STATE TIMES NEWS
JAMMU: In a series of petitions challenging the judgment of the Central Administrative Tribunal (CAT), which had quashed the draft redrawn seniority list of senior KAS officers, a Division Bench of the Jammu & Kashmir and Ladakh High Court (Srinagar Wing) dismissed the petitions. The Court observed that the petitioners had failed to demonstrate that the private respondents were empanelled for the anticipated vacancies.
The Bench, comprising Justice Rajnesh Oswal and Justice Sanjay Dhar, noted, “In fact, the minutes of the meeting dated May 29, 2008, clearly establish that the private respondents were considered against the vacancies for the year 2008. Moreover, it was not open to the Government to alter the seniority list to the detriment of the said respondents without giving them an opportunity of being heard. Once the Government accepted the judgment of the Tribunal, which had upheld the order dated June 24, 2011, it could not have altered the seniority list without challenging the said judgment through appropriate legal proceedings.”
It is worthwhile to mention here that a Bench of Central Administrative Tribunal (CAT) comprising its Chairman Justice L Narasimha Reddy and Administrative Member Jamshed Akhtar has quashed the draft re-drawn seniority list of senior Jammu & Kashmir Administrative Service members.
The applicants had challenged various steps initiated by the Government since April 1, 2020, for the revision of the seniority list of Jammu and Kashmir Administrative Services officers particularly in respect of appointments made to the Time Scale between January 1, 2004 and December 1, 2018.
After hearing Senior Advocate Abhinav Sharma with Advocate Abhimanyu Sharma appearing for the petitioners, the CAT observed, “it is no doubt true that the Rules mandate that the exercise of promotion to Time Scale of KAS is to be undertaken in every calendar year. However, for one reason or the other, the promotions did not take place from the feeder categories, during the years 2004 to 2007”.
“The reasons therefore cannot be reviewed or addressed at this stage. The fact remains that promotions took place, en bloc, in the year 2008. Once the officers are promoted, the manner in which the seniority must be fixed is contained in Rule 16 of the 1979 Rules”, the CAT said, adding “it is guided by the ranking, or the place, assigned by the DPC. In case, more officers than the one from the same feeder category are promoted, their inter se seniority is to be guided by their seniority in the feeder category and the respondents were under obligation to prepare a seniority list, strictly in accordance with Rule 16 of 1979 Rules”.
For the officers appointed up to December 31, 2003, a seniority list was published on September 16, 2008. By the time the exercise for preparation of seniority list of officers appointed between January 1, 2004 and December 1,.2009 was taken up, the Government published 2008 Rules on December 1, 2008.
“The Government has chosen to apply the parameters contained therein, for preparation of the seniority list of such officers. A tentative seniority list was published on April 21, 2010, inviting objections. As expected, 110 representations were received. In view of the complexity involved, the Government appointed a committee vide order dated September 24, 2010”, the CAT said.
The Tribunal further said that the tentative seniority notified vide Government Order No. 485-GAD of 2010 dated April 21, 2010 has been drawn in terms of the provisions of KAS Rules, 2008 which is incorrect.
“The seniority of an officer appointed under the KAS Rules, 1979 has to be determined in terms of the provisions of Rule 16 of these rules and not under Rule 18 of the KAS Rules, 2008; Junior Scale KAS officers cannot be given appointment in KAS from a date prior to the date when they had not acquired eligibility for such appointment in terms of the provisions of KAS rules as were in vogue at the relevant point of time”, CAT said, adding “modification of the provisions of KAS Rules by inserting an explanation through a Government order to facilitate the promotion of Junior Scale KAS officers of 2004 batch, cannot have an overriding effect on the basic rule. The said explanation was totally uncalled for”.
CAT further observed, “the basis for preparation of tentative seniority list dated April 21, 2010 as well as the redrawn seniority list dated August 5, 2020 is the 2008 Rules, and in particular Rule 15 (4) thereof. The said Rule has already been extracted. Here itself, we need to take note of the fact that in one of the OAs, that very proviso is challenged”.
“The doubt as to whether a rule can be made to cover a situation, which existed prior thereto, needs to be addressed. Though it may be akin to one of the making a rule with retrospective effect, on a close analysis, it may not appear to be so. At any rate, except in the case of the law of taxation and criminal laws, no prohibition against enactment of law with retrospective effect, exists”, the CAT said, adding “in a given case, service rules, can also be amended with retrospective effect. The only preparation one has to take is that such an exercise should not defeat the accrued rights of the members of the service”.
“There exists a provision for allocation of vacancies of time scale for various feeder categories that in a particular year though the eligible officers of a given feeder category were available and vacancies were allocated, the promotion could not be made for one reason or the other”, the CAT said, adding “in the subsequent years, the officers, who were eligible in earlier years, were considered and promoted to time scale of KAS. In such a case, the officer though promoted at a later stage, would be deemed to have been promoted against the vacancy, which was available in the preceding or earlier years”.
“We find that the very first premise does not get support from any provisions of the 1979 or 1980 Rules. It is only the second proviso, Rule 5 (3) of the 1979 Rules, that throws light on this aspect”, the Tribunal said, adding “even this does not provide for allocation of any specific number of vacancies, for the respective feeder services. The endeavour is only to undertake a broad review, after an interval of 5 years, reckoned from July, 2005. Before such review could take place, the 2008 Rules came into service”.
“The second is that the record is totally silent as to whether any feeder services were allocated the vacancies of time scale of KAS, in any particular year; and that the officers of the concerned departments were denied the promotion”, the Tribunal said, adding “”it is only the DPC, which can determine the eligibility of the officers with reference to the vacancies of any particular year, and not anyone else. Therefore, Rule 15(4) of the 2008 Rules cannot be sustained in law, both on account of its lacking in factual or legal basis, and its being opposed to the very concept of fixation of seniority”.
“Once a final seniority list is published, the Government becomes functus officio for all practical purposes. The aggrieved parties have to approach the Court or Tribunal for redressal of their grievance. The respondents did not refer to any provisions of law for undertaking the review of the final seniority list dated June 24, 2011”, the CAT said, adding “there is no jurisdiction or even justification, for the Government to appoint a Committee to review the final seniority list, much less to publish the revised seniority list dated August 5, 2020”.
“This is as to whether leave and training vacancies can be treated as part of the cadre, and about the place that can be assigned to such officers in the seniority list. The strength of the cadre is clearly defined under the 1979 Rules, and the promotions/appointments in the time scale are accordingly made. Those rules do not provide for inclusion of any leave or training vacancies for the purpose of promotion”, the CAT said, adding “if the Government has to fill the leave and training vacancies by way of promotion of the officers from feeder categories, it can be only as a measure to meet the administrative exigencies, and it cannot be fit into the one, under the rules”.
“Any facility created in this behalf, under the 2008 Rules, does not govern the promotions made, before those Rules came into force. Though the promotions/appointments so made cannot be treated as invalid, such appointees/promotees cannot be placed above those, who are promoted/appointed against regular vacancies”, the Tribunal said, adding “the manner in which the service rendered prior to regular promotion against the time scale of KAS would be governed by the principles laid down by the Supreme Court in Suraj Prakash Gupta and Others Versus State of Jammu and Kashmir & Others”.
With these observations, CAT dismissed the petitions challenging the final seniority list dated June 24, 2011 and set-aside the order dated order dated February 1, 2000,constituting a committee to review the final seniority list dated June 24, 2011; and the Government order dated August 5, 2020, revising the final seniority list dated June 24, 2011.
The CAT also held that Rule 15 (4) of 2008 Rules and Clause (1) of the proviso thereof are illegal and contrary to law.
Against the judgment of CAT, present petition was filed.
DB after hearing battery of lawyers, observed that 51. As a matter of fact, after the order dated March 30, 2021 was passed by the Jammu Bench of Central Administrative Tribunal, the official respondents issued a seniority list, whereby the private respondents Dr. Ghulam Nabi Itoo and Tariq Hussain Ganai were placed at Serial No. 200 & 202, respectively. Both the private respondents challenged the seniority list dated April 7, 2021 on the grounds that only option open before the official respondents was either to file a writ petition against order dated March 30, 2021 passed by the learned Tribunal or to file a review application before the learned Tribunal and once the seniority list was upheld by the Tribunal, the issuing Authority had become functus officio. It was also contended that fixation of cut off had nothing to do with the existence of vacancy and otherwise also, fixing of January 1, 2008 for considering vacancy position is contrary to Rules of 1979. It was also contended that Rules of 1979 do not provide for year wise preparation of select list.
The petitioners objected to the writ petition by stating that the private respondents were appointed against the leave vacancies as there were no clear vacancies available on January 1, 2008, as such, seniority position was changed subsequently. It was also contended that the Rules of 1979 provide for preparation of year wise select list for the vacancies which occurred in a calendar year.
DB further observed that the Tribunal vide order dated January 25, 2023 upheld the contentions of the private respondents and quashed the seniority list dated April 7, 2021. The order dated January 25, 2023 has been impugned on the ground that private respondents were inducted to time scale of JKAS against anticipated vacancies of the year 2008 and they were required to be considered only in the year 2009, as vacancies till January 1, 2008 only were to be filled.
Rule 6 of Rules of 1979 envisages that the Government on every occasion on which selection has to be made for appointment to the service, shall set up a Selection Committee for making selection under Rules and further Rule 5 (3) (a) of Rules 1979 provides filling up vacancies of time scale posts, occurring in calendar year. The learned Tribunal has come to conclusion that the vacancies for the private respondents were available in the year 2008 as is evident from the minutes of meetings of Establishment Committee dated May 29, 2008 and further that the Rules of 1979 do not provide that Selection Committee will meet on a particular date(s), month(s) or year.
Abhinav Sharma, Senior Counsel for some of the petitioners also contended that once the private respondents have accepted order dated August 13, 2021, whereby the selection grade was released in favour of contesting parties and have not challenged the same, the private respondents cannot assail the seniority list dated April 7, 2021. It needs to be noted that the grievance of the private respondents was only to the extent that they were placed lower in the seniority list dated April 7, 2021 as against their placement in the seniority list dated April 26, 2011, which was upheld by the learned Tribunal vide its judgment dated March 30, 2021. If the seniority list dated April 7, 2021 is quashed to the extent of private respondents, then as a natural consequence, the seniority list dated April 26, 2011 except to the extent of placing 49 members, adjusted against training and leave vacancies, at the bottom, would govern the seniority. Therefore, this contention of the petitioners is not sustainable in the eyes of law. The petitioners have not been able to demonstrate that the private respondents were empanelled for the anticipated vacancies. In fact, the minutes of the meeting dated May 29, 2008 clearly establish that the private respondents were considered against the vacancies of the year 2008. Apart from this, it was not open to the Government to alter the seniority list to the detriment of the afore-named respondents, without hearing them and once the Government accepted the judgment of the Tribunal, whereby order dated June 24, 2011 was upheld, it could not have altered the seniority list without challenging the judgment by way of appropriate proceedings.
In view of the above, we do not find any legal infirmity in the impugned order passed by the Tribunal, so as to warrant any interference at the end of this Court.