Jammu & Kashmir High Court
Ghulam Qadir Dar And Ors. vs State Of J And K And Ors. on 27 July, 2005
JUDGMENT S.N. Jha, C.J.
1. These four letters patent appeals arise from the common judgment of the learned Single Judge in two writ petitions filed by the same petitioners. They filed SWP No. 1208/1986 for quashing the order of the Director General of Police (DGP) dated 3rd December, 1985 directing that the appellants and others who were brought on promotion list 'E' on 25th April, 1978 -- barring those who stood otherwise disqualified and had so far not been promoted as Sub-Inspectors (SI) -- shall be deemed to have been promoted as SI for the purpose of seniority with effect from 25th April, 1978 i.e. the date when they were brought on the promotion list. The petitioners further sought mandamus on the official respondents not to take into consideration the said order of 'notional' promotion in preparing list 'F' or giving promotions to the post of Inspector, and to declare them (writ-petitioners) as senior to the respondents. Alleging that the file of SWP No. 1208/1986 was not traceable in the Registry and expressing an apprehension that the promotion to the post of Deputy Superintendent of Police (Dy. SP) from the impugned seniority list was in offing, they filed SWP No. 3586/1997. Besides reiterating the reliefs sought in the earlier writ petition, they prayed for quashing government order dated 6th February, 1997 promoting Inspectors to the post of Dy. SP without determining the inter se seniority of Inspectors of J&K Armed Police and Inspectors of the Executive Police. They also sought quashing of the seniority list of Inspectors of J&K Executive / Armed /Auxiliary Police dated 30th May, 1997, and a mandamus upon the respondents not to make any promotion to the post of Dy. SP without deciding the inter se seniority between the direct recruit Sis i.e. the petitioners and promotee SIs i.e. the respondents of SWP No. 1208/1986. Allowing the writ petitions, the learned Single Judge quashed the order dated 3rd December, 1985 with direction to the official respondents to place the writ petitioners above the private respondents in the seniority list of Sis appointed by promotion after 25th April, 1979, and accordingly re-draw the seniority list giving them all consequential benefits.
2. Feeling aggrieved by the said order / direction of the learned Single Judge, the private respondents -- four out of them in all -- as well as the State of J&K have preferred these appeals.
3. It is the admitted position that the writ petitioners (hereinafter referred to as the respondents) as well as the appellants have been promoted to the post of Dy. SP on substantive basis during the intervening period. In fact, the appellants have further been placed as Superintendents of Police (SP) on officiating basis though in their own pay and scale.
4. Appointment to the post of Dy. SP -- whether by direct recruitment or promotion -- is governed by Jammu and Kashmir Police (Gazetted) Service Recruitment Rules, 1984. As regards promotion, Rule 14 thereof lays down that the Departmental Promotion Committee (DPC) constituted by the Government from time to time shall consider the officers eligible under the rules not exceeding five times the number of vacancies available at the time of selection and anticipated during the recruitment period, for inclusion in the select list. The Committee may even consider an officer who though eligible under the rules is not in the range of consideration i.e. five times the number of vacancies, if there are reasons to believe that he possesses exceptional or outstanding merit. Sub-rule (3) of Rule 14 lays down the criteria of selection. It provides, "the Committee shall examine the service records of the officers included in the aforesaid list and prepare a select list of officers on the basis of merit and suitability with due regard to seniority". Under Sub-rule (4) the names of the officers included in the list shall not ordinarily exceed 11/2 times the number of vacancies existing at the time of selection and anticipated during the recruitment period. Rule 14 further provides that the select list shall be forwarded to the Commission (J&K Public Service Commission). The Commission shall consider the list prepared by the Committee alongwith other documents received from the government, and unless it considers any change necessary, approve the list and forward the same to the Government. The list as finally approved by the Commission shall form the select list for recruitment by promotion and the Government on occurrence of vacancies during the recruitment year shall make appointment from out of the list in the same order in which the names of selected persons appear in it. The select list shall ordinarily be in force for a period of one year.
5. Both the appellants and the respondents i.e. the writ petitioners having been recruited to another service i.e. the J&K Police (Gazetted) Service governed by another set of rules, we are inclined to think that the dispute raised in the writ petition has become infructuous.
6. In Kaushal Kishore Singh v. Dy. Director of Education it was held that the claim of seniority of the employee is always determined in any particular grade or cadre and it is not the law that seniority in one grade or cadre would be dependent on the seniority in another grade or cadre. In that case the appellant had been held to be senior to respondent No. 4 in LT grade by virtue of determination made by the Deputy Director of Education by his order dated 18th July, 1994. But at the same time the Managing Committee in accordance with the provisions of the relevant Regulations promoted respondent No. 4 to the post of Lecturer by a resolution dated 1st August, 1981 approved by the Deputy Director of Education on 10th April, 1991. It was held that the rights of respondent No. 4 in the promoted post of Lecturer as well as the subsequent post of Principal cannot be annulled by virtue of determination of seniority inter se between the appellant and respondent No. 4 in the LT grade.
7. The cause of action for filing SWP No. 1208/1986 was the order dated 3rd December, 1985 giving 'notional' promotion to the appellants and others to the post of SI with effect from 25th April, 1978 which created a cloud over the respondents' seniority on the post of SI. The cause of action for filing SWP No. 3586/1997 was the possibility of the appellants (and others) getting promoted from the seniority list of Inspectors. Both the appellants and respondents having been promoted, firstly to the post of Inspector and, then, to the post of Dy, SP on consideration of "merit and suitability" the question is whether the direction of the learned Single Jude to place the respondents above the appellants (and others -- all of whom have since retired) in the seniority list of SIs and re-draw the seniority list of SIs can be implemented and such implementation can undo the promotions / recruitment to Jammu and Kashmir Police (Gazetted) Service on the post of Dy. SP. Even if recruitment to the said service and post were made on the basis of seniority alone, it is doubtful if settled things can be unsettled. The appellants and others were recruited / promoted on consideration of inter se merit and suitability of eligible candidates five times the number of vacancies constituting the zone of consideration. If thus there were ten vacancies the candidate at serial No. 50 could be selected upon consideration of inter se merit and suitability. The words "with due regard to seniority" mean that seniority will not tamper 'merit and suitability' but while drawing the seniority list, it would be taken into consideration. Thus seniority has little bearing on recruitment by promotion to the Jammu & Kashmir Police (Gazetted) Service. The promotion / recruitment being fait accompli, the issue raised by the petitioners for consideration would appear to have merely academic value. However, though academic, it may be appropriate to deal with merit of the case too so as to finally conclude the controversy between the parties regarding their inter se seniority.
8. The case of the respondents, briefly, is that they were appointed on the post of SI Police (Executive) by direct recruitment against clear available vacancies. Private respondents 3 to 134 of SWP No. 1208/ 1986 including the appellants herein at the relevant time were Assistant Sub-Inspector Police (ASI). They had been brought on promotion list 'E' subject to condition of passing the Upper Class Course as indicated against the names of the persons concerned. Promotion list 'E' is select list of ASIs from which promotions are made on the post of SI. They were promoted to the post of SI later. One Satpal Sharma and Ghulam Qadir Dar, one of the appellants in the present appeals, filed representation to the DGP. Allowing their representation by the impugned order dated 3rd December, 1985, not only the representationists but others also who were brought on promotion list 'E' vide order Nos. 282 and 283 of 1978 dated 25th April, 1978, barring those who stood disqualified and had so far not been promoted, were granted notional promotion on the post of SI for the purpose of seniority with effect from 25th April, 1978. The grievance of the writ-petitioners-respondents was that they were appointed on the post of SI in the direct recruitment quota on 25th April, 1979 and giving notional promotion to the ASIs, brought on the promotion list, with effect from 25th April, 1978 i.e. with retrospective effect was illegal and arbitrary as the order had the effect of making them senior to the respondents. Accordingly, they sought direction with respect to such of the ASIs who were promoted after 25th April, 1979 but given notional promotion as SI as being illegal and arbitrary and violative of Articles 14 and 16 of the Constitution of India. Shortly, thus, the respondents challenged the action of the DGP in giving notional seniority to those SIs who had been brought on promotion list 'E" on 25th April, 1978 but promoted to the post after 25th April, 1979 when the respondents were appointed by direct recruitment.
9. Accepting the case of the writ-petitioners the learned Single Judge held that promotion list 'E' is only a panel of eligible candidates and not a promotion order. When a person is brought on promotion list 'E' it does not mean that he has been promoted to the post of SI. Unless he is formally promoted to the post, he cannot maintain claim only on the basis of empanelment.
The stand of the official respondents was that the DPC considered the eligible ASIs of police in the year 1978 for bringing them on promotion list 'E' in order to promote them as Sis. In this manner, seventy two ASIs in Jammu Range and sixty ASIs in Kashmir Range were brought on promotion list 'E' vide order Nos. 282 and 283 dated 25th April, 1978. In the case of those who had not cleared the pre-promotional (Upper Class) course it was subject to passing the course though their seniority was protected. Such ASIs (whose promotion to the post of SI was subject to their passing the Upper Class Course) were deputed to undergo the course in two batches. The first batch completed the course on 31st August, 1978 while the second batch completed the course on 31st March, 1979. However, none could be posted as SI in view of the order of stay passed by this Court on 28th November, 1978 in writ petition No. 243/1978, titled Jameel Ahmad and Ors. v State of J&K and Ors., preferred by such ASIs who were not brought on the promotion list 'E" by the DPC. After the stay was vacated on 9th March, 1979 their promotion as SI was notified. Meantime, advertisement came to be issued on 6th September, 1978 inviting applications for direct recruitment to the post of SI as well as ASI. After completing the selection process on 25th April, 1979 forty one SIs including the writ petitioners were recruited. They were put on probation for a period of three years. While considering the representation of some of the ASIs who had already cleared the Upper Class Course but not promoted on account of the interim order of this Court, the DGP found that they had been brought on promotion list after completing all necessary formalities on being cleared by the DPC. The delay (due to the interim order of the Court) in the actual promotion was without any cogent reason. Meanwhile probationary SIs /ASIs were enrolled to the detriment of ASIs entitled to promotion after passing the promotion course. However, their original seniority stood protected. Accordingly, allowing the representation the DGP directed that the two representationists and others who were brought on promotion list (barring those who otherwise stood disqualified and had not so far been promoted as SIs) shall be deemed to have been promoted as Sis for the purpose of their seniority with effect from 25th April, 1978.
10. The stand of the private respondents, appellants herein, was that the order dated 25th April, 1978 by which they were brought on promotion list 'E' was actually an order of promotion as SI issued in their favour in terms of Rule 399 of the J&K Police Manual. Having been brought on the promotion list with the approval of the Inspector General of Police (IGP) on the basis of tests as mentioned in the order dated 4th January, 1978 read with order dated 31st January, 1978, they should have been posted as SI, but on account of the stay order of this Court, the posting was delayed. In the meantime the writ-petitioners got appointed pursuant to advertisement for direct recruitment.
11. Before considering merit of the case, it would be appropriate to notice the relevant provisions of the Jammu and Kashmir Police Manual. The provisions relating to promotions are contained in Chapter XII. Rule 382 (3) provides for six promotion lists 'A', 'B', 'C', 'D', 'E', and 'F for promotion to the rank of Head Constable (Junior Grade), selection for Course at the Police Training School, promotion to the rank of Head Constable (Senior Grade), ASI, SI and Inspector, respectively. Under Sub-rule (1) of Rule 382 promotion from one rank or grade to another rank or grade shall be made by selection tampered by seniority. Efficiency and honesty shall be the main factors governing the selections. The provisions relating to list 'E' for promotion to the rank of SI with which we are concerned, are contained in Rules 390, 391 and 392, and they are as under:
390. List E. Promotion to Sub-Inspector. -- (1) A list of all Assistant Sub-Inspectors who have been approved by the Inspector General of Police as fit for trial in independent charge of a Police Station or for specialist posts on the establishment of Sub-Inspectors, shall be maintained.
Half yearly reports on all men entered in the list maintained under this rule shall be furnished in the form and on the dates prescribed in Rule 389(3).
(2) No Assistant Sub-Inspector shall be confirmed in a substantive vacancy in the rank of Sub-Inspector unless he has been tested for at least a year as an officiating Sub-Inspector in independent charge of a police station.
391. Publication of List E in the Gazette. -- List E shall be published annually in the Police Gazette, if in existence. Names shall be entered in the list in the order of the date of admission, length of police service deciding the relative position of Assistant Sub-Inspectors admitted on the same date.
392. Method of filling up temporary vacancies in the rank of Sub-Inspector. -- (1) In filling up temporary vacancies in the rank of Sub-Inspector the object shall be to test all men on List E as fully as possible in independent charges. The order in which names occur in the list should be disregarded, the opportunities of officiating in the higher rank being distributed as evenly as possible.
(2) The conduct and efficiency of the men on Lists D and E shall at all times be watched with special care. Any officer who, whether in his substantive rank or while officiating as an Assistant Sub-Inspector or Sub-Inspector, is guilty of grave misconduct of a nature reflecting upon his character or fitness for responsibility or who shows either by specific acts or by his record as a whole, that he is unfit for promotion to higher rank shall be reported to the Inspector General of Police for removal from List D or E as the case may be.
12. The question is whether inclusion in list 'E' amounts to promotion of ASIs to the rank of SI and if not, when an ASI brought on list 'E' gets promoted to the rank of SI? It may be mentioned here that in the case of promotion to the rank of Head Constable (Senior Grade) or ASI or Inspector there are specific provisions vide Rules 388(2), 389(2) and 394(1) and (2) respectively regarding promotion from list "C", list 'D" and list T'. For example, Rule 394(1) and (2), respectively, provides that substantive and temporary vacancies in the rank of Inspector shall be filled up by promotion of the officers from list 'F'. There is no such provision for promotion to the rank of SI from list 'E'. A combined reading of Rules 390, 391 and 392 shows that a list of ASIs approved by the IGP as fit for trial in independent charge of a police station or for a specialist post is to be prepared. Those brought on the list are to be given independent charge of a police station as officiating SI. They can be confirmed against substantive vacancies in the rank of SI only after they successfully perform their duties for at least a year as officiating SI in independent charge of a police station. Temporary vacancies in the rank of SI are to be filled from the same list, and in filling up the temporary vacancies attempt should be as fully as possible to give independent charge of police stations to all those brought on the list so as to test them.
13. We are inclined to agree with the learned Single Judge that induction into promotion list 'E' does not per se amount to promotion to the rank of SI. But even though the inductee -- still an ASI as described in Rule 390(2) -- cannot be confirmed in a substantive vacancy in the rank of SI except on fulfilment of conditions as mentioned in that rule, it would not be correct to say that promotion would coincide with confirmation. As seen above, confirmation depends upon a successful tenure as an officiating SI in independent charge of a police station i.e. his posting as officiating SI and being given independent charge of a police station. And if confirmation were to be treated as promotion, it would be an apt example of not only confirmation but also promotion being an inglorious uncertainty, for, it would be dependent on the fortuitous circumstance of posting as an officiating SI in independent charge of a police station.
14. The service jurisprudence normally envisages preparation of a select list and promotion therefrom whether on probation or not. At some stage or the other, the person is formally promoted to the next higher post or grade from such list by issuing order to that effect. In the instant case the question that arises is at what stage the promotion to the rank of SI gets effected? The rules envisage three stages -- (a) preparation of promotion list 'E' and induction of ASIs fit for trial in the said list; (b) appointment as officiating SI in independent charge of a police station; and (c) confirmation in a sustentative vacancy of SI on satisfactory performance as officiating SI in independent charge of police station at least for a year. If neither induction into the promotion list nor confirmation in the rank of SI amounts to promotion, the only stage left in the process is the stage of appointment as officiating SI in independent charge of a police station. In the absence of any express provision in the rules, in our opinion, appointment as officiating SI in independent charge of police station must be construed as promotion to the rank of SI subject, of course, to his satisfactory performance as officiating SI for at least a year and availability of vacancy, and the date of such appointment should be treated as reckoning date for the purpose of seniority. It is settled law that where a person is appointed to the higher post or grade after assessing his merit and suitability etc, as may be provided in the relevant rule, and after observing the necessary formalities, it should not only be treated as promotion to the next higher post or grade but also, the seniority should be reckoned from the date of such appointment/promotion. The interpretation is in accord with the principle laid down by the Constitution Bench of the Supreme Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra Vide paragraph 44, proposition A, it was held that, "once an incumbent is appointed to a post according to rule his seniority has to be counted from the date of his appointment and not according to the date of his confirmation". The decision was cited by Mr. Attar in support of the respondents' case; instead, in our opinion, it supports the appellants' case. In the instant case, undisputedly, promotion list 'E' was prepared with the approval of IGP after tests and observing necessary formalities from which officiating appointments were made in the rank of SI.
15. Mr. Qayoom, learned Counsel for the appellants, was at pains to point out that the promotion list was prepared on the basis of tests including written test followed by interview by the DPC. Counsel referred to orders dated 4th January, 1978 and 31st January, 1978 in this regard. The first order stated, inter alia, that:
The candidates will be examined in parade and a written test will also be held in general law and practical police working including police rules. They will be finally interviewed by the DPC. The test will be of the standard of Upper School Course of PTC Phillaur (Promotion Course for ASIs to the rank of SIs. The DPC will hold two sittings at Jammu and Srinagar. ASIs on deputation to the CID will be tested / interviewed at Jammu or Srinagar according to their present place of posting. The exact dates for the tests and interviews will be notified subsequently.
In addition to the assessment of professional knowledge and efficiency of the ASIs through the above tests, the DPCs will assess the suitability of each confidante for promotion on the basis of his seniority, integrity, experience, educational qualification, training courses passed, good and bad entries and performance in the rank of ASI.
The entry of names on list 'E' of such ASIs who have not passed the prescribed promotion course (Upper School Course from PTC Phillaur) will be provisional and subject to their passing the said course. None of these officers brought on list 'E' will be promoted to the rank of SI until he has successfully undergone the promotion course, All such ASIs brought on list 'E' who have not so far undergone the said course, will be given a chance to undergo the same in order of their seniority. Suitable number of vacancies for such officers will be kept in the rank of SIs so that they can be promoted immediately on successful completion of the promotion course and their seniority in the rank of SI will be protected. Any officer who deliberately declines to undergo the promotion course or fails in the said course will be removed from list 'E'.
By the second order the constitution of the DPC and the schedule of tests for both Kashmir Range and Jammu Range was notified. It also mentioned about the outdoor tests consisting of Turn-out, Squad Drill including Rifle exercise and Guard duties carrying total of 50 (10 + 30 + 10) marks.
16. Mr. Qayoom submitted that having successfully completed the tests and thereafter brought on the promotion list, the inductees should have been immediately given independent charge of police stations as officiating SI except those who had not passed the pre-promotion / upper class course, but the process got stalled on account of the order of stay passed by this Court. It was pointed out with reference to order No. 283 of 1978 dated 25th April, 1978 that induction of the appellants and many others was not subject to passing the pre-promotion / upper class course, and thus nothing stood in their way of being given independent charge of police stations as officiating SI. In fact, it was stated that even those whose induction was conditional and subject to passing the upper class course did so in two batches by 31st March, 1979. Mr. Qayoom submitted that in any view the seniority stood protected vide order dated 4th January, 1978 (supra) and the DGP rightly exercised his discretion giving them deemed promotion with effect from the date of induction into the promotion list i.e. 25th April, 1978 for the purpose of seniority.
17. The order of the DGP dated 3rd December, 1985 is not in accord with our conclusion that the date of appointment as officiating SI should be reckoned as date of promotion and seniority should be counted from such date, subject to the satisfactory performance of duties leading to confirmation under Rule 319(2). However, the fact remains that the appellants could not be appointed as officiating SI, firstly, because of stay granted by this Court and after stay stood vacated on 9th March, 1979, without any cogent reason. It would, therefore, be unfair to the appellants to allow them seniority from the date of their actual appointment as officiating SI. It is to be kept in mind that Rule 174 as amended by SRO 104 dated 5th February, 1976 provides for 50% promotion quota in the post of SI to the ASIs. Vide order dated 4th January, 1978 (supra) vacancies had been kept reserved for them (as per quota) and seniority thus was kept intact. We do not think that in the facts of the case it would be proper to disturb the seniority of the appellants vis-a-vis the respondents particularly after their recruitment to the J&K Police (Gazetted) Service on the post of Dy. SP. It would be apposite to notice the observations made by the Supreme Court in M. L. Cecil D' Souza v Union of India, AIR 1975 SC 1269 as under;
Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. ... Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.
18. Mr. Attar relied on State of Bihar v. Akhouri Sachindra Nath Maharashtra Vikrikar Karamchari Sangathan v. State of Maharashtra and Suman Verma v. Union of India AIR 2004 SC 4800 on the point of determination of seniority. He also referred to an unreported Bench decision of this Court in the case of Bhagat Ishar Das and Ors. v State of J&K and Ors. (WP No. 296/1972 decided on 27th April, 1977 on the point of interpretation of Promotion List 'E'.
19. In State of Bihar v. Akhouri Sachindra Nath (supra) the dispute arose on account of retrospective promotion dating back to the period when the promotees were not even born in the cadre. Briefly stated, direct recruitment was made in the cadre of Assistant Engineer in the Bihar Engineering Service Class II within their quota. Promotees were inducted in subsequent years without all the vacancies within their quota. By the order impugned the State Government pushed back the dates of their appointment making them senior to the direct recruits without carrying forward the vacancies. It was held that the orders purporting to give promotions retrospectively were arbitrary and illegal as they seriously affected the direct recruits. In Maharashtra Vikrikar Karamchari Sangathan v. State of Maharashtra (supra) promotions had been made far in excess of promotion quota for non-availability of direct recruits. In the facts of the case it was held that the promotions were fortuitous and the promotees were pushed down vis--vis direct recruits. The case of Suman Verma v Union of India (supra) was one of appointment on the post of Extra Departmental Branch Postmaster, and the dispute related to eligibility of the respondent for the post. The decision has no relevance to the dispute involved in the present case. The decision in Bhagat Ishar Das was rendered in the context of promotion list 'F' provisions relating to which are materially different, and therefore, lends no assistance in the instant case.
20. Be that as it may, as indicated in the beginning, on account of the subsequent recruitment of both appellants and respondents by promotion to the post of Dy. SP in the J&K Police (Gazetted) Service governed by another set of rules, the dispute raised in the writ petition has become infructuous and the direction of the learned Single Judge to re-draw the seniority list placing the respondents above the appellants in the seniority list of SI cannot be implemented. Nor such re-drawing of the seniority list can undo promotions granted to the appellants on the post of Dy. SP.
21. The direction and order of the learned Single Judge are therefore set aside and these appeals are allowed, but without any order as to costs.