Central Administrative Tribunal - Jammu
Gulshan Roy vs Health And Medical Education ... on 11 December, 2025
:: 1 :: OA 1687/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
JAMMU BENCH, JAMMU (RESERVED)
Hearing through video conferencing
Original Application No. 1687/2022
Reserved on: - 17.10.2025
Pronounced on: - 11.12.2025
HON'BLE MR. RAJINDER SINGH DOGRA, MEMBER (J)
HON'BLE MR. RAM MOHAN JOHRI, MEMBER (A)
1. Gulshan Roy, Age 40 years, S/o Sh. Bishan Dass R/o H.no.64,
Govind Lane, Preet Nagar, Digiana, Jammu Pin Code: 180010.
2. Shaqoor Ahmed, Age 50 Years S/o Anwar Hussain R/o Budhanoo,
Rekiban, Rajouri, UT of J&K. Pin Code: 185132
...Applicants
(Advocate: - Mr. Rajnesh Singh Parihar)
Versus
1. UT of J&K through Commissioner/Secretary,Health and Medical
Education Department, J&K, Civil Secretariat, Jammu 180001
2. Commissioner Food and Drug Administration J&K Government, Civil
Secretariat, Jammu PIN CODE-180001.
...Respondents
(Advocate:- Mr. Sudesh Magotra, AAG)
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ORDER
Per: - Rajinder Singh Dogra, Judicial Member
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a) Prayer seeking directions upon the respondents, to consider and promote the applicants as against the posts of Assistant Controller Drugs / Assistant Drug Analyst against the reserved Category vacancy available to SC & ST categories as per the mandate of J&K Reservation Act and J&K Reservation Rules, 2005 along with all consequential benefits, in the given facts and circumstances of the case.
b) Directing the respondents to maintain the roster register as per the provisions laid down under J&K reservation act, and rules 2005 with effect from the date its has come into force / operation.
c) Any other Order or direction by the Hon'ble Tribunal, as the Hon'ble Tribunal deems fit and proper to meet the ends of Justice."
2. The facts of the case as averred by the applicants in their pleadings are as follows:-
a) The case set up by the applicants, in brief, is that they were appointed as Drugs Control Officers / equivalent feeder cadre officers in the Drugs & Food Control Organisation, under the Health & Medical Education Department, Government / UT of Jammu & Kashmir, against posts reserved for Scheduled Caste HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 3 :: OA 1687/2022 and Scheduled Tribe categories in terms of the J&K Reservation Act, 2004 and the J&K Reservation Rules, 2005.
They have since been discharging duties to the satisfaction of their superiors and there is no adverse material on their service record.
b) It is stated that after their appointment, the respondents prepared and circulated a seniority list of the feeder cadre, in which the applicants were shown senior to several officers belonging to the Open Merit category as well as to some officers of other reserved categories. The said seniority position has attained finality and is not in dispute inter se between the applicants and the private respondents.
c) The applicants contend that as per the applicable Recruitment Rules governing the Drugs & Food Control cadre, the next higher posts of Assistant Controller Drugs / Assistant Drug Analyst are to be filled up by promotion from amongst eligible officers of the feeder cadre, upon completion of the prescribed qualifying service and subject to reservation in promotion in HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 4 :: OA 1687/2022 favour of SC/ST and other backward categories as per the J&K Reservation Act, 2004 and the J&K Reservation Rules, 2005.
d) It is specifically pleaded that under the 100-point reservation roster notified under the J&K Reservation Rules, 2005, certain roster points - including Points 3, 4, 5 and other relevant points
- are earmarked for candidates belonging to the Scheduled Caste and Scheduled Tribe categories. The applicants state that vacancies on those roster points became available in the promotional cadre of Assistant Controller Drugs / Assistant Drug Analyst, at a time when they had already completed the requisite qualifying service and were fully eligible for consideration.
e) According to the applicants, however, when the Departmental Promotion Committee (DPC) was convened for filling the posts of Assistant Controller Drugs / Assistant Drug Analyst, the respondents failed to maintain and operate the reservation roster as mandated under the J&K Reservation Act and Rules. Instead of filling the SC & ST roster points with eligible SC/ST officers HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 5 :: OA 1687/2022 like the applicants, the respondents allegedly diverted those roster points to Open Merit candidates, thereby depriving the applicants of their legitimate right to be considered and promoted against the reserved category vacancies.
f) The applicants submit that they made detailed representations to the competent authority, pointing out that: (i) they belonged to SC & ST categories; (ii) they possessed the requisite qualifications and had completed the qualifying service; (iii) reserved roster point vacancies of Assistant Controller Drugs / Assistant Drug Analyst were available; and (iv) the roster register had neither been properly maintained nor operated, resulting in de-reservation in favour of Open Merit without following the procedure under Rule 11 of the J&K Reservation Rules, 2005.
g) It is further the grievance of the applicants that no proper roster register is being maintained in the cadre of Drugs & Food Control Organisation as required under the Reservation Rules, and that promotions are being made on an ad hoc, pick-and-
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choose basis, by mechanically citing the pendency of litigation regarding reservation in promotion before the Hon'ble High Court and the Hon'ble Supreme Court. This, according to the applicants, has resulted in systematic denial of reservation in promotion to SC/ST officers in the Drugs & Food Control cadre.
h) The applicants state that when they pressed their claim for promotion, the respondents took shelter under Circular No. 10- JK(GAD) of 2021 dated 05.03.2021, issued by General Administration Department (GAD), whereby all Administrative Secretaries were directed to keep the reserved category slots vacant/unfilled till final decision of the Hon'ble Supreme Court in the matters relating to reservation in promotion. On the strength of this Circular, the respondents have declined to convene a DPC for the reserved category vacancies of Assistant Controller Drugs / Assistant Drug Analyst and have refused to consider the applicants' cases, despite availability of vacancies and their eligibility.
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i) Aggrieved by this inaction, and alleging that the respondents'
approach is contrary to the stay orders and directions of the Hon'ble Supreme Court as well as the subsequent constitutional developments extending Article 16(4A) to the Union Territory of J&K, the applicants have approached this Tribunal seeking directions for their promotion against the SC & ST roster vacancies of Assistant Controller Drugs / Assistant Drug Analyst and for proper maintenance of the reservation roster register.
3. The respondents have filed their reply statement wherein they have averred as follows: -
a) The official respondents have filed their reply, broadly contending that though the applicants belong to SC & ST categories and are working in the Drugs & Food Control Organisation, no right to promotion accrues merely because vacancies exist. It is stated that promotions are to be made strictly as per seniority and eligibility under the Recruitment HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 8 :: OA 1687/2022 Rules and subject to the outcome of pending litigation regarding reservation in promotion.
b) The respondents further plead that the Division Bench of the Hon'ble High Court of J&K and Ladakh, in its judgment dated 09.10.2015 in SWP No. 1290/2014 titled Ashok Kumar & Ors.
vs State of J&K & Ors., struck down Section 6 of the J&K Reservation Act, 2004 and Rules 9, 10 and 34 of the J&K Reservation Rules, 2005, holding them ultra vires Article 16 of the Constitution of India. In view of that judgment, and until clarity emerged from the Hon'ble Supreme Court, the Government was constrained to issue Circular No. 10- JK(GAD) of 2021, directing that no promotions on reserved roster points be made and that such slots be kept vacant.
c) It is also contended that the matter is sub judice before the Hon'ble Supreme Court in several Special Leave Petitions arising out of the Ashok Kumar judgment, including the lead case titled Nasib Singh & Ors. vs State of J&K & Ors., and that, therefore, the respondents are justified in awaiting the outcome HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 9 :: OA 1687/2022 of the said proceedings before taking any final decision on reservation in promotion. The respondents assert that there is no deliberate or mala fide intention to deny the applicants their rights; rather, they are bound by the Circular and the legal position prevailing at the time.
4. In the rejoinder to the reply statement the applicants have averred as follows: -
a) The applicants have filed rejoinder, denying the defence taken by the respondents and reiterating that the respondents have selectively quoted the litigation history without disclosing that the Hon'ble Supreme Court, vide order dated 18.03.2016 in Nasib Singh & Ors. (SLP (C) No. 4795/2016 and connected matters), has stayed the operation of the judgment dated 09.10.2015 in Ashok Kumar and has further clarified that the said judgment shall not prevent consideration of eligible candidates for promotion to higher posts if vacancies are available.
HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 10 :: OA 1687/2022 b) The applicants also point out that Section 6 of the J&K
Reservation Act, 2004 and the Reservation Rules, 2005 continue to remain on the statute book, and that, after the Constitution (Application to J&K) Amendment Order, 2019 and the abrogation of Article 370, the entire Constitution of India, including Article 16(4A) and 16(4B), stands applied to the Union Territory of J&K. The UT Government itself, in its Additional Affidavit filed before the Hon'ble Supreme Court in SLP(C) No. 3786/2016, has admitted that the basis of the Ashok Kumar judgment has been eroded, and that the whole of the Constitution, including 77th and 85th Constitutional Amendments relating to reservation in promotion and consequential seniority, now applies to J&K.
c) In these circumstances, the applicants contend that the respondents can no longer take shelter under the impugned Circular dated 05.03.2021 or pending SLPs as a ground to indefinitely freeze reservation in promotion, particularly in the Drugs & Food Control Organization, where SC & ST officers HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 11 :: OA 1687/2022 like the applicants are admittedly eligible and vacancies exist on roster points earmarked for them.
5. We have heard learned counsel for the parties and perused the material available on record.
6. We have also considered the relevant statutory provisions and the binding pronouncements of the Hon'ble Supreme Court and the Hon'ble High Court of J&K and Ladakh, as well as earlier decisions of this Tribunal dealing with the very issue of reservation in promotion in the UT of J&K.
7. It is not in dispute that the applicants belong to the Scheduled Caste and Scheduled Tribe categories, that they are working in the Drugs & Food Control Organization, and that they have completed the requisite qualifying service for consideration to the posts of Assistant Controller Drugs / Assistant Drug Analyst under the applicable Recruitment Rules. It is also not seriously disputed that vacancies in these promotional posts are available, some of which correspond to roster points earmarked for SC & ST categories under the J&K Reservation Rules, 2005.
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8. The respondents' principal defence is founded on the judgment dated 09.10.2015 in Ashok Kumar (supra) and the consequent Circular dated 05.03.2021, read with pending SLPs before the Hon'ble Supreme Court. However, what is conveniently glossed over is that the operation of the Ashok Kumar judgment has been stayed by the Hon'ble Supreme Court in Nasib Singh & Ors. vs State of J&K & Ors.; and it has been specifically directed that the stay shall not prevent consideration of eligible candidates for promotion to higher posts, provided vacancies are available.
9. Once the operation of the judgment striking down reservation in promotion has been stayed, it cannot be said that the provisions of Section 6 of the J&K Reservation Act, 2004 and the Reservation Rules, 2005, including Rules 9, 10, 11 and 12, are not in operation. This view has already been taken by this Tribunal in T.A. No. 2663/2021 (Khursheed Ahmad Bader vs State of J&K & Ors., judgment dated 29.05.2023) and in OA No. 169/2023 (Satish Chander vs UT of J&K & Ors., judgment dated 17.12.2024), wherein Circular No. 10-JK(GAD) of 2021 has been examined and found to be contrary to the constitutional and statutory scheme post-2019.
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10. Furthermore, as noticed, the President of India has extended the 77 th Constitutional Amendment (introducing Article 16(4A)) and the entire Constitution of India to the Union Territory of J&K. The abrogation of Article 370 has been upheld by the Hon'ble Supreme Court in Writ Petition (Civil) No. 1099/2019, In Re: Article 370 of the Constitution of India, by judgment dated 11.12.2023. As a result, the UT of J&K is now in the same constitutional position as any other State/UT in so far as reservation in promotion is concerned.
11. The J&K Reservation Act, 2004 and the J&K Reservation Rules, 2005 specifically provide for reservation in promotion up to posts carrying the pay scale of Deputy Secretary to Government, and prescribe a roster-based system for implementing such reservation. The posts of Assistant Controller Drugs / Assistant Drug Analyst fall within the range of posts covered by the said statutory provisions. The respondents are, therefore, under a legal obligation to maintain a proper roster register and to implement reservation in promotion in favour of SC & ST categories in the Drugs & Food Control cadre.
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12. The law on reservation in promotion has been settled by the Hon'ble Supreme Court in a catena of decisions. In Indra Sawhney vs Union of India, AIR 1993 SC 477, it was held that reservation is ordinarily at the entry level. Parliament then enacted the 77th Constitutional Amendment, inserting Article 16(4A), conferring power on the State to provide for reservation in matters of promotion for SC/ST if they are not adequately represented. The constitutional validity of Article 16(4A) has been upheld in M. Nagaraj & Ors. vs Union of India & Ors., (2006) 8 SCC 212, and the said position has been reiterated in Jarnail Singh & Ors. vs Lachhmi Narain Gupta & Ors., C.A. No. 629/2022, where the Court clarified the contours of the requirements of quantifiable data etc., but did not prohibit reservation in promotion.
13. The "catch-up rule" doctrine in Union of India vs Virpal Singh Chauhan, (1995) 6 SCC 684, to the effect that reserved category roster promotees do not get consequential seniority, was itself neutralised by the 85th Constitutional Amendment, which amended Article 16(4A) to provide for "consequential seniority" and has also been upheld in M. Nagaraj (supra). In view of this, the respondents' implicit stand that SC/ST officers promoted on roster points cannot HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 15 :: OA 1687/2022 retain seniority over later-promoted general category seniors no longer holds the field.
14. Coming to the issue of stagnation, the Hon'ble Supreme Court in Raghunath Prasad Singh vs Secretary, Home (Police) Department, Govt. of Bihar & Ors., AIR 1988 SC 1033, held that reasonable promotional opportunities must be available in every wing of public service, and that stagnation defeats efficiency and violates fair conditions of service. Similarly, in Dr. Ms. O.Z. Hussain vs Union of India & Ors., AIR 1990 SC 311, the Court deprecated long stagnation without promotional avenues.
15. In the present case, the applicants have been eligible for promotion to the posts of Assistant Controller Drugs / Assistant Drug Analyst, and roster vacancies meant for SC & ST categories have arisen, yet they have been consistently denied consideration on the pretext of the Circular dated 05.03.2021 and pending litigation. This has resulted in stagnation of SC/ST officers in the Drugs & Food Control Organization, which is impermissible in the light of the above judicial pronouncements.
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16. We also note that this Tribunal, in OA No. 169/2023 (Satish Chander) and OA No. 1777/2021, and the Hon'ble High Court of J&K and Ladakh (Srinagar Bench) in WP(C) No. 336/2023 (Mohd Jamal Sheikh & Anr. vs UT of J&K & Ors., judgment dated 06.03.2025), has already held that Circular No. 10-JK(GAD) of 2021 dated 05.03.2021 cannot be used to deny reservation in promotion and that, post-2019, the Government is duty bound to implement reservation in promotion under the J&K Reservation Act and Rules.
17. We also cannot ignore that the very issue of denial of reservation in promotion and stagnation of SC/ST employees in the Union Territory of Jammu & Kashmir has already been examined in depth by this Tribunal in a series of matters. In O.A. No. 169/2023 titled Satish Chander vs UT of J&K & Ors., this Tribunal, after noticing the judgment dated 09.10.2015 in Ashok Kumar & Ors. vs State of J&K & Ors. and the subsequent stay order dated 18.03.2016 passed by the Hon'ble Supreme Court in SLP titled Nasib Singh & Ors. vs State of J&K & Ors., as also the Constitution (Application to J&K) Amendment Order, 2019, the abrogation of Article 370 and the Additional Affidavit filed by the UT of J&K in SLP(C) No. HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 17 :: OA 1687/2022 3786/2016, categorically held that: (i) once the operation of Ashok Kumar has been stayed, it cannot be said that provisions relating to reservation in promotion under Section 6 of the J&K Reservation Act, 2004 and Rules 9, 10 and 34 of the J&K Reservation Rules, 2005 are not in force; (ii) as on date, the entire Constitution of India including Article 16(4A) stands applied to the UT of J&K; (iii) the impugned Circular No. 10-JK(GAD) of 2021 dated 05.03.2021, directing that reserved category slots be kept vacant/unfilled, is unsustainable and amounts to class legislation by treating reserved category employees of J&K differently from similarly placed employees in the rest of the country; and (iv) the said Circular was, accordingly, quashed, and a positive mandamus was issued to regularize the applicant as Divisional Architect on the SC category roster slot with effect from the date of his in-charge promotion and to consider him for further promotion to Senior Architect with notional benefits, in terms of the J&K Town Planners and Architects (Gazetted) Service Recruitment Rules, 1978, read with the J&K Reservation Act, 2004 and Reservation Rules, 2005.
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18. A similar approach was adopted by this Tribunal in O.A. No. 1171/2020, wherein the controversy related to Senior Prosecuting Officers. In that case, the Tribunal, after referring to Government Order No. 743-GAD of 2007 dated 28.06.2007 (issued pursuant to the directions of the Hon'ble Supreme Court in Suraj Parkash Gupta & Ors. vs State of Jammu & Kashmir & Ors.), held that there is no rule or law which permits grant of promotion from an anterior date when the officer has not even been placed against the higher post, and that while reserved category officers who have actually worked on in- charge basis are entitled to regularization from the date of such placement, non-reserved seniors cannot be given back-dated notional promotion over their heads. The Tribunal, therefore, quashed Government Order No. 220-Home of 2020 dated 02.11.2020 and the consequential tentative seniority list, and directed that the applicants therein be regularized as Senior Prosecuting Officers w.e.f. the date they were placed as in-charge, with all consequential benefits, by applying the J&K Reservation Act, 2004 and Reservation Rules, 2005, notwithstanding the GAD Instructions dated 21.06.2016 and the plea of pendency before the Hon'ble Supreme Court.
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19. Again, in O.A. No. 1777/2021 titled [ST Assistant Architect applicant] vs UT of J&K & Ors., the Srinagar Bench of this Tribunal, while dealing with the claim of a Scheduled Tribe Assistant Architect who had been denied promotion as Divisional Architect and Senior Architect despite being the senior-most ST candidate and despite availability of roster point vacancies, held that: (i) slots earmarked in the 100-point roster for SC/ST/backward area categories cannot be de- reserved or utilised for Open Merit when eligible reserved category candidates are available, save in strict compliance with Rule 11 of the J&K Reservation Rules, 2005; (ii) Rule 12 of the Reservation Rules, 2005 mandates consideration of reserved category officers on relaxed standards up to the level prescribed (not exceeding the pay scale of Deputy Secretary to Government); (iii) the plea that reservation in promotion could not be operated after Ashok Kumar is untenable in view of the stay order dated 18.03.2016 in Nasib Singh and connected SLPs, and the subsequent application of Article 16(4A) and 16(4B) to J&K after 2019; and (iv) the same impugned Circular No. 10- JK(GAD) of 2021 dated 05.03.2021 could not stand in the way of grant of promotion under the Reservation Act and Rules. On these HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 20 :: OA 1687/2022 premises, the Tribunal directed that the applicant be promoted as Divisional Architect with retrospective effect from the date her ST roster slot fell due (i.e., when an OM candidate was wrongly adjusted), be given all consequential benefits, and that her case for promotion to Senior Architect be also considered from the date she completed seven years' qualifying service, with notional benefits of the higher post.
20. These CAT decisions rest squarely on the constitutional scheme of reservation in promotion as clarified by the Hon'ble Supreme Court in Indra Sawhney vs Union of India, AIR 1993 SC 477, M. Nagaraj & Ors. vs Union of India & Ors., 2006 (8) SCC 212, and Jarnail Singh & Ors. vs Lachhmi Narain Gupta & Ors., C.A. No. 629/2022, wherein Article 16(4A) has been upheld as a valid enabling provision, subject to the State satisfying the requirements of quantifiable data regarding backwardness and inadequacy of representation. They also draw on the law relating to post-based rosters as laid down in R.K. Sabharwal & Ors. vs State of Punjab & Ors., (1995) 2 SCC 745, and on the principle that accelerated promotion with consequential seniority for SC/ST roster promotees stands constitutionally protected HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 21 :: OA 1687/2022 after the 85th Constitutional Amendment, which amended Article 16(4A) and was upheld in M. Nagaraj (supra), and which was introduced, inter alia, to neutralize the "catch-up rule" propounded in Union of India & Ors. vs Virpal Singh Chauhan & Ors., (1995) 6 SCC 684. Read together with the decisions in R. Prabha Devi & Ors. vs Government of India & Ors., AIR 1988 SC 902 : 1988 (2) SCC 233 (that seniority cannot substitute for eligibility and that requisite qualifications and qualifying service are a sine qua non for promotion) and in Raghunath Prasad Singh vs Secretary, Home (Police) Department, Government of Bihar & Ors., AIR 1988 SC 1033 and Dr. Ms. O.Z. Hussain vs Union of India & Ors., AIR 1990 SC 311 (that stagnation and denial of reasonable promotional avenues is impermissible), the legal position that emerges is that:
(a) reservation in promotion for SC/ST is constitutionally permissible and, in the UT of J&K, statutorily mandated under the J&K Reservation Act, 2004 and Rules, 2005;
(b) the State/UT is obliged to maintain and operate a proper post-
based reservation roster, and cannot keep reserved slots HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 22 :: OA 1687/2022 permanently vacant or divert them to Open Merit candidates when eligible reserved category officers are available; and
(c) once reserved category officers have become eligible and roster point vacancies have arisen, they cannot be kept stagnating on the pretext of a stayed judgment or executive circulars.
21. In our considered view, the ratio of the aforesaid decisions applies on all fours to the case at hand. The respondents, by declining to operate the SC/ST roster for the posts of Assistant Controller Drugs / Assistant Drug Analyst and by withholding consideration of the applicants on the strength of Circular dated 05.03.2021 and pending SLPs, are in effect perpetuating the very mischief which this Tribunal and the Hon'ble High Court have already deprecated. The applicants, being eligible SC/ST officers in the feeder cadre with available roster vacancies in the promotional cadre, cannot be denied their statutory and constitutional entitlement to consideration and promotion under the J&K Reservation Act, 2004 and the J&K Reservation Rules, 2005.
22. At this stage, it is important to take note of the Constitution Bench judgment of the Hon'ble Supreme Court in Jarnail Singh & Ors. v.
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Lachhmi Narain Gupta & Ors., (2018) 10 SCC 396, wherein the Hon'ble Court reaffirmed the constitutional validity of reservation in promotion as upheld in M. Nagaraj v. Union of India, AIR 2007 SC 71, with a limited modification that the State need not collect quantifiable data regarding backwardness of Scheduled Castes and Scheduled Tribes, since their backwardness stood reaffirmed by the Constitution itself. The Hon'ble Supreme Court also upheld the applicability of Article 16(4A) and 16(4B) enabling reservation in promotion and consequential seniority for SCs and STs, subject only to the requirements of efficiency under Article 335 being duly considered. The Apex Court categorically held that the right of SC/ST employees to reservation in promotion cannot be defeated by administrative instructions or by withholding roster points, once established that the constitutional mandate under Article 16(4A) operates. Thus, the attempt of respondents to withhold the promotional slots earmarked for SC and ST candidates on the basis of Circular dated 21.06.2016 or Circular No. 10-JK(GAD) of 2021 dated 05.03.2021 is contrary not only to the statutory mandate of the J&K Reservation Act, 2004 and the J&K Reservation Rules, 2005 but also HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 24 :: OA 1687/2022 violative of the law laid down in Indra Sawhney (AIR 1993 SC 477), M. Nagaraj (AIR 2007 SC 71) and Jarnail Singh (2018) 10 SCC 396.
23. The Tribunal is fortified in this view by the judgment of the Hon'ble Supreme Court in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors., (2018) 10 SCC 396, wherein the Hon'ble Court held that Article 16(4A) is an enabling provision which entitles the State to grant reservation in promotion to SCs/STs along with consequential seniority. The Hon'ble Apex Court further held that the collection of quantifiable data regarding backwardness of SCs/STs is not required, as their backwardness is constitutionally recognized, and any administrative action that defeats the operation of Article 16(4A) would be unconstitutional. Applying the aforesaid principles, the respondents cannot rely upon the impugned Circulars to deny reservation in promotion to SC/ST employees in the Union Territory of J&K.
24. Recently the Srinagar Bench of Hon'ble High Court of Jammu & Kashmir and Ladakh also considered the matter pertaining to reservation in promotion in writ petition bearing WP(C) No.336/2023 HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 25 :: OA 1687/2022 titled Mohd Jamal Sheikh & Anr. V/s Union Territory of J&K & Ors. and vide its judgment dated 06.03.2025 decided the said writ petition in which all the relevant facts and also the Judgment dated 17.12.2024 passed by this Tribunal in O.A No.169/2023 titled Satish Chander V/s U.T of J&K & Ors. has been taken note of. It is profitable to reproduce relevant paragraphs of the judgment of the Hon'ble High Court: -
"12. The Hon'ble Apex Court in case titled "Indra Sawhney Vs. Union of India & Ors" reported as AIR 1993 SC 477 has held that reservation in promotion is not available, however, the Parliament by 77th Amendment to the Constitution in the year 1995 introduced Article 16(4A) conferring powers on the State to reserve seats in favour of Scheduled Castes/Scheduled Tribes community in the process of promotion in public service if the communities are not adequately represented in public employment and that the Parliament again vide 85th Amendment to the Constitution of India in the year 2001 provided for consequential seniority in the case of promotion by virtue of rule of reservation for the Govt. servants belonging to Scheduled Castes/Scheduled Tribes category with retrospective effect from June, 1995 and the constitutional validity of Article 16(4A), on being challenged before the Apex Court, was upheld by the Apex Court in a case titled "M. Nagaraj & Ors Vs. Union of India & Ors" reported as AIR 2007 SC 71. 13. In the aforesaid backdrop with regard to the constitutional developments made in the year 2019 with regard to erstwhile State of Jammu and Kashmir whereby all the provisions of the Constitution of India lock, stock and barrel were applied to the Jammu and Kashmir including Article 16(4A) ofthe Constitution of India, providing for promotion in reservation.
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The Division Bench judgment passed in Ashok Kumar's case (supra) had been decided by this Court mainly on the plank that the 77th Amendment of the Constitution of India made in the year 1995 had not been specifically extended to the erstwhile State of Jammu and Kashmir, therefore, in view of the changed constitutional scheme vis-à-vis applicability of the Constitution of India to the Jammu and Kashmir, the provision with regard to reservation in promotion now stands applied to the State of Jammu and Kashmir since 2019. The Jammu and Kashmir State Legislature had enacted Jammu and Kashmir Reservation Act, 2004 in the year 2004 whereby reservation in promotion was also provided in terms of Section 6 which is reproduced as under: -
"Except as provided in the Act, available vacancies to the extent as may be notified by the Government from time to time, shall be reserved in any service, class, category or grade carrying a pay scale the maximum of which does not exceed the pay scale of the post of Deputy Secretary to Government, for promotion from amongst the persons belonging to the Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes:- Provided that total percentage of reservation shall not exceed of the available vacancies: Provided further that the Government shall exclude the services and posts, which on account of their nature and skill are such as call for highest level of intelligence, skill and excellence, from the operation of the Act."
14. The Government of Jammu & Kashmir also framed Rules under the Jammu and Kashmir Reservation Act, 2004 as Jammu and Kashmir Reservation Rules, 2005 providing the mechanism of reservation in promotions to the reserved categories including the fixation of slots in the form of roster points. In view of the application of the whole of the Constitution of India including the relevant provision of Clause (4A) of Article 16 in the year 2019, the Government of Jammu and Kashmir is under a legal obligation to provide reservation in promotions in accordance with the provisions made in the HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 27 :: OA 1687/2022 Jammu and Kashmir Reservation Act, 2004 and Jammu and Kashmir Reservation Rules, 2005.
15. The Government of Jammu and Kashmir, however, instead of providing for reservation in promotions came up with the impugned Circular No.10-JK (GAD) of 2021 dated 05.03.2021 to deny the reservation in promotions to the officers/officials belonging to reserved categories with instructions to the Administrative departments to keep their slots vacant/unfilled.
16. The impugned Circular, as submitted by the learned counsel for the petitioners, has already been quashed by the Jammu Bench of the Central Administrative Tribunal, vide judgment dated 17.12.2024 passed in OA No.169/2023 titled "Satish Chander Versus UT of J&K and Others" therefore, no finding is required to be returned on this aspect of the matter. 17. Coming to the second aspect of the matter as to the direction sought to be passed to the respondents for providing reservation in promotions to the members of the reserved categories is concerned, the Apex Court in the case titled "Indra Sawhney Vs. Union of India" (supra) had held that the reservation in promotions in favour of backward classes was unconstitutional as the reservations only at the entry level i.e., at the time of recruitment into public service was permissible and not thereafter. The Parliament, after this judgment of the Apex Court, had enacted 77th Amendment Act, 1995, which introduced Article 16(4A) conferring power on the States to reserve seats in favour of Scheduled Castes and Scheduled Tribes communities in the process of promotion in public service if the communities are not adequately represented in public employment. The Constitutional validity of this provision under Article 16(4A) of the Constitution of India came to be challenged before the Apex Court which, in case titled "M. Nagraj Vs. Union of India" (supra), upheld its constitutional validity. 18. The Apex Court in "Union of India & Ors Vs. Virpal Singh Chauhan & Ors" reported as (1995) 6 SCC 684 held that roster point promotees, who were given the benefit of accelerated promotion, would not get the consequential seniority. However, the Government was of the opinion that the HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 28 :: OA 1687/2022 concept of 'catch up' rule was not in the interest of SCs and STs in the matter of seniority on promotion. Article 16(4A) of the Constitution of India was further amended by 85th constitutional amendment to give the benefit of consequential seniority in addition to accelerated promotion. Article 16(4A) of the Constitution of India as amended reads as follows: -
"Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which in the opinion of State are not adequately represented in the services under the State."
23. The Government of Jammu and Kashmir in the Jammu and Kashmir Reservation Act, 2004 and the rules framed thereunder had fixed the percentage of reservation to be provided to the SCs and STs @ 8% and 10% respectively for promotions in public employment. After the judgment passed by the Division Bench of this Court in Ashok Kumar's case (supra) in the year 2015 for over a period of one decade, no such effort has been made to collect the quantifiable data so as to take some other view presumably under the notion that the constitutional provision of Article 16(4A) was not explicitly made applicable to the erstwhile State of Jammu and Kashmir by a Presidential Order. However, it is strange that after making application of whole of the Constitution of India lock, stock and barrel to the Union Territory of Jammu and Kashmir in the year 2019, the impugned Circular was issued by the Government of Jammu and Kashmir in the year 2022 whereby all the Administrative Departments were advised not to fill up the slots meantfor the reserved categories in promotion. 24. The Government of UT of Jammu and Kashmir has accepted before the Apex Court in terms of its additional affidavit filed in SLP(C) No. 3786/2016 with regard to providing of reservation in promotions as follows:-
"(viii) That during the pendency of the instant petition, various Constitutional developments have taken place with respect to HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 29 :: OA 1687/2022 erstwhile State of Jammu and Kashmir. In this regard, the Constitution (Seventy Seventh Amendment) Act 1995 was extended to the erstwhile State of Jammu and Kashmir by virtue of Constitution (Application to Jammu and Kashmir) Amendment Order 2019 issued by the President under sub clause (d) clause (1) of Article 370 of Constitution of India for giving benefit of promotion in service to the Scheduled Castes and the Scheduled Tribes, in addition to the existing reservation in the State (now Union Territory) of Jammu and Kashmir.
(ix) It is submitted that the basis of the judgment of the Hon'ble High Court that the provision enabling the State Government to enact provision providing for reservations in promotions had not been applied to the erstwhile State of Jammu and Kashmir has eviscerated. As on date, the entire Constitution of India, in its totality, including Article 16(4A) and Article 16(4B) apply to the UT. Therefore, it is submitted that impugned order liable to be set aside. 25. It is strange that on the one hand, the Union Territory of J&K has prayed before the Apex Court for quashment of the judgment of this Court quashing provisions relating to reservation in promotion, stating that the basis of the judgment of this Court that the provision enabling the State Government to enact provision, providing for reservation in promotions had not been applied to the erstwhile State of Jammu and Kashmir has eviscerated, whereas on the other hand the Respondent No.3-General Administration Department has come up with the impugned Circular No.10-JK(GAD) of 2021 dated 05.03.2021 directing all the Administrative Secretaries to keep the slots meant for reserved category employees vacant/unfilled. It is not comprehendible as to how the said directions can be passed in utter disregard to the constitutional provisions applicable to the UT of J&K with the application of the constitutional provisions in the year 2019.
26. The benefit of reservation in promotions is stated to be accorded all across India in accordance with Article 16(4A) of the Constitution of India and applying the directions issued in terms of Circular dated 05.03.2021 in denying benefits of reservation in promotion in UT of J&K amounts to HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 30 :: OA 1687/2022 denying/treating reserved category employees/candidates of the UT of J&K differently than the reserved category employees/candidates of the rest of the Country, which amounts to class legislation, which is antithetical to the concept of equality laid down in the Constitution of India. Be that as it may, since in its affidavit referred hereinabove, the respondent- UT of Jammu and Kashmir has taken a stand before the Apex Court with regard to its intentions to implement the reservation in promotions, therefore, denying reservation to all the members of the service, who are entitled to such reservation in promotions, amounts to denying them of their constitutional rights."
25. In the light of the above, we are of the considered view that the stance of the respondents in the present case - namely, to keep the reserved category roster points vacant in the cadre of Assistant Controller Drugs / Assistant Drug Analyst and to refuse to consider the applicants for promotion against those reserved vacancies - is unsustainable in law.
26. The second relief sought by the applicants pertains to maintenance of the roster register as per the J&K Reservation Act and Rules, 2005 with effect from the date of commencement of the said provisions. It is trite that reservation in promotion cannot be meaningfully implemented unless a proper post-based roster is maintained. Failure HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 31 :: OA 1687/2022 to maintain such roster, or arbitrary manipulation of the roster, results in denial of the statutory rights of reserved category officers.
27. In our view, once it is shown - as in the present case - that the department has not been properly maintaining the roster register in the Drugs & Food Control Organization, and that SC/ST roster points have either been left unfilled or diverted to Open Merit candidates, the only way to redress the situation is to direct the respondents to reconstruct the roster from the date of enforcement of the J&K Reservation Rules, 2005, identify the SC/ST roster points which fell due, and then hold a review DPC to consider eligible SC/ST officers, including the applicants, for promotion against those points.
28. We may also refer to Government Order No. 743-GAD of 2007 dated 28.06.2007, issued after the judgment of the Hon'ble Supreme Court in Suraj Parkash Gupta & Ors. vs State of J&K & Ors., wherein it has been laid down that promotion and regularization shall take effect from the date the employee has been placed in charge of the higher post or from the date of eligibility or availability of vacancy, whichever is later, and in all other cases from the date of issuance of HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 32 :: OA 1687/2022 the order. Though the present case concerns first-time promotional consideration, the underlying principle - that promotions cannot be arbitrarily ante-dated or denied contrary to rules - equally applies.
29. Having regard to the totality of facts and circumstances, and in particular to: (a) the eligibility of the applicants; (b) the availability of SC/ST roster vacancies in the cadre of Assistant Controller Drugs / Assistant Drug Analyst; (c) the statutory mandate of the J&K Reservation Act, 2004 and Rules, 2005; and (d) the constitutional developments post-2019 making Article 16(4A)/(4B) applicable to J&K, we are satisfied that the applicants have made out a clear case for grant of relief in terms of their prayers.
30. Accordingly, the Original Application is allowed, and the following directions are issued:
a) The respondents are directed to promote the applicants to the posts of Assistant Controller Drugs / Assistant Drug Analyst against the reserved category vacancies available to SC & ST categories in the Drugs & Food Control Organization, strictly in accordance with the mandate of the J&K Reservation Act, 2004 HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 33 :: OA 1687/2022 and the J&K Reservation Rules, 2005, and the applicable Recruitment Rules, by convening a DPC / Review DPC, as the case may be.
b) The respondents are further directed to maintain and/or reconstruct the roster register for the cadre of Drugs & Food Control Organization (including the posts of Drugs Control Officer / feeder cadre and Assistant Controller Drugs / Assistant Drug Analyst / promotional cadre) as per the provisions laid down under the J&K Reservation Act, 2004 and the J&K Reservation Rules, 2005 with effect from the date the said Act and Rules came into force / operation.
c) Applications are at liberty to make representation to the next higher post of Deputy Drugs Controller if the slots meant for SC /ST posts are vacant and the respondents are directed to consider the representation and make speaking order within 8 weeks from receiving such representation on relaxed standards as per the mandates of Jammu & Kashmir reservation act and rule HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 34 :: OA 1687/2022
31. With aforementioned directions, OA is Disposed of.
32. The Entire Exercise shall be completed within two months from the receipt of certified copy on this order.
33. No order as to cost.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)
Administrative Member Judicial Member
/harshit/
HARSHIT Digitally signed by
YADAV HARSHIT YADAV