Rajesh Gupta
Jammu, May 15: In O.A./484/2025 (SRINAGAR) [ PROMOTION ] With M.A./592/2025 MA For Joint Application titled TAWSEEF IQBAL AND OTHERS Vs JAL SHAKTI DEPARTMENT after hearing CAT ordered as under:-
1. The applicants 73 in number, through the medium of the instant O.A. have sought for the following reliefs: a. By issuance of appropriate order or direction, Government Order No. 104-JK(JSD) of 2025 dated 30.04.2025 to the extent it accords sanction to the promotion of respondents 3 to 105 retrospectively/notionally as shown in the order, be quashed and set aside. b. By issuance of appropriate order or direction, the respondent No. 1 be directed to notify up to date and final seniority list of Assistant Engineers in the J&K Engineering (Gazetted) Service-Hydraulics Wing (Jal Shakti) and place the respondent No. 3 to 105 below that of the applicants. c. By issuance of appropriate order or direction, the respondent No. 1 be restrained from considering the respondent No. 3 to 105 for placement/ adjustment/promotion as against the post of Assistant Executive Engineer prior to that of the applicants. d. Such order or direction which this Hon'ble Tribunal may deem fit and proper in the given facts and circumstances of the case.
2. Alongside the main reliefs, the applicants have also sought for an interm relief: Pending adjudication of the OA, the Hon'ble Tribunal may be pleased to stay of the operation of Government Order No. 104-JK (JSD) of 2025 dated 30.04.2025 to the extent it grants notional/retrospective promotion to that of the respondents 3 to 105 and the respondent No. 1 be restrained from considering the case of the respondents 3 to 105 for placement/promotion as against the post of Assistant Executive Engineer prior to that of the applicants. 3. What emerges from the pleadings of the O.A. are that vide various orders, the J&K Public Service Commission recommended the appointment of the applicants as Assistant Engineer (Civil) in the Jal Shakti Department. As regards the appointment and other conditions, the services of the applicants are governed by the Jammu & Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978 notified vide SRO 380 of 1978.
4. It is stated that the private respondents no. 03 to 105 were appointed as Junior Engineers vide Govt. Order no. 185-PW (Hyd) of 2016 dated 24-06-2016 and accordingly a tentative seniority list of Junior Engineers (Civil) Degree Holders of the Jal Shakti Department as it stood on 01-01-2024 was notified.
5. The applicants have challenged the impugned Government Order No. 104-JK (JSD) of 2025 dated 30-04-2025 wherein as recommended by the Jammu and Kashmir Public Service Commission/Departmental Promotion Committee, sanction is accorded to the regular promotion of the Junior Engineers (Degree Holders) as Assistant Engineers in the Jal Shakti Department in the Pay Level-8A (50700-160600) (Pre- revised in the Pay Band-3 Rs. 9300-34800 with Grade Pay of Rs. 5200/-) with effect from the dates shown against each official.
6. The applicants are primarily aggrieved of the order impugned to the extent that the private respondents have been accorded notional seniority retrospectively which according to the learned Sr. counsel could have not been done. The applicants have raised an issue for determination as to whether in law it is permissible to grant notional/retrospective promotion and thereto any fixation of seniority from the date the employees were not even borne in the cadre.
7. Learned Sr. counsel for the applicants submits that an employee who was not even borne in the cadre could have not been given retrospective promotion as according to him, the service rules specifically prohibit such a promotion. He has challenged the order impugned on various grounds as have been reflected in the O.A. He further submits that, as per the mandate of Rules of 1978– the private respondents no. 03 to 105 have a right of consideration for promotion as against the posts available in the 60% quota reserved for Junior Engineer Degree Holders and submits that Rule 5 provides for method of recruitment and as per Rule 8– the persons appointed against substantive vacancy, whether directly or by promotion, to any class or category in the service shall be on probation for two years and their confirmation in the service shall be regulated under the provisions of CCA Rules, 1956.
7.1 Learned Sr. counsel further submits that Rule 11 provides that seniority of the members of the service to be regulated under the provisions of CCA Rules of 1956 and further submits that Rule 23 of the CCA Rules provides for appointment of members and Rule 24 lays down that the seniority shall be determined by date of first appointment to such service, class, category or grade, as the case may be.
8. It is further contended that issuance of the impugned order is an outcome of a colorable exercise of power for oblique motives and considerations; and has been issued only to confer upon undue and illegal benefit upon respondents 03 to 105.
He further submits that had it not been so, the respondents no. 1 and 2 would have strictly complied with the mandate of the rules governing the appointment by promotion and by adhering to the law on the subject.
As such submits that the order impugned is per se illegal, smacks of legal malice and an outcome of malafide exercise of power. He submits that by issuance of the order impugned, the mandate of Article 14 and 16 of the Constitution of India has been violated with impugnity and according to him, the private respondents no. 03 to 105 being members of non-Gazetted Engineering service have been considered for appointment by promotion to another service i.e. Engineering Gazetted Service while passing the order impugned; and according to him, the appointment is by promotion to another service and submits that the private respondents in law would become members of the gazetted service only on the date they are appointed i.e. the date the order impugned has been issued.
9. Learned Sr. counsel submits that admittedly prior to the issuance of the impugned order, the private respondents no. 03 to 105 were working as Junior Engineers while as the applicants on account of their appointment being by direct recruitment already stood appointed against the post of Assistant Engineers and as such were members of the Gazetted Service prior to that of the private respondents no. 03 to 105.
He submits that the order impugned as such not only disturbs the seniority of the applicants as against the post of Assistant Engineers required to be fixed on the basis of date of appointment as per the mandate of Rules of 1978 read with Rule 24 CCA Rules of 1956 but it also violates the rights of the applicants for consideration for being promoted as against the post of Assistant Executive Engineers.
10. Learned Sr. counsel while advancing his arguments has referred to the latest judgment of the Hon'ble Apex Court in case titled as Bihar State Electricity Board and Others Vs. Dharamdeo Das reported in 2024 SCC Online SC 1768 wherein he submits that their lordships have held that "retrospective promotion cannot be granted nor can any seniorty be given on retrospective basis from the date where an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime". He has also referred to the judgment of the Hon'ble Apex court in case titled as Sunaina Sharma & Ors. v. State of J&K wherein learned Sr. counsel submitted that "seniory must be reckoned only from the date, the person entered into the service". He has referred to the judgment tilted as State of Bihar v. Akhouri Sachindra Nath 1991 Supp (1) SCC 334 wherein their lordships have held that "no person can be promoted with retrospective effect from the date when he was not borne in the cadre so as to adversely effect others.
It is well settled by several decisions of the Court that amongst members of the same grade, seniority is reckoned from the date of their initial entry into the service".
He has also referred to the latest judgment of the Hon'ble High Court of J&K and Ladakh in case titled as Mohammad Ashraf Mir v. J&K State Forest Corporation and Ors. passed in WP (C) No. 1841/2019 pronounced on 06-05-2025.
11. Learned counsel for the respondent no. 1, Mr. Rais ud din Ganaie, DAG, while rebutting arguments of the applicants submits that the applicants herein cannot deprive the private respondents of their promotion– that too at their back without affording an opportunity of being heard to the private respondents.
12. Per contra, learned Sr. counsel submits that this Court is not powerless to exercise its powers by showing indulgence only to protect the lis till the matter for grant or refusal of the interim relief is finally decided.
He submits that he has a sound prima facie case in his favour, balance of convenience also lies in his favour and in case, the Court at this stage does not show indulgence, the lis of the applicants will be rendered infructuous.
13. Heard learned counsel for the parties and perused the material on file.
14. Issue notice. Mr. Rais ud din Ganaie, DAG for respondent no. 1 and Mr. Shah Amir for respondent no. 2 accept notice and are granted one week's time to file their detailed response.
As regards private respondents no. 03 to 105, in terms of the Rule 11 of the CAT Procedure Rules of 1987: 11. Service of notices and processes issued by the Tribunal .- [(1) Notices to be issued by the Tribunal may be served by any of the following modes- (i) service by the party itself; (ii) by hand delivery (dasti) through a process server; (iii) by registered post "with acknowledgement due"; (iv) [ through the concerned Head of Office of the same Department:]
Having regard to the private respondents in the instant case, we deem it appropriate to serve the private respondents through the concerned Head of the Office i.e. Respondent no. 1 as the private respondents are the employees of Respondent no. 1.
15. Learned counsel for the applicants to serve the private respondents no. 03 to 105 by itself through the concerned Head of the Office of the respondent department within a period of one week and the counsel for the applicants shall submit the service affidavit before the registry.
Learned counsel for the applicants shall ensure that the unserved respondents are served within a period one week without fail, along with the complete paper book of the O.A.
16. In the meanwhile, without commenting upon the merits or otherwise of the case, at this stage, subject to objections of the other side and till next date of hearing, the notional effect, only to the extent of date of regularisation as Assistant Engineer as it relates to the private respondents no. 03 to 105 in Government Order No. 104-JK (JSD) of 2025 dated 30-04-2025, shall not be given effect to.
17. Alteration, modification on motion.
18. List on 27-05-2025 in top 10 matters immediately after fresh matters. Prasant Kumar Member (A)
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