Shameem Ahmad Shameem vs State

Mr. Muzaffar Hussain Attar, J.—The petitioner has been appointed by way of promotion on the post of Inspector-II in the year 2005. He was

asked to look after the post of Inspector-II in the year 2000. Private respondent has been appointed on the post of Inspector-II through direct

recruitment process in the year 2002.

Shorn of the details given in the pleadings, the case of the petitioner is that excepting for one paper he had qualified all the papers in the

departmental examination prescribed for Excise and Taxation Officers. The petitioner has qualified the Excise Taxation examination in year 2005.

After qualifying the said examination, he was appointed by way of promotion on the post of Inspector. He has joined issue in respect of seniority of

private respondent and has staked claim for being shown senior to the private respondent.

Mr. M.M. Dar, learned counsel for the petitioner, placed wholehog reliance on the Division Bench Judgment of this Court reported as Ravi

Chand & Ors. v. Rakesh Kumar & Ors. 2014 (2) JKJ 618 [HC] and submitted that the case of the petitioner is covered by the aforesaid

Judgment of the Court and he has to be deemed to have been appointed by way of promotion from the anterior date viz. from the year 2000 and

would, thus, get the benefit of seniority from the said date.

In the aforesaid case, the appellants therein, were appointed by way of promotion on the posts of Excise and Taxation Officers and the writ

petitioners in that case were direct recruited candidates.

In terms of Jammu and Kashmir Excise and Commercial Taxes (Gazetted) Service Recruitment Rules, 2007, the post of Excise Taxation officer

(ETO) is to be filled up 50% by competitive examination and 50% by promotion from Inspectors in the Excise and Commercial Taxes Department

having not less than five years service and having passed departmental examination for ETO as prescribed in this behalf. For direct recruitment

minimum qualification was prescribed as graduate.

In terms of Jammu and Kashmir Excise and Sales Tax Recruitment Rules, 1991, (for short ""Rules of 1991') the post of Inspector-II falls in

Class-II of the Schedule (III) of the aforesaid rules of 1991. The post of Inspector-II is to be filled up 50% by direct recruitment and the minimum

qualification for direct recruitment is prescribed as graduate. 50% of the posts are to be filled up by promotion from class-III category (a) having

rendered not less than 10 years service in that category and passed the departmental examination prescribed for Excise Taxation Inspectors. 1.50

% of promotion quota are reserved for Graduate Sub-Inspectors who have passed the departmental examination of the standard of Inspectors and

have rendered not less than five years service as Sub-Inspectors.

Rule 5 of the Rules of 1991 prescribes qualification and method of recruitment. Sub Rule (1) of the Rule 5 prescribes that no person shall be

eligible for appointment or promotion to any post in any class, category or grade in the service unless he possesses the qualification as laid down in

the Schedule II and fulfils other requirements of recruitment as provided in the rules and orders for the time being in force.

Rule 5 of Rules of 1995, thus, mandates that no person would be eligible for appointment or promotion unless he possesses the prescribed

qualification.

Admittedly, the petitioner became eligible for being appointed by way of promotion on the post of Inspector when he qualified the prescribed

departmental examination in the year 2005. Passing of the departmental examination in terms of Schedule-Ill was sine-quanon for becoming eligible

for being appointed by way of promotion on the post of Inspector. The Rules of 1991, more particularly Class-II of Schedule III does not admit of

any exception. Only those sub-inspectors, who have rendered not less than ten years service and passed departmental examination prescribed for

Excise and Taxation Officers, would be eligible for being considered for being appointed by way of promotion on the post of Inspector.

In the Judgment, on which, reliance is placed by learned counsel for the petitioner, the promotees were eligible at the time, process of their

promotion was initiated, the posts were available. In this case, admittedly, the petitioner was not eligible in terms of the Rules. His appointment by

way of promotion came into existence in the year 2005. In terms of Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and

Appeal) Rules, 1956, his seniority is to be reckoned from that date and not from anterior date.

The direct recruits in the year 2002 in terms of Rules had to qualify the prescribed departmental examination, after their appointment which

they have successfully qualified. In view of the law laid down by Division Bench of this Court their seniority has to be fixed from the date of their

appointment and not from the date of their qualifying of examination.

The petitioner in the face of Rule position and the discussion made herein above cannot stake claim for reckoning his seniority before the

private respondents.

For the above stated reasons this writ petition being meritless and is accordingly dismissed along with connected CMP(s).

Interim direction, if any, shall stand vacated.

SWP No. 1861 of 2015 is de-linked.