of a duly notified final seniority list, according to the Court, is imperative to avoid, avoidable litigation

unrest and chaos in the service.

The private respondents were promoted as Excise and Taxation Officers in the pay scale of Rs. 7500-12000 vide Government Order No.

232-F of 2004 dated 6th December, 2004. However, the official respondents did not issue any final seniority list till January, 2006. The final

seniority of the members of Jammu and Kashmir, Excise and Taxation (Gazetted) Service as on 31.07.2005 was notified vide Government order

No. 05-F of 2006 dated 3rd January, 2006. The delay in finalization of the seniority is attributable to the probation period, the private respondents

had to undergo after their appointment by promotion to the service. It is important to note that in terms of Rule 9, Jammu and Kashmir Excise and

Sales Tax (Gazetted) Service Recruitment Rules, 1977, a person appointed to the service either by direct recruitment or by selection was to be

placed on probation or trial for two years. In the event, a person appointed by promotion or selection would not make sufficient use of his

opportunities or failed to pass the prescribed test, he would be reverted to the post on which he held the lien. It would be advantageous to extract

relevant part of Rule 9;

Probation

1) Persons appointed to the service, either by direct recruitment or by selection, shall be placed on probation or trial for two years.

2) If it appears at any time during or at the end of the period of probation or of trial specified in sub-rule (1) that an officer has not made sufficient

use of his opportunities or if he has otherwise failed to give satisfaction and has not passed the prescribed departmental examinations or other

trainings, he may, if directly recruited, be discharged from the service and if appointed by promotion or selection be reverted to the post on which

he holds a lien.

3) The Government may in the case of any person extend the period of probation or trial up to the maximum period of four years.

The petitioners, therefore, cannot be faulted for their failure to question the Order No. 232-F of 2004 dated 6th December, 2004. In any case,

while examining challenge to the promotion order and final seniority list, the relevant date would be the date on which final seniority list is notified.

Be that as it may, the final seniority list to which sanctity is attached in terms of law laid down by the Apex Court was issued, in January, 2006

and challenge to the final seniority list was thrown through medium of instant petition in December, 2009, i.e. well within four years.

The outer time limit for throwing challenge to the final seniority list as laid down in the case law noticed above is four years from the date of

issuance/publication of the final seniority list. Though four years is not a legislatively fixed period for questioning final seniority list, yet the case law

on the subject is suggestive of adherence to such time limit. In other words, challenge to final list after a period of four years should not ordinarily

be entertained unless there are cogent and convincing reasons to justify the delay, in questioning such list. In the present case, petition in view of the

facts and circumstance discussed cannot be said to be hit by delay and laches.

For the reasons discussed, there is merit in the writ petition. The petition is, accordingly, allowed. The order No. 232-F of 2004 dated 6th

December, 2004 is quashed to the extent it give retrospective effect to the promotion of private respondents with effect from the date(s), the

Excise and Taxation vacancies in promotional quota were available. The final seniority list bearing No. 05-F of 2006 dated 3rd January, 2006 is

also quashed to the extent, it places the respondents (6-15) ahead of petitioners in the final seniority list. The official respondents are directed to

reframe the final seniority list taking date of appointment by promotion of private respondents effective from the date of order, whereby they were

so appointed was acted upon and not the date when the posts became available or were left vacant. The official respondents shall proceed further

on the basis of final seniority list so drawn. Petition is disposed of accordingly along with all connected CMAs.