Tanveer Iqbal And Ors. vs State Th.Gad.And Ors. on 8 November, 2013

[Cites 10, Cited by 2]

Jammu & Kashmir High Court

Tanveer Iqbal And Ors. vs State Th.Gad.And Ors. on 8 November, 2013

Bench: Tashi Rabstan

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

                                                 Dated: 08.11.2013

SWP No.1347/2011 (CMA Nos.2056/2011, 1953/2011 and
3241/2011)

c/w

SWP No. 1352/2011 (CMA Nos.1960/2011 and 4251/2012);
SWP No.1413/2011 (CMA Nos.2052/2011, 2112/2011 and
982/2013);
SWP No.S-1450/2011;
SWP S-1487/2011 (CMA No.2454/2011);
SWP No.S-1648/2011 (CMA No.S-2720/2011);
SWP No.1740/2011 (CMA No.2554/2011) and
SWP No.1742/2011 (CMA Nos.2556/2011, 3000/2011 and
960/2013)

1.   Tanveer Iqbal and others               vs      State and others
2.   Ashok Kumar and others                 vs       State and others
3.   Showket Hussain Kazmi and others       vs      State and others
4.   Mukhtar-ul-Aziz                        vs      State and others
5.   Abdul Saleem Mir and ors               vs      State and others
6.   Muzaffar Ahmed Peer and others         vs      State and others
7.   Javed Iqbal Balwan and others          vs      State and others
8.   Ajesh Kumar and another                vs      State and others


Coram : Hon'ble Mr. Justice Tashi Rabstan, Judge.

Appearing counsel:
SWP No. 1347/2011

For petitioners        :   Mr. Sunil Sethi, Sr. Advocate with Ms.
                           Veenu Gupta, Advocate.

For respondents        :   Mr. Gagan Basotra, Sr. AAG and Mrs.

Z.S.Wattali, Dy.AG for R- 1 and 2.

Mr. Vivek Sharma, Advocate for R-4 to 8.

Mr. K.K.Pangotra, ASGI for respondent no.9.

Mr. Z. A. Shah, Sr. Advocate, with Mr. Vipan Gandotra, Adv. for respondent no.10.

Mr. S.K.Shukla, Advocate for respondents 33 and 34.

Mr. K.S.Johal, Sr. Advocate with Mr. Amit Gupta, Advocate for R-65, 72, 84, 93 & 102.

Mr. Rahul Bharti, Advocate for R-111 Mr. F.A. Natnoo, Adv. for respondent No.144.

Other respondents are in exparte.

SWP No. 1352/2011 For petitioners : Mr. Abhinav Sharma, Advocate Mr. P.N. Raina, Sr. Advocate with Mr. J.A. Hamal, Advocate.

For respondents : Mr. Gagan Basotra, Sr. AAG and Mrs. Z.S. Wattali, Dy.AG for R- 1 and 2.

Mr. Vivek Sharma, Advocate for R-4 to 8.

Mr. K.K. Pangotra, ASGI for respondent no.9.

Mr. Z. A. Shah, Sr. Advocate, with Mr. Vipan Gandotra, Adv. for respondent no.10.

Mr. S.K. Shukla, Advocate for respondents 33 and 34.

Mr. K. S. Johal, Sr. Advocate, with Mr. Amit Gupta, Advocate for R-66, 73, 85, 94 & 103.

Mr. Rahul Bharti, Advocate for R-112.

Mr. F.A. Natnoo, Adv. for respondent No.144.

Other respondents are in exparte.

SWP No. 1413/2011 For the petitioners : Mr. D.C.Raina, Sr. Advocate with Mr. Anil Verma, Advocate.

For respondents : Mr. Gagan Basotra, Sr. AAG and Mrs. Z.S. Wattali, Dy.AG for R- 1 and 2.

Mr. Vivek Sharma and Mr. Javed Iqbal, Advocates for R-4 to 8.

Mr. Z. A. Shah, Sr. Advocate, with Mr. Vipan Gandotra, Adv. for respondent no.10.

Mr. S.K. Shukla, Advocate for respondents 32 and 33.

Mr. K. S. Johal, Sr. Advocate, with Mr. Amit Gupta, Advocate for R-62, 69, 81, 91 and 100. Mr. Rahul Bharti, Advocate for R-109.

Mr. F.A. Natnoo, Adv. for respondent No.135.

Other respondents are in exparte.

SWP No. S-1450/2011 For petitioner : Mr. R.A.Jan, Sr. Advocate. . For respondents : Mr. Gagan Basotra, Sr. AAG and Mrs. Z.S. Wattali, Dy.AG for R-1 and 2.

Mr. Vikas Magotra, Advocate for R-3.

SWP No. S-1487/2011.

For petitioners : Mr. M.Y. Bhat, Advocate.

For respondents : Mr. Gagan Basotra, Sr. AAG and Mrs. Z.S. Wattali, Dy.AG for respondents 1 to 4.

Mr. Jahangir Iqbal Ganai, Advocate, for R-

08 to 17, 19 to 21, 23, 25, 26, 28 and 35.

Other respondents are in exparte.

SWP No. S-1648/2011 For petitioners : Mr. ZA Shah, Sr. Adv. with Mr. Vipan Gandotra, Advocate.

For respondents : Mr. Gagan Basotra, Sr. AAG and Mrs. Z.S. Wattali, Dy.AG for respondent no.1.

Other respondents are in exparte.

SWP No. 1740/2011 For petitioners : Mr. ZA Shah, Sr. Advocate with Mr. Vipan Gandotra, Advocate.

For respondents : Mr. Gagan Basotra, Sr. AAG and Mrs. Z.S. Wattali, Dy.AG for respondents 1 and 2.

Other respondents are in exparte.

SWP No. 1742/2011 For petitioners : Mr. FA Natnoo, Advocate.

For respondents : Mr. Gagan Basotra, Sr. AAG and Mrs. Z.S. Wattali, Dy.AG for respondents 1 to 3.

Mr. M.I. Sherkhan, Adv. for respondent no.94.

Other respondents are in exparte.

Whether approved for reporting : Yes 4

1. SWP No.S-1450/2011 and SWP No. 1740/2011 though were heard and reserved separately, but, as the controversy involved and the question of facts and law raised in both the petitions are almost similar to those, which were heard and reserved earlier, therefore, I deem it proper to dispose of both the petitions together with other clubbed matters.

2. Despite several authoritative pronouncements of Hon'ble Supreme Court, dispute with regard to fixation of seniority between direct recruits and promotees still seems to have refused to die down. Several cases seeking adjudication of such disputes between promotees and direct recruits to various Civil Services continue to pour-in at various Courts of the country. Somewhat similar situation prevails in the State of Jammu and Kashmir also.

3. The instant batch of writ petitions also presents for adjudication of somewhat similar controversy, though it has arisen in the context of different set-up of circumstances. The dispute with regard to seniority raised in these petitions is exactly not between direct recruits and promotees to Jammu and Kashmir Administrative Services, but, it is with regard to the mode and manner in which the seniority between the members of different departmental feeding services inducted 5 to Jammu and Kashmir Administrative Services (hereinafter for short, KAS) has been made. The issues raised in these petitions are common, and impugned in all these petitions is the final Seniority List of KAS issued by the Government vide Order No. 743-GAD of 2011 dated 24.06.2011, as such, all these petitions, which have already been clubbed and heard together, are being disposed of by this common judgment.

4. The basic bone of contention in all the writ petitions is whether the petitioners are entitled to retrospective effect of seniority over and above the private respondents as per the rules prescribed for promotion by the Government of Jammu & Kashmir. As the respondents did not consider their cases deliberately and intentionally in order to benefit and accommodate 49 persons, referred to in the petitions, by utilizing Leave & Training Reserve posts, the petitioners have approached this Court seeking a relief in the form of a direction to the official respondents to give them the retrospective benefit of seniority from the years 2004, 2005, 2006 and 2007, i.e., the time the vacancies allocable to their departmental feeding services became available and they also acquired eligibility to be promoted to the Time Scale of KAS.

5. Before proceeding to appreciate the controversy raised in the instant batch of writ petitions, it would be worthwhile to refer to some important facts which are not in dispute.

A. Admitted facts:

6. The petitioners along with private respondents were appointed to different Gazetted Services (hereinafter for short, departmental feeding services) vide Government Order No.789 of 1999 dated 12.07.1999. At the time of their appointments, recruitment to KAS was governed by J&K Administrative Services Rules, 1979 (hereinafter for short, the Rules of 1979). As is evident from the Rules of 1979, KAS was initially constituted of following three scales:-

      i)     Junior Scale           :     Rs.2125-3600
      ii)    Time Scale             :     Rs.3000-4500
      iii)   Selection Grade        :     Rs.3700-5000

7. Special Scale and Super Time Scale were provided later on to the Service. As provided under Sub-Rule 4 of Rule 3 of the Rules of 1979, a member of the services appointed by direct recruitment, i.e., Junior KAS and a member from departmental feeding services would be promoted to the Time Scale of KAS subject to the following conditions :-

(a) he has completed four years of service in Junior Scale/feeding service as on 1st January of the year in which selection is to be made;

(b) he has passed the departmental examination, if any, prescribed under Rules;

(c) the post in the Time Scale of KAS in the relevant service is available;

(d) the Government is satisfied about his being suitable for promotion to the Time Scale of KAS.

8. On the basis of aforesaid Rules, it is claimed by the petitioners that they along with private respondents acquired eligibility to be appointed by promotion to the Time Scale of KAS on completion of requisite years of service in the year 2004 itself. It is further case of the petitioners, which is not disputed by the respondents, that the petitioners though acquired eligibility to be promoted to the Time Scale of KAS in the year 2004 itself, yet, no steps were taken by the official respondents to put up their cases before the Select Committee despite the fact that slots/vacancies allocable to their departmental feeding services were available. It is submitted that during the years 2004, 2005, 2006 and 2007 induction was not made and the matter was deliberately delayed. The petitioners attribute this lapse to the official respondents on the ground that it was done by them deliberately and intentionally to deprive them of their rightful due. It is contended that private respondents could not have been inducted into KAS, had the Select Committee met during the years 2004, 2005, 2006 and 2007, as no vacancy, 8 allocable to the departmental feeding services to which most of the private respondents belonged, was available. The petitioners claimed that because of this very reason their induction into the Time Scale of KAS during the years 2004, 2005, 2006 and 2007 by the Select Committee could not take place. The fact that induction was not taken place during these years has not been denied by the official respondents, but, they attribute this delay to administrative difficulties and not on account of the influence exerted by any body including some of the private respondents, as alleged by the petitioners.

9. Be that as it may, the fact is that it was only in the year 2008, the list of members of different departmental feeding services, who had acquired the eligibility to be appointed by promotion to the Time Scale of KAS were placed before the Select Committee and the vacancies available right from the year 2004, 2005, 2006 and 2007 were utilized, as a result whereof, the petitioners as well as private respondents came to be appointed to the Time Scale of KAS in the year 2008. Reference in this regard is made to Government Order No.708-GAD of 2008 dated 22.05.2008 followed by Govt. Order No.995-GAD of 2008 dated 22.07.2008 and Govt. Order No.1265-GAD of 2008 dated 25.09.2008. These orders 9 issued by the Government appointing eligible members of different departmental feeding services to the Time Scale of KAS with immediate effect, have been accepted by the petitioners and private respondents and the same are not subject matter of challenge in any of the writ petitions.

10. It is also not in dispute that even in the month of May and July, 2008 when first two orders of induction into KAS were issued by the Government, there were certain departmental feeding services to which some of the private respondents belonged, for which there were no vacancies/slots available. And with a view to induct/accommodate such persons into KAS, as many as 49 posts available under Leave and Training Reserve were utilized by the Select Committee. The petitioners during the course of arguments though questioned the appointment of these 49 persons by utilizing Leave and Training Reserve posts, but in the writ petitions they have not challenged the same nor the first two orders issued in the year 2008 have been challenged by them except in SWP No.S-1487/2011, which shall be dealt in the later part of the judgment. The petitioners in these petitions have primarily prayed for the following relief:

(i) Writ of Certiorari seeking quashment of Govt.

Order No.743-GAD of 2011 dated 24.06.2011 issued by respondents.

(ii) Writ of Mandamus seeking directions to the official respondents to reframe the final seniority list strictly in terms of Rule 15 of the Jammu and Kashmir Administrative Service Rules, 2008 promulgated vide Notification SRO 386 of 2008 dated 01.12.2008.

(iii) Writ of Certiorari seeking quashment of induction of those Officers into KAS, who have been inducted against the Leave and Training Reserve posts.

11. In addition to the aforesaid prayer, which is almost common in all the writ petitions, some of the petitioners in their writ petitions have also claimed additional relief, which is also dependent upon the adjudication of validity of Govt. Order No.743-GAD of 2011 dated 24.06.2011.

12. It appears that the petitioners are only aggrieved of the final seniority list of the officers of J&K Administrative Service (KAS) issued by respondent No.1 vide Government Order No.743-GAD of 2011 dated 24.06.2011 insofar as it pertains to placing them below the private respondents. Petitioners are further seeking a direction to the respondents for preparation of final seniority list of the officers of KAS on the basis of availability of vacancies/slots earmarked for them, which were available right from the year 2004 onwards when they acquired eligibility to be appointed to the Time Scale of 11 KAS. They have also claimed for fixation of their seniority strictly in accordance with Sub-Rule 4 of Rule 15 of Jammu and Kashmir Administrative Service Rules, 2008 (hereinafter to be referred as the Rules of 2008).

13. After going through the prayer clause and pleadings of all the writ petitions, the common question which comes for judicial determination is whether the final seniority list issued by respondent no.1 vide Government Order No.743-GAD of 2011 dated 24.06.2011 can stand the scrutiny of law to the extent it has placed the petitioners below the private respondents and whether this anomaly needs judicial determination for its redressal.

14. Admittedly, the petitioners have not claimed to have approached the Government for seeking review of their appointments to the Time Scale of Service, which were made in the year 2008 prospectively. The petitioners appear to have assumed, which was their vehement contention too, that they were entitled to retrospective seniority automatically in terms of proviso (i) to Sub- Rule (4) of Rule 15 of the Rules of 2008. Therefore, it was obligatory on the part of the Government to give effect to the aforesaid Rules and accordingly fix their seniority with effect from the date 12 vacancies/slots had become available for their departmental feeding services.

15. In view of the case set up by the petitioners in their petitions besides other contentions raised, the primary contention, which was vehemently raised by them, remains to be true interpretation of proviso (i) appended to Sub Rule (4) of Rule 15 of the Rules of 2008.

16. On the basis of pleadings and the detailed arguments advanced by the learned counsel appearing for the parties, the issues which cropped up for adjudication of this Court are as under :-

i. Whether appointment of the members of departmental feeding services to the Time Scale of KAS under the Rules of 1979 is a promotion simplicitor as defined in Rule 2 (h) of J&K Civil Services (Classification, Control and Appeal) Rules, 1956, or, is it the first appointment to service akin to direct recruitment for the purposes of fixation of seniority?

ii(a) Whether under the Rules of 1979, which were in vogue at the time of induction in question, was it obligatory for the Government to make recruitment to the KAS every calendar year? If not, what could be the effect of that?

ii(b) Whether the respondents were legally justified in not making appointments to the KAS in every calendar year and, instead, clubbing the vacancies/slots of different calendar years for the purposes of making appointments subsequently and, thereafter, issuing common seniority list in the year 2008?

ii(c) Whether the Rules of 1979 provide for making appointment by promotion to the KAS from the officers belonging to different departmental feeding services immediately on acquiring eligibility and subject to availability of vacancies allocable to their feeding services, or, is it the discretion of the Government to fill up the available vacancies at such time(s) and after such interval(s) as it may deem fit?

iii. Whether is it obligatory for the Government under the Rules of 1979 to allocate the posts of the Time Scale of KAS proportionately to the respective departmental feeding services?

iv. Whether inter se seniority of the persons appointed to the service is to be determined in terms of provisions of Rule 16 of the Rules of 1979 and Rule 18 of the Rules of 2008 read with Rule 24 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956, or, is it to be fixed in terms of proviso

(i) appended to Rule 15(4) of the Rules of 2008? v. What is the true scope and interpretation of Rule 15 sub-rule 4 and the proviso (i) of the Rules of 2008? vi. Whether appointment by promotion of 49 persons belonging to different departmental feeding services, as indicated in the minutes of Selection- cum-Establishment Committee, for which no slots were available, by utilizing Leave and Training Reserve posts, is contrary to Rules of 1979 and not sustainable in the eyes of law? If yes, what is its effect on the final seniority list, impugned herein? vii. Whether the relief claimed by the petitioners for fixation of their seniority retrospectively from the date of occurrence of vacancies allocable to their departmental feeding services without first claiming retrospective promotion and seeking review of their cases in terms of proviso (i) to Rule 15(4) of the Rules of 2008, is legally sustainable? 14

17. Before taking up these questions for consideration, it would be appropriate to briefly refer to rival contentions made by the learned counsel appearing for the parties.

B. SUBMISSIONS OF PARTIES:

18. It is contended by learned counsel for the petitioners that though the petitioners and various members of other departmental feeding services, for whom the slots for their respective departmental feeding services for promotion to the Time Scale of KAS were available in the years 2004, 2005, 2006 and 2007, but their cases were deliberately delayed and not placed before the Select Committee for four long years by the Government at the instance of those 49 persons for whom the slots were not available in their services, which were illegally created by utilizing Leave and Training Reserve posts. It was only after creating slots for them, the petitioners and other similarly situated members were finally promoted/inducted into the Time Scale of KAS in terms of three Government orders, referred to above. All these orders contained identical stipulation that seniority of the petitioners and other promotees would be fixed in accordance with the rules and with reference to vacancies allocated by the 15 Establishment-cum-Selection Committee to the respective departmental feeding services.

19. It is further contended that keeping in view the aforesaid stipulation, the Establishment-cum-Selection Committee met on 02.09.2008 and while recommending the promotion of members from their respective departmental feeding services including the petitioners keeping in view the availability of slots in those years, also illegally recommended for utilizing Leave and Training Reserve posts for creating slots for 49 persons. The said fact is evident from the minutes of the meeting of Establishment-cum-Selection Committee when it clearly gave a breakup about the number of vacancies/slots which were available in the years 2004, 2005, 2006 and 2007 in all the departmental feeding services. Therefore, in view the stipulations contained in the aforesaid three Govt. orders, the seniority of the petitioners was required to be fixed keeping in view the reference of the vacancies allocated by the Establishment-cum-Selection Committee for the years of 2004, 2005, 2006 and 2007. However, they were not given retrospective effect of appointment by promotion. Being aggrieved, the petitioners represented to the Government.

20. It is further contended that finally vide SRO bearing No. 386 dated 1st of December, 2008, the Government in exercise of its powers conferred under Section 124 of the Constitution of J&K framed "Jammu and Kashmir Administrative Service Rules, 2008" . Thus, with the coming into force of Rules of 2008 on 01.12.2008, the Rules of 1979 came to be repealed. On the same day, the State of Jammu and Kashmir vide SRO 387 dated 1st of December, 2008 also framed the "Jammu and Kashmir Combined Competitive Examination Rules, 2008", as a result of which the earlier Rules, i.e., Combined Competitive Examination Rules, 1995 dated 17th of July, 1995 issued vide SRO 161, under which rules the selection of the petitioners and private respondents was made, came to be repealed. The major distinction between the Combined Competitive Examination Rules of 1995 and Combined Competitive Examination Rules of 2008 was that under the Rules of 1995, the Combined Competitive Test used to be held for 18 services, whereas under the Combined Competitive Examination Rules of 2008, the Combined Competitive Examination for direct recruitment is held by the Public Service Commission (hereinafter for short, PSC) for three departmental feeding Gazetted Services only, i.e., Junior Scale of J&K Administrative Service, J&K Police 17 Gazetted Service and J&K Accounts Gazetted Service. Thus, after coming into force Combined Competitive Examination Rules of 2008, there is no direct recruitment to the remaining 15 departmental feeding Gazetted Services.

21. It is further contended that recruitment to the Time Scale under Rule 6 clause (b) of the Rules of 2008 is by promotion from amongst the members of 18 Departmental Feeding Services. The persons who can be appointed by promotion to the Time Scale of KAS are only those persons, who are either direct recruits through PSC, or the departmental promotees of these departmental feeding services. From 1st of December, 2008 onwards, the candidates, who are selected by the PSC, are allotted Junior Scale of KAS. They are allotted various different services and are not considered to be the members of departmental feeding services, but are known as Junior Scale of J&K Administrative Service.

22. It is further contended that under Rule 8 of the Rules of 2008, a separate provision has been made for the promotion of all the Junior Scale members of KAS, appointed after 01.12.2008, to the Time Scale. Thus, it is contended that in view of these provisions, the Rules of 2008 bring a clear 18 change and distinction between departmental service and departmental feeding services.

23. It is further contended that under Rule 11, with particular reference to Sub-Rule (1) of Rule 11 of the Rules of 2008, the number of Time Scale posts to be filled up are 55% by promotion from those recruited to the service directly at its Junior Scale, i.e., from and amongst those who are recruited to the Junior Scale KAS after coming into force of Rules of 2008 and those recruitees who do not belong to the departmental feeding services, whereas 45% posts of Time Scale are required to be filled up by appointment by promotion from and amongst departmental promotees of various feeding services. It is stated that Sub-Rule (2) of Rule 11, which contains a non-obstandi clause, provides that until the members of departmental services, appointed either by direct recruitment or by promotion upto the date of commencement of these Rules, i.e., 01.12.2008, are promoted to the Time Scale, the posts of Time Scale shall be filled up in the same manner as were required to be filled up under the Administrative Service Rules of 1979, i.e., strictly in accordance with Sub-Rule (3) of Rule 5 of the Rules of 1979. 19

24. Thus, it is contended that the effect of Rule 11 is that after 01.12.2008, i.e., after coming into force the Rules of 2008, the posts in the Time Scale would be filled up in accordance with Sub-Rule (1) of Rule 11. However, Sub-Rule (2) of Rule 11 provides that until and unless the members of departmental services, appointed either by direct recruitment or by promotion upto 01.12.2008, are absorbed in the Time Scale, the posts of Time Scale shall be filled up in the same manner as were required to be filled up under the Rules of 1979, and only thereafter Sub-Rule (1) of Rule 11 will become operational.

25. It is further contended that under the Rules of 2008, with particular reference to Rule 8, the promotion to the Time Scale is again dependent upon the availability of posts/slots in the respective departmental services. However, if a member from a particular departmental service is not included in the select list at the relevant time despite availability of posts/slots in that departmental service for a variety of reasons, i.e., pendency of departmental proceedings or for any other disciplinary proceedings, and if such member is promoted to the Time Scale belatedly, his/her promotion to the Time Scale would be reckoned with retrospective effect from the date the vacancy was allocable 20 to departmental feeding service. The aforesaid provision is contained in Sub-Rule (4) of Rule 15 of the Rules of 2008.

26. Rule 15 of the Rules of 2008, provides the mode, manner and method of making appointment to the Time Scale, which is reproduced herein below: -

"15. Appointment to the service in the Time Scale: (1) The Government shall make appointment to the service in the Time Scale of persons who are held suitable in terms of Rule 14 in the order in which their names appear in the select list for the time being in force:

Provided that the appointment of an officer, whose name has been included in the select list but treated provisional under sub-rule (3) of rule 14, shall be made by the government after his integrity has been certified by the respective administrative department having regard to the fact that the officer has been exonerated from the charges which were pending against him at the time of his selection.

(3) All appointments shall be made to the service and not against any specific post included in the cadre of service.

(4) Where select list cannot be prepared for the members of any departmental feeding service in any particular calendar year despite availability of vacancies owing to the procedural delay, such members, when finally included in the select list at any later date, shall be appointed to the service from the date on which the vacancy was allocated to such feeding service.

Provided that:

(i) cases of persons appointed against the vacancies of 2004, 2005, 2006 and 2007 shall be reviewed in terms of sub-rule (4) above if their appointment has taken place at a subsequent date.

(ii) persons referred to in sub-rule (4) should otherwise be eligible for appointment to the service under these rules from such retrospective date;

(iii) time scale of the service shall be released to a member of any departmental service who has officiated on a cadre post, or on an equivalent post on an ex-cadre basis, if he is not appointed to the service owing to his retirement provided that a vacancy was available and that he is held suitable by the selection committee for such appointment;

(iv) cases pending on the commencement of these Rules shall also be dealt with in terms of proviso (iii) above".

27. It is further contended that Sub-Rule (4) of Rule 15 applies to those cases where in the meeting of the Select Committee after coming into force the Rules of 2008, i.e., after 01.12.2008, the select list of members of any departmental feeding service in any particular calendar year is not prepared despite availability of vacancies due to procedural delay, such members when finally included in the select list at any later date, they shall be deemed to have been appointed to the Time Scale from the date the vacancies were allocated to such feeding service, hence giving them the retrospective effect in appointment/ promotion. Thus, it is submitted that as the petitioners were eligible for appointment by promotion to the Time Scale in the year 2004 itself and vacancies for their respective departmental feeding services were available in the years 2004, 2005, 2006 and 2007, therefore, they are required to be given the benefit of retrospective seniority as their cases were deliberately not placed before the Select Committee when admittedly it met in all these years, only with an ulterior motive to give undue benefit to 49 persons irrespective of the fact that they were not eligible for promotion/consideration in the said years. Aggrieved by this illegality committed by the 22 respondents, the petitioners contended that they made representations to the Government to undo this anomaly which has deprived them of their rightful due. The act of the respondents depriving them of promotion/consideration which was due to them in the years 2004, 2005, 2006 and 2007 and considering them in the year 2008 was a colourable exercise of power by the official respondents to illegally benefit aforesaid 49 persons.

28. It is further contended that the only distinction between Sub-Rule (4) of Rule 15 and the proviso appended thereto is that the benefit of retrospective appointment to the Time Scale under Sub-Rule (4) of Rule 15 is for those persons whose appointments/promotion to the Time Scale take place after 01.12.2008, but belatedly, whereas the benefit of retrospective appointments/promotion to the Time Scale under the proviso is available only for those whose appointments/promotion to the Time Scale had already taken place before 01.12.2008, but there was a delay in appointing them in the said Scale despite the fact that slots for those feeding services were available in the years 2004, 2005, 2006 and 2007, that is why the proviso was not applied to the vacancies prior to the year 2004.

29. It is further contended that in view of proviso attached to Sub-Rule (4) of Rule 15, the Government is empowered to review the cases of all those persons who stood appointed against the vacancies of 2004, 2005, 2006 and 2007. Since the petitioners stood appointed by promotion to the Time Scale against the vacancies of 2004, 2005, 2006 and 2007, as is evident from stipulation (b) contained in the orders of appointment referred to above, as such their cases were reviewed by the Government and the Government issued Order No. 485-GAD of 2010 dated 21.04.2010, whereby Tentative Seniority List of the Officers of J&K Administrative Service (KAS) appointed against the vacancies from 1st of January, 2004 to 31st of December, 2008 was issued thereby giving the benefit of said proviso to the petitioners and they were deemed to have been appointed with retrospective effect against the vacancies of 2004, 2005, 2006 and 2007 by placing them over and above the private respondents. The relevant paragraph of the said Government order reads as under: -

"Subject: Tentative seniority of the officers of the Jammu and Kashmir Administrative Service (KAS) appointed to the service against the vacancies from 1st January 2004 upto 31.12.2008.

Now, therefore, a tentative seniority list as on 1.1.2010 of the officers as have been appointed to the Jammu and Kashmir Administrative Service against the vacancies of 2004 and thereafter upto ending 31.12.2008 (excluding the retired officers) 24 is hereby circulated as per Annexure-A for information of the concerned officers. This shall be without prejudice to the claims of those officers whose induction could not be completed so far due to pending enquiry or vigilance cases, or due to sanction of prosecution or seniority disputes in the departmental feeding services or because the concerned departments have not completed the procedural formalities pertaining to their induction in the Jammu and Kashmir Administrative service.

30. It is further contended that while issuing the tentative seniority list, the cases of the petitioners and other members of various departmental feeding services were reviewed by the Government strictly in accordance with the proviso. Since the appointment by promotion of the petitioners stood deliberately delayed despite availability of slots in the years 2004, 2005, 2006 and 2007, therefore, the benefit of the proviso was extended to them, as they were deemed to have been appointed by promotion to the Time Scale from the year in which the slots became available in their departmental feeding services and they were placed over and above the respondents in the seniority list.

31. It is submitted that while issuing the tentative seniority list, objections were invited from the aggrieved candidates only with regard to the position assigned to them in the seniority list within a period of 15 days from the date of issuance of the tentative seniority list. It is stated that the objections were invited only to the extent of the position 25 assigned in the seniority list and not to the extent of extending the benefit of proviso to the petitioners.

32. Further, it is submitted that for 49 persons, referred to above, there were no slots available in their departmental feeding services in the years 2004, 2005, 2006 and 2007, but the same were illegally created by utilizing Leave and Training Reserve posts, despite there being no provision in the Rules of 1979 for the same. Private respondents filed objections to the tentative seniority list. The Government instead of considering the position assigned to them in the tentative seniority list, passed Order No. 1076-GAD of 2010 dated 24th of September, 2010, whereby the Government made a Committee of three members. Paragraph No. 2 of the said order makes an interesting reading, which is contrary to the tentative seniority list, inasmuch as, in the tentative seniority list the objections were invited only to the extent of placement in the seniority list, whereas the Committee was appointed to look into substantive issues raised by the aggrieved persons. The said paragraph is reproduced hereunder : -

"Whereas various representations have been received against the said tentative seniority raising therein some substantive issues which require further examination".

33. The Committee submitted its report on 15th of February, 2011. On the basis of the aforesaid recommendations of the Committee, a Govt. Order No. 743-GAD of 2011 dated 24th of June, 2011 came to be passed, whereby and whereunder the final seniority list of the officers of J&K Administrative Service (KAS) was issued and the benefit of proviso attached to Sub- Rule (4) of Rule 15, which was granted to the petitioners earlier, was withdrawn and they were placed below more than 100 slots/positions than the private respondents. It is stated that the few recommendations which suited the Government and the private respondents have only been reproduced in the final seniority list.

34. On the other hand, learned counsel appearing for the respondents have contended that the provisions of Rule 15(4) of the Rules of 2008 are not attracted in the case. The petitioners are not entitled to claim any benefit of retrospective seniority on the basis of aforesaid provisions, which apply and operate to meet different contingencies. It is also contended by the official respondents that the petitioners are not entitled to claim the benefit of retrospective seniority unless they claim the retrospective promotion. The relief of retrospective seniority, which is only consequential to the basic relief of retrospective promotion, cannot be granted 27 unless the basic order, which provides them the appointment by promotion with immediate effect is assailed and the benefit of retrospective promotion is claimed. Besides challenging the maintainability of the writ petitions on the aforesaid ground, the official respondents have taken a stand that the provisions of Rule 15(4) of the Rules of 2008 do not contain the Rules of seniority, which is regulated by other provisions, i.e., Rule 16 of the Rules of 1979, which were in vogue at the time of induction-in-question or at the most under Rule 18 of the Rules of 2008, which were in vogue at the time of fixation of seniority, impugned in the writ petitions. It is also submitted that the provisions of Rule 16 of the Rules of 1979 and Rule 18 of the Rules of 2008 are pari-materia and provide for fixation of inter-se seniority amongst the various categories of officers, who are entitled to be appointed by promotion to Kashmir Administrative Service. A perusal of Rule 16 of the Rules of 1979 and Rule 18 of the Rules of 2008 makes it abundantly clear that the aforesaid Rules do not provide for retrospective seniority. So far as the basic Rule of seniority is concerned, the same is Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 read with Rule 18 of the Rules of 1979.

35. It is further contended that going by the scheme of Rules of 1979, particularly the manner in which recruitment to the Service is provided for, it can safely be contended that appointment to the Time Scale of Service from amongst the members of departmental feeding services is a fresh appointment akin to direct recruitment. Although in the Rules, it has been referred to as appointment by promotion, but in essence is different from a promotion simplicitor, which in terms of Rule 2(h) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, is permissible within the service. The appointment to the Kashmir Administrative Service from different departmental feeding services constituted by separate Gazetted Rules promulgated by the Government, is nothing but a new appointment and the person appointed to the Service is born on the Service for the first time when he is selected by the Select Committee and appointed by the Government to the Service. If that be the position, the petitioners or the private responders herein, who for the first time were appointed to the Service in July and September 2008, cannot claim seniority from any date anterior to the date of first substantive appointment in the Service, unless the Rules prescribe therefor. Admittedly, neither Rule 16 of the Rules of 1979 nor Rule 18 of the Rules 29 of 2008 provides for retrospective seniority. The general Rule of seniority, i.e., Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 also does not provide for fixation of retrospective seniority, i.e., seniority from the date anterior to the appointment to the Service. As already submitted and reiterated, the basic Rule of seniority continues to be the one contained in Rule 24 of the J&K Civil Services(Classification, Control and Appeal) Rules, 1956, whereas, the inter-se seniority of the persons appointed to the Service is to be determined by the provisions of Rule 16 of the Rules of 1979, which were in vogue when induction was made in the year 2008 or at the most Rule 18 of the Rules of 2008, which were in vogue when the seniority was finalized.

36. It is further submitted by the respondents that it is now well settled that nobody has a right to claim appointment or promotion with effect from the date of occurrence of vacancy. The person appointed to the Service either by way of direct recruitment or by promotion takes birth in the Service at the time he is promoted/inducted into the service. He/she is not entitled to claim either the retrospective promotion or the consequent retrospective seniority, unless the statutory Rules prescribe so.

37. It is also pleaded by the official respondents that had the Government not resorted to the utilization of Leave and Training Reserve posts, such persons would have lagged behind even those who came to be appointed from different departmental feeding services in subsequent batch/batches. There was thus no malafide move or intention in utilizing the Leave rand Training Reserve posts, which on the recommendations of Establishment Committee was done by the Government in terms of powers vested in it under Section 4(2) and the proviso appended thereto.

38. In support of their case, learned counsel appearing for the respondents have also relied upon the judgments reported in 2000(7) SCC 561; 2007(1) SCC 683; 2006(10) SCC 346; 2007(15) SCC 406; 1999(9) SCC 596; 2011(3) SCC 267 and 1998 (4) SCC 456.

39. Heard learned counsel for the parties, perused the record and considered the rival submissions made by learned counsel for the parties in the light of relevant Rules and the law on the subject. Accordingly, I proceed to determine the issues one by one in the following manner:-

40. It is contended on behalf of the petitioners that appointment to the Time Scale of KAS is an 'appointment by promotion' and the persons appointed to the Time Scale of Service cannot be treated as direct recruits. Learned counsel appearing for the petitioners have referred to Rule 2 (h) of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 to contend that the said Rule provides that the promotion can be made by way of appointment within the same Service, while as Rule 2(i) of CCA Rules of 1956 provides that a candidate recruited otherwise than by promotion or by transfer is to be treated as direct recruit. The petitioners further contend that this position gets fully cleared if Rules 2(h) and 2(i) are read with Rules 8 and 9 of CCA Rules. It is thus contended that first appointment to any service or class is required to be made in the lowest category or lowest grade of service, whereas Time Scale of KAS, to which the petitioners have been appointed by promotion, is neither the lowest category of KAS nor the lowest grade of Time Scale, as there is only one Time Scale under the 32 Service and the lowest category and the grade of service is Junior Scale KAS.

41. Reference in this regard was also made to Rule 9 of CCA Rules to contend that promotion from one service to another service is also appointment and every first appointment cannot be termed as direct recruitment, which is further clarified from the definition of 'direct recruit' as contained in Rule 2 (i) of CCA Rules. It was contended that since the petitioners have been appointed by promotion from their respective departmental feeding Gazetted service to the Time Scale of KAS from a lower pay scale, which they were holding in their respective departmental feeding services, as such they cannot by any stretch of reason be termed as direct recruits. Finally, it was submitted that even in the Rules of 1979 reference to induction into KAS at several places has been made by using expression "Recruitment or appointment by promotion", as such the contention of the State and other respondents that appointment to Time Scale of KAS is by way of direct recruitment and cannot be termed as promotion simplicitor is, therefore, not supported by Rule position, as such is devoid of any merit.

42. On the other hand, learned counsel for the State has vehemently contended that the nature of appointment to KAS from amongst the members of various Departmental Feeding Services is an appointment akin to direct recruitment to the Service and not a promotion simplicitor. Relying upon the definition of term 'promotion', as contained in Rule 2(h) of CCA Rules, 1956, it is contended that promotion is only permissible within the service, as such, appointment to KAS by promotion from different departmental feeding services constituted by separate Gazetted Rules sanctioned by the Government is nothing but a new appointment to the service, therefore, the person appointed to the KAS takes his birth in KAS for the first time when he is appointed by the Government upon selection made by the Select Committee constituted under the Rules of 1979. It is thus contended that the petitioners and private respondents, who admittedly became member of the KAS either in July or September 2008, were born on the cadre of service only upon their appointment in the year 2008, and unless the Rules prescribe for their retrospective appointment, they cannot claim to have their seniority reckoned from a date anterior to the date of their first appointment to the service. Thus, learned counsel for the respondents contended that the nature of appointment 34 to KAS is required to be considered in the aforesaid context. It is, however, contended that appointment to KAS by promotion may not strictly be a direct recruitment, but, the same is also not a promotion simplicitor.

43. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and I am of the considered view that appointment to KAS service cannot be construed to be a direct recruitment to the Service. Under Rule 2(i) of the CCA Rules, 1956, it has been provided that a candidate recruited otherwise than by promotion or by transfer alone can be treated as a 'direct recruit'. Going by the Rules of 1979 where expressions like 'recruitment or appointment by promotion' have been made at several places, one comes to an inescapable conclusion that the persons appointed to KAS are not appointed from the open market, but, are appointed from amongst the eligible members of different departmental feeding services . Not only this, even while fixing their seniority in the Time Scale of KAS, services rendered by them in their respective departmental feeding services are also taken into consideration. Therefore, it cannot be termed as 'direct recruitment'. However, going by the definition of 'promotion' given in Rule 2(h), appointment to the service also cannot be 35 termed as promotion simplicitor nor it is an appointment by transfer from other services. Going by the scheme of Rules of 1979 where terms like 'direct recruitment', 'promotion' or 'appointment by promotion' are not defined, this Court is left with no option but to refer to the definition of these terms as contained in CCA Rules, 1956. On a careful reading of different provisions of CCA Rules, 1956 read with Rules of 1979, it can be concluded that appointment to the service, i.e., KAS from amongst the members of different departmental feeding services is neither a "direct recruitment"

nor "promotion in strict sense". However, one thing is absolutely clear that whatever be the nature of this appointment, the person who is appointed to the service takes his birth in KAS for the first time and can be treated to be a "fresh recruit" when he/she is appointed and inducted to the KAS. This question has fallen for consideration only with a view to find out as to whether in the context of nature of appointment to the service, the person appointed to the service can, under any circumstance, claim his retrospective appointment, i.e. appointment from the date he was not borne in the service and, for that purpose, he could be equated with direct recruits. Applying the settled law that the persons appointed for the first time to the service takes 36 his/her birth the moment he/she is appointed to such service, as such, cannot claim such appointment retrospectively from any date prior to the date of his/her birth in the cadre of service. This court is, therefore, convinced and is clear that whatever be the nature of appointment to the service, it in any case is the first appointment to the service, therefore determination of question as to whether it is direct recruitment or promotion pales into insignificance.

ii(a) Whether under the Rules of 1979, which were in vogue at the time of induction in question, was it obligatory for the Government to make recruitment to the KAS every calendar year? If not, what could be the effect of that?

ii(b) Whether the respondents were legally justified in not making appointments to the KAS in every calendar year and, instead, clubbing the vacancies/slots of different calendar years for the purposes of making appointments subsequently and, thereafter, issuing common seniority list in the year 2008?

ii(c) Whether the Rules of 1979 provide for making appointment by promotion to the KAS from the officers belonging to different departmental feeding services immediately on acquiring eligibility and subject to availability of vacancies allocable to their feeding services, or, is it the discretion of the Government to fill up the available vacancies at such time(s) and after such interval(s) as it may deem fit?

44. It is submitted on behalf of petitioners that Sub Rule 2 of Rule 5 read with clause (a) of Sub Rule 3 of Rule 5, and Sub Rule 4 of Rule 16 of the Rules of 1979, clearly provided 37 that meeting of the Select Committee shall be convened every calendar year. Therefore, delay on the part of official respondents to convene DPC every calendar year was deliberate and intentional, aimed at depriving the petitioners of their right to be appointed to the service immediately on their acquiring eligibility and availability of slots/vacancies allocable to their services.

45. On the other hand, it is contended by learned counsel appearing for the respondents that no employee has a right to seek appointment or promotion with effect from the date of occurrence of vacancy only on the ground that he/she was eligible to be appointed or promoted to the service when the vacancy became available. It is further submitted that a person appointed to the service either by way of direct recruitment or by promotion takes birth in the service with immediate effect and is not entitled to claim either retrospective promotion or retrospective seniority unless the statutory Rules governing the service so prescribe specifically. Regarding submission of the petitioners that it was obligatory on the part of official respondents to convene a meeting of Select Committee regularly in every calendar year and make induction, it is submitted on behalf of respondents that answer to this contention is clearly available 38 in the Rules of 1979. The respondents have drawn attention of this Court to various provisions of the Rules of 1979, particularly Rule 6, which provides that the Government would, on every occasion on which selection is to be made for appointment to the Service, set-up a Select Committee for making selection. However, under the Rules of 2008, a specific provision has been made in sub-rule 2 of Rule 11 for filling up the vacancies occurring in every calendar year itself. Similarly, Rule 14 of the Rules of 2008 provides that the Select Committee would meet at such intervals in a calendar year as may be necessary. It is, therefore, contended that such provision which indicates that vacancies occurring in every calendar year are required to be filled up in the same calendar year, as found in the Rules of 2008, is not so found in the Rules of 1979. Thus, by referring to different provisions of the Rules of 1979 and the Rules of 2008, it is contended that under the Rules of 1979 there was no such provision making it obligatory for the Government to convene a meeting of the Select Committee in every calendar year and fill up the vacancies available in every calendar year itself. On the basis of this reasoning, it is submitted that in the absence of any obligation to convene a meeting of the Select Committee for making induction every calendar year, the 39 Government was justified in not making induction for four years for various administrative reasons. Therefore, it is maintained that the Government rightly clubbed the vacancies existed since the year 2004 till 2007 for the purpose of making inductions in the year 2008. Finally, it was argued that the plea of the petitioners that failure of the Government to fill up the vacancies occurring in each calendar year has resulted in serious prejudice to the petitioners and they are, therefore, entitled to be given retrospective effect of seniority from the date of occurrence of vacancies allocable to their service, is not sustainable in the eyes of law and does not find any support from the provisions of the Rules of 1979.

46. I have considered the rival contentions of the parties and I am of the considered view that the argument raised on behalf of the petitioners that it was mandatory on the part of the Government to make induction to KAS by convening meeting of the Select Committee every calendar year is not supported by the provisions of Rules of 1979, though, such a provision now finds place in the Rules of 2008. It is not in dispute that induction-in-question was made when the Rules of 1979 were in operation. It is equally well settled that an employee cannot claim promotion from the date of accrual of 40 vacancy, but, it is always left at the discretion of the employer to fill up the same as per requirement of service. It is true that the Government in its reply was not able to justify the period of four long years in convening the meeting of the Select Committee for the purposes of making induction, but, in absence of specific Rules in this behalf, the petitioners cannot claim their appointment/induction with effect from the date of occurrence of vacancies allocable to their services became available. Learned counsel appearing for the petitioners have not been able to point out any provision in the Rules of 1979, though, such a provision could be found in the Rules of 2008. It appears that the Rules of 2008 were issued by the Government to remove the lacuna existing in the Rules of 1979. Going by the different provisions of the Rules of 1979 and the settled position of law that no body has a right to seek promotion from the date of occurrence of vacancy, this court is not inclined to accept the submissions of the petitioners that failure of the Government to make inductions every calendar year regularly ipso facto creates a right in their favour to claim retrospective seniority from the date of accrual of vacancies allocable to their departmental feeding services, as was proposed by the Government in the tentative seniority list. This observation is, however, made 41 independent to the provision of Rule 15, particularly the proviso appended to Sub Rule 4 of the Rules of 2008, which would be dealt with in the later part of the judgment. iii. Whether is it obligatory for the Government under the Rules of 1979 to allocate the posts of the Time Scale of KAS proportionately to the respective departmental feeding services?

47. It is contended on behalf of the petitioners that as per proviso (i) and (ii) attached to Sub-Rule 1 of Rule 8, it is apparent that slot system was very much available and operational under the Rules of 1979, therefore, the contention raised on behalf of the respondents that there was no mandatory provision in the Rules of 1979, which cast a duty on the Government to allocate the posts in the Time Scale of KAS proportionate to the number of posts in the respective Departmental Feeding Services, is not tenable in law.

48. On the other hand, it is submitted on behalf of the respondents that the only provision in this regard which can be found in the Rules of 1979 is Note-2 appended to Sub Rule (1)(b) of Rule 5, which only provides for making selections made from time to time for appointment to KAS at its Time Scale bearing same ratio as far as possible to the number of posts in the respective departmental feeding 42 services. It is, however, submitted that a Note appended to a Section or Rule is neither considered to be part of the Rule nor it controls the main provision, but can only be used as an aid to interpret the main provision. Further, it is contended that going by the language used in Note-2, it can be safely said that although there is no mandatory provision to maintain a particular ratio, yet, it is left to the wise discretion of the Government to see that all departmental feeding services are adequately represented. The principle of proportionate working out of slots for each Departmental Feeding Services was for the first time introduced in the Rules of 2008. Respondents have referred to Sub Rule 2(a) of Rule 18 of the Rules 2008 to support their contention.

49. The aforesaid question raised by the parties can not detain this Court for the reason that although it is true that under the Rules of 1979, it has not been specifically provided for working out the ratio proportionate to the strength of each departmental feeding service, yet going by the provisions of Rules of 1979, particularly Rule 8 and the proviso appended thereto as also the stand taken by the State, it can easily be gathered that such a practice of working out of slots for each departmental feeding service proportionate to its total strength has been in vogue and in practice constantly. The 43 Government, therefore, can not be allowed to say that the Rules did not cast a mandatory duty upon it to work out the ratio proportionate to the strength of each departmental feeding service by taking shelter of Note-2 of Sub Rule 1(b) of Rule 5. Therefore, it is held that in terms of the provisions of Rules of 1979, the principle of working out of slots allocable to each departmental feeding service proportionate to its strength was in vogue under the said Rules. The contention of the petitioners that the Government was bound to allocate the posts to the Time Scale of KAS proportionate to the number of posts in the respective departmental feeding services is, therefore, correct and is upheld. What would be its consequence would be dealt with in the later part of the judgment.

(i) appended to Rule 15(4) of the Rules of 2008?

50. It is submitted on behalf of the petitioners that seniority of the persons appointed to the service is required to be determined in terms of proviso to Rule 15(4) of the Rules 2008. The said Rule casts a duty upon the Government to confer retrospective seniority in favour of the members of 44 service inducted against the slots available in the years 2004 to 2007.

51. On the other hand, learned counsel appearing for the respondents have argued that inter-se seniority is to be determined in terms of Rule 16 of Rules of 1979 or Rule 18 of the Rules of 2008 read with Rule 24 of the J&K Civil Service (Classification, Control and Appeal) Rules, 1956. It is contended that Rule 15(4) and the proviso appended thereto in fact is not a Rule of seniority, but a Rule which provides for giving retrospective effect to appointment by promotion to the services under certain circumstances, as laid down in the aforesaid Rule. In any case, it is contended that the seniority is to be fixed under Rule 16 which is a Rule of seniority under the Rules of 1979. Though, learned counsel appearing for respondents differ with regard to the applicability of Rules of promotion, inasmuch as counsel appearing for the State contended that it is Rule 16 of the Rules of 1979 which would be relevant for the purposes of determining inter-se seniority. Learned counsel appearing for other respondents contended that since seniority list was finalized after promulgation of Rules of 2008, as such Rule 18 would apply in determining inter-se seniority. It was, however, submitted that whether Rule 16 of the Rules of 1979 or Rule 18 of the Rules of 2008 45 both provide for a method in determining the inter-se seniority, whereas the basic Rule would continue to be Rule 24 of the CCA Rules, 1956.

52. I have given my thoughtful consideration to the rival contentions of the parties and I am of the considered view that Rule 15(4) of the Rules of 2008 as well as proviso(i) appended thereto is not a Rule of seniority, but a Rule which is required to be taken into consideration by the Government while formulating seniority. The proviso appended to Rule 15(4) only provides for review of appointments by promotion made to the Service from time to time by utilizing vacancies/slots of the preceding years, i.e., in the instant case, for the years 2004, 2005, 2006 and 2007. Rule 15(4), thus, essentially provides for giving effect to the appointment by promotion of members of the services retrospectively, i.e., with effect from the date such members had acquired eligibility and the slots in the departmental feeding services, to which such members belonged, became available.

53. Admittedly, the slots/vacancies which became available in the years 2004, 2005, 2006 and 2007were filled up only in the year 2008 when large scale induction into KAS was made by the Government after a gap of about four years. It is, thus, 46 crystal clear that although Rule 15(4) and the proviso appended thereto is not a Rule of seniority, but would surely alter the fixation of seniority of those appointed by promotion to the service in the year 2008 against the vacancies/slots of preceding years, consequent upon review of their cases as envisaged in the proviso appended to Rule 15(4) of the Rules of 2008. Seniority, impugned herein, was finalized after coming into force the Rules of 2008, as such Rule 18, which provides for fixation of inter-se seniority, is applicable and not Rule 16 of the Rules of 1979, as contended by the State counsel. Otherwise also, this Court do not find any material difference in the matter of determination of inter-se seniority as provided in Rule 16 of the Rules of 1979 and the one provided under the Rules of 2008 as both the Rules are pari- materia.

v. What is the true scope and interpretation of Rule 15 sub-rule 4 and the proviso (i) of the Rules of 2008?

54. It is contended on behalf of the petitioners that Sub Rule 4 of Rule 15 of the Rules of 2008 applies to those cases where select list would have been prepared after coming into force the Rules of 2008, i.e., after 01.12.2008. If in the meeting of Select Committee held after coming into force the Rules of 2008, the select list of the members of any 47 departmental feeding service in any particular calendar year was not prepared despite availability of vacancies in that service owing to procedural delay and those members if finally included in the select list at any later date, i.e., after 01.12.2008, said members would be entitled to have been appointed to the Time Scale of KAS from the date on which the vacancies were allocated to such feeding service. Therefore, the appointments to the Time Scale of Service of such members would be retrospective in nature, i.e., from the date the vacancies were allocated to such service. It is, therefore, submitted that though some of the petitioners were eligible for appointment by promotion to the Time Scale in the year 2004 itself, some acquired eligibility in the subsequent years upto 2007 and despite availability of vacancies in their departmental feeding services, they were not considered by the Select Committee and the matter was delayed for four long years only with a view to accommodate 49 persons, referred to in the writ petitions. It was only in the year 2008 after the Government took a decision to utilize Leave and Training Reserve Posts for some of the departmental feeding services, which were lagging behind because of non- availability of slots, a meeting of the Select Committee was convened for making appointments by promotion to the Time 48 Scale by clubbing/bunching vacancies of different departmental feeding services, which had become available in the years 2004, 2005, 2006 and 2007. It is in this background, learned counsel for petitioners contended that the proviso appended to Sub-Rule 4 of Rule 15 of the Rules of 2008 was enacted in the Rules of 2008 to confer the benefit of retrospective appointments to the Time Scale only in favour of those members who were appointed to the Time Scale prior to 01.12.2008. Thus, the case of the petitioners is that they are entitled to the benefit of retrospective effect of seniority with effect from the year when vacancies/slots to their departmental feeding services became available, as they had already acquired eligibility for such appointments. It is, thus, contended that the Government at the time of issuing tentative seniority list ought to have reviewed all such cases and appointed them against the vacancies of the years 2004, 2005, 2006 and 2007 by giving them the benefit of retrospective seniority. On the basis of these submissions, learned counsel for the petitioners submitted that the interpretation which was earlier made by the Government on the provision of Rule 15(4) and its proviso at the time of formulation of tentative seniority list, is the only correct interpretation.

55. On the other hand, learned counsel appearing for the respondents have submitted that for better understanding the true interpretation and scope of Rule 15(4) and its proviso, it would be necessary to briefly refer to some of the provisions of Rules of 2008 appearing prior to Rule 15 to find out the real intention of rule making authorities for enacting such a provision. It is contended that in terms of Rule 9 of the Rules of 2008, a member of a feeding departmental service is entitled to be appointed to the Time Scale of Service by promotion on the recommendations of Select Committee subject to the conditions laid down in Rule 8. Rule 11 provides for the quota allocable to three different sources of recruitment to the Service, i.e., 65% from departmental feeding services, 10% by selection from persons of outstanding merit and ability, and 25% by promotion from the Junior Scale KAS Officers. So far as the selection to the Time Scale of Service from two sources, i.e., departmental feeding services and the persons other than the departmental feeding services having sufficient merit and ability are concerned, the same is required to be made on the recommendations of Select Committee consisting of the Chief Secretary and such other Members as may be nominated by the Government. This is so provided in Rule 12 of the Rules of 2008. In terms 50 of Rule 13, the number of vacancies allocable to the departmental feeding services are required to be communicated by the General Administration Department to the respective Administrative Departments of the departmental feeding services with the approval of the Chief Secretary. In response, the Secretaries concerned of the Administrative Departments of the departmental feeding services would forward to the General Administration Department a panel of eligible Officers in the order of their seniority, which would not be more than twice the number of vacancies available for/allocated to their respective departmental feeding services for placement of the same before the Select Committee. As provided in Sub-Rule (3) of Rule 13, the panel of Officers to be forwarded to the General Administration Department would be accompanied by the following documents:

- Firm seniority list of Departmental Services;

      -     APRs of preceding 05 years;

      -     Integrity Certificate;

      -     A certificate that no criminal or departmental

proceeding is pending against the officer;

- A certificate that there is no court order restraining the appointment to the service.

56. The Select Committee then would prepare a list of such Officers, who are found suitable for appointment and would classify them as outstanding, very good, good or unfit, as the case may be. The select list would be prepared by the Select Committee in the order of classification made containing the names of Officers starting with those classified as outstanding, followed by those classified as very good, and thereafter by those as good. In terms of Rule 15, which is the core issue of controversy in these petitions, the Government is empowered to make appointments to the Service in the Time Scale of the persons who are held suitable in terms of Rule 14 in the order, in which, their names appear in the select list for the time being in force. Sub-Rule (4) of Rule 15 unequivocally provides that where the select list cannot be prepared for the members of any departmental feeding service in any particular calendar year despite the availability of vacancies owing to procedural delay, such members when finally included in the select list at any later date, shall be appointed to the Service from the date on which the vacancy was allocated to such departmental feeding service. A bare perusal of Sub-Rule (4) makes it abundantly clear that it would come into operation in a contingency where the select list could not be prepared for the members of any 52 departmental feeding service in any particular calendar year due to any procedural delay despite the availability of vacancies.

57. Sub-Rule 15(4), therefore, has been introduced in the Rules of 2008 in the context of provisions of Rules 9, 10, 11, 12, 13 and 14, which provide for different steps to be taken for making appointments to the Service. Sub-Rule (4), as is apparent from its perusal, is prospective in operation and would apply to the selections made after 1st December, 2008 when the Rules of 2008 came into force. Sub-Rule (4) pre- supposes preparation of select list for the members of different departmental feeding services in a particular calendar year, but provides for a contingency where members of any departmental feeding services are not considered due to procedural delay despite availability of vacancies and such members when finally considered at a later stage, they would be entitled to be appointed to the Service from the date the vacancies were allocated to such feeding service. In this regard, it would be pertinent to mention here that under the Rules of 2008, the selection to the Kashmir Administrative Service is required to be made in each calendar year. The expression used in sub-rule (4) "where select list cannot be prepared for the members of any 53 departmental feeding service" would only mean that though the select list was prepared for other departmental feeding services, but could not be prepared for any departmental feeding services, could be one or more departmental feeding services, due to the procedural delay, like the seniority list could not be finalized or there was litigation pending inter-se the members of the departmental feeding services or other factors as enumerated in Sub-Rule (3) of Rule 13, and, in such eventuality, such members when finally included in the select list after fulfilling the procedural requirements at any later stage, would be entitled to have been appointed to the Service from a retrospective date, i.e., when the vacancy was allocated to such departmental feeding service. The expression used in the sub-rule "when finally included in the select list" clearly indicates the existence of select list, to which the members of left out departmental feeding service are subsequently appointed. It is in these contingencies, the benefit of retrospective appointment has been provided.

58. Similarly Proviso-I appended to the Rule only provides that if such a situation has occurred with regard to the persons appointed against the vacancies of 2004, 2005, 2006 and 2007, the same would be reviewed in terms of Sub-Rule 54 (4) in case their appointments too have taken place at a subsequent date.

59. In this regard learned counsel for the respondents submit that a plain reading of this proviso would suggest that in case the select list for the years 2004, 2005, 2006 and 2007 had been prepared in the aforesaid years by including therein the members of different departmental feeding services and excluding the members of departmental feeding services to which the petitioners belong due to procedural delay and that the left out members of such departmental feeding services were subsequently appointed, in that eventuality the persons who could not be selected in a particular year along with others due to procedural delay would be entitled to have their appointments reviewed in terms of Sub-Rule (4). And that would mean such members when finally included in the select list at a later date would be entitled to retrospective appointment, i.e., with effect from the date the vacancies/slots were allocated to their departmental feeding services, but could not be filled up due to procedural delay. Learned counsel for the respondents, however, contended that such a contingency did not happen in the instant case. It is submitted that since during the years 2004, 2005, 2006 and 2007 no select list was ever prepared, 55 therefore there was no question for including the members of some of the departmental feeding services in the select list by the Select Committee and the exclusion of others due to procedural delay. Therefore, no question arises for subsequent inclusion of the members of left out departmental feeding services at any later stage. That being so, Proviso-I to Sub-Rule (4) of Rule 15 of the Rules of 2008 would be of no avail to the petitioners, as the same has been wrongly interpreted and pressed into service, that too for claiming retrospective seniority and not retrospective appointment to the Service. Thus, it was argued that no other interpretation other than the one projected herein above is possible on a plain reading of the aforesaid provision, as also reading the same in the context of the earlier Rules forming the sequence.

60. Additionally, learned counsel for the State also argued that the provisions of Rule 15(4) of the Rules of 2008 are not applicable to the appointments by promotion to the Time Scale of Service, which were made prior to the issuance of Rules of 2008 and the same are intended to cater to different contingency. He has also referred to several provisions of Rules of 1979 and Rules of 2008 to make good his point. 56

61. During the course of arguments, it was submitted by learned counsel appearing for the petitioners that appointments by promotion to the Time Scale of KAS were actually made during the years 2004, 2005, 2006 and 2007 when the Select Committee had met to consider induction against the available slots of different departmental feeding services. However, learned counsel for the respondents disputed the same. It was contended on behalf of respondents that no such case has been set up by the petitioners in their writ petitions nor any of the petitioners in their writ petitions has claimed that the Select Committee had met in the years 2004,2005,2006 and 2007 and considered the members of other departmental feeding services, whereas members of their departmental feeding services were left out due to procedural delay and were subsequently considered in the year 2008, as such are entitled to be given retrospective effect of appointment.

62. Mr. Abhinav Sharma, learned counsel appearing for some of the petitioners, by the medium of written submissions has placed on record some orders of induction to substantiate his aforesaid submission. Although these orders are not part of the writ record and respondents had no opportunity to rebut the same, yet, as contended by the 57 respondents, orders appended and relied upon by the learned counsel for petitioners do not substantiate the submission made by their learned counsel in this behalf. The said orders pertain to appointment by promotion to the Time Scale made by the Government against the vacancies of the year 2003, when admittedly the petitioners had not acquired eligibility. The position is apparent from the perusal of annexures appended to Government Order No.118-GAD of 2004 dated 24.01.2004 and Government Order No.153-GAD of 2004 dated 31.01.2004. However, there is one Govt. Order No.1337-GAD of 2007 dated 20.11.2007, whereby only one person, namely, Sh. Pardeep Kumar has been appointed to Senior Time Scale KAS with immediate effect. The said order clearly indicates that it was a case of promotion from Junior Scale KAS to Senior Time Scale and not appointment by promotion as is envisaged in Rule 15(4) and the proviso appended thereto. It is further submitted that even if these documents are accepted, yet the same do not advance the case of petitioners in the absence of such pleadings taken in the writ petitions. Therefore, it is contended that the petitioners cannot be allowed to take such grounds during the course of arguments which they have not taken in their writ petitions.

63. I have considered the rival contentions raised by learned counsel for the parties and I am inclined to accept the interpretation which has been put by the learned counsel appearing for the respondents.

vi. Whether appointment by promotion of 49 persons belonging to different departmental feeding services, as indicated in the minutes of Selection- cum-Establishment Committee, for which no slots were available, by utilizing Leave and Training Reserve posts, is contrary to Rules of 1979 and not sustainable in the eyes of law? If yes, what is its effect on the final seniority list, impugned herein?

64. The plea of the petitioners is that in order to favour these 49 persons, in whose feeding services there were no slots during the years 2004 to 2007 and even in the year 2008 for their induction into Time Scale of KAS, the cases of petitioners were deliberately delayed and not placed before the Select Committee for four long years despite availability of slots in their departmental feeding services. It is contended that the Select Committee in order to favour these 49 persons, purposely recommended utilization of Leave and Training Reserve posts, which in fact was not permissible under the Rules of 1979. In short, the plea of the petitioners is that since there were no slots available for making induction of these 49 persons, they could not have been inducted into the Time Scale of KAS, that too over and above 59 the petitioners. Reference in this regard has been made to different provisions of the Rules of 1979 to demonstrate that there was no provision which empowered the Select Committee or the Government to utilize Leave and Training Reserve posts in favour of a particular departmental feeding service.

65. Mr. Raina, learned Senior Counsel, contended that the provision for reviewing the position of appointment to the service by promotion from the members of different departmental feeding services has been provided in the amendment made to Rules of 1979 vide SRO 251 dated 31.08.2005, in which it has been incorporated that the Government would review the position of appointment to KAS by promotion of officers from different departmental feeding services after every five years reckoning from 01.07.2005. It is contended that the Government has resorted to utilize Leave and Training Reserve posts under the pretext of reviewing the position of appointment to the service by promotion even before the stipulated period of five years. It is further contended that cadre review could have been made only on or after 01.07.2010, as such, utilization of Leave and Training Reserve posts for accommodating 49 persons of different departmental feeding services in the year 2008 is 60 bad in the eyes of law. The respondents cannot derive any strength from the aforesaid provision for justifying utilization of Leave and Training Reserve posts in case of 49 persons belonging to different departmental feeding services for which there were no slots available for induction in the year 2008.

66. Mr. Abhinav Sharma, learned counsel appearing for some of the petitioners, has submitted that in terms of Rule 12 of the Rules of 1979, no appointment to the Time Scale of KAS could be made by utilizing leave and training reserve posts, which posts had been created for meeting different contingencies. He also referred to Sub Rule 3 of Rule 11 of the Rules of 2008 to demonstrate that it is only under these Rules, the Government for the first time was empowered to make periodical review the position of appointments to the Service by promotion from the members of departmental feeding services to ensure that direct recruits of departmental services of an earlier batch and those appointed by promotion to these services upto the date of appointment of such direct recruit shall not become junior to the direct recruits appointed to these services in the subsequent batch or batches. The proviso appended to aforesaid Sub Rule makes it abundantly clear that Leave and Training Reserve posts can be utilized as an exception to achieve the 61 aforementioned objective. By drawing comparison between the provisions of Rules of 1979 and Rules of 2008, it is argued that the Government under the Rules of 1979 had absolutely no power to utilize Leave and Training Reserve posts to favour some members of departmental feeding services.

67. On the other hand, learned counsel for the State respondents has contended that the question with regard to appointment of 49 persons to the service by promotion against the Leave and Training Reserve posts may not be relevant for determination of the controversy, in as much as all the writ petitioners in their writ petitions have not called in question induction of these 49 persons. Once the petitioners have no grievance as regards induction of these 49 persons, no question arises for utilization of Leave and Training Reserve posts.

68. However, there is an exception in this regard, inasmuch as writ petitioners in SWP No. S-1487/2011 besides challenging the final seniority list, have also sought writ of Certiorari for quashing induction of these 49 persons, who have been inducted into KAS against the Leave and Training Reserve posts.

69. Learned counsel appearing for private respondents, however, have submitted that in terms of Rule 4 of the Rules of 1979, the Government is empowered to alter the strength and position of the cadre at any point of time. It is contended the power to alter strength and position of cadre would include converting a part of deputation reserve/leave reserve/training reserve posts and diverting the same to benefit the members of any departmental feeding services, inadequately represented at the time of induction. My attention has been drawn to the minutes of meeting of the Establishment Committee to insist that the Establishment Committee has given very strong and cogent reasons for utilization of 49 Leave and Training Reserve posts so as to accommodate aforesaid 49 persons, who were otherwise appointed along with writ petitioners, but, were not likely to make it to the Time Scale of KAS due to non-availability of vacancies allocable to their departmental feeding services. It is contended that had the Government not resorted to utilize Leave and Training Reserves, such persons though appointed along with petitioners would have been left out and lagged behind their batch mates for all times to come. As such, power in terms of Rule 4 of the Rules of 1979 was 63 exercised to remove these hardships for these 49 persons. Therefore, there was no malafide in utilizing reserved posts.

70. With regard to the prayer of the petitioners in SWP No.S-1487/2011, it is contended on behalf of respondents that challenge to the induction of aforesaid 49 persons would not be maintainable for various reasons including the one that the writ petition is hit by delay and laches. The induction of aforesaid 49 persons was made in the year 2008 and for three long years no body including the petitioners in the aforesaid writ petition has challenged the same. The petitioners approached this Court only when seniority list was finalized and these 49 persons got berth in the seniority list over and above them. Thus, it is submitted that the primary grievance projected by the writ petitioners in all the writ petitions including S-1487/2011 is with regard to fixation of their seniority which is alleged to have been framed without taking into consideration proviso to Rule 15(4) of the Rules of 2008.

71. As per the detailed arguments advanced by learned counsel appearing for both the sides, I am of the considered view that the manner in which 49 Leave and Training Reserve posts have been utilized for adjusting 49 persons in 64 the Time Scale, the same is not in consonance with the Rules of 1979. It is equally correct that none of the petitioners has challenged the induction of these 49 persons, though the grievance has been raised by the petitioners that the induction of these 49 persons against the Leave and Training Reserve posts was contrary to the Rules. I am also in agreement with learned counsel appearing for the respondents that induction of these 49 persons made by utilizing Leave and Training Reserve posts cannot be faulted with because of the reason that though the induction was made in the year 2008, but no grievance was made by the petitioners during the last three years. It was only when the seniority list was finalized, the petitioners approached this Court challenging the fixation of seniority on various grounds including the one that induction of these 49 persons was not in consonance with the Rules. In absence of specific challenge made by the petitioners to the induction of these 49 persons in time, this Court is not in a position to quash their selection even if grounds for such quashment exist. It is equally correct that in terms of Rule 4 of the Rules of 1979, the Government is empowered to alter the strength and composition of cadre, including conversion of Leave and Training Reserve posts and their diversion to other feeding 65 departmental services, but, it is to be noticed that such power when exercised by the Government has to be in conformity with Articles 14 and 16 of the constitution. Once the rules have been framed under the proviso to Article 124 of the Constitution of Jammu & Kashmir, the same have to be followed. No executive instructions, circulars, Government orders or any other kind of order can run contrary to the rules made under Article 124 of the Constitution of Jammu & Kashmir. I have not been able to find any provision in the Rules of 1979, which would empower the Government to convert these Leave and Training Reserve posts for a particular departmental feeding service. Had the Government taken a decision to utilize these 49 Leave and Training Reserve posts for the benefit of departmental feeding services, then it was incumbent upon the Government to distribute these slots proportionately to all the departmental feeding services. This does not appear to have been done by the Government. Otherwise also, the Select Committee, which is empowered to scrutinize eligibility and entitlement of members of different feeding departmental service for the purpose of induction, is not competent under the Rules to take such a decision, which in terms of Rule 4 of the Rules 66 1979 and proviso appended thereto is the prerogative of the Government.

72. Having said so, this Court may not be in a position to declare induction of these 49 persons as illegal and contrary to the Rules of 1979, yet, this Court cannot lose sight of the fact that in the face of rule position, their induction into the Time Scale of KAS cannot be held to be regular, particularly when review of their position of induction into KAS was not made on or after 01.07.2010 in terms of SRO 251 dated 31.08.2005. This being the position and in view of settled legal position, these 49 persons cannot be placed over and above those, who have been regularly appointed to the service in conformity with the Rules of 1979.

73. My view is fortified by the judgments of Apex Courts U.D.Lama and others v. State of Sikkim and others reported in (1997) 1 SCC 111, Miss Shainda Hasan v. State of Uttar Pradesh and others reported in AIR 1990 SC 1381 and C.K.Antony v. B.Muraleedhara and others reported in (1998) 6 SCC 630.

74. I am also fortified by the view taken by the Apex Court in case titled as Bhupendra Nath Hazarika and another v. 67 State of Assam and others, reported in AIR 2013 SC 234, wherein it is held as under:

"26. We have referred to the facts in detail and what this Court had ultimately held only for the purpose that where recruitment of service is regulated by the statutory rules, the recruitment must be made in accordance with those rules and if any appointment is made in breach of the rules, the same would be illegal and the persons so appointed have to be put in a different class and they cannot claim seniority."

"33. Recently, in State of Haryana and others v. Vijay Singh and others [13], the question arose with regard to the fixation of seniority in the backdrop of ad hoc initial appointment made de hors the statutory rules but later on services were regularized by the State Government. The Court took note of the fact that the respondents therein were neither appointed by the competent authority on the recommendations made by the Board which was constituted by the Governor of Haryana nor were they placed on probation as required under the rules and, therefore, their ad hoc period could not be counted for the purpose of fixation of seniority. Thus, emphasis was laid that when appointment is made without following the procedure prescribed under the rules, the appointees are not entitled to have the seniority fixed on the basis of the total length of service. In essence, it has been ruled that when the appointment is made de hors the rules, the appointee cannot claim seniority even if his appointment is later on regularized."

"47. From the aforesaid analysis, there can be no scintilla of doubt that the selection of the special batch recruits was totally de hors the Rules; that there was a maladroit effort to go for a special drive when there was no need for the same by the State which is supposed to be a model employer; that neither the concept of relaxation nor the conception of benefit of Rule 18 would be attracted for grant on conferring any privilege to the special batch recruits; that their seniority has to be pushed down and, hence, the directions given by the tribunal and the High Court in that regard are absolutely flawless; and that regard being had to the delayed challenge and long rendering of service in the posts and further promotions having been effected, it would be inapposite to quash their appointments."

75. Learned counsel appearing for the State also argued that the private respondents were more meritorious than the petitioners, therefore in order to do justice to them, they have been appointed to the Time Scale of KAS by utilizing Leave and Training Reserve posts.

76. If that is the situation, then they must have already availed the benefit of higher merit by choosing the services they wanted. The State counsel, therefore, cannot take this plea for allowing another benefit to the private respondents on the basis of their merit, as the allotment of cadre/service is done on the basis of merit-cum-choice option.

77. Therefore, in my considered view, these 49 persons are required to be placed at the bottom of final seniority list and, in any case, below the petitioners. However, their actual placement in the seniority list is required to be worked out by the Government in the light of the observations made hereinabove.

vii. Whether the relief claimed by the petitioners for fixation of their seniority retrospectively from the date of occurrence of vacancies allocable to their departmental feeding services without first claiming retrospective promotion and seeking review of their cases in terms of proviso (i) appended to Rule 15(4) of the Rules of 2008, is legally sustainable?

78. It is argued on behalf of the petitioners that the plea of respondents that in absence of claim of retrospective promotion, retrospective seniority which is the consequence of such retrospective promotion cannot be granted, is not sustainable in view of the fact retrospective promotion should 69 be deemed to have been given by the Government when tentative seniority list was issued by the Government vide Order No.485-GAD of 2010 dated 21.04.2010 keeping in view the availability of slots and date of acquiring eligibility by the petitioners. It is, thus, contended that once the plea of the petitioners was accepted by the Government when it framed the tentative seniority, it does not lie in the mouth of the respondents to say that the petitioners cannot claim retrospective seniority as they have not specifically claimed retrospective promotion in terms of proviso to Rule 15(4) of the Rules of 2008.

79. On the other hand, learned counsel appearing for the respondents have submitted that vide Government order dated 21.04.2010 only tentative seniority list was issued which was subject to objections by the persons aggrieved. Many of the private respondents submitted their objections challenging the mode and manner in which it had been prepared by the Government. The Government finding prima- face case, constituted a Committee known as 'Verghese Committee', who, after deliberating over the matter, made certain recommendations. On consideration of the grievance of the aggrieved persons including the private respondents herein in light of the recommendations of 'Verghese 70 Committee', the Government issued the final seniority list, impugned in these writ petitions. Thus, it is contended that as the tentative seniority list has merged with the final seniority, therefore, the petitioners cannot claim any right flowing from the tentative seniority list, which has ceased to exist upon circulation of final seniority list. It was argued that the concept of tentative seniority list is not envisaged under the Service Rules and is devised by the Government to give fair opportunity to all the persons to know their seniority position and if any one is aggrieved of the same, he/she can put forth his/her grievance before the competent authority, before the seniority list could be finalized. It is insisted that under proviso (i) to Sub-Rule 4 of Rule 15 of the Rules of 2008, the petitioners, if governed by the aforesaid proviso, can only claim retrospective promotion and not retrospective seniority.

80. I have considered the rival contentions of the parties. The issues raised hereinabove as regards proviso to Rule 15(4) of the Rules of 2008 have already been dealt with by this Court hereinabove. In view of the case set up by the petitioners, provisions of the aforesaid proviso are not attracted unless the petitioners demonstrate that during the years 2004, 2005, 2006 and 2007 induction was actually 71 taken place with regard to some of the departmental feeding services leaving the departmental feeding services to which the petitioners belonged due to procedural delay. No such case has been set up by the petitioners nor it is clear from the pleadings as to whether any induction during the years- in-question had taken place or not. It is also to be noticed that the tentative seniority list is always provisional and subject to variation. Once the final seniority list is issued, tentative seniority list ceases to exist and merges with the final seniority list.

81. It is rightly contended by the respondents that no right can be derived by the petitioners on the basis of tentative seniority list, particularly when the same has merged with the final seniority list. The tentative seniority list merely denotes the tentative and provisional expression of opinion by the Government on the issue and it is well within its right to either confirm or change the said opinion once it considers the objections filed by the aggrieved candidates. Technically speaking, benefit of retrospective seniority cannot be given to the petitioners unless the petitioners are held entitled to retrospective promotion from a particular date. The plea of the petitioners, therefore, fails and plea of respondents raised hereinabove merits acceptance. This, however, does not 72 absolve the State to reconsider the matter in light of proviso

(i) to Sub Rule 4 of Rule 15 of the Rules of 2008 if petitioners make such a grievance by way of representation(s) or review petition(s) demonstrating their entitlement to retrospective effect of promotion from the date anterior to their actual inductions in the light of interpretation placed by this Court on the aforesaid provisions of Rules of 2008. If such a representation/review petition is filed, it would be the duty of the Government to consider the same and take appropriate decision in the matter. This liberty is being given to the petitioners only because of deficient pleadings in the writ petitions.

82. That apart, learned counsel for the parties have submitted several judgments on the point as to whether promotion can be claimed from the date of occurrence of vacancies and whether retrospective seniority could be claimed without claiming retrospective promotion. However, in view of the clear provision of Sub Rule 4 of Rule 15 of the Rules of 2008 and the proviso appended thereto, which has been interpreted by this Court hereinabove, there is hardly any necessity to refer all those judgments which would only apply to the cases where there is no specific provisions in the Rules conferring the benefit of retrospective 73 seniority/retrospective promotion. In the case in hand, I am confronted with the specific provision, i.e., proviso (i) to Sub Rule 4 of Rule 15 of the Rules of 2008, which provides for grant of retrospective promotion under certain contingencies. Rule aforesaid has already been interpreted. That being so, judgments referred to by the learned counsel appearing for both the sides are not germane to disposal of these petitions and the controversy raised therein.

C. SWP No. 1740/2011 and SWP No.S-1450/2011.

83. The controversy projected in these petitions is primarily the same which has arisen in the aforesaid writ petitions. It is stated that the petitioners in these writ petitions besides being aggrieved of the final seniority list of officers belonging to KAS issued vide Govt. Order No. 743-GAD of 2011 dated 24.06.2011, have also challenged the validity of Government Order No. 917-GAD of 2005 dated 30.07.2005, whereby seniority list of members of J&K Administrative Service as on 01.07.2005 has been issued by respondent no.1.

84. The facts as projected in these petitions in short are that petitioners before their induction into KAS belonged to Revenue Gazetted Service and were appointed to the said service in the year 1992 vide Govt. Order No.1065-GAD of 74 1992 dated 13.11.1992. As is projected in the writ petitions, several disputes arose within their services which were ultimately settled by the Hon'ble Supreme Court and the petitioners were granted the benefit of notional seniority with effect from the date the direct recruits of 1984 had been appointed to the Revenue Gazetted Services, but the Hon'ble Supreme Court while deciding the controversy made it clear that the promotions, if any made in the meanwhile, would not be affected by fixation of such notional seniority. The petitioners further claim that induction into KAS from Revenue Gazetted Service was made twice after they were appointed to the said service, firstly in the year 1997 and, thereafter, in the year 2008. It is further pleaded that as regards other departmental feeding services, induction took place in the year 1997, 2000, 2003, 2004, 2005, 2006 and 2008, the petitioners though were also eligible and entitled to be inducted into KAS during the years when members of other services were inducted, but they were not inducted because of various disputes pending before this Court as well as Hon'ble Supreme Court. The petitioners, therefore, submitted that despite availability of vacancies for their service, members of the Revenue Gazetted Services were not considered at all by the Select Committee in any of the 75 meetings held after 1997 to 2008. The members of other services, who were inducted into KAS well in time, have now opposed the claim of writ petitioners on the ground that the benefit of induction cannot be granted from a retrospective date.

85. Writ petitioners besides putting their claim for retrospective induction, i.e., with effect from 1997 onwards as per availability of slots for their service, have also relied upon proviso to Sub Rule 4 of Rule 15 of the Rules of 2008 to seek such retrospective benefit of promotion and fixation of their seniority at least w.e.f. 2004 till 2008 as per the position of availability of slots available to their feeding service and their position in the tentative seniority list issued by the respondents. It is contended by Mr. Shah, learned Senior Counsel appearing for the petitioners that petitioners are entitled to the benefit of Rule 5 inserted vide SRO 251 of 2005 dated 31.08.2005, because the petitioners, who were the members of Revenue Gazetted Service, are lagging behind as their cases were never considered for induction by the Select Committee in any of its meeting held right from the year 1997 till 2008.

86. Respondents resisted the writ petitions by filing their reply stating therein that appointment to the service cannot be claimed as a matter of right, and determination of seniority is always subject to Rules. It is submitted that the petitioners came to be appointed in the year 1992 in the Revenue Gazetted Services in pursuance of the judgment passed by the Hon'ble Supreme Court. At the time of their induction into KAS, their services were governed by the Rules of 1979. As per the Rules which were in force at that time, an Officer was eligible to be considered for appointment to KAS only after completion of 5 years service in the feeding cadre. Public Service Commission had conducted Combined Competitive Examination in the year 1981 for making selection/recruitment to the Gazetted Services. The petitioners along with others, who were not selected, filed writ petitions and this first round of litigation ended when controversy was set at rest by the Hon'ble Supreme Court vide its judgment dated 27.08.1992 passed in Civil Appeal No.5453/1992, titled as, J&K State v. Javed Iqbal and others. The judgment of Hon'ble Supreme Court resulted in appointment of the petitioners. Accordingly, orders of their appointment were issued in the year 1992. After their appointment, the petitioners initiated second round of 77 litigation, seeking fixation of their seniority with effect from the year 1984, i.e., when other similarly situated persons came to be appointed. A Division Bench of this Court decided the controversy vide its judgment dated 02.06.1999, whereby writ petitioners were held entitled to claim notional seniority with effect from 24.09.1984. The aforesaid judgment of the Division Bench, however, came to be challenged by the State in the Apex Court. The Apex Court vide its judgment dated 26.02.2003 settled the same by upholding the judgment of Division Bench. Consequently, the State Government issued Government Order No.1145-GAD of 2003 dated 04.09.2003, whereby all direct recruits of 1992 were given notional seniority w.e.f. 24.09.1984. It is further submitted that the Hon'ble Supreme Court while deciding the aforesaid controversy also provided that it would not disturb the promotions, if any made in the meanwhile, while fixing such notional seniority.

87. The controversy even did not end here. The petitioners and other direct recruits of Revenue Gazetted Service initiated third round of litigation challenging grant of notional seniority w.e.f. 24.09.1984 to all the departmental feeding services. The matter came to be disposed of by this Court vide its judgment dated 21.09.2006. Matter again landed 78 before Hon'ble Supreme Court in Civil Appeal No.1801 of 2009, titled as, State v. Javed Iqbal Balwan. The Hon'ble Supreme Court vide its judgment dated 23.03.2009 set aside the directions of the Division Bench of this Court. While deciding the aforesaid matter, Hon'ble Supreme Court was of the view that though dispute of seniority was mainly confined to J&K Revenue Gazetted Service, the High Court directions would unsettle the long settled position. In essence, Hon'ble Supreme Court had held that the dispute qua the seniority of direct recruits and promotees be settled in terms of Govt. order dated 04.09.2003.

88. To a specific averment made in the writ petitions with regard to induction made from time to time, the official respondents submitted that the induction to KAS was taken place in the years 1997, 2000, 2003, 2004 and 2008 and the same was strictly made in accordance with the rules and eligibility of officers. It is further submitted that no doubt the petitioners were appointed in the year 1992 in compliance of the directions of Hon'ble Court, but their seniority in the Revenue Gazetted Service came to be determined finally only in the year 2007 owing to various litigations pending within the Revenue Gazetted Service. In the absence of firm seniority of the petitioners till 2007, they could not be 79 considered for induction into KAS. It is further submitted in the objections that immediately after the notification of final seniority in respect of the petitioners in the year 2007 was issued by their administrative department, their cases were considered and their induction into KAS was made in the year 2008. It is also submitted that at a given point of time some slots were available for Revenue Gazetted Services, reference of which has also been made by the petitioners in the writ petitions, but, because of aforesaid factual assertion, they could not be inducted into KAS. Further, it was found that members of the J&K Revenue Gazetted Service in KAS at that point of time were already in excess of quota that was allocable to the said service on the principle of proportionality. Therefore, the official respondents in order to provide equal opportunity to the members of all the feeding services for induction into KAS introduced the replacement method. Because of these reasons, petitioners could not be inducted during those years but were duly considered and inducted as per their seniority in the year 2008 strictly as per the Rules of 1979. So far as challenge to the final seniority is concerned, respondents resisted the same on identical grounds that have been taken in their objections filed in 80 opposition to other writ petitions, which have been discussed hereinabove.

89. Having considered the submissions made by the rival sides on the issues raised in these petitions, which are in addition to the issues that have been adjudicated in the clubbed matters, I am of the considered view that the stand taken by the State respondents merits acceptance. I find no contrary material on record to disbelieve the submissions made by the State respondents. The petitioners, thus, have no claim for their appointment to KAS from the year 1997 onwards till they were actually inducted into KAS in the year 2008 along with others. Other issues raised in the petitions are similar to those which have been considered by this Court in clubbed matters hereinabove and observations made hereinabove would equally apply to the petitioners herein as well.

D. SWP No. 1742/2011.

90. In this petition, the petitioners claimed to be the members of Scheduled Caste and Scheduled Tribe categories and have challenged the final seniority list issued by the Government vide its order dated 24.06.2011, which is 81 also the subject matter of challenge in other clubbed writ petitions.

91. Challenge thrown to the aforesaid final seniority list is almost in identical terms as has been taken in all the petitions and considered hereinabove. Additionally, the petitioners have also claimed that the slots for their services and categories of Scheduled Caste and Scheduled Tribe as per roster provided under the Reservation Rules then in force were available all along during the years 2004, 2005, 2006 and 2007, but, since no induction took place during these years and meeting of the Select Committee was delayed for one reason or the other, as such, they are entitled to the benefit of retrospective promotion and seniority as per availability of vacancies for their service and as per roster provided under the J&K Reservation Rules. The claim of the petitioners in this writ petition with regard to the slots which were available to the services, to which they belonged as per roster position, is based on interpretation of Rule 15(4) and proviso (i) appended thereto of the Rules of 2008.

92. Other grounds of challenge to the impugned seniority are same as have been discussed hereinabove. The claim of the petitioners to retrospective seniority is, therefore, 82 dependent on the interpretation of various provisions of Rules of 1979, which have been discussed elaborately, hereinabove. It is, however, not the case of petitioners that when induction was made in the year 2008, they were deprived of the benefit of reservation or that they were entitled to higher positions in terms of the Reservation Rules. Such could not be the plea of the petitioners because they have been inducted and seniority of all those inducted in a calendar year has to be fixed as per Rule 18 of the Rules of 2008. There is no distinguishing feature in this petition as claimed by the petitioners. Fixation of seniority as per roster would arise only if this Court comes to the conclusion that the petitioners in other writ petitions are entitled to retrospective effect of seniority in terms of Rule 15(4) and the proviso appended thereto. Matter has already been discussed in detail while discussing batch of writ petitions and the observations made therein by this Court would apply to this writ petition as well.

93. In the Service Rules, which have been incorporated and relied upon in different judgments cited by both the sides, there was no provision for giving retrospective effect of promotion or seniority; as such these judgments have no relevance in the absence of specific Rules. The Courts in the 83 aforesaid judgments have also come to the conclusion that in the absence of specific Rules, promotion cannot be made retrospectively, i.e., from the date person was not appointed to the service.

94. In Suraj Parkash Gupta's case, right of the candidates to seek promotion retrospectively from the date they were put incharge of the post has only been upheld. The specific provisions made in Rule 15(4) and the proviso (i) appended thereto have been elaborately discussed and are of no help to the present case.

95. In Sheikh Abdul Rashid and others v. State of J&K and others, reported in 2008 (1) JKJ 3 SC, the candidates were seeking their retrospective promotion and seniority with effect from the date they were placed in promotion list-E of the J&K Police Mannual. In the aforesaid case, the Hon'ble Supreme Court while upholding the judgment of Division Bench of this Court held that no person can be promoted with retrospective effect, i.e., from a date when he was not born in the cadre so as to adversely affect others and seniority is required to be reckoned from the date of his initial entry into the service.

96. In the instant case, the petitioners are seeking their retrospective seniority in terms of Rules 15(4) of the Rules of 1979. Whether the petitioners are entitled to retrospective effect of promotion or not depends on the interpretation of aforesaid Rules and not in terms of the judgment relied upon which in different context. In this view of the matter, this judgment is of no help to the facts of the present case.

97. From what has been discussed hereinabove, this Court has arrived at the following conclusions:-

i. That appointment by promotion to the J&K Administrative Service is not a direct recruitment to the Service, because under Rule 2(i) of CCA Rules, 1956, a candidate recruited otherwise than by promotion or by transfer alone can be treated as a "direct recruit". Similarly, the appointment to the J&K Administrative Service cannot be termed as a promotion simplicitor nor it is an appointment by transfer. Going by the scheme of Rules of 1979, wherein terms "direct recruitment", "promotion" or "appointment by promotion"

are not defined, this court, after referring to the definition of these terms as contained in CCA Rules, 1956, has come to the conclusion that appointment to 85 the Service, i.e., KAS from amongst the members of departmental feeding services is neither a "direct recruitment" nor "promotion in the strict sense".

However, whatever be the nature of appointment to the service, the person appointed to the service, i.e., J&K Administrative Service takes his birth in the service for the first time and can be treated as a "fresh recruit". Therefore, for the purposes of fixation of seniority, he/she can be treated as a "fresh recruit" appointed to the service for the first time. The seniority of a member of J&K Administrative Service is, thus, liable to be reckoned from the date he/she is actually appointed to the service for the first time.

ii. That under the J&K Administrative Service Rules of 1979, there is no mandatory duty cast upon the Government to make appointments to the J&K Administrative Service by convening meeting of the Select Committee every calendar year, and the Government for reasons or otherwise can defer convening of the meeting of the Select Committee to subsequent year(s). Similarly an employee immediately on acquiring eligibility cannot claim promotion as a matter of right from the date of accrual of the vacancy. 86 It is always the prerogative of the employer to fill up the vacancy either immediately or on a subsequent date. No employee can be allowed to say that he is entitled to be promoted or considered for promotion immediately on acquiring eligibility and accrual of vacancy in the promotion quota. It is equally correct that failure of the Government to make induction every calendar year regularly, which has already been held "not mandatory" under the provisions of Rules of 1979, does not ipso fact creates a right in favour of the eligible claimants to claim retrospective seniority from the date of accrual of vacancies allocable to their departmental feeding service.

iii. That under the J&K Administrative Service Rules of 1979, there is no specific provision making obligatory for the Government to allocate the posts to the Time Scale of KAS in proportionate to the number of posts in the respective departmental feeding services. However, on going through the scheme of induction, as contained in the Rules of 1979, particularly Rule 8 and the proviso appended thereto, coupled with the stand of the Government and the past practice, it can be safely concluded that the State Government was/is under an 87 obligation to work out the slots allocable to different departmental feeding services proportionate to their strength.

vi. That inter-se seniority of the persons appointed to the J&K Administrative Service is required to be determined in terms of Rule 18 of the Rules 2008 read with Rule 24 of the CCA Rules 1956. Rule 15(4) of the Rules of 2008 is not a Rule of seniority, though the same is required to be considered for the purpose of review of appointments by promotion of the members of the Service retrospectively, i.e., with effect from the date such members had acquired eligibility and the vacancies/slots in the departmental feeding services, to which such members belonged, became available. Otherwise also, principle of determination of inter-se seniority, as contained in Rule 16 of the Rules of 1979 is not materially different from those embodied in Rule 18 of the Rules of 2008. Whether it is Rule 16 of the Rules of 1979 or Rule 18 of the Rules of 2008, both provide for determining inter-se seniority, whereas the basic rule would continue to be Rule 24 of CCA Rules, 1956.

v. That Rule 15(4) and the proviso appended thereto can be invoked by the person(s) appointed to the service under two circumstances. Sub Rule (4) of Rule 15 of the Rules of 2008 would apply to those cases where select list for induction is prepared after coming into force the Rules of 2008, i.e., after 01.12.2008. It is only, if in the meeting of the Select Committee held after 01.12.2008, the select list of the members of any departmental feeding service in any particular calendar year is not prepared despite availability of vacancies/slots in that service owing to certain procedural delay and those members if finally included in the select list at a subsequent date, said member(s) would be entitled to be appointed to the Time Scale of service from the date the vacancies were allocated to such feeding service. It is only under these circumstances that the candidates left out in a particular calendar year would be entitled to retrospective effect of appointment. By virtue of proviso (i) appended to Sub Rule (4) of Rule 15 of the Rules of 2008, it has been clearly provided that if a similar situation has happened during the years 2004, 2005, 2006 and 2007, when select list for some of the departmental 89 feeding services could not be prepared despite availability of vacancies, the persons belonging to such departmental feeding services would be entitled to seek review of their appointments from a retrospective date of occurrence of vacancies allocable for/allocated to their departmental feeding services. Sine qua non for invoking proviso would be to demonstrate that during the years 2004, 2005, 2006 and 2007 induction to the Service was taken place, but members of any departmental feeding service were left out on the ground of non-preparation of select list due to procedural reasons and were inducted at a later stage. It is under these circumstances that the members of such left out departmental feeding services could claim retrospective appointment to the Service. Rule 15(4) and proviso appended thereto is to be understood in the aforesaid manner. The petitioners have not built their case on the aforesaid premise nor have they been able to demonstrate that the conditions for invoking proviso appended to Rule 15(4) of the Rules of 2008 exist in their case.

vi. That appointment by promotion of 49 officers of different departmental feeding services, for which no 90 slots were available, by utilizing Leave and Training Reserve posts, is not in conformity with the Rules of 1979. However, in absence of specific challenge to their induction, that too without any inordinate delay, this Court is not in a position to set aside their induction, but, at the same time, in view of the settled position of law, this Court cannot lose sight of the fact that such persons appointed irregularly to the Service cannot steal a march in the matter of the seniority over and above those who have been appointed to the Service in accordance with the Rules. That being the position, these 49 persons are liable to be placed at the bottom of the seniority list and, in any case, below the petitioners and others who were appointed to the Service simultaneously with aforesaid 49 persons. vii. That unless the petitioners claim their promotion retrospectively by having recourse to the provisions of Rule 15(4) of the Rules of 2008 and the proviso appended thereto, they cannot claim the benefit of retrospective seniority to be reckoned with effect from the date the vacancies allocable to their feeding service became available. The petitioners have claimed retrospective seniority without claiming retrospective 91 promotion which is not permissible either under the Rules of 1979 or the Rules of 2008. There is no provision in the aforesaid Rules or even in other Service Rules applicable providing for fixation of retrospective seniority. Since seniority is relatable to appointment to the service, as such petitioners are not entitled to claim retrospective seniority without first claiming retrospective appointment to the service. None of the petitioners in their writ petitions has claimed the benefit of retrospective promotion in terms of proviso (i) to Rule 15(4) of the Rules of 2008 by demonstrating its applicability. The contention of the petitioners that they were not required to claim retrospective promotion, as the same was automatically granted to them when tentative seniority list was promulgated, also cannot be accepted for the simple reason that with the finalization of seniority list, the tentative seniority list lost its existence. It is equally true that no right can be claimed on the basis of an order which is provisional in nature and subsequently merges with the final order.

98. In light of the discussion made hereinabove and the conclusion arrived at, these petitions are disposed of by issuing following directions: -

i. That the final seniority list, impugned in these petitions, is legally valid and in consonance with the provisions of Rules of 1979 and the Rules of 2008 except for 49 persons, who were appointed to the Service by utilizing Leave and Training Reserve posts. These 49 persons are liable to be placed below the writ petitioners and other persons appointed to the Service simultaneously in the year 2008 and, for that limited purpose, official respondents are directed to re-frame the seniority list.

Consequently, Govt. Order No. 743-GAD of 2011 dated 24.06.2011 is quashed to the limited extent as aforesaid.

ii. That the petitioners are, however, given liberty to seek review of their appointments to the J&K Administrative Service by filing formal review petition(s) before the concerned authority in terms of proviso (i) to Sub-Rule (4) of Rule 15 of the Rules of 2008, if not already filed. It is made clear that in case the writ petitioners succeed in establishing that induction to the Service was actually made during the years 2004, 2005, 2006, and 2007 for various departmental feeding services other than those to which they belonged and that their departmental feeding services were left out at the relevant point of 93 time despite availability of vacancies and acquiring eligibility by them owing to procedural delay or otherwise, then in that eventuality it would be incumbent upon the Government to consider their cases and grant them the benefit of retrospective appointments with effect from the date of occurrence of vacancies allocable to their departmental feeding services, so as to bring them at par with those belonging to other departmental feeding services, who were inducted during the previous year(s) on occurrence of vacancies/slots allocable to their departmental feeding services. The petitioners are given liberty to file review petition(s) before respondent No.1 within a period of one month from the date of passing of this judgment. Government/competent authority would thereafter consider their review petition(s) and dispose of the same in light of the observations made hereinabove within a period of next one month. If the petitioners succeed in their review petition(s), in that eventuality, the Government would be at liberty to make appropriate changes in the final seniority list accordingly.

99. These petitions are disposed of, as above, along with connected CMA(s).

100. Copy of the order is directed to be placed on the record of each file.

101. Registry is directed to return the record so produced by learned counsel for the official respondents against proper receipt.

Jammu                                     (Tashi Rabstan)
Date:08.11.2013                                   Judge.
'Madan'PS.

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