S.B Sinha, J.— Leave granted.
2. Vexed question of inter se seniority between the appellants and the private respondents herein is in question in this appeal which arises out of a judgment and order dated 27-7-2005 passed by the High Court of Jammu and Kashmir at Srinagar in LPA No. 164 of 2004 and LPAs Nos. 6, 19 and 20 of 2005.
3. Names of the respondents were entered in List E on 25-4-1978. They were promoted on officiating basis on 19-5-1979.
4. The Government of Jammu and Kashmir, however, on or about 1-8-1985 issued a notification directing their promotion with retrospective effect ignoring the seniority of the appellants herein inter alia stating:
“(a) The abovementioned petitioners as well as non-petitioners, who were brought on Promotion List ‘E’ vide PHQ Orders Nos. 282 and 283 of 1978 dated 25-4-1978, barring those who face any moral stigma notwithstanding the fact that they were brought on Promotion List ‘E’ and have not so far been promoted as SIs, shall be deemed to have been promoted as SIs for the purpose of their seniority only w.e.f the date they were brought on List ‘E’ i.e 25-4-1978.
(b) The ASIs who were promoted as SIs, vide Kashmir Police Office Order No. 288 of 1978 dated 5-6-1978 and Jammu Range Police Office Order No. 158 of 1978 dated 7-6-1978 w.e.f 1-6-1978, shall also be deemed to have been promoted as SIs w.e.f 24-6-1978 for seniority purposes only and shall figure at appropriate places in the combined seniority list of SIs in order of their seniority.”
5. Realising that the said order may be held to be illegal by a court of law, by an order dated 3-12-1985 the same was cancelled. On the same day, however, by Order No. 1263 of 1985, promotions were directed to be granted with retrospective effect from 25-4-1978 i.e from the date on which the respondents were brought on Promotion List E.
6. Questioning the said order, a writ petition was filed by the appellants herein in the High Court. A learned Single Judge of the said High Court allowed the said writ petition opining:
“… Unless a person is formally promoted to the post of Sub-Inspector, he cannot press his claim that he has been promoted substantively to the post of Sub-Inspector merely on the ground of having been brought in the panel of eligible candidates in Promotion List ‘E’. … In such event, the private respondents, therefore, in terms of the order dated 25-4-1978, cannot be said to have been promoted to the posts of Sub-Inspectors. They have been only brought on the promotion list and their promotion orders had to be issued by the official respondents only subject to the fulfilment of the conditions mentioned against each by a separate/independent order.”
In regard to the question of seniority, it was held:
“It is not in dispute that the petitioners in both the writ petitions have been appointed on 25-4-1979 as Sub-Inspectors and their seniority, therefore, has to commence from that date notwithstanding that they have been put on probation for a period of three years. Therefore, the non-official respondents including Respondents 124 to 134, whose names figured in Order No. 141 of 1980 dated 14-4-1980 issued by DIG of Police, Kashmir, as officiating promotions against the vacancies of Inspectors/Sub-Inspectors undergoing practical training, who have been promoted after 25-4-1979 cannot claim to rank senior to the petitioners. It, therefore, follows that all those persons/respondents, who have been promoted after 25-4-1979 (when the petitioners were appointed as direct recruits), have to be termed as junior to the petitioners. Under Rules 382 to 399, modes of promotions to the higher rank specified therein are provided. The non obstante clause or expression used in Rule 399 further gives a discretion to the Inspector General of Police for making substantive promotions to the posts of Sub-Inspectors after holding oral/written test in addition to what is provided in other rules referred to supra.”
7. So far as the question of inter se seniority between the appellants and the private respondents is concerned, unhesitatingly it was opined that the appellants are seniors. The learned Single Judge held that the concept of retrospective promotion having been contemplated under the Rules, the manner in which promotion was effected was held to be illegal.
8. The Division Bench of the High Court accepted the said findings of the learned Single Judge. It, however, proceeded to determine the issue on equitable considerations opining that as both the appellants as also the private respondents were already promoted to the posts of Deputy Superintendent of Police in the J&K Police (Gazetted) Service, governed by another set of rules, the writ petition became infructuous and the direction of the learned Single Judge on the aforementioned premise to redraw the seniority list placing the respondents above the appellants in the seniority list of Sub-Inspectors was not necessary to be implemented.
9. Mr Paramjit Singh Patwalia, learned Senior Counsel appearing on behalf of the appellants, submitted that the Division Bench of the High Court committed a serious error insofar as it failed to take into consideration that unless and until the appellants are held to be entitled to promotion in terms of the extant rules, their cases may not be considered for promotion to the post of Superintendent of Police.
10. Indisputably, the matter relating to seniority and promotion is governed by the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (for short “the 1956 Rules”) and the Jammu and Kashmir Police Manual. Rule 24 of the 1956 Rules provides that seniority should be determined on the basis of initial appointment to the post. The appellants were appointed on 25-4-1979 as direct recruits in the post of Sub-Inspectors. The private respondents were working as Assistant Sub-Inspectors at the relevant time. In terms of the Jammu and Kashmir Police Manual, different registers are maintained. Regulation 382 of the Police Manual provides for promotion from one rank or grade to another rank or grade. Clause (3) of Regulation 382 reads, thus:
“382. (3) For the purpose of regulating promotion among enrolled police officers, six promotion lists, A, B, C, D, E and F shall be maintained. Lists A, B, C and D shall be maintained in the offices of the Range Deputy Inspectors General of Police, as prescribed in Rules 386, 387, 388 and 389 and will regulate promotion to the ranks of Head Constable Junior Grade, Head Constable Senior Grade and Assistant Sub-Inspector. Lists E and F shall be maintained in the office of the Inspector General of Police as prescribed in Rules 390 and 393(2) and will regulate promotion to the ranks of Sub-Inspector and Inspector.”
11. Regulation 384 of the Police Manual also provides for the power to make officiating promotions which in case of promotion to Sub-Inspectors and Assistant Sub-Inspectors was within the jurisdiction of Inspector General of Police. Clause (2) of Regulation 384 deals with officiating promotions. Clause (2) of Regulation 390 provides that entry in List E would be the entry point for the purpose of promotion to the post of Sub-Inspector stating:
“390. (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.”
12. Regulation 392 of the Police Manual provides for the method of filling up temporary vacancies in the rank of Sub-Inspector in terms whereof “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”. Regulation 398 provides for promotion register.
13. The relevant provisions of the Jammu and Kashmir Police (Gazetted) Service Recruitment Rules, 1984, being Rules 5, 14 and 20, read as under:
“5. Method of recruitment.—Appointment to the service shall be made—
(a) by direct recruitment;
(b) by promotion;
in the ratio and in the manner specified against each post in Schedule II.
14. Recruitment by promotion.—(1) There shall be a Departmental Promotion Committee constituted by the Government from time to time who shall examine the promotion cases.
(2)***
(3) 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.
20. Maintenance of seniority lists.—Seniority of the members of the service shall be regulated under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. The Administrative Department shall maintain an up to date and final seniority list in each grade of the service.”
14. It is not in dispute that if the order dated 3-12-1985 is set aside, the appellants herein would be held to be senior to those of the respondents. The order dated 3-12-1985 is ex facie bad in law. Not only no retrospective promotion could be granted as has been held by both the learned Single Judge as also the Division Bench, entry in List E, having regard to Regulation 390 of the Jammu and Kashmir Police Manual per se did not confer any right upon the respondents to be promoted from that date.
15. No executive order could be issued in derogation of the statutory rules far less a legislative Act. The Rules being statutory in nature and having been framed under the Jammu and Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) Ordinance, 1956 have statutory force, the executive order in question was required to be issued in consonance with and not in derogation thereof.
16. In State of Bihar v. Akhouri Sachindra Nath 1991 Supp (1) SCC 334, (1991) 16 ATC 936 this Court held:
“12. … It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service.”
17. In Kaushal Kishore Singh v. Dy. Director of Education (2002) 9 SCC 634 this Court stated the law, thus:
“5. 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.”
18. In State of Uttaranchal v. Dinesh Kumar Sharma (2007) 1 SCC 683 it was opined:
“34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa (1998) 4 SCC 456.”
19. Similarly, although the statute provides for grant of officiating promotion, but the same is not conducive in the sense that even after getting officiating promotion, one may be reverted to the original post held by him. We do not mean to say that the seniority would be reckoned from the date of confirmation but we only intend to point out that the Rules having been provided for officiating promotion, the learned Single Judge was correct in taking that factor also into consideration for the purpose of determining the validity of the impugned order before the High Court. The said order dated 3-12-1985 even otherwise appears to be mala fide having been passed for unauthorised purpose. If the said order dated 3-12-1985 is read with the earlier one being dated 1-8-1985, the intention of the Government to favour the private respondents herein becomes explicit. It is not expected of a Government to brazenly favour one set of employees so as to defeat the bona fide claim of the other set of employees. We, therefore, are of the opinion, that the impugned judgment cannot be sustained which is set aside accordingly. The appeals are allowed.
20. However, in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India, we direct that despite this order if any monetary benefit has been conferred upon the private respondents, the same may not be recovered.